28 Apr Mission Shakti: A Big Moment or a Terrible Thing?
[Nikhil Purohit is a law student at the National Law School of India University in Bangalore, India and the Chief Editor of the Indian Journal of Law and Technology.]
India recently tested an Anti-satellite (ASAT) missile by shooting down one of its own satellites. In public announcements, this move was touted as necessary in boosting the defence of space assets of the country. With this India has become a ‘space power’, being only the fourth country to achieve this capability. This test was termed as a ‘big moment’ by the Prime Minister in his address to the nation. However, after the public announcement of the test, NASA Administrator Jim Bridenstine criticised the test terming it to be a ‘terrible thing’ given the debris it created.
Codenamed Mission Shakti, this test attracted sharp criticism in the nation, with several commentators claiming that the test reeked of political opportunism, given that the general elections were just around the corner. Leaving aside the political implications, it is important to note that most analysts did not find fault with the Prime Minister’s claim that the test “does not violate any international law or treaty obligation to which India is a party”. In this piece, I will determine the veracity of this claim by resorting to an analysis of the Outer Space Treaty. Upon a perusal of the relevant legal framework, I will argue that this ‘big moment’ is not far from being a ‘terrible thing’ (at least as far as international law is concerned).
The principal treaty governing the use and exploitation of outer space is the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (hereinafter the “Outer Space Treaty”). Article IV of the Treaty principally governs the extent of permissible military use of outer space and celestial bodies. It reads as follows:
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.
The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies shall also not be prohibited.
A general concern that has been raised against the Mission Shakti test is that it is probably in violation of the ‘peaceful purposes’ requirement under Article IV. This, however, stems from a misunderstanding concerning the applicability of the provision providing for use ‘exclusively for peaceful purposes’. As is clear from the wording of the Article reproduced above, the Outer Space Treaty provides a differential regime for outer space per se (referring to the void that exists) and celestial bodies such as the Moon. Only the latter is subjected to the restriction of use ‘exclusively for peaceful purposes’ which prohibits any form of military activities on celestial bodies apart from those expressly permitted. However, as far as the void of outer space is concerned, the only prohibition is as to the placing of nuclear weapons or weapons of mass destruction, or stationing them in outer space.
This, nonetheless, does not provide a free hand to States to utilise outer space in any manner as they please. By the applicability of general international law (by virtue of Article III of the Outer Space Treaty), only non-aggressive activities are permissible in outer space. An activity is deemed to be aggressive only if it involves the actual use of force by one state against another. Thus, even military activities are permissible so long as they are non-aggressive. This is evident by State Practice as military satellites serving purposes such as observation, communications, etc., have been put in operation by almost all States. Such non-aggressive military activities are being conducted since time immemorial as is clear from the fact that even at the time of the drafting of the Outer Space Treaty, both the major space powers, i.e., the USA and the USSR, were utilising the outer space for military activities such as reconnaissance.
In the Indian scenario, the ASAT test was conducted to destroy an Indian satellite to determine the capability of the weapon. This being non-aggressive, based on the aforementioned definition, was well within the peaceful purposes requirement of the Outer Space Treaty. Thus, this challenge to the Mission Shakti test does not hold.
This is the point where most discussions surrounding ASAT tests conclude. However, there exists another facet of the Outer Space Treaty which remains unaddressed in such an analysis. This concerns Article IX of the Outer Space Treaty which essentially codifies the principles of cooperation and provides that States must exercise due regard to corresponding interests of other States while conducting their own activities. Additionally, it provides that in case the concerned State has a reason to believe that its experiments might cause harmful interference with the peaceful exploration activities of other States, it must seek international consultations before proceeding with the experiment.
The NASA administrator, immediately after the announcement of the test, pointed out to the debris created by the same posing greater risks to the International Space Station. The Indian government justified Mission Shakti by pointing out that the test was conducted in a low orbit in order to avoid any harm which might have been caused to the International Space Station. Additionally, it stated that the experiment was conducted in a manner to minimise the debris produced, which also would decompose within a span of 45 days and thus posing no problems for space navigation. The chief of the Defence Research and Development Organisation, Mr G. Satheesh Reddy himself defended the test stating, “There is a risk (of debris from the Indian ASAT test) but the risk is for about 10 days which has been crossed.” After some time even Pentagon confirmed that there did not exist any further risk to the International Space Station.
The popular adage “all’s well that ends well” seemed to aptly describe the scenario as the issue died down owing to the above factors. However, this takes away the attention from the point that at the time of conducting the test, there indeed existed some risk, even though just for 10 days, to the International Space Station. Considering the ultra-hazardous nature of outer space, even a minute risk can lead to significant consequences. This is because even small debris particles travelling at ultrasonic speeds can cause significant damage to structures they might come into contact with. Since Article IX obligations are obligations of conduct and not of result, it is immaterial that no harm occurred in the end. A failure to seek appropriate consultations regarding the conduct of the test itself amounts to a violation of the provision. A violation of such provision would strike at the very essence of the Outer Space Treaty which is premised on the cooperation amongst nations.
Even if it is assumed that the aforementioned provisions were not violated by arguing that the Article IX obligations are the so-called soft obligations of the Outer Space Treaty, Mission Shakti still leads to unwarranted consequences. It would act as a trigger to the fuelling of an arms race across the globe to gain a strategic advantage in the outer space, a res communis meant for the common benefit of the entire mankind. It is a race which is already ongoing with China constantly improving the strength of its ASAT weapons and the United States streamlining its efforts into its ‘Space Force’. Now that India has entered this race, despite the Prime Minister’s statement to the contrary, there is no turning back but to carry forward in this race lest they will lose the strategic advantage they seek to achieve.
Such an environment leads to a precarious situation particularly for the development of commercial use of outer space, a sector which has grown by leaps and bounds, posing uncertainties in the minds of companies as to the feasibility and safety of their operations. With these considerations in mind, the UN General Assembly has passed several resolutions aimed at “Prevention of an Arms Race in Outer Space”. Recognising such resolutions, Russia and China, both possessing ASAT capabilities, have come forward with a draft disarmament treaty to curb the ever-growing arms race in outer space. The draft has constantly been opposed by the United States as it interferes with its ambitions of creating a Space Force. Russia has already asked India to lend support to their endeavour of preventing the weaponisation of outer space. Now it is up to India to definitively decide its stance. The question before the next government that will assume power soon is a simple one: should it enhance this new-found power, or curb it in order to ensure compliance with the purpose behind the enactment of the Outer Space Treaty.
Irrespective of its decision in this regard, one thing is certain that this ‘big moment’ is not far from being a ‘terrible thing’, if not one. As a parting aside, it is ironic to note that it was, in fact, the Indian delegate, Mr Krishna Rao, who was one of the most vocal advocates of extending the peaceful purposes requirement under Article IV to the void of outer space as well. It is fortunate for India’s present government that this proposal failed to be enacted into law.