The 1967 Outer Space Treaty contains three important principles. Article II spells out the principle of non-appropriation, Article III requires all activities in outer space to conform with international law, and Article IV announces the principle that the Moon and other celestial bodies shall be used for peaceful purposes. The question was posed whether these principles continue to be effective, or whether the principles of non-appropriation and peaceful purposes are under threat.
One key issue in raising this question is the relationship between peaceful purposes and war fighting in space. There is extensive use of space technology in terrestrial warfighting today, from telecommunications to tracking and navigating troop movements on land and at sea and in the air, to operating many weapons systems. This situation creates a high complexity for international humanitarian law because space is already implicated in warfare, even if no conflict has to date taken place in outer space. Moreover, space is already militarized to a certain extent because of this interrelationship. Therefore, it must be asked whether the “peaceful purposes” principle is already defunct.
Some experts took the firm standpoint that no article of the Outer Space Treaty is defunct. Rather, the treaty must be considered as one that brings order to space. The recent Congressional hearing presided over by Senator Cruz was cited, where the general conclusion was also drawn that the treaty is still strong and relevant. Asked whether current activities interfere with the treaty, one expert answered that the treaty does in fact make a difference for restraining behaviour in space.
As pointed out by one expert, there is a common misunderstanding that the treaty restricts the use of space to peaceful purposes, when in fact the treaty only contains a restriction to peaceful purposes regarding the Moon and other celestial bodies. Furthermore, when the treaty was negotiated in 1967, the United States, the Union of Soviet Socialist Republics (USSR), and the United Kingdom already had militarized space. Therefore, the principle contained in Article IV regarding the Moon and other celestial bodies cannot be expanded to space in general. Moreover, it must be acknowledged that Article IV only prohibits the use of nuclear weapons and other weapons of mass destruction and not the use of conventional weapons. Moreover, it has been argued that weapons of mass destruction, which are mainly nuclear weapons, are only prohibited in orbit. But weapons may be carried through space, for instance by way of long-range missiles.
One expert also pointed out the importance of defining the meaning of “peaceful.” Does it imply simply non-aggressive uses, or does it exclude all military activities? This issue involves the problem of the dual-use nature of space, one example of which is Global Positioning Systems(GPS), which was originally developed for military purposes but is now also used by civilians for navigation, ATMs, cell phones, and more. This example applies to many other space technologies.
Another important distinction raised was the difference between “militarization” and “weaponization.” One expert argued that the line of weaponization, defined as the use of weapons in space, has not been crossed yet. There have been no weaponized attacks in a conflict in space; weapons have only been tested in space so far. But other experts questioned this conclusion and argued that it was debatable whether the line had been crossed or not because there are many ways of attacking or interfering with a satellite other than with a kinetic strike weapon. One of the expert emphasized that the near-universal agreement that “peaceful purposes” includes many military activities so long as they are not aggressive can be illustrated by the recent shift in Japan’s approach. For many years, Japan had argued that “peaceful purposes” prohibit all military activities; however, it recently decided not to limit itself more than necessary and expanded its definition and its space capabilities accordingly.
One of the experts also pointed out that the concept of stability might be useful when discussing the weaponization of outer space: we should be looking to develop a stable domain rather than trying to define the limits of weaponization.
A debate arose as to whether the Outer Space Treaty is a treaty of principles, setting only aspirational goals, or whether it is a law-making treaty. There was a majority agreement that the treaty is more than merely aspirational but that there are some obligations that are weaker than others in their formulation. For instance, the Outer Space Treaty does not prohibit the use of anti-satellite weapons. Another expert added that the Vienna Convention tells us how to interpret the treaty, including the need to look to its object and purpose. Given the context in which the treaty was negotiated and the language it contains, even the weaker more “aspirational” terms must be considered to have effect in the sense that the intention was to prevent an armed conflict taking place in space. The experts agreed that as a matter of policy, we should continue to prevent this from taking place, even as many countries are preparing for the eventuality.
Another point of discussion was the explicit reference in Article III of the Outer Space Treaty to the UN Charter. According to Article 2(4) of the Charter, the use of force is prohibited unless authorized under Chapter VII by the UN Security Council, or unless in lawful self defense under Article 51. The difficulty is defining what constitutes an attack under the Charter when it comes to space activities. This question has been left for further discussion. The question was also raised whether the Outer Space Treaty is applicable at the same time as the law of armed conflict/international humanitarian law, or whether the latter overrules the treaty as lex specialis (according to the rule of international law that a more specialized law overrides a general law). This notion, however, was not agreed upon by most of the experts. Rather, it was pointed out that the Outer Space Treaty is a law-making treaty that stays in effect during armed conflicts. For example, the first Gulf War is often referred to as the first “space war” because technologies played an integral role in military operations for the first time, and the Outer Space Treaty remained in force. The question is merely how to integrate these bodies of law, especially if an armed conflict reaches into the space domain.
Another expert added that according to Article I of the treaty, the use of space shall be carried out for the benefit and in the interests of all countries: it was therefore argued that the kinetic attack of satellites would be counter to the benefit of many nations.
To organize the foregoing arguments, one must distinguish between jus ad bellum, which concerns the legality of the use of force, and jus in bello, which concerns legal rules during an armed conflict (i.e., the law of armed conflict/international humanitarian law). Jus in bello rules are neutral on the issues of whether the armed conflict was begun lawfully or who the aggressor was. Because the United Nations Charter aims to prevent armed conflicts, the “peaceful purposes” principle should play an important role in the prevention of war. But the principle may not be consequential during an armed conflict, when it may become permissible to use space technologies in warfare.
Regarding the question as to whether satellites can be legitimate targets in war, one expert argued that under international humanitarian law, anything that falls under the definition of a military objective can be targeted, and a satellite providing services for military operations could therefore be targeted. According to another expert, however, this statement is only partly true because there are also other requirements under international humanitarian law, such as the proportionality principle: targeting of a dual-use satellite may have disproportionate collateral damage. Furthermore, the kinetic destruction of a satellite is likely to be disproportionate to any military advantage because the space debris resulting from such destruction would be uncontrollable. The experts agreed that this decision mainly depends on the factual circumstances, however.
One expert expressed the view that states usually have an interest in not attacking satellites. After all, States might be deterred by the thought that their own satellites might be targeted as well. Given the fact that satellites have not been destroyed during any terrestrial armed conflict, although they could have been targeted, it was argued that there is a de facto agreement not to attack satellites during armed conflicts. Many experts disagreed with this proposal, at least regarding the development of legal norms. It is important to keep in mind, though, that there are many non-kinetic ways to target a satellite, including cyber, laser, or radio interference with the satellite itself or with the ground station with which it communicates. There might be a political norm not to attack, however.
China was accused of violating Article IX of the treaty when, in 2007, it carried out what is widely understood to be an anti-satellite weapon test. During this test, it destroyed one of its own obsolete satellites, generating a massive amount of debris in the process. Moreover, it has been argued that countries do not really want new norms and regulations. Another expert criticized the assertionthat there is no appetite for new norms and argued that there should be one for crystalizing norms. Although it might be difficult to find agreement among all States. There should be collective recommendations, and even the United States military would favour more clarity on existing norms, according to the expert. The example was given of the current project to develop the Woomera Manual on the International Law of Military Space Operations. This manual, like manuals before it on international humanitarian law applicable to warfare at sea, in air, and in cyberspace, can reflect existing customary law, based on State practice and opinio juris (the belief of States that they are under a legal obligation to behave in a certain way). These Manuals do not represent the development of new norms, but rather the clarification of how existing law applies in new situations, such as in the space domain.
There is a difference between policy norms and legal norms. It might be that States do not even have to go as far as recognizing new legal norms because policy norms may be sufficient. Accepting policy norms can be understood as a pragmatic standpoint because there is an interest in avoiding weaponisation and the targeting of satellites. Some experts, however, raised doubts regarding the usefulness of non-binding norms, especially because policy norms are often weak in the security dimension.
It was pointed out that there already are several normative (non-binding) agreements in place, namely three sets of recommendations as well as two guidelines on the Long Term Sustainable Use of Outer Space, developed by the Working Group of the Committee on Peaceful Uses of Outer Space (COPUOS). Guideline 6 seems to be especially useful because it stipulates that space is to be used only/exclusively for peaceful purposes—this goes further than the Outer Space Treaty which only specifies that the Moon and other celestial bodies are to be used for peaceful purposes. Therefore, it is not correct to say that we need to come up with new rules. Rather, we must examine whether and how States have implemented these existing norms. The Outer Space Treaty will not be the last word.
Another concern raised is the changing technological environment in space and the question of whether the law has taken these changes into account. When the Outer Space Treaty was developed, there were only 24 satellites in space. Today we are much more dependent on satellites, and there are many more actors in space, both States and commercial actors. We need to think about norms in a different way than the treaty norms of the twentieth century.
In anticipation of the commercialization of outer space, one must highlight Article VI of the Outer Space Treaty, which requires States to “authorize and continually supervise” all national activities in space, including commercial and private activities. It was argued that Article VI is law-making but not self-executing, meaning that the treaty must be implemented into national law. Therefore, domestic law controls the legal boundaries of private enterprises like SpaceX and Blue Origin. At some point we can anticipate private military corporations operating in space, although the Outer Space Treaty does not mention those. The response by most experts was that Article VI is still important because the State remains liable for private entities in space. A private person may breach the treaty, but the State will be liable.
It is a fact that there already exists a market in satellite rights when it comes to communication satellites and international radio regulation. Moreover, there is a secondary market in radio frequency rights. National rules deal with this issue in two ways: either the frequency rights allotted to a country by the International Telecommunications Union (ITU) are assigned according to a planned spectrum, or there is a “race to the courthouse” phenomenon. Usually, the more technologically advanced the State is, the more rights have been allotted to it. This can be considered a form of appropriation. It might be said that this system is unfair and that we need a different solution. The orbital rights are not held in fee simple and one cannot trade rights allotted by the International Telecommunications Union (ITU). Rather, there is a licensing administration, and there will be a private law agreement between the competing entities, which allows one entity to use the other’s rights. Moreover, there are agreements to withdraw a competing filing for a particular frequency right, in exchange for a certain amount of money. To clarify, it was noted that the International Telecommunications Union(ITU) does not allocate physical space but only the use of an orbital slot and of radio frequencies. It was argued that because there are no property rights, the use of the word “appropriation” does not fit in these circumstances. Also, the long-term use of the same orbit does not constitute appropriation.
According to one of the experts, the International Telecommunications Union(ITU) legal regime is not much different from the regime allowing deep seabed mining or fishing on the high seas. The fact that the treaty itself does not allow appropriation does not mean that States cannot agree to it under a new legal regime. It was argued that asteroids should be allowed to be mined as fishing is allowed in the seas. Others disagreed with this proposal because of the lessons learned from over-fished oceans. There is currently a debate among international lawyers with respect to property rights regarding the resources obtained in space. The United States passed the “SPACE Act” in 2015, asserting that it would protect exclusive rights on United States entities to extract, use, and sell resources in space, and Luxembourg followed suit with a similar yet more expansive law. Some lawyers argue this is not in breach of the Outer Space Treaty; others argue that it is. It was noted that the developing world takes the latter position. In sum, there is no universal agreement on whether one obtains property rights on resources obtained in space.
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