Abstract
Under International Space Law (ISL), the exploration and use of Outer Space shall be carried out for the benefit and interest of all countries without any discrimination of any kind, and be used by all states for “peaceful purposes”. However, ISL does not seem to have provided any clear cut normative direction to States beyond stipulating the nature and scope of the use of Outer Space by States. As a result, powerful space-faring States began asserting unlimited freedom on the use of Outer Space. This has been done by interpreting the phrase “peaceful purposes” more restrictively, to mean “non-aggressive purposes”. This interpretation permits the use of Outer Space by a State for “military” and “self-defence” purposes also. Except what is clearly prohibited under ISL, namely placing of nuclear weapons and WMDs on Outer Space by a State, every other use of Outer Space seems to be in consonance with ISL. The exercise of unlimited freedom by States led to the congestion of space environment with space assets of different kinds owned and used by States and other entities and space debris created by natural and man-made causes, including by the use of anti-satellite (ASAT) weapons and debris resulting from electronic attacks on satellites. Safety and security of space assets assume paramount importance today without which use of Outer Space for the benefit and interest of all becomes an empty slogan. Suggestions are made to address the issue by prohibiting the use of ASAT, by applying the agreed provisions of ABM treaties and also applying law of armed conflicts where possible. However, USA rejected the idea of prohibition of ASAT. The regulatory efficacy of agreed provisions of ABM Treaty on parties in this regard appears to be doubtful. The use of dual purpose technologies in space assets makes the application of law of armed conflicts ineffective. In my conclusions, I suggested a combination of hard and soft law and national policies as a possible legal regime.
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Notes
- 1.
Sarah M. Mountin, “The Legality and Implications of Intentional Interference with Commercial Communication Satellite Signals”, 9: 101 International Law Studies (2014).
- 2.
Jameson Rohrer, “Deciphering and Defending the European Union’s Non-Binding Code of Conduct for Outer Space Activities”, 23: 187–216, 188 Duke Journal of Comparative & International Law (2012).
- 3.
David A. Koplow, ASAT-isfaction: Customary International Law and the Regulation of Anti-Satellite Weapons, 30 Georgetown University Law Center 741 (2008).
- 4.
IDSA Policy Brief.
- 5.
Deborah Housen-Couriel, Disruption of Satellite Transmissions ad Bellum and in Bello: Launching a New Paradigm of Convergence, 45: 431–458 Israel Law Review (2012).
- 6.
supra note 2.
- 7.
William J Broad, “Debris Spew into space After Satellites Collide”, New York Times (February 11, 2009), last visited on 5 July 2016 <http://www.nytimes.com/2009/02/12/science/space/12satellite.html?_r=0>.
- 8.
David A. Kaplow in one of his more informative articles enumerates different kinds of space debris such as the leftover “junk” from earlier launches, expended rocket bodies, dysfunctional satellites, and castoff parts, bolts that are used to hold and release a satellite from its launching rocket, discarded hardware, lost equipment and human garbage. 747–48.
- 9.
supra note 2.
- 10.
In sum, the “Common Heritage’’ to be enjoyed by all mankind may be seen modernly as a hybrid of: equitable access for all, some equitable benefits for all (excluding non-peaceful purpose technology), and equitable rights to peace in space … See Daniel A. Porras, The “Common Heritage” of Outer Space: Equal Benefits For Most of Mankind, 37 California Western International Law Journal 173(2006).
- 11.
Jonathan Dean, The current legal regime governing the use of Outer Space, in Safeguarding Space for All: Security and Peaceful Uses conference report (2004) chapter 3. See also Sandeepa Bhat and Kiran Mohan, “Anti Satellite Missile Testing: A Challenge To Article IV Of The Outer Space Treaty”, 2: 205–212, 210 NUJS Law Review (2008).
- 12.
Jesse Oppenheim, “Danger at 700,000 Feet: Why the United States Needs to Develop a Kinetic Anti-Satellite Missile Technology Test-Ban Treaty”, 38: 770 Brooklyn Journal of International Law (2015).
- 13.
Ibid.
- 14.
Ibid.
- 15.
supra note 1 p 154.
- 16.
Jonathan Dean, The current legal regime governing the use of Outer Space, in Safeguarding Space for All: Security and Peaceful Uses conference report 36 (2004). Chapter 3.
- 17.
International Legal Agreements Relevant to Space Weapons <http://www.ucsusa.org/nuclear-weapons/space-weapons/international-legal-agreements#.V4DFF6J8sYA>.
- 18.
Ibid.
- 19.
SS Lotus, France v. Turky Permanent Court of Int’l Justice, P.C.I.J. (ser. A) No. 10 (1927).
- 20.
The Liability Convention envisions two scenarios where damage could be caused by a space object. The first scenario envisions a space object that causes damage to the surface of the Earth or an aircraft in flight, which applies a strict liability standard. The second scenario envisions an event where a space object causes damage someplace other than the surface of the Earth, i.e. Outer Space or another celestial body, and applies a fault standard. See Michael Listner, Legal issues surrounding space debris remediation, The Space Review, Aug 6,2012 <http://www.thespacereview.com/article/2130/1> last visited on 5 July 2016.
- 21.
Lieutenant Colonel Joseph S. Imburgia, “Space Debris and Its Threat to National Security: A Proposal for a Binding International Agreement to Clean Up the Junk”, 44: 618 Vanderbilt Journal of Transnational Law (2016).
- 22.
Ibid. pp. 618–19.
- 23.
See the Online Index of Objects of UNOOSA which is a reference tool that allows quick access to registration information for space objects and also allows States and organization to identify which space objects remain unregistered <http://www.unoosa.org/oosa/en/spaceobjectregister/index.html> last visited on 3 July, 2016.
- 24.
Capt. Adam A Frey argues that discrimination can be difficult to apply to “dual use” objects having both civilian and military functions, such as airports, buildings and communications systems. Although attacking such objects would hinder the enemy, civilians would also suffer. Moreover, since Additional Protocol 1’s test is subjective, commanders could reasonably disagree on whether attacking these objects truly “offers a definite military advantage”.
- 25.
In the first Gulf War and war on Balgans, satellites had been used.
- 26.
supra note 1.
- 27.
supra note 1 p 751.
- 28.
In 2008, shooting down USA-193 by USA was justified that the 450 kg fuel tank of a drifting satellite could land in a populated area and release toxic gas. However, the international community remained sceptical of that rationale. The American media even joined in on questioning the government’s claim that USA-193 was being shot down only because of its fuel tank. See James Oberg, U.S Satellite Shootdown: Inside Story, http://spectrum.ieee.org/aerospace/satellites/us-satellite-shootdown-the-inside-story last visited on 3 July 2016.
- 29.
Jesse Oppenheim, “Danger at 700,000 Feet: Why the United States Needs to Develop a Kinetic Anti-Satellite Missile Technology Test-Ban Treaty”, 38: 763–764 Brooklyn Journal of International Law (2015).
- 30.
Ibid.
- 31.
Ibid.
- 32.
Ibid.
- 33.
Ibid.
- 34.
Ibid.
- 35.
Low-power lasers are typically designed to spoof or jam satellite electro-optical sensors using laser radiation … temporarily blinding the satellite. High-power lasers can permanently damage or destroy a satellite by radiating enough energy to overheat its parts. The satellite systems which are susceptible to high-power lasers include satellite structures, thermal control surfaces and solar panels.
- 36.
These weapons “produce an effect quite similar to an exo atmospheric nuclear blast resulting in upset, disruption, or burnout of the electronic components within the targeted systems”. This effect “could be used to disrupt electro-optical sensors and onboard electronics of elements of surveillance and reconnaissance systems”.
In theory, RF and microwave weapons can attack large areas and groups of targets, inflicting a “more subtle damage on electronic components” than laser weapons, with an additional benefit of being “largely unaffected by clouds”, a downside of laser weapons.
- 37.
Any weapon used for an electronic attack is an electronic weapon. Electronic attack is defined as “any action involving the use of electromagnetic energy and directed energy to control the electromagnetic spectrum or to attack an adversary”. Here, the focus is only on the jamming and spoofing of satellite signals. A satellite’s signal can be disrupted with an intense competing signal causing the original signal to become “jammed”. The signal to the satellite can also be changed with incorrect information replacing the correct information, a process called “spoofing”. All military and commercial satellite communications systems are susceptible to jamming or spoofing. In either case, the offending party must operate in the same radio band as the system being jammed. Common commercial satellite ground communications equipment possesses electronic jamming capabilities that can—and have been used to—disrupt the functions of some satellites. “The threshold for using these weapons has been lowered, with a number of nations employing them for political purposes in peacetime or during crises”.
- 38.
Caroline Baylon, “Challenges at the Intersection of Cyber Security and Space Security: Country and International Institution Perspectives” https://www.chathamhouse.org/publication/challenges-intersection-cyber-security-and-space-security-country-and-international (last visited Jun 29, 2016). See also Yuri Takaya, “Diversity of Transnational Criminal Justice Interference into Satellite Telecommunications by Cyber-Attack”, in Kobe and QMUL Symposium on International Law (2015).
- 39.
Ibid.
- 40.
David A. Koplow, “An Inference About Interference: A Surprising Application of Existing International Law to Prohibit Anti-Satellite Weapons”, 35: 762 University of Pennsylvania Journal of International Law (2014).
- 41.
Section IV through VIII of GGE Report provides specific TCBMs for space, including:
Information exchange on national space policy and goals, and exchange of information on military space expenditures; information exchange on activities in Outer Space, including orbital parameters, possible conjunctions, natural space hazards and planned launches; notifications on risk reductions such as scheduled manoeuvres, uncontrolled high-risk re-entries, emergency situations, intentional orbital breakups; and voluntary visits to launch sites and command and control centres, and demonstrations of space and rocket technologies. See swf_gge_on_space_tcbms_fact_sheet_april_2014.pdf available at <http://swfound.org/>.
- 42.
<http://eeas.europa.eu/non-proliferation-and-disarmament/outer-space-activities/index_en.htm> last visited on 5 July 2016.
- 43.
Michael J Listner, The International Code of Conduct: Comments on changes in the latest draft and post-mortem thoughts <http://www.thespacereview.com/article/2851/1> last visited on 5 July 2016.
- 44.
Ibid.
- 45.
Article IX says: In the exploration and use of Outer Space, including the Moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of cooperation and mutual assistance and shall conduct all their activities in Outer Space, including the Moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. States Parties to the Treaty shall pursue studies of Outer Space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. 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.
- 46.
Glenn Harlan Reynolds, “International Space Law in Transformation: Some Observations”, 6: 74 Chicago Journal of International Law (2005).
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Gandhi, M. (2017). Towards a Legal Regime for the Protection of Space Assets. In: Rao, R., Gopalakrishnan, V., Abhijeet, K. (eds) Recent Developments in Space Law. Springer, Singapore. https://doi.org/10.1007/978-981-10-4926-2_9
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