WEAPONISATION OF OUTER SPACE: EMERGING LEGAL-POLITICAL INTERFACE


Pranshu Chaturvedi

“Queer is man, who aims at conquering the heavens

when his own world lies in shackles."

Mankind it seems can never be satisfied with all that it has achieved, it appears to be a never
ending race to bring within grasp the most cherished thought of being the sole depository of
power and wisdom. It however appears that in this long drawn struggle wisdom in the true sense
of the word has lost its meaning. Man today is merely a character moving about in a haphazardly
orchestrated play longing for salvation in all the possibly wrong ways. Today it seems that the
race for world dominance has edged man into a territory that may be said to be previously
unthinkable; that place is space.

In these present times and in the near future it seems that one who controls the skies and the stars
will command world domination. The global order is changing at an astounding pace; a formerly
bi-polar world which turned out to become uni-polar is headed towards a drastic change of order
which will only result in a multi-polar future. It is this threat of competition that is in reality
feeding the arms race. The thought of having wars being fought in outer space or being attacked
by weapons positioned in Earth‟s orbit seems to be an idea borrowed directly from a Hollywood
flick. However, such a seemingly quant proposition might just become a reality.

The possibility of using outer space as a possible „fourth medium of warfare‟1 came into being
with the dawn of the 20th century. It was around this time that the USSR and USA both were
working on programs that sought to develop an arsenal of sophisticated weaponry that would be
capable of being used as Anti-Satellite (ASAT) missiles2. The USSR with its Istrebitel Sputnik


Student, 7th Semester, University Institute of Legal Studies, Panjab University, Chandigarh.
1
Johnson, Rebecca (Dr.), Threat of Weaponisation, CONGO Forum on Civil Society and Outer Space: "Where do
we stand on using outer space for peaceful purposes?" Vienna, 8-9 October, 2007.
2
Liemer Ross, Christopher F. Chyba, A Verifiable Limited Test Ban for Anti-Satellite Weapons
(IS)3 and the United States of America with its Vought ASM-135 ASAT Missile4 showcased to the
world their power and capability of taming the outer space.

With these disturbing developments the need for developing an international consensus against
such developments was felt. The first major step towards developing an international opinion
against the use of space for military purposes came into being with the United Nations.5 The
United Nations through various resolutions crystallized the existing speculations into legal
principles.6

In 1958 the General Assembly passed a resolution7 under which it was recognised that “it is the
common aim that outer space should be used for peaceful purposes only.” This was followed by
a string of resolutions in 19598, 19619, 196210 and 196311. The resolution passed on 13 December
196312 entitled “Declaration of Legal Principles Governing the Activities of States in the
Exploration and Use of Outer Space” was unanimously adopted by the General Assembly and
later on formed the basis of the “Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1966”
(Now known as the „Outer Space Treaty‟).13 It came into force in October 1967 after being
ratified by nations like USA, USSR and the United Kingdom. Today, this treaty serves as the
primary international space treaty and is the principal source of law on the topic of utilisation of
outer space.

3
“Cosmos 185”, 1 September 2010, http://nssdc.gsfc.nasa.gov/nmc/spacecraftDisplay.do?id=1967-104A.
4
“High Energy Missions”, 1 September 2010, http://heasarc.gsfc.nasa.gov/docs/heasarc/missions/p78-1.html,
5
Kapoor, S.K., International Law and Human Rights, (2007) p.325.
6
Bhatt S., Legal Controls of Outer Space, (1973) p.273.
7
Resolution 1348 (XIII)
8
Resolution 1471 (XIV) 11.
9
Resolution 1721(XVI)
10
Resolution 1902 (XVII)
11
Resolution 1962 (XVIII)
12
Ibid.
13
Supra Note 5 at p. 326
The Outer Space Treaty, 1966 as discussed earlier, laid down certain fundamental rules
regarding weaponisation of outer space.14 In brief they may be summed up in the following
points:

a) There exists freedom of exploration and space is the province of all mankind, with no
national appropriation of property in space.
b) States shall not place nuclear weapons or other weapons of mass destruction in orbit or
on celestial bodies or station them in outer space in any other manner;
c) the Moon and other celestial bodies shall be used exclusively for peaceful purposes;
d) States shall avoid harmful contamination of space and celestial bodies.

The efforts made under these developments, however, witnessed only marginal success. A major
failure with regard to the 1966 Treaty is that it does not provide for any international control
machinery to look after the larger interests of the international community. Further it does not
provide for compulsory jurisdiction of the International Court of Justice for the settlement of
disputes. In addition to the previous two drawbacks the treaty has not resolved the boundary
between space and outer space.15

Following the ratification of the Outer Space Treaty by 98 Countries16 there was a certain change
in the outlook of the nations indulging in such programmes. In 1983, Yuri Andropov ordered the
ending of all Istrebitel Sputnik testing, thereby ending the ASAT programmes in the USSR. 17
USA similarly in 1988 cancelled all its programmes as well.18

However, with the advent of 2006, certain activities on this front started taking place, yet again,
thereby ending the period of relative tranquillity. A cataclysmic change in direction was taken by
the United States on August 31, 2006. USA at that time adopted its latest version of the National

14
„Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the
Moon and Other Celestial Bodies‟, 2 September 2010, http://www.oosa.unvienna.org/oosa/SpaceLaw/outerspt.html.
15
Supra Note 5 at p. 276-278.
16
Outer Spcae Treaty Signatories, 20 September 2010, http://www.nti.org/db/nisprofs/fulltext/treaties/space/
space3.htm
17
“Military: ASAT System” 1 September 2010, http://www.russianspaceweb.com/is.html.
18
Supra Note 4.
Space Policy,19 (hereinafter referred to as the NSP06) and asserted for itself a right to defend its
national interests in space, to exclude any state the United States of America views as an
immediate or potential threat, engage in intelligence gathering, to develop nuclear powered space
vehicles, and implied a right to create a strong military presence. 20 USA, thereby, unilaterally
created for itself a broad based and highly controversial right in the NSP06. Here under USA
reserved for itself the right to „deny, if necessary, adversaries (or states potentially hostile) the
use of space capabilities hostile to (US) interests.‟ According to this they would now unilaterally
determine which nations should be barred from space, for what reasons and when. Also, USA
asserted the right to bar states seen as „developing capabilities‟ from impeding US interests in
space and its national security.21

As is palpable from the above paragraph, The United States National Space Policy of 2006
inherently violates the freedom of exploration clause of the Outer Space Treaty as well as the
basic commons rule, res communis, i.e., „space as the province of all mankind.‟ (And that it
should be owned by no-one). If exploration can be unilaterally blocked by USA then Space will
no longer be freely available for all to explore, and it will certainly not be for the benefit of all
mankind, in regard to any state viewed as a possible threat to the national interests of USA.22
However, according to Todd Barnet there exist certain scholars who believe that US actions in
the form of the National Space Policy of 2006 does not violate the provisions of the Outer Space
Treaty. Focus may be laid on Jacob M. Harper‟s observations in this regard. According to Mr.
Harper, “International law would contradict the NSP06 only if the law of space were based on
the law of the high seas. However, the high seas analogy probably should not apply….although
distasteful because it allows militarily dominant countries to control the medium-whether space
or sea-at issue, the Bush Doctrine (of the right of pre-emptive attack) and the law of terra nullius
fill the enforcement gap.”23 It may be submitted that the Policy has been very intricately crafted

19
United States National Space Policy, authorized by President George W. Bush on August 31, 2006. This
establishes an overarching national policy that governs the conduct of U.S. Space activities.
20
Barnet, Todd, A Proposal to Amend the Outer Space Treaty and the United States National Space Policy of 2006,
19 September 2010, http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=todd_barnet.
21
Unclassified: A Renewed Spirit of Discovery, 20 September 2010, http://www.globalsecurity.org/space/library/
policy/national/us-space.
22
Supra Note 20.
23
Supra Note 19.
in order to depict minimum deviance from the treaty by placing heavy reliance on legal fiction.
However, if the Anti-ASAT stance adopted by the current Obama administration were to fail, as
is opined by a majority of experts the consequences could be disastrous.

Another dark occurrence in the existence of the treaty came in the subsequent year of 2007 itself.
The People‟s Republic of China came to occupy the position of being the only country in the
world besides USA and Russia (Formerly USSR) that possessed the ASAT technology24. The
Chinese on 11 January 200725 tested a sophisticated ASAT weapon and thereby shot down its
own obsolete weather satellite named Fengyun-1C.26 This act evoked strong protests from the
global community as a whole and rekindled the topic of militarisation of space..27

The Chinese ASAT weapon if compared to its predecessors is a marked improvement. The
interception was almost head-on at a combined speed of almost 30,000 kilometres (km) per hour.
Some of the pieces of debris wound up with the speeds much greater than the original satellite.
This means that China accomplished the most sophisticated of space manoeuvres, i.e., a hit-to-
kill interception, the equivalent of hitting a bullet with a bullet. This is at par with what the U.S.
is trying to develop in its national missile defence system and is much more sophisticated than
the ASAT the Soviet Union was working in the 1980s. The Soviet efforts were little more than
space mines that slowly encountered targets and detonated nearby.28

China however did informally go on to pledge that it would „never do this again.‟ This promise
however seems unlikely to be complied with, especially keeping in mind the huge price paid by
it for testing the system once, both in resources and in political capital.29

In the very next year in the month of February 2008, the United States made use a „Direct-
ascent kinetic energy interceptor‟ to destroy, at an altitude of 247 km, a failed U.S. satellite

24
Forden, Geoffrey (2008) 'Viewpoint: China and Space War', Astropolitics, 6:2, 138 — 153
25
No official statement was made by the Chinese Foreign Ministry till 23 January.
26
Supra Note 2.
27
Supra Note 1.
28
Supra Note 24.
29
Ibid
named USA-193. The USA-193 was about to make an uncontrolled atmospheric re-entry.30 US
officials were quick to deny the incident as a trial for testing its ASAT capabilities. The head of
the U.S. mission at the UN Conference on Disarmament said that “The engagement is not part of
an anti-satellite development and testing program, and we do not intend to retain the technical
capability resulting from the modifications required.‟‟31 The Chinese foreign ministry however
was sceptical about the entire turn of events and expressed vague concerns about “possible
damage to the security of outer space and relevant countries by the U.S. move.” 32 Further, the
Russian defence ministry said that “the satellite destruction does not look harmless as they try to
claim, especially at a time when the U.S. has been evading negotiations on the prohibition
(limitation) of arms race in outer space for a long time.”33

The spate of such activities has Russia worried. In March 2009, Russian Deputy Defence
Minister Vladimir Popovkin, former chief of Russian military space forces, reportedly said at a
news conference that “Russia can‟t sit back and quietly watch others doing that [testing space
interceptors]”. Hence it seems that Russia too may just as well be working to develop a similar
capability.34

These recent developments are alarming. What is even more disturbing is the fact that with the
onset of a new political order and advent of a multi-polar world new power centres are emerging
and developing their own technologies to counter these existing and rapidly growing threats. In
January 2010, the Director-General of India‟s Defence Research and Development Organisation
reportedly said that India plans to develop the capacity to destroy satellites in low-earth and polar

30
Nick Brown, „„US upgrades Aegis and SM-3 for anti-satellite role,‟‟ Jane‟s International Defence Review, 10
March, 2008, http://www.janes.com/articles/International-Defence-Review-2008/US-upgrades-Aegis-and-SM-3-for-
anti-satellite-role.html.
31
Christina Rocca, statement, Conference on Disarmament, Geneva, CD/PV.1091, 15 February, 2008,
http://disarmament.un.org/library.nsf/a61ff5819c4381ee85256bc70068fa14/a49d76a869ca952a8525745c0065be70/
$FILE/cd-pv1091.pdf.
32
Liu Jianchao, press conference, Ministry of Foreign Affairs, Beijing, China, 21 February, 2008,
http://www.mfa.gov.cn/eng/xwfw/s2510/2511/t409230.htm.
33
Russian Defense Ministry, quoted in, „„Russian DM says US may test new weapon under pretext of destroying
satellite,‟‟ ITAR-TASS, 16 February, 2008.
34
„„Russia Building Anti-Satellite Weapons,‟‟ The Independent, 5 March, 2009, http://www.independent.co.uk
/news/ world/ europe/russia-building-antisatellite-weapons-1638270.html.
orbits, as part of a broader ballistic missile defence program that will reach maturity in 2014.35
Japan has also passed a legislation in 2008 that permits it to use outer space for military purposes
of a defensive nature.36 Today only a handful of countries have launch capabilities37, these
countries other than the ones discussed above may in the near future also come up with similar
technologies which will lead to the aggravation of the present situation to a critical level.

With the spate of such recent developments the threat to world peace and security seems to be at
an altogether alarming level. It is submitted that suitable amends must be made to the Outer
Space Treaty, which has been described as the Magna Carta of space38 or it must be replaced by
an altogether new one. A solution may be envisaged similar to the one enunciated by Ross
Liemer and Christopher F. Chyba. According to them „A Verifiable Limited Test Ban for Anti-
satellite Weapons‟ may be put into place.39 As per this recommendation a ban may be imposed
upon the testing of ASAT weapons above a particular altitude. The primary aim of such
restrictions as envisaged is the protection of space assets from debris caused due to the
destruction of articles placed in orbit by the use of such technology. The drawback of a limited
ban would be that it would permit all countries to test debris-producing ASAT systems below the
agreed altitude, so it would not cap the number of countries with this capability. But for this
same reason, it would be more likely to receive broad multinational support.

It may also be noted that keeping in view the above deficiencies in international law on this topic
a new treaty titled Space Preservation Treaty has been proposed. This treaty attempts to make up
for the deficiencies of its predecessor. As per Article I Clause (A) of the treaty, its object is as
follows40: “The Space Preservation Treaty (the “Treaty”) bans war in space, and bans any and
all covert space-based weapons programs, including those funded under unacknowledged secret

35
„„DRDO to Develop Anti-Satellite Technologies,‟‟ domain-b.com, 4 January, 2010, http://www.domain-b.com/
defence/general/ 20100104_anti_satellite_oneView.html.
36
Hashimoto Nobuaki, „„Establishment of the Basic Space Law_Japan‟s Space Security Policy,‟‟ National Institute
for Defense Studies News, no. 123, July 2008, http://www.nids.go.jp/english/dissemination/briefing/2008/123.pdf.
37
United States, Russia, Ukraine, China, India, Israel, and France/ESA (European Space Agency members, who use
the launch site in French Guyana) have launch capabilities.
38
Major Robert A. Ramey, Armed Conflict on the Final Frontier: The Law of War in Space (2000) 48 A.F.L.Rev.1.
The Outer Space Treaty has also been referred to as the “constitution” of space.
39
Supra Note 2.
40
Space Preservation Treaty, 2 September 2010, http://www.peaceinspace.com/sp_treaty.shtml.
access space (“Black Budget”) programs, established, funded or operated by any State Party to
this Treaty, any State, any organization, corporation, partnership, group, individual or syndicate
or by any other means. This Treaty establishes an independent, international ombudsman agency
– the Outer Space Peacekeeping Agency – to monitor any and all possible war in space and /or
space-based weapons activity on land, sea, in the atmosphere, and in outer space, and to enforce
this permanent ban.”

The above mentioned treaty seems to be a marked improvement, however its fate seems
uncertain, as it still remains to be seen whether consensus can be achieved in this regard among
the global community. It will however be a pity if it meets the same fate as that of the
„Agreement Governing the Activities of States on the Moon and Other Celestial Bodies‟ or better
known as the Moon Treaty.41

Hence, to conclude it may be summed up that the future of man it seems depends heavily upon
the actions and decisions taken by the present day governments. A consensus and a strong global
opinion against such an indiscriminate arms race have to be achieved in the near future. If we fail
to do so, then the words of Albert Einstein that, “I know not with what weapons World War III
will be fought, but World War IV will be fought with sticks and stones.” will certainly hold true.
Sadly, at the pace at which things seem to be progressing weaponisation of outer space does not
seem to be a mere preponderance but a stark reality.

41
See Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 2 September 2010,
http://www.unoosa.org/oosa/SpaceLaw/moon.html.