New Ways and Means to Strengthen the Responsible and Peaceful Use of Outer Space

• Citation: Vol. 48 No. 3
• Publication year: 2020
• topic: Aeronautics,Antitrust and Competition,Business of Law,Charity and Non-Profit Law,Civil Rights,Commercial Litigation,Bankruptcy and Insolvency,Construction Law,Contracts,public contracts,Trust Law,Creditor Rights / Civil Enforcement,Criminal procedure,Admiralty,Administrative Law,Environmental Law,Banking and Finance Law,Constitutional Law,Family Law,Trademark,Patent law,Intellectual Property,Insurance Law,Corporate / Commercial,Tax Law,Labor Law,Immigration Law,Criminal Law,Copyright law,District of columbia,Education Law ,Energy & Natural Resources,Entertainment Law,Federal,Health Law,Indigenous Law,Employment Law,Capital arkets,Mergers and Acquisitions,Contracts law,Ongoing or Prospective Litigation,Personal Injury Law,Civil Procedure,Product Liability Law,Professional Malpractie ,Public Sector Law,Real Estate,Securities Law,Social Security,Technology,Transportation,Upcoming Legislation,Upcoming Regulations,Utilities,Wills, Trusts and Estates,Workers Compensation,corporate governance,Internet, Media and Communications,Consumer Law,Military Law,employee benefits,government,industrial design

New Ways and Means to Strengthen the Responsible and Peaceful Use of Outer Space

David Kuan-Wei Chen^*

Table of Contents

I. Introduction................................................................................662

II. Legal Regime Governing Space................................................663

III. The Legal Lacunae with Regard to Responsible and Peaceful Use of Outer Space....................................................668

IV. International Efforts to Strengthen the Responsible and Peaceful Use of Space................................................................670

V. Ways and Means of Maintaining Outer Space for Peaceful Purposes........................................................................................673

VI. The Long-Term Sustainability Guidelines............................674

VII. The MILAMOS Project...............................................................677

VIII. Conclusion...................................................................................681

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I. Introduction

There is a growing unease in space, and on Earth.¹ Fueled by rising geopolitical tensions on Earth² and growing rhetoric on the inevitability of a war in space,³ humanity stands at a crucial turning point and a crossroads: Do we continue to collectively reap the economic, technological, scientific, social, and strategic benefits that space activities and assets have to offer,⁴ or do we choose to weaponize the "ultimate high ground"⁵ and direct space assets as instruments of destruction in ways unimaginable?⁶

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Space systems perform a myriad of civilian weather monitoring, communications, navigation, and facilitate the provision of humanitarian and emergency relief efforts.⁷ The sustainable and responsible use of space is, however, increasingly fragile, threatened by intensified research and potential deployment of a whole host of disabling or destructive ways and means. These range from electronic warfare (jamming and spoofing of transmissions), cyber-at-tacks, directed energy attacks (from the ground, air, sea, or space-based platforms), to orbital-based anti-satellite systems, and ground-based anti-satellite weapons.⁸

Indeed, high on the agenda at the United Nations (UN) for decades is the concern of an arms race in outer space,⁹ and the placement (and arguably use) of weapons in outer space that would pose a "grave danger for international peace and security."¹⁰ This Article will provide an overview of adequacy of the legal framework in securing the responsible and peaceful use of outer space, and long-standing diplomatic efforts to prevent the extension of arms into the final frontier. Specifically, it will turn attention to the recently adopted UN Long-Term Sustainability Guidelines,¹¹ as well as civil society initiatives, such as the McGill Manual on International Law Applicable to Military Uses of Outer Space (McGill Manual, or MILAMOS), which aim to increase transparency and strengthen the rule of law in a domain space where scientific, economic and strategic interest invariably intercept and intertwine.¹²

II. Legal Regime Governing Space

Outer space has never been a lawless domain of human activity, but has always been subject to international law.¹³ As soon as activities of states entered the realm of outer space, the overarching regime of international law that

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governs the rights and responsibilities of states became automatically applicable.¹⁴ These sentiments are reflected in the 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space,¹⁵ and the 1967 Outer Space Treaty,¹⁶ which translated the provisions of the 1963 Declaration into a binding multilateral agreement. Article III of the Outer Space Treaty underlines that:

States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding.¹⁷

That space activities must be conducted in the interest of international peace and security traces its origins to the dawn of the Space Age. In 1958, almost immediately after the launch of the first artificial satellite Sputnik I, the UN General Assembly (UNGA) adopted the first resolution specifically dealing with outer space.¹⁸ Recognizing that all humankind, have a "common interest" in outer space,¹⁹ the Preamble of Resolution 1348 (XIII) underlined the importance of avoiding "the extension of present national rivalries into this new field."²⁰ To further "co-operation in the study of outer space for peaceful purposes,"²¹ the UN Committee on the Peaceful Uses of Outer Space (UNCOPUOS)²² was established as the diplomatic forum to address and adopt

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measures relating to the peaceful use of outer space.²³ In the years that followed, several treaties²⁴ and resolutions²⁵ adopted by the UNCOPUOS would form a body of rules underpinning the global space governance system.²⁶

The unanimously-adopted 1963 Declaration of Legal Principles resolution and the 1967 Outer Space Treaty both recognize in their respective preambles²⁷ "the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes."²⁸ The concept of "peaceful

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purpose" does not have an authoritative definition and continues to be a source of contention.²⁹ What evolved from declarations of spacefaring states and state practice, particularly of the former Soviet Union and the United States,³⁰ is that "peaceful purposes" means that outer space can be used both for civilian and military non-aggressive purposes.³¹ Thus, as long as space activities, including those conducted by the military or are in support of a strategic or military activities, are carried out in accordance with international law, including the UN Charter, then it is compatible with exploring or using space for "peaceful purposes."³²

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This understanding can be further supported by Article IV of the Outer Space Treaty, which provides that the Moon and other celestial bodies must be explored and used for "exclusively" peaceful purposes.³³ The inclusion of the word "exclusive" is clarified as meaning an express prohibition of the "establishment of military bases, installations and fortifications," and an unambiguous prohibition against "the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies."³⁴ Nevertheless, military personnel, equipment, and facilities can be used for scientific research or for "peaceful exploration of the Moon and other celestial bodies."³⁵

Article IV of the Outer Space Treaty specifically prohibits states parties from placing "in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction" and from installing "such weapons on celestial bodies, or station[ing] such weapons in outer space in any other manner."³⁶ This prohibition does not forbid the placement or stationing of conventional, non-nuclear weapons or weapons of mass destruction.³⁷

In effect, the Outer Space Treaty does not expressly prohibit military uses of outer space per se, and only partially de-weaponizes it in relation to nuclear weapons and weapons of mass destruction. Indeed, thousands of space objects have been, are being, and will no doubt continue to be launched and operated for military purposes.³⁸ Even a series of anti-satellite (ASAT) tests carried out by the U.S., Russia, China, and, more recently, India have not been condemned as contrary to the legal framework governing the use of space for peaceful purposes.³⁹

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However, unlike under traditional international law—summarized by the ruling in the Lotus case, stating that what is not expressly prohibited is permitted—this concept is not strictly applicable to the realm of outer space.⁴⁰ Despite the lack of express prohibition of military uses of space, in the global commons of outer space, where the shared interests of states prevail over the individual interests of any one state, the types of activities and actions in space are limited by, e.g., the rights of other states to explore and use space,⁴¹ and the obligation to conduct activities in outer space "with due regard to the corresponding interests of all other States Parties to the Treaty."⁴² There is also the general obligation to conduct space activities "in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding,"⁴³ and the legality of military uses will be assessed against this criteria.

III. The Legal Lacunae with Regard to Responsible and Peaceful Use of Outer Space

While the space law treaties and other international instruments outline fundamental principles governing the exploration and use of outer space, to date there is no comprehensive document that lays down the legal parameters of the specific types of activities permissible in space. In particular, even though many space technologies and assets are inherently tied to military and strategic uses of outer space, there is little guidance or consensus on the extent to which military space activities are permissible on the spectrum of peacetime and times of armed conflict. Though there is a right to consult and be consulted whenever the space activities of another State in the peaceful exploration and use of outer space has potential to cause "harmful interreference,"⁴⁴ there is unfortunately no "precise method . . . for determining, in an objective way, what constitutes harmful interference . . . ."⁴⁵

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Currently, space activities are generally conducted under a legal regime "shaped largely by unilateral interpretation of general...