The infinite expanse of the sky above has always ignited the spark of human curiosity since time immemorial. The drive to discover what secrets the universe entails has only been growing stronger and more potent. This is reflected in the almost surreal rate at which humans have managed to develop the technologies required to explore that vast infinite beyond the realm of the earth.
Through this meteoric rise in technology, we have been able to witness the domain of space being used in ways that were unimaginable even just a decade ago. In the context of the shifting climate of innovation in the field, it becomes relevant to touch upon the question of whether the technologies driving humanity’s move into space have developed to the extent of rendering some of the basic principles of space law redundant and ignored, especially in regard to the militarization of space.
The present scenario presents quite a discouraging picture, where it seems that space has become a platform to leverage and exert one’s dominance over jurisdictions which are not as advanced. Moreover, the existing regulatory regime of space law don’t seem to be agile or flexible enough to sufficiently address the present situation and concundrums.
The Genesis of Space Law
Before proceeding further, it becomes significant to understand the background of space law and the intentions behind its inception. The year 1957 marked a colossal change in the script of human history, due to the launch of the peculiar, round-shaped satellite Sputnik into the Earth’s orbit by the Soviet Union which marked mankind’s first foray into the realm of space. Given the acrimonious climate brought about by the Cold War, it was speculated and feared by many that space would soon be morphed into a battleground of sorts. Yet another field would be laid out for the world’s superpowers to claw at each other for supremacy. There were also bona fide concerns that the less developed and poorer nations would be left behind in the charge towards space exploration, taking into consideration the immense amount of resources and wealth required to actually enter into the domain of space. Thus, it was assumed that if left unchecked, space would end up as nothing more than a field left to the exploitation of those few dominant countries equipped with the resources necessary to explore it.
Keeping this in mind, shortly after Sputnik’s launch, the United Nations constituted the Committee of the Peaceful Use of Outer Space (COPOUS). The Committee that has played a pivotal role in the drafting and creation of the five major international treaties on space and it should be kept in mind that these treaties form the foundational backbone of international space law. The most significant and far-reaching of them being, The Outer Space Treaty.
The Outer Space Treaty – The Prohibition on Weaponizing Space
This treaty is one that forms the very basis of laws pertaining to outer space. Its creation was catalysed by the landing of Luna IX on the moon in 1966. It was drafted as the second ‘non-armament’ treaty after the Antarctic treaty. Moreover, several of its provisions were laid down along the lines of its predecessor. Its objective was to stave off the possible harm or injury that may have been caused if countries were allowed exclusive rights and privileges to exploit celestial resources for their own gain. As mentioned above, this was, at the time a growing concern of the international community. It was also drafted in view of preventing the transformation of space into a battle ground of a new, novel kind of ‘colonial competition’. The other four conventions and treaties which have subsequently come across in the domain of space law have built upon the principles outlined in the outer space treaty. This treaty can absolutely be stated as being the most fundamental and significant of all the international treaties regulating activities in outer space.
A substantial principle that was put forth through Article IV of the treaty was the prohibition of weapons of mass destruction in orbit or stationing them in any other manner in outer space. This was extended towards covering other celestial bodies as well. Essentially, the aim was to ensure that any piece of innovation and discovery predicated in the arena of outer space would have to be peaceful and should benefit mankind as a whole.
A Narrow and Deficient Approach
This push towards preventing the militarization of the realm of space hasn’t been propagated in a manner that is all-encompassing. The way in which the stipulations have been drafted haven’t been able to keep up with advances in military technology. The inflexible nature with which the treaty has been drafted is a detriment to its underlying objectives that have been outlined above.
To expand upon this, it becomes relevant to look into the creation and spread of a certain branch of weaponry referred to as intercontinental ballistic missiles, or ICBMs for short. Before proceeding further, the physicality and nature of these weapons must be discussed. An ICBM is essentially a ballistic missile with a range of over 5,500km that utilizes the vast atmospheric drag-free expanse of space to propel itself over extremely large distances. The apogee or the highest point that such missiles reach is often on the lines of 2000km. It should be pointed out that the Karman Line, a mark of demarcation that is widely accepted as being the point over which outer space starts, is set at only about 100km.
Therefore, clearly, we can categorize these ICBMs as falling into the controversial ambit of weapons that utilize the resources of space (In this case, zero gravity) to cause massive amounts of damage. However, despite the creation, construction, and testing of such weapons (ICBMs) at an increasingly rapid pace all over the world, the same has never drawn the ire of space law.
The same can be attributed to a probable oversight or shoddy drafting on the part of those who constructed the treaty, both of which are criticisms that have been leveled at the treaty in several instances, including the provision in question. Specifically, it was stated in the treaty that ‘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 it’. Over here, the words chosen become incredibly relevant, the use of terms such as ‘install’, ‘place’, and ‘station’ implies a certain amount of permanence in terms of how these weapons were to utilize the realm of space.
What this means is that through its drafting, the treaty has either intentionally or inadvertently left uncovered from its ambit the use of weapons that travel through outer space temporarily to meet their target. Essentially what could be inferred is that the use of ICBMs wouldn’t be in contravention of the precepts laid down through the treaty.
A Perilous Delusion
It is through this ‘loophole’ that several experts have been able to proudly exclaim that the outer space treaty is one such piece of regulation that has never seen any violations over its long history. This is an assertion relied upon by many when citing the so-called ‘success’ of the regulation. However, the glaring dearth of regulations governing the use of such weapons, coupled with their destructive capabilities, makes this assertion and celebration premature and reckless.
At this juncture, it becomes significant to point out that there exists only one comprehensive and binding international treaty that exists aiming to prohibit the spread and use of nuclear weapons, the Treaty on the Prohibition of Nuclear Weapons. However, amongst the 5 countries across the world that possess the devasting capacity to launch ICBMs, none of them are signatories to the aforementioned treaty.
Therefore, the restrictive wording of the Outer space treaty has 1) enabled the free testing and creation of such weapons, especially those which are nuclear in nature, owing to the lack of any other effective restriction pertaining to this branch of weaponry and 2) has struck at the core of space law itself. As has already been illustrated, the founding rationale behind the creation of this law has always been to facilitate the peaceful use of outer space for the benefit of all mankind. This delusion of success and indifference is inhibiting the ability of the law to adapt and change to meet this objective. Undoubtedly, in this scenario, efforts must be directed towards a comprehensive revision of these provisions to include aspects of technology that may not have been easily anticipated by those who drafted them at the time.
The Way Ahead
The relentless and indomitable human spirit will ensure that mankind will continue to endeavour to spread its footprints through the expanses of the universe. The Outer Space Treaty has remained largely unchanged since its inception in 1967, yet the advances in technology seen from that time have been unprecedented and rapid. As several other nations lay claim to that mysterious region that lies beyond our own planet, it is vital for space law to adapt and accommodate to the rapidly changing needs and geopolitical climate.
By Advik Rijul Jha
Advik Rijul Jha is an India-qualified lawyer who has been practicing at the Supreme Court of India and High Court of Delhi. He is currently a Law Researcher with the Delhi International Arbitration Centre. The views expressed here are personal.
The views in this post are solely the author’s own and do not necessarily reflect the opinions or perspectives of the Global Space Law Center.
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The CSU Global Space Law Center
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