New Technologies Symposium: Contested and Fragile–The Dual-Use Space Environment

[Professor Melissa de Zwart is Dean of the Adelaide Law School, University of Adelaide and an Editor of the Woomera Manual on the International Law of Military Space Operations. This post is part of our New Technologies and the Law in War and Peace Symposium.]

Space is a fragile and challenging environment. It is, by its very nature, hostile to human survival and yet it has summoned the dreams and ambitions of humanity since the dawn of time. The desire to explore and potentially to inhabit space has driven scientific endeavour and the achievements of humans in first orbiting the Earth (Yuri Gagarin in 1961) and then landing on the Moon (Apollo 11 in 1969) have inspired generations since that time to continue to explore the solar system and beyond with earth and space-based technologies. We are now poised on the edge of the next great adventure, sending new missions to the Moon and then to Mars.

However, space has also been perceived as the ultimate ‘high ground’, a place from which the militaries of nation states could conduct reconnaissance and surveillance and, possibly, hostilities. Early experiments proved the dangers of detonation of nuclear weapons in space and, recognising the uncontrollable risk, the Partial Test Ban Treaty of 1963 prohibited the explosion of nuclear weapons in outer space. This ban was restated in the first of the UN space treaties: the Outer Space Treaty (OST) (Treaty on Principles Governing the Activities of States in the Exploration  and Use of Outer Space, including the Moon and Other Celestial Bodies) in 1967. Article VI of the OST also prohibited the ‘establishment of military bases, installations and fortifications, the testing of any types of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden.’ However, the same provision also expressly acknowledged that the ‘use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited.’

Beyond these provisions, and the oft cited but operationally opaque references to ‘peaceful purposes’ and to the exploration and use of outer space as the ‘province of all mankind’ there are no clear guidelines regarding military use of outer space. In addition, military technology and military personnel were and remain essential to the exploration of outer space. Most astronauts and cosmonauts are still drawn from their respective country’s military forces. Today, militaries worldwide are dependent upon space for surveillance, reconnaissance, communication, navigation, and much more.

However, space is now becoming a commercial domain. Communication satellites provided the first avenue for commercial exploitation of space in the 1970s and 80s. The development of GPS then provided an opportunity for the creation of endless consumer platforms including internet time, navigation and entertainment. Internet of things applications, deployed through constellations of cubesats, now promise to bring new services to remote areas. More recently technology has developed at an increasingly rapid pace. Commercial providers such as New Zealand based Rocket Lab are developing novel materials, fuels and techniques which have drastically reduced the cost of access to space. Governments are becoming the customers rather than the providers of space services.

Militaries are increasingly dependent upon commercial technology to provide services such as surveillance and communication, as well providing technology and services to government that would previously have been the domain of government organisations such as NASA.

In March 2019 Elon Musk’s SpaceX successfully docked a Dragon capsule with the International Space Station (ISS).The capability for US crew to be launched into space from American soil had not been possible since the cancellation of the Space Shuttle program in 2011. This had left the US reliant upon the Russian Soyuz program for crewed flights since that time. NASA has awarded contracts to SpaceX and Boeing with a potential value of $6.8 billion to transport U.S. astronauts to the ISS. Not only did the Dragon capsule carry supplies for the ISS as part of its continued support of the NASA Commercial Resupply Service (CRS), it also carried a mannequin, named ‘Ripley’ in honour of the main character from ‘Alien’, providing a final test of the capacity of the Dragon capsule to carry personnel to the ISS.

However, this expansion of access to space brings with it new dangers and risks. On 27 March 2019 India announced that it had, through the process of shooting down its own satellite in Low Earth Orbit (LEO), become a member of an ‘exclusive group of space faring nations consisting of USA, Russia and China’. In other words, it joined the club of nations that have conducted an ASAT test, destroying their own space object. Prime Minister Modi declared the success of Mission Shakti, demonstrated by this kinetic destruction of the Microsat-R satellite, which had only been launched in January 2019, ‘will make India stronger, even more secure and will further peace and security’. This ‘test’, timed to make maximum impact on the upcoming Indian election, generated global concerns about the increased militarisation of space, as well as denunciation of the creation of further space debris, posing a risk to the future development of a viable commercial space industry.

The problems of space debris have been known (at least) since China destroyed its own weather satellite in January 2007. The destruction of the FengYun-1C generated a massive field of space debris, consisting of at least 3000 trackable pieces. That debris will continue to pose a hazard to space objects in that debris field for decades to come. The US destroyed a defunct spy satellite in 2008, however as the destruction occurred at a lower altitude, all of the debris from that event is believed to have been destroyed upon re-entry to the Earth’s atmosphere. A 2009 collision between a Russian satellite and a US commercial satellite similarly created approximately 2000 pieces of debris which are still being tracked.

Following the announcement of the Mission Shakti test, the Indian Government attempted to pre-empt international criticism of its actions and ward off accusations of militarisation of outer space by taking control over the rhetoric used to describe its actions. The official Frequently Asked Questions on Mission Shakti, India’s Anti-Satellite Missile test conducted on 27 March, 2019 website, hosted by the Indian Ministry of External Affairs, noted that ‘India has no intention of entering into an arms race in outer space. We have always maintained that space must be used only for peaceful purposes. We are against the weaponization of Outer Space and support international efforts to reinforce the safety and security of space based assets.’ Such a statement seems at odds with a test clearly aimed at demonstrating destructive capability and expressly done to verify that India ‘has the capability to safeguard our space assets’.

Further India claims that the ‘test was done in the lower atmosphere to ensure that there is no space debris. Whatever debris that is generated will decay and fall back onto the earth within weeks.’ There is significant dispute that the debris field will indeed decay as rapidly as India asserts.

NASA Administrator Jim Bridenstine is one of the few public officials to openly denounce India’s actions, noting the risk the debris field posed to the ISS: ‘That is a terrible, terrible thing, to create an event that sends debris in an apogee that goes above the International Space Station.’  Bridenstine further stated ‘that kind of activity is not compatible with the future of human spaceflight that we need to see happen.’ It is estimated that the Mission Shakti debris has created an increased risk to the ISS of debris impact. It also poses a risk to commercial constellations in LEO.

The nature of the UN Space Treaties leaves much uncertainty about permitted uses and activities in space. The Mission Shakti test did not violate any current international laws and even the creation of space debris, whilst seen as antisocial, is not illegal. By focussing the post-test narrative on the fact that the test would create only minimal debris (and then in a low orbit that would rapidly decay and lead to the destruction of the debris) India has redirected attention away from the question regarding the desirability of prohibiting any further ‘tests’ of this kind. Further, by restating that ‘India has no intention of entering into an arms race in outer space’, it attempted to place the test in the context of a peaceful scientific experiment. The FAQ continued: ‘We have always maintained that space must be used only for peaceful purposes. We are against the weaponization of Outer Space and support international efforts to reinforce the safety and security of space based assets.’

Clearly there is a need to develop new ‘rules of the road’ to enable continued access for commercial and civilian actors in space. Concerns about Trump’s Space Force should be measured against the existing risk to space assets from increased commercial and civilian uses of space. At the most recent meeting of the UN Committee on the Peaceful Uses of Outer Space the German delegation noted that the ‘growing number of space debris unquestionably poses one of the biggest threats to the safe conduct of outer space activities.’ Despite the increasing number of actors in space, there appears to be worryingly ‘low compliance rates with the space debris mitigation guidelines.’  Calling for legally binding prohibitions upon the intentional destruction of space objects, the delegation went on to observe that ‘In order to keep outer space  operationally safe for use not only today but also for future generations, we need not only internationally accepted guidelines prohibiting the intentional destruction of space objects resulting in the generation of long lasting debris, keeping in mind that the exploration and use of outer space shall be carried out for the benefit and in the interest of all countries, but  sooner or later we will need to conduct active debris removal missions. These will inevitably raise several legal issues such as responsibility and liability. Such remediation measures may also require further internationally accepted guidelines as to the transparent and safe conduct of such operations.’ 

Whilst such a statement seems perfectly reasonable on its face, it belies the problem that active debris removal technologies function themselves as anti-satellite weapons. The dual-use nature of space technology poses unique and difficult issues for regulation. These challenges can only be effectively addressed with international consensus.

It is noted that there are several projects being undertaken at an international level to bring some clarity and certainty to the laws affecting the use of outer space. One of these projects, the Woomera Manual on the International Law of Military Space Operations, brings together experts from across the globe to identify and articulate the existing international law, including space law and law of armed conflict, that currently applies to the space environment, drawing upon real life practices and examples. In addition to being a comprehensive statement of the applicable law, the resulting Manual will be of use to governments, militaries and academics in determining the areas where there are normative gaps in current regulation.

As renowned astrophysicist Neil deGrasse Tyson reminds us; ‘Space is not a magical place where somehow, suddenly, everybody is friendly.’ (Tyson and Lang, Accessory to War, 2018, p 382). National and commercial rivalries alike will continue to challenge the space domain.