Examining Space Law

1
Examining Space Law its Implications

• Wg Cdr KK Nair

2
Examining Space Law

• Abundance of resources in space also potential
  for competition, rivalries, conflicts etc.
• Hence, legislation regulating OSA initiated.
• Initial efforts at space law used historical
  legal analogies of Air, Sea and Antarctic treaty.
• Air Sea analogies implied treating space as
  open to mil activity accepted under international
  law, while Antarctic implied treating space as
  off-limits for all military activity.
• Environment of space unique, hence though
  fundamentals of space law draw on all 3
  analogies, it maintains a distinct character.

3

• Space Law an amalgamation of many fields of law
  like int law, law of torts, contracts, property
  etc primarily a derivative of various treaties
  and conventions, customary int law principles.
• Described by the UN as the body of law
  applicable to and governing space related
  activities.
• Primary goals of space law are to ensure a
  rational, responsible approach to the exploration
  use of outer space for the benefit and in the
  interests of all humankind.
• Two areas of space law.

4
International Domestic Space Law

• International Governs the activities of states
  and international, intergovernmental orgs.
• Domestic Governs activities of individual
  countries and their nationals.
• DSL are national efforts and hence have clearly
  defined enforcement mechanisms, penalties etc.
  ISL provides commonly accepted rules guidelines
  for nations to deal with each other, hence it is
  determined by willingness of nations to
  cooperate.
• Hence 4 basic premises guide application of ISL

5

• Arms control treaties bind only those who agree
  to them.
• Activities not expressly prohibited by treaty or
  agreement are assumed to be permitted.
• Treaty provisions are often subject to self
  serving interpretations.
• States may withdraw from a treaty in accordance
  with the treatys provisions for doing so or as
  necessary to defend itself during hostilities,
  unless the treaty specifically requires
  otherwise.

6
Primary Constituents of International Space Law
Treaties Principles
OST-1967. Rescue Agreement -1968. Liability Convention-1972. Registration Convention-1975. Moon Treaty-1979 Governing activities of states in exploration and use of outer space 1963. Governing use by states of artificial earth satellites for indirect TV broadcast -1982. Relating to remote sensing -1986. Relevant to use of Nuclear power sources -1992 Int cooperation in exploration and Use of space.
Agreements 1963 NTB - Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water. 1974 BRS - Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite. 1971 ITSO - Agreement Relating to the International Telecommunications Satellite Organization (ITSO). 1971 INTR - Agreement on the Establishment of the INTERSPUTNIK International System and Organization of Space Communications. 1975 ESA - Convention for the Establishment of a European Space Agency (ESA). 1976 ARB - Agreement of the Arab Corporation for Space Communications (ARABSAT). 1976 INTC - Agreement on Cooperation in the Exploration and Use of Outer Space for Peaceful Purposes (INTERCOSMOS). 1976 IMSO - Convention on the International Mobile Satellite Organization. 1982 EUTL - Convention Establishing the European Telecommunications Satellite Organization (EUTELSAT). 1983 EUM - Convention for the Establishment of a European Organization for the Exploitation of Meteorological Satellites (EUMETSAT). 1992 ITU - International Telecommunication Constitution and Convention. Agreements 1963 NTB - Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water. 1974 BRS - Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite. 1971 ITSO - Agreement Relating to the International Telecommunications Satellite Organization (ITSO). 1971 INTR - Agreement on the Establishment of the INTERSPUTNIK International System and Organization of Space Communications. 1975 ESA - Convention for the Establishment of a European Space Agency (ESA). 1976 ARB - Agreement of the Arab Corporation for Space Communications (ARABSAT). 1976 INTC - Agreement on Cooperation in the Exploration and Use of Outer Space for Peaceful Purposes (INTERCOSMOS). 1976 IMSO - Convention on the International Mobile Satellite Organization. 1982 EUTL - Convention Establishing the European Telecommunications Satellite Organization (EUTELSAT). 1983 EUM - Convention for the Establishment of a European Organization for the Exploitation of Meteorological Satellites (EUMETSAT). 1992 ITU - International Telecommunication Constitution and Convention.
7
Space Legislation Regulating Military Activities

• Articles 2 51 of UN Charter.
• LTBT-1963.
• OST-1967.
• ?Art-1 OS, Moon others free for use by all.
• ?Art-2 Above not subject to national
  appropriation.
• ?Art-3 All space activities under ISLUN
  Charter.
• ?Art-4 Not to place in Earth orbit objs carrying
  N wpns or WMD, install same on celestial bodies
  or station such wpns in OS in any other manner.

8

• ?Art-7 States are internationally liable to
  another state for damage caused by its space
  objects.
• ?Art-9 Consult before conducting potentially
  harmful interference activities.
• ?Art-12 Space vehicles, equipment etc open to
  inspection on basis of reciprocity.
• Registration Convention.
• Astronaut Rescue Agreement.
• EnMod Treaty.

9
The Law its Implications

• Art-2 (UN Charter) Unlawful to interfere in
  hostile manner with OS assets of others.
• ?Art-51allows use of military force to defend
  against hostile action.
• Art-4 (OST) Not to place in ORBIT objects
  carrying N wpns or WMD..
• ?Implies objects carrying same can freely
  transit OS,
• Non N/WLD wpns may be placed in
  orbit to
• attack tgts in space or Earth. Hence
  KEW, DEW, armed aerospace vehicles etc permitted.

10

• ? Implies No direct ban on non-nuclear ASATs or
  anti-missile weapons, whether space or Earth
  based.
• Establishment of military bases, installations,
  fortifications prohibited on the Moon
  celestial..
• ? Implies same permitted in OS, hence orbiting
  platforms like the ISS can have military bases,
  fortifications etc. Satellites to perform all
  manner of military functions like ISR,
  communication, navigation etc legal.
• ? Implies No direct ban on testing of
  conventional military weapons in space.

11
Legislation Principle/ Constraint Remarks
UN CHARTER (1947) Article 2(4) of the U.N. Charter prohibits the threat or use of force in international relations. Article 51 codifies the right of self-defence in cases of aggression involving the illegal use of force by another state(s).
LTBT (1963) Bans nuclear testing and nuclear explosions (both peaceful otherwise) in space. Contains no verification provision
OST (1967) Bans deployment of nuclear weapons WMD in space. Allows deployment of non-nuclear, non-WMD, conventional other weapons including non- nuclear ASATs and other satellites performing passive military functions like ISR, communication, navigation etc.
-do- Bans creation of military bases, installations and fortifications on celestial bodies. Permits creation of military bases like space-stations in orbit.
-do- Bans testing of N/WMD weapons on celestial bodies. Permits testing of conventional weapons in space.
-do- Directs states to conduct international consultations before proceeding with activities that would cause potentially harmful interference with activities of other parties. Effectively contains peace time jamming, spoofing, disruption etc. However, harmful interference not defined.
-do- Bans apportioning of space or celestial bodies. Ban on space resources is ambiguous since spatial locations, frequency spectrum, solar power etc are already in military use.
Registration convention. Ban on launching space objects without notifying the UN. Countries like Israel have not ratified it.
EnMod Bans engagement in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party Non- military EnMod activities could be as damaging as military EnMod activities.
ITU Civil Sats protected from intereference. Mil use of civil sats rampant.
12
Initial Perceptions on Utility of Space

• ? Space perceived as high ground for delivery of
  Ordnance and Observation. (Sputnik)

Military Perceptions Across the Globe Regarding Utility of Space Military Perceptions Across the Globe Regarding Utility of Space Military Perceptions Across the Globe Regarding Utility of Space
Role Typical Airpower mission Percieved Space missions
Control of environment Counter Air missions Counter Space missions
Applying combat power Air-based force application Space-based force application
Multiplying combat power Airborne combat support Space based terrestrial combat support or Force enhancement
Sustaining combat force Support operations Space support operations
? Above precepts, drive militarisation
weaponisation of space. ? Above also not recent
phenomena, going by historical and empirical
evidence.
13
Satellite Number of Satellites-Year wise Number of Satellites-Year wise Number of Satellites-Year wise Number of Satellites-Year wise Number of Satellites-Year wise Number of Satellites-Year wise Number of Satellites-Year wise Number of Satellites-Year wise Number of Satellites-Year wise Number of Satellites-Year wise First Soviet launch date.
Satellite 1958 1958 1959 1959 1960 1960 1961 1961 Total Total First Soviet launch date.
Satellite US USSR US USSR US USSR US USSR US USSR First Soviet launch date.
Comm 01 00 00 00 02 00 00 00 03 00 1964
Nav 00 00 01 00 01 00 03 00 05 00 1967
Photo-Reccee 00 00 06 00 06 00 13 01 25 01 1962
Early Warning 00 00 00 00 02 00 03 00 05 00 1971
Met 00 00 00 00 02 00 01 00 03 00 1963

• Within first few years, most possible space
  based military missions of ordnance delivery
  (BM/FA), dedicated mil sats for FE, battles for
  control of space (ASATs) already in place.
• Vide Project Argus (1958), US detonated N
  devices in space to disrupt enemy ICBMs. By 1962
  Soviets also detonated 03 devices.
• By 1967, both had successfully conducted ASAt
  experiments.
• Thus, OST other treaties built upon prevailing
  Status Quo in space hence military allowances.

14
Prevailing Realities

• Military allowances made by OST exploited by
  nations since the dawn of space age.
• The number of nations exploiting likewise has
  increased as never before.
• Semantic Confusion on terms definitions
  prevails.
• Military, civil commercial Space activities
  strongly intertwined (sats, SLVs, LR) multi
  role, multination etc. Discrimination extremely
  difficult.
• Legal lacunae being exploited variously
  vigorously.

15

• Revival of Interest in ASATs
• 54 ASAT tests during Cold War. Last in 1985
• Negotiations on legal instrument for banning
  weapons in space at CD deadlocked since 1998.
• 22 year Moratorium on destructive ASAT tests
  broken by China in 2007
• The US took it a step further in 08.
• Comparing the Chinese US test.

16

• The Final Straw
• Comparing the Chinese US test.
• Hence, to close existing gaps in the legal frame
  work, China Russia submitted draft PPWT
  treaty.

Terms Chinese Test (Jan 07) US Test (Feb 08)
Semantic Experiment Engagement
Legal Abrogated Art-IX of OST Adhered to Art-IX of OST
Tech Mil Crude ASAT Test Precise ASAT Test
Diplomatic International Uproar International Silence, Approval, Mild disapproval.
Physical Debris Littered No lasting debris due altitude.
17
OST (Article-IV) PPWT (Article-II)
States 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. States Parties undertake not to place in orbit around the Earth any objects carrying any kind of weapons , not to install such weapons on celestial bodies, and not to station such weapons in outer space in any other manner not to resort to the threat or use of force against outer space objects not to assist or encourage other states, groups of states or international organizations to participate in activities prohibited by the Treaty.
18

• PPWT defines Weapon as
• Any device placed in outer space, based on any
  physical principle, specially produced or
  converted to eliminate, damage or disrupt normal
  function of objects in outer space, on the Earth
  or in its air, as well as to eliminate
  population, components of biosphere critical to
  human existence or inflict damage to them.
• Only covers placement of Weapons in OS, not
  Weapons (ASATs) targeting space objects from Air,
  land, sea.
• Also does not cover manouevering objects which
  escape and re-enter space orbit. (CAV)
• Expect treaty prohibiting RD on ASATs.

19

• The Bottom Line
• Last significant treaty constraining military
  activities negotiated 40 years ago.
• With 02 States, it took 10 yrs to arrive at OST,
  with over 100 state non-state stakeholders, how
  many years would it take?
• The issue is lack of political will not the
  absence of legal options.
• The OST-67 can be changed (reviewed, amended etc)
  to accommodate anything that is not illegal at
  international law.
• Need for Unity of Thought.

20
International Space Law in the Indian Context
Country International Space Treaties International Space Treaties International Space Treaties International Space Treaties International Space Treaties Significant International Agreements Significant International Agreements Significant International Agreements Significant International Agreements Significant International Agreements
Country OST ARRA LIAB REG MOON NTB BRS ITSO IMSO ITU
USA R R R R - R R R R R
RUS R R R R - R R R R R
CHN R R R R - R - R R R
JPN R R R R - R - R R R
IND R R R R S R - R R R
ISRL R R R - - R S R R R
ESA - D D D - - - - - -

?International Space Law does not constrain us at
present or even in the near future nothing
stops us from peaceful uses which apply to
everybody else.
21
Thank You for Allowing me to Share my Ignorance