Tyranny of Superpowers in Outer Space (Part-2)

Lovika Jaiswal

The legal framework of ISS (International Space Station)[1] is an illustrious document that exhibits the application of all domestic law and covers the aspects of intellectual property rights, including the criminal activities that may occur at ISS. It is not a perfect model[2] but it can be treated as a good propelling idea for other nations to come out with domestic laws. ISS was built by the collective effort of various countries and it represents 15 Countries of the world community. If the Indian Space Station is looking forward to a similar endeavor, then it is better if India comes out with space legislation. The Indian Space Station mission is going to be India’s first manned mission and fourth in the world after the USA, China and Russia. Therefore, the man being sent to Space will be covered and governed by the 1968 Rescue Agreement.

In 2007, China has flaunted its military prowess in outer space by destroying its outdated weather satellite by using the prototype anti-satellite missile.[3] This attempt by China is considered as armament in outer space by the international community, which has been widely criticized. Not leaving alone the earth, thus, providing an impetus to other nations for arms race in space as well. Militarization or weaponization of space technology is another issue on which international space law is silent. Weaponization includes ‘include the placing of orbital or suborbital satellites with the intention of attacking enemy satellites, using ground-based direct ascent missiles to attack space assets, jamming signals sent from enemy satellites, using lasers to incapacitate enemy satellites, plasma attacks, orbital ballistic missiles, and satellite attacks on Earth targets. These can be further classified into direct-energy and kinetic-energy weapons.’[4] It is silent in the sense that there is no explicit prohibition of militarization in international space law except for the prohibition of weapons of mass destruction including nuclear weapons. Outer Space Treaty just prohibits militarization of outer space and does not envisage any action to be taken if the provision is violated. Article IV section 2 of Outer Space Treaty espouses the “peaceful use” of outer space and celestial bodies. Article III of Outer Space Treaty states the use of outer space “in the interest of maintaining international peace and security and promoting international cooperation and understanding”.[5] Art. VII of Outer Space Treaty enhance by 1972 Liability Convention[6] puts the liability on the guilty state for any damage caused by the activity of state to another state, but the question remains that if any damage is caused then to what extent. North Korea attempted its space launch and world community became suspicious of it and regarded it as the ICBM test. Iran has also attempted to build its ICBM capabilities on the name of domestic space programs. Both Iran and North Korea have taken the defense finding its source from Outer Space Treaty which empowers them with the right of exploration of Outer Space. Then in late 2015, Russia tested its anti-missile prototype, Nudol.[7] Inspired by the same, India executed its Mission Shakti and tested its anti-satellite missile from Abdul Kalam island, Odisha.[8]The US is building its sixth space force[9]. Weaponization is also against the underlying principles of Outer Space treaty, therefore challenges the scope and application of the same. The underlying principles of OST are regarded as “soft law”. The existing soft laws on outer space can’t prevent the hard politics and arms race. Weaponization or arms race should be controlled and it is the most accepted argument. The kind of warfare it can lead to can cause massive destruction. Hence, there is a necessity for specific laws to govern it.

Environmentalism: Another aspect pointing towards Anarchy

Some Scholars suggest applying a branch of terrestrial law in outer space in a celebratory way i.e. International Environmental Law in Outer Space. The law on the environment has experienced a transition from anthropocentric (concerns itself with the protection of things which is valued by human beings) to eccentric (deep ecology) environmentalism.[10] It governs the entire earth, outer space, every dirt and rock that can be tempered by human interaction. Human enterprise is interacting with the ecology of outer space as well and it is evident enough through the modern developments in outer space. We are aware of the efforts being put by international space station and state’s space research organization to find a way to cohabit the celestial bodies such as Mars and the Moon. This created a furor among the world community when NASA confirmed the discovery of water on Moon.[11] The use of that water (which is the common heritage of mankind) for drinking, as fuel for rocket and to extract oxygen from H2O for the astronauts and tourists. ISRO also confirmed the presence of water molecules in the sub soil of the moon. ‘Space environmentalists Paul F. Uhlir and William P. Bishop, quoting Harry H. Almond, Jr., suggest five principles to guide space environmental policy: (1) “environmental balance” (with “substantial weight given to intrinsic environmental values”); (2) conservation of resources (“The natural resources of outer space must not be exploited in a wasteful or environmentally damaging way.”); (3) “Absolute liability for wrongful or negligent acts to the space wilderness and the duty to restore conditions to the status quo ante” (4) demilitarization; and (5) permission for “states”.’[12] In his enthralling article Professors, Huebert and Block suggest that celestial bodies are inhabitable and one can’t live there. The environmentalist will wholeheartedly support the idea of maintaining the “wilderness” of outer space, but professors differ from the idea and substantiate the same by quoting Reynold and Merges, who explicitly stated that no argument is necessary in this regard. Discussing along the same lines, Hubert and Block question that such a vast expanse of outer space can ever be polluted? Also, the planets such as Venus which is hellish and Mars which seems dead, can they ever used to cohabit? The planets have no ecology and no ecosystem thus can be used to get rid of Earth’s waste. But this argument seems to be human-centric and deflecting from the principles of eccentric environmentalism. The environmentalist can call for conferences on this matter. The obscurity of the environment of outer space can be resolved through discussions. To subside with the vagueness of this issue, research is essential. In other words, making way for legislation on the environment in space is necessary.

The concern arises from the data collected by the Union of Concerned Scientists, the data speaks about number state wise 2062 operating satellites[13] and outdated satellites[14]. Space debris is a grave issue in outer space as mentioned earlier. The space junk includes outdated satellites, capsules carrying the spacecraft, derelict launched vehicle stages, Fragmented debris, non-fragmented debris, mission-related debris. The existing debris on collision with other debris or operating satellites creates more debris or space junk. It is an impediment for the countries for the advancement of their space technologies. Keeping in the mind, the capabilities of new technologies and diverse forms of weaponization, a single collision can also make a rival state suspicious of each other, hence makes the situation vulnerable to warfare.[15] United Nations COPUOS STSC Space Debris Mitigation Guidelines lists seven steps to deal with debris issue. The issue can be sorted out as suggested by the various scholar by making it mandatory to bring down the junk or outdated satellite. The provision should be added into the existing 1972 Liability Convention. Another solution to this issue is the recycling and reusability of space junk or parts of spacecraft and aircraft should be promoted. SpaceX is contributing a great deal in this aspect to the internal space regime, it is working on building a rocket that will return to earth after executing its work. Though it could not be achieved as of now.[16] SpaceX has also created a space vehicle that was made by the recycled parts of earlier space carrier.

Commercial space of outer space: Is anarchy absolute?

Elon Musk has revolutionized the commercialization in the field of outer space, his company SpaceX builds Spacecraft and sell it to the enterprise which enters into contractual obligations. In May 2012, SpaceX won the contract from NASA to build a rocket for International Space Station. The SpaceX came out with its rocket called Falcon 9 carried by unmanned capsule. It supplied 1000 tons of deliverables for the Astronauts in ISS.[17] In the document dealing with terms and conditions of contracts with SpaceX, the section dealing with Applicable Laws carries a clause which states that “The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.”[18] The same document mentions that SpaceX will not infringe the intellectual property rights and will not reveal any details to any Third Party. Hence, point out towards the need for specific or special laws governing the fundamental aspects of outsourcing by the governmental organization and private commercial enterprises of space technologies. Accepting the need of the domestic law US came out with a code of 2015 Commercial Space Launch Competitiveness Act.  This act brought numerous changes to The 1998 Commercial Space Act of the United States, including the laws dealing with granting property rights to private enterprises of US that mine resources from asteroids. It has extended ‘the “learning period” during which the Federal Aviation Administration (FAA) may not issue new commercial human spaceflight regulations until 2023 and extends third-party indemnification until 2025’.[19] It is an applaudable move which was taken by the US government. This move along with other 24 nations having national space law sets an example for other nations.

Conclusion

The Outer Space Treaty does not address the nuts and bolts of developments or exploitations of outer space. OST can be referred to as a preamble to International Space Law and must not be considered as a concrete law on outer space. Thus, testifies for the existence of anarchy in the sphere of space activities. Professors Reynold and Merges suggested that a large number of terrestrial laws can apply to the laws related to the spatial surface. But latest advancements such as weaponization, commercial adventures of SpaceX, issue of debris, diversification of space technology deflects from the suggested idea. The diverse expansion refutes the idea of applying terrestrial law but looks forward to the growth of lex specialis to deal with the new developments in outer space regime. The special laws can only resolve the future adversities which can be caused by ever-increasing space activities. The technicalities involved in outer space, with every aspect related to it can be governed by special laws only. The space states can shape uniform laws for international space through cooperation. The policy incertitude can be a reason for massive destruction, loss of lives, warfare. Ignoring the importance of law can be regarded as the ignorance of the law and hence cannot be excused.

This publication is a part of a two-part series by the author. The first part can be accessed through here.

About The Author

 This article is written by Lovika Jaiswal. She is a final year student of LL.B. at Campus Law Centre.

References:

  1. The European Space Agency, International Space Station Legal Framework, http://www.esa.int/Our_Activities/Human_and_Robotic_Exploration/International_Space_Station/International_Space_Station_legal_framework 

  2. Andrew D. Watson; William G. Schmidt, Legal Issues Surrounding the International Space Station, 7 U.S. A.F. ACAD. J. LEGAL STUD. 159 (1996-1997). 

  3. Carin Zissis, China’s Anti-Satellite Test, (February 22, 2007), https://www.cfr.org/backgrounder/chinas-anti-satellite-test.↑

  4. Harsh Vasani, How China is Weaponizing Outer Space, The Diplomat, (Jan 19, 2017), https://thediplomat.com/2017/01/how-china-is-weaponizing-outer-space/

  5. 2222 (XXI). Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies. ↑↑

  6. Convention on International Liability for Damage Caused by Space Objects, (opened for signature on 29 March 1972, entered into force on 1 September 1972). 

  7. Ankit Panda, Russia Conducts New Test of Nudol Anti-Satellite, (Nov, 2018), https://thediplomat.com/2018/04/russia-conducts-new-test-of-nudol-anti-satellite-system/ 

  8. (Mar 27, 2019), https://sputniknews.com/military/201906121075816333-asat-india-conducts-hypersonic-missile-test/ 

  9. https://www.space.com/42089-space-force.html 

  10. J. H. Huebert; Walter Block, Space Environmentalism, Property Rights, and the Law, 37 U. MEM. L. REV. 281 (2007). 

  11. It’s official Water Found on the Moon, 17 Sept 2009 https://sservi.nasa.gov/articles/its-official-water-found-on-the-moon/ 

  12. J. H. Huebert; Walter Block, Space Environmentalism, Property Rights, and the Law, 288. Paul F. Uhlir & William P. Bishop, Wilderness and Space, in BEYOND SPACESHIP EARTH: ENVIRONMENTAL ETHICS AND THE SOLAR SYSTEM 183, 203-04 (Eugene C. Hargrove ed., 1986) (citing Harry H. Almond, Jr., A Draft Convention for Protecting the Environment of Outer Space, in PROCEEDINGS OF THE TWENTY-THIRD COLLOQUIUM ON THE LAW OF OUTER SPACE 101-02 (1980)). 

  13. Union of Concerned Scientists, UCS Satellite database,1 Aug 2020, https://www.ucsusa.org/nuclear-weapons/space-weapons/satellite-database 

  14. NASA’s Orbital Debris Program Office, https://www.nasa.gov/sites/default/files/files/OrbitalDebrisProgramOffice.pdf

  15. James E. Dunstan, Space Trash: Lessons Learned (and Ignored) from Space Law and Government, 39 J. SPACE L. 23, 76 (2013) 

  16. SpaceX, Starlink Mission, https://www.spacex.com/reusability-key-making-human-life-multi-planetary

  17. Biography, Biography of elon musk, 4 Jan 2021, https://www.biography.com/business-figure/elon-musk

  18. SpaceX, Terms and Conditions, https://www.spacex.com/sites/spacex/files/spacex_standard_terms_and_conditions.pdf 

  19. United States of America, TITLE 51—NATIONAL AND COMMERCIAL SPACE PROGRAMS (2011), https://spacepolicyonline.com/topics/space-law/

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