Governing Space as a New Warfighting Domain – Part Two: Consequences and Governance

25th August 2020

As mentioned in Part One, with space technology becoming progressively more accessible to a wider range of states, the need for a codified system of space governance is becoming increasingly necessary. Within the next decade, it is expected that more nations will add their satellites to the 2,000 active satellites in orbit, with South Korea already adding their contributions to space’s growing military infrastructure in 2020 and Pakistan, Ukraine, Libya, Israel, Japan and Egypt all reported to be ‘heavily investing in space research and counterspace weaponry’.1 2  On top of the growing number of active satellites, there is also believed to be around 500,000 pieces of debris in orbit above Earth, 30,000 of which are believed to be large enough to cause damage.3 This article looks at the potential consequences of military action in space, particularly involving anti-satellite weaponry, as well as exploring the norms, laws and treaties already governing the use of space and suggestions for how to create more effective space governance.

Currently, over 33% of space debris has its origins in two separate events. The first of these is the 2007 use of an anti-satellite weapon by China on one of their defunct weather satellites, whose destruction is estimated to have increased debris orbiting earth by 10%. The second was a 2009 collision between an American communications satellite and an inactive Russian satellite.4 5 Taking into account the negative consequences of these two events sheds further light on the devastation that could be caused by a belligerent act in space ‘where so much of humanity depends on for navigation, communications and environmental monitoring’.6  Brian Weeden, co-editor of Secure World Foundation’s 2020 Global Counterspace Capabilities report, has expanded on the potential consequences of further use of anti-satellite weapons, saying that their use could ‘threaten the accessibility of space for everyone’ through the disruption of key services and essential daily functions such as internet access, GPS signals, long-distance communication and financial transactions.7 8 With GPS alone estimated to have contributed to economic benefits in the private sector between 1984 and 2017 of around $1.4 trillion, the economic cost of any action resulting in increased space debris is phenomenal.9

In addition to the short- to middle-term implications of increased space debris in orbit, long-term implications are also significant with the United States Defence Development Agency predicting that this could lead to increased costs of services and space research due to satellite manufacturers having to ‘add additional shielding and fuel to allow for more frequent avoidance manoeuvres’.10 Chatham House has also pointed out that the consequent disruptive nature of increased space debris ‘could do serious damage to large parts of the economies of developed and developing countries’, proving NATO’s observation that ‘any conflict in space would affect all users of space – perpetrators, victims and bystanders’.11 12 In light of the indiscriminate nature associated with the aftermath of the use of an anti-satellite weapon in space, it could be argued that the use of one, if not as a last resort measure, could questionably be counter to humanitarian law in which the method which produces the least collateral damage must be used in a military operation.13 The continued use of physical kinetic counterspace weapons could result in achieving the theory known as Kessler Syndrome which theorises that ‘once past a certain critical mass, the total amount of space debris will keep on increasing: collisions give rise to more debris and lead to more collisions, in a chain reaction’, therefore rendering space unusable.14

Having met in January for a Strategic Security Dialogue in space, Russia and the USA reached an agreement to establish a US-Russian dialogue on space security, with plans to include China. Spurred on by Russia’s recent activity in space, American and Russian delegates met once again in Vienna on 27th July to discuss issues surrounding security in space and its regulation.15 Whilst the summit was underway, Vladimir Dvorkin, from the Centre for International Security at the Russian Academy of Sciences, linked to research institute IMEMO, acknowledged that ‘right now there are no laws against the deployment of conventional weapons in Earth orbit’, echoing Daniel Porras’ concerns at the United Nations Institute for Disarmament Research that ‘there are no rules of engagement’.16 17 So what are the current laws, norms and treaties governing space?

Whilst the United Nations Office for Outer Space Affairs, established ‘to promote international cooperation in the peaceful use and exploration of space’, was founded in 1958, the first piece of major legislation governing space use was the 1963 Partial Test Ban Treaty (PTBT).18 The 1963 PTBT was implemented at the height of USA’s and Russia’s nuclear arms race and space race and agreed to prohibit ‘the testing and use of nuclear warheads on Earth-to-space and space-to-space kinetic weapons’.19 Building on the norms established in the PTBT, the Outer Space Treaty (OST) came into force in 1967 and cemented a system of governance based around the use of outer space for scientific exploration and to the benefit and interest of all humanity. As part of this, the treaty banned all weapons of mass destruction from space as well as prohibiting the national sovereignty of celestial bodies in space, including the moon.20 Further to this, article three of the treaty helped to ground space legislation in law already established on Earth stating that activities in outer space ‘shall be in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security’.21  Continuing contributions to the fledgling system of norms governing outer space activities included the 1972 Liability Convention which expanded upon article six of the OST that stated States ‘shall bear international responsibility for national activities in outer space…whether such activities are carried on by governmental or non-governmental authorities’.22 The 1972 Convention determined that ‘a launching State shall be absolutely liable to pay compensation for damage caused by its space objects on the surface of the Earth or to aircraft, and liable for damage due to its faults in space’ with the term ‘launching State’ being defined as ‘the State that launches or procures a launch or a State from whose territory or facility a space object is launched’.23

Alongside legislation are supporting bodies such as the aforementioned United Nations Office for Outer Space Affairs and the United Nations Institute for Disarmament Research which describes itself as ‘an autonomous institution within the United Nations that conducts independent research on disarmament and related problems’.24 Regional political organisations such as the European Union also contribute to the governing and regulation of space, with the Council of Europe providing a Code of Conduct draft for outer space activities in 2008 which called on States to ‘refrain from intentional destruction of any on-orbit space object’. The Code of Conduct was revised in 2014 to allow for the destruction of a space object when it is justified, with examples of justifications including safety, the prevention of new space debris, and self-defence.25

Whilst a partial system of governance for outer space is in place, it is not universally subscribed to and, due to having its origins in the nuclear-charged environment of the Cold War, is not fit for purpose for a new generation of space use, especially now outer space has been classified as an ‘operational domain’. The Centre for Strategic and International Studies report on ‘International Perspectives on Space Weapons’ has pointed out some of the flaws in the old outer space regulatory regime, explaining how the 1963 PTBT does not affect ‘the development, testing, deployment, or use of non-nuclear space weapons’ and that the 1967 OST does not deal with earth-to-space weapons, nor does it ‘prohibit conventionally armed space-to-space weapons in Earth orbit, in deep space, or in orbit around other celestial bodies nor does it prohibit conventionally armed space-to-Earth weapons’, thereby revealing multiple flaws in the established outer space treaties.26 What is being done to adapt and develop a system of outer space governance suitable for the modern age?

Perhaps surprisingly, Russia and China have been pioneers of a new governance regime in space, mainly under the umbrella of the Prevention of an Arms Race in Outer (PAROS) presented to the United Nations Conference on Disarmament. One of the most persistent iterations of PAROS put forward to the committee has been the working paper on ‘Possible Elements for a Future International Legal Agreement on the Prevention of the Deployment of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects’ tabled by Russia and China in 2002.27 Continued Sino-Russian dialogue resulted in a draft treaty being presented to the UN Conference on Disarmament in 2008 which aimed to ‘prohibit the placement of weapons in outer space and the threat or use of force against space objects of parties to the instrument’. This draft treaty was again updated in a tabled Russian resolution to the UN General Assembly in 2014, passing by 126 votes but unfortunately lacking the legitimacy needed due to opposition by the United States, alongside Georgia, Israel and Ukraine.28 In tandem with the proposed contributions to PAROS put forward by Russia and China, the UN General Assembly has developed ‘transparency and confidence-building measures’ for outer space activities, as well as establishing a group of government experts to undertake studies concerning outer space.29  A further UN General Assembly resolution was also passed in 2015 calling on states to uphold ‘a political commitment not to be the first to place weapons in space’, a call which was backed by nations such as South Africa, Australia and Japan.30

The newly attempted PAROS regime, instigated by China and Russia, has continually suffered blows to its legitimacy through the United States refusal to participate. However, there are reasons why they have taken this stance, the most pertinent of which is the difficulty surrounding defining a space weapon and ‘the lack of verification mechanisms’.31   Firstly, there is little universal consensus over what amounts to a space weapon with questions surrounding the categorisation of kinetic and non-kinetic as well as the categorisation of earth-to-space, space-to-space and space-to-earth weapons.32 In addition to this, there are also questions around whether earth-to-earth weapons, such as ballistic missiles which use space while travelling, constitute a space weapon and would therefore be included in the prohibition.33 Expanding on this, a report in the Harvard International Review has labelled the use of the term ‘space weapon’ as ‘functionally meaningless’, pointing to the fact that due to the dual-use civilian-military nature of space any originally passive satellite could be commandeered to create a crude anti-satellite weapon ‘simply by ramming them into other countries’ satellites’.34 This dual-use also creates issues for the verification of military activity in space, where it is oftentimes ‘impossible to verify whether a particular technology is for benign or threatening purposes’.35 As pointed out by NATO, a weather satellite could be used as a cover for a military gathering satellite and has raised previously a passive civilian satellite can quickly be utilised as a crude anti-satellite weapon.36 This also causes problems when determining malicious intent with a deliberate attack on a satellite being able to be disguised as debris or a malfunction.37 In terms of verification, the USA is also sceptical of the PAROS draft treaty due to the ‘absence in the draft of a prohibition on the possession, testing, production, and stockpiling of the weapons’, whose absence they argue leaves the door open for potential rapid deployment of weapons should talks break down.38

There are still many obstacles in the way of a universally accepted PAROS regime but progress is being made across the globe to lay the foundations for a lasting set of norms and treaties to govern outer space both by countries and private institutes. To this effect, two different projects are underway, one at McGill University’s Centre for Research in Air and Space Law and another involving a collaboration between Exeter University, Adelaide University, the University of New South Wales and the College of Law at the University of Nebraska. Whilst similar in nature, the two projects do slightly differ, with McGill’s aims being to create a manual which ‘clarifies the fundamental rules applicable to military uses of outer space by both States and non-State actors in times of peace and in periods of rising tensions’ and the consortium of universities looking to create a manual which ‘summarizes how existing international law applies to military uses of space’, both of which are hoping to influence the continued expansion of a PAROS regime.39 40 Alongside these institutions, organisations such as the European Union and NASA have put forward Codes of Conduct and principles adding to the discourse surrounding space governance. NASA’s contribution, the Artemis Accords, is particularly interesting as it puts forward principles which would allow the USA to enter into agreements with other countries surrounding outer space. Included in the ten principles presented in the accords is the need for all activities in space and on the moon to be conducted for peaceful purposes; transparency amongst states in regards to space policy and; registrations of both private and public space objects, whilst also urging states to sign the Convention on Registration of Objects Launched into Outer Space. The Artemis Accords also advocate for the setting up of ‘Safety Zones’ through coordination between States.41

In addition to the prospective improvements to the PAROS regime detailed above, further proposals have been put forward in an attempt to mend the flaws revealed in the governance regime. One such proposal has been a prohibition on anti-satellite weapons, rather than the blanket term of space weapons currently being used in draft treaties, arguing that the blowing up of any space object should be prohibited, thereby partially resolving the problem of definitions and verification.42 Further to this, Ploughshares, the peace research institute, has also pinpointed the need for defined rules on close approaches to foreign satellites, reinforced protections on critical systems in space and an international transparency and verification system for objects and activities in orbit to strengthen the space governance regime to a point where it is fit for purpose.43

It would appear that whilst there is seemingly an international political appetite for the establishment of a modern governance system, the current lack of trust between states, shown through the need for minutiae in terms of defining space weapons and verification has set back progress. However, there is apparent advancement in discourse dealing with the PAROS regime as both private and state institutions seek to further adapt and strengthen an internationally accepted system of governance for outer space.