Examining Space Law &
its Implications
Wg Cdr KK Nair
Examining Space Law
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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 “offlimits” for all military activity.
Environment of space unique, hence though
fundamentals of space law draw on all 3
analogies, it maintains a distinct character.
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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.
International & Domestic Space
Law
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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;
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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 treaty’s provisions for doing
so or as necessary to defend itself during
hostilities, unless the treaty specifically requires
otherwise.
Primary Constituents of International Space Law
Treaties
OST-1967.
Rescue Agreement -1968.
Liability Convention-1972.
Registration Convention-1975.
Moon Treaty-1979
Principles
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.
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 ISL+UN 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.
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→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.
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.
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→ 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.
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 nonnuclear ASAT’s 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 spacestations 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.
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
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.
Satellite
Number of Satellites-Year wise
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
PhotoReccee
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
1958
1959
1960
1961
Total
• 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.
Prevailing Realities
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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.
Revival of Interest in ASATs
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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.
The Final Straw
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Comparing the Chinese & US test.
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.
Hence, ‘to close existing gaps in the legal frame work, China &
Russia submitted draft PPWT treaty’.
OST (Article-IV)
“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”.
PPWT (Article-II)
“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.”
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.”
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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 R&D on ASATs.
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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.
International Space Law in the Indian Context
Country
International Space Treaties
Significant International Agreements
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
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-
-
-
-
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→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.
“Thank You for Allowing me to
Share my Ignorance”