There are several questions arising from remote sensing operations, and these too often represent a threat to state sovereignty and territorial control. Moreover, regarding the military or civil uses of a satellite, the required technologies are the same, the only difference being their use. Dual use is therefore beneficial for states that do not have sufficient funds and resources to develop civil and military space programs separately, leading to an increase in the number of players in this context. However, the double use has negative sides: a satellite of this type becomes in fact an objective to be neutralized in case of conflict, also involving the annihilation of the precious results obtained in the civil field (meteorology, remote sensing for protection against natural disasters, security, etc.).
It is useful here to remember Cheng’s thought that “A state’s territory is a castle. No one is allowed to enter it without its permission… the arrival of space age was as opening up an ant-hill with all the ants inside scurrying round wondering how to cover themselves and their secrets and stores”. This is one of the effects of space technologies and remote sensing: the relevance of a state’s terrestrial military power is reduced to zero due to the possibility of knowing the opposing strategies in advance thanks to the collection of data from space. Another consequence is the rush to remote sensing, because sending a satellite around the Earth also means substantially increasing the influence and power of a nation by acquiring elements related to the opposing strategies. Remote sensing can also be carried out through shared agreements between states or states and private companies, although in this case the risk is having activities that go beyond the limits of the agreements. It is in any case clear that the clandestine collection of data must be considered prohibited on the basis that international law protects the privacy and secrecy of state information.
In fact, the norms of International Law favour the protection of sovereignty and privacy: an example is offered here by Article 40 of the United Nations Convention on the Law of the Sea Convention (LOSC): according to its discipline “During transit passage, foreign ships, including marine scientific research and hydrographic survey ships, may not carry out any research or survey activities without the prior authorization of the States bordering straits”. This article clearly shows the position of international organizations on the subject and that if such activities are strictly prohibited, they cannot be carried out in outer space. State sovereignty remains therefore one of the essential elements to be protected, but in doing so, international laws need to be reviewed and updated due to the increase in remote sensing and rapid technological progress. The issue of clandestine remote sensing activities can be examined by focusing on two main factors: land security and espionage related to natural resources, the environment, agriculture, etc.
Articles 55 and 56 of the Charter of the United Nations provide a useful point of reflection in this regard: first stating that: “With a view of the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations, the United Nations shall promote conditions of economic and social progress and development solutions of international economic, social, health and related problems”. The second declaring that “All members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set in article 55”. In these provisions, among other things, there is the clear intention to undertake a peaceful use of space as well as, including data collected through satellites, which are therefore basic for the economic and social progress of the states and the international community. There is considerable importance to the role played by the specialized agencies of the United Nations, such as the ITU, the WMO (World Meteorological Organization) and the ICAO (International Civil Aviation Organization), which could assume a predominant role in the management and supervision of such data collection operations.
The question of the legitimacy of space espionage is also linked to a query: are satellites placed in an international or national “type” of outer space? (referring to the second hypothesis to the state of origin of the equipment). The dominant opinion advocates for the management of remote sensing operations in a way that does not have to be hostile to the states and therefore does not lead to generating tensions between them. Naturally, the measures adopted by nations must be compatible with the UN Charter, which means that they cannot be modelled exclusively on the domestic context, otherwise being arbitrary. Observation for military purposes, as is well known, an inevitable component of the current international framework and the best way to deal with this situation is to return to the principles of the United Nations Charter: Article 74, for example, provides that member states base their attitude of respect towards the territory “on the general principle of good neighbourliness due account being taken of the interests and well-being of the rest of the world, in social, economic, and commercial matters”.
This is another element that contributes to defining the illegitimacy of clandestine remote sensing and that, among other things, helps to make the borderline between authorized and forbidden space activities (with particular interest for those of a military nature) less blurry. Although there are no specific customary rules of international law that prohibit space espionage, these initiatives cannot simply fall into the category of those allowed. In this regard, in fact, the treaties on space support peaceful purposes and every decision on the matter must be adopted by observing the balance between nations; also noting that, international jurisprudence prohibits clandestine remote sensing. Therefore, the new picture illustrated undermines one of the most important characteristics of states, that being sovereignty. With this in mind, only a transparent and articulated set of rules can be the key to safeguarding the authority of the countries, in an international context of peaceful coexistence.
In closing, until now the idea of an “international surveillance agency for satellites” has been rejected and one of the reasons for the refusal is the fact that a body that deliberates by a majority view cannot do so for sensitive issues concerning space. In this sense, greater support from the ITU could be considered desirable. Scientific observation are instead free (for example satellites that collect meteorological information or on the geographical features of the territory) even if nations complain about violations of the principle of state sovereignty over natural resources: information on their territory is known in advance from other countries.
The number of states that carry out space activities and have access to the cosmos has increased in recent years. At the end of 2005, in fact, with the support of Russia, Iran became the forty-third state with the launch of its first satellite. In investigating how the problems deriving from space pollution are linked to cosmic militarization, we must analyse radiological pollution. The electromagnetic waves deriving from equipment (military, civil and dual-use) positioned in outer space, in fact, interfere with satellites and observation systems, with the risk of causing considerable damage to the continuation of activities. Nuclear charges are also sources of radioactive contamination and the collision between these and space debris could have devastating consequences. Another cause is the disintegration or failure of launches of space objects carrying nuclear energy. One of the best known incidents dates back to 1978, when the Soviet satellite Kosmos 954 due to a malfunction, upon re-entering the Earth’s atmosphere, released nuclear debris in Canada.
The problem arises under other guises in open space: for nuclear-powered satellites, gamma rays are emitted capable of causing damage to the observation from space. This also includes nuclear debris. The five main documents of space law do not say much about the environmental problem and its connections with militarization. The 1967 Outer Space Treaty introduces the freedom of use and exploration of the cosmos and provides free access to the different areas of celestial bodies; this possibility could be compromised due to spatial pollution. As already stated above, Article IV prohibits the stationing of objects in space which carry nuclear weapons or weapons of mass destruction and reserves the use of celestial bodies for peaceful purposes only.
Article IX requires states to conduct their activities in the cosmos, on the Moon, and on other celestial bodies, in order to avoid contamination and changes in the terrestrial environment caused by the introduction of material coming from space, adopting appropriate measures in this sense if necessary. However, the article only takes into account the environmental changes deriving from extraterrestrial material (so-called back-contamination), moreover the notion of appropriate measures is completely remitted to the discretion of the states. Furthermore, the 1967 Outer Space Treaty does not provide a clear definition of “dangerous contamination” and “unfavourable changes” in the environment.
Article IX calls for the conducting of space activities while respecting the interests of other States parties to the Treaty: in this sense, a state can carry out specific consultations before launching projects that could be harmful. The aforementioned consultations may also be carried out by another member country if it has reason to believe that the initiative of others is risky. Nevertheless, the consultations do not allow the prevention of the activity, nor do they lead to binding results. Moreover, the states are often reluctant to carry out such consultations because in this way, they can always say that they were not aware of the dangers of their initiative.
Carlo Belbusti holds a Master’s Degree in Law from Roma Tre University. He also attended a Postgraduate course in space law and policies at the Italian Society for the International Organization.