Let’s have a look at space weapons, satellites and anti-satellite systems. One of the first problems to be addressed in the analysis of satellites is the definition of a spatial object. According to the type of definition, different consequences derive from the responsibility of states, compensation, etc. According to a certain definition, “an aerospace object refers to any object able to travel in the outer space by aerodynamic properties and to remain in the airspace for a certain amount of time”. One of the first uncertainties of this description refers to the aerodynamic properties: must aerospace objects have their own aerodynamic characteristics or can they also be part of another object that acts as their propeller? Following the first assumption, a satellite would not be considered a spatial object, on the contrary if one accepts the second statement (for example a satellite carried in space by a rocket), it would once again fall into the category.
This and many other doubts increase the debate on the most suitable rules for aerospace objects and make the drafting of a specific treaty on the subject increasingly urgent. This draft involves the problem of which set of rules apply between spatial rights (hence in the first case the Liability Convention) and the aeronautical law (therefore in this case, the Warsaw Convention for example). Another concept on the subject that deserves to be quoted is the Indian perspective: “aerospace objects in airspace are considered as aircraft, and while when in outer space as spacecraft with all the legal consequences that follow as regards questions of safety and liability, the higher standards should apply”. “However, where the passage through airspace is part of a direct and continuous journey to or from outer space, the object should be considered as a spacecraft”.
It is also important to underline that in this regard, although aviation law does not require the element of fault for compensation, in the event of damage caused elsewhere than the Earth’s surface, a spatial object of a launch state or persons or goods on board such object, from a spatial object of another launching state, the element of fault is required.
In addition, the ITU (International Telecommunication Union) policy of first come first served showed its weaknesses and is not balanced in the sense that it “mortgages the interest of the majority of states to have access to the geostationary orbit and may particularly affect the inherent interests of the equatorial states to that orbit”. To this must be added that perhaps not much attention was given to the ITU Convention of 1973 which among other things states that “Members shall bear in mind that radio frequencies and geostationary orbits are limited resources”. Eight equatorial states have in fact shown their reluctance to the ITU rules by adopting the Bogotá Declaration with which they claimed (illegitimately) the ownership of the geostationary orbit due to the fact that it was above their territories.
The framework described must also come to terms with the new economies of countries such as Brazil, Russia, India, China, and the latter factor could introduce changes, in the current system of access to space and optics of space military activities. The countries mentioned could indeed heavily influence space operations and the concept of “space war”. The geostationary orbit is a strategic place for objectives that address military needs, security, telecommunications, meteorology, etc. In this regard, the increase in political, economic, and military events has led to a robust growth in the use of satellites over the years. The first obstacle to this expansion is the fact that only a limited number of devices can be used in this orbit. In addition to this, the satellites have to work at a certain distance in order to avoid collisions, which can give rise to disputes. As a result, satellites as well as instruments of war, could be seen as the reason for a conflict.
The geostationary orbit, like celestial bodies, is in an area excluded from state jurisdiction and therefore follows the principle of non-appropriation; this is why, among other things, the impossibility of considering the Bogotá Declaration legitimate. Article 12 of the ITU Convention reiterates the “rational, equitable, efficient and economical use of the radio frequency spectrum by all radio communication services, including those using the geostationary-satellite or other satellite orbits”. Respect for equal access to frequencies and parameters must be ensured by the radio communication sector. The limited use that can be made of the geostationary orbit thus introduces a scenario of equality, where each state must respect the right of other countries to use frequencies, regardless of economic power or political weight. This is another aspect that differentiates outer space from Earth: in this case, in fact, the power of a nation is not detected in orbit.
On the question then, article 44 of the ITU Convention states that in ensuring equal access to frequencies in orbit, the needs of developing countries and the geographical situation must be taken into account. The attempt to establish a more solid scheme is then carried out by article 13, which introduces the World Telecommunication Standardization Assembly, charged with managing the principles of equality in this sector. The end result is a wide-ranging egalitarian environment among nations. Recalling that satellite operations are used for different purposes, the picture described could affect international military balances. If every state has the same right to use geostationary frequencies, the power of terrestrial forces will be partly or totally irrelevant in the spatial scenario and this means that even a small nation could pose a threat to stronger powers.
Once again it is undeniable how cosmic space follows a regime of rules different from those of earthly ones. As mentioned, the dangers related to satellites can be multiple: there are two episodes that have shown the consequences that their use can bring: in January 2007, China conducted an ASAT test destroying its Fengyun-1C satellite, and in February 2009, there was a collision between the non-operational Russian satellite Cosmos 2251 and the American (functioning) satellite Iridium-33. From these two events, it was clear that the problem of space debris had to be seriously tackled and how satellites and space weapon systems have different negative implications; the focus was on debris “coming from platforms with nuclear power sources in outer space”.
On the other hand, the importance of satellites proved to be fundamental for modern warfare during the operation “Iraqi Freedom” where the transmission of data, the launch of twenty-six rockets, and the use of UAVs (Unmanned Aerial Vehicle) were space platforms. Considering that article 4 of the Space Treaty prohibits the sending of nuclear weapons and weapons of mass destruction into orbit, any military activity that does not involve the use of these two types of weapons and is compatible with international law and the principles of the United Nations, is to be considered authorised. Despite this, some of the non-nuclear weapons require nuclear energy to be operational, such as the X-ray laser. According to the US approach to the problem, each attack (regardless of the type of weapon used) directed at an American spacecraft is to be considered a violation of the sovereignty of the state, and consequently, any action aimed at protecting national security should be allowed.
This attitude, in addition to introducing a sort of arbitrariness in spatial conflicts (essentially, the United States of America could have responded with a nuclear weapon to an attack generated from a weapon of a different and less powerful classification), represents a change in the way of understanding outer space, as the approach that completely prohibited any military operation in the cosmos was rejected.
Space weapons can be qualified according to the following system: the first category concerns the case in which space is the environment in which the destructive effect is produced, and includes Earth-space, air-space, and space-space weapons. In the second category, space is instead the place where weapons are placed: here we find space-air, space-sea, space-to-Earth, and space-space weapons. No space weapon has so far been tested in the cosmos but the United States of America has invested billions of dollars in the development of a space interceptor (Brilliant Pebbles) and tested targeting and propulsion systems for that system. The framework outlined above shows how the expansion of the race for space militarisation has increased the risks of a “global holocaust”, conflicts of interest, and of the negative impact on the environment.
The definition of a “space weapon” is variable due to the technological innovations that follow each other. The first three weapons to be analysed are: the MOBS, the FOBS and the orbiting laboratories with personnel on board. The MOBS (Multiple Orbital Bombardment System) is a spacecraft with nuclear warheads designed to orbit the Earth and monitor land conflicts. There are many reasons why this system was considered illegitimate: first of all, it is in clear contrast with article 4 of The Outer Space Treaty. It is also able to negatively influence international relations due to the possibility of generating unlimited damages.
The FOBS (Fractional Orbital Bombardment System) was part of the Soviet Cosmos project and was designed to attack targets via land vehicles that should have been sent into orbit. This last system did not conflict with article 4: as the United States of America recognised, in fact, the FOBS was contrary to the spirit, but not to the letter of the aforementioned provision. As for the laboratories orbiting around the Earth with human personnel on board, these have always been a primary objective of the United States of America and the Soviet Union since the first space missions, as they considered them a fundamental component to increase their military power in the cosmos.
Before The Outer Space Treaty came into force, the only legal instrument was the UN Resolution 1884 (1963), which appeared to be too weak. Sensing the threat of Soviet space stations, the United States of America gave life to several projects to protect its national security, such as the MOL (Manned Orbital Laboratory) which carried out various types of military operations. On the Soviet side, research and missions were carried out through the Salyut space station, and the Soyuz and Progress spacecraft: this led the Americans to develop the Skylab program.
Without a shadow of a doubt, these space stations, in addition to important scientific purposes, also played military and defensive functions: this is the aspect of “dual use” which is currently one of the most perceived problems in space law and extends to satellites. Research and progress are two fundamental components and outer space is the best scenario for their expansion, but every step taken in this direction is put at risk by the potentially harmful consequences that could derive from military actions. Continuing this thought, there seems to be a connection between the scientific and military objectives, because without the latter there would probably not be the same level of interest for the former and, in addition, scientific and technological discoveries lead to an improvement of military strategies. In this sense, scientific and technological progress can be considered a consequence of military actions or something that is “fuelled” by the latter.
In reference to defensive space operations, the ABM (Anti-Ballistic Missile) was considered the most important system of its type. Many doctrinal opinions have defined ABM systems as the tools most likely to endanger peaceful coexistence in space and in international relations. These systems contained two main groups of weapons that can be defined as the predecessors of current space weapons: direct energy weapons and kinetic energy weapons. The first category includes radio frequency weapons, subatomic particle weapons, and laser weapons. Radio frequency weapons strike their target through electromagnetic fields, damaging the electronic system. Subatomic particle weapons aim at the physical destruction of the target through a large number of particles. This type of weapon can fall into the ASAT class, by virtue of its ability to neutralise and destroy enemy satellites. Instead, laser weapons direct electromagnetic radiation against the target, generating fusion. Experiments in this direction were undertaken by the United States of America during the MIRACL (Mid Infrared Advanced Chemical Laser) program.
As for kinetic energy weapons, their aim is to develop new attack strategies without using nuclear energy. An example of how this weapon has developed over the years, is given by the ERIS test where an American interceptor missile was launched and after a one hundred kilometres trajectory hit another carrier carrying a nuclear warhead. The ERIS (Exoatmospheric Re-entry Vehicle Interceptor System) was a new step in weapons technology: thanks to this technique, it was possible to safeguard a larger part of a given territory and react with greater precision to space weapons. Another project worth mentioning is the rail gun; an electromagnetic gun that could be installed on spacecraft, an object of study by the USA and the ex-Soviet Union. The space weapons considered until now do not involve the use of nuclear energy and are not weapons of mass destruction, so they do not fall under the prohibition of article 4 in the Outer Space Treaty. However, it is very likely that they can generate the same damaging consequences as a nuclear weapon.
The only way to prevent article 4, from this point of view, from constituting an empty provision; is a collective commitment by states aimed at updating international and national law on space and the discipline of space weapons. If this does not happen, the provisions on the topic will be bypassed, giving way to a militarisation of uncontrolled space. It must be remembered in any case, that this objective is not easy to achieve due to the various possibilities of application of technologies; in particular one of the main problems once again, is the double use of satellites and space equipment. It is therefore necessary to increase the commitment considering that until now, states have not been fully available to collaborate, and that, as previously mentioned, international law and other legal instruments on the matter still appear weak and incomplete on several fronts.
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.