Let us look at the militarisation of celestial bodies. About thirty years ago, a part of the doctrine hypothesised the possibility of using celestial bodies as interplanetary stations. This eventuality goes hand in hand with the recognition of the exploration of the Moon and other celestial bodies mentioned in Article I of the 1967 Outer Space Treaty. Although any kind of appropriation is inadmissible, fulfilment is allowed: one wonders what implications this discipline might entail, and once again, we could be faced with a gap capable of exposing risky conduct. According to the thesis in question, once the materials were extracted, they would lose any link with the celestial body they belonged to, they would also assume their own autonomy from a juridical point of view, and would even end up in the sphere of ownership of the State author of their extraction. Although, appropriation of celestial bodies is excluded, this could be realised by virtue of the fact that operations and extractions carried out would change the legal nature of the same.
Without investigating the possible links between the use of celestial bodies and military strategies, it is sufficient here to observe how this aspect is able to circumvent the prohibitions on the appropriation of the former, and even encourage the increase in their militarisation. If this line of thought were to be followed, whole portions of the territory could be separated from the rest and function as cosmic military bases, allowing the various space weapons to count on a wider network of supports. The prohibition under Article IV of the 1967 Outer Space Treaty sanctioned for weapons of mass destruction and nuclear weapons, does not seem suitable to completely preclude this possible type of conduct, given that currently, the transformations on the ground of a celestial body can be obtained thanks to weapons of various kinds, not subject to impediment. On the whole, therefore, this point of view is likely to lead to a rapid extension of militaristic space activities, giving rise to a vicious circle that would contribute to increasing the arms race in the cosmos. In addition, there is a lack of reassurance given from the theory that planets and meteorites should be excluded from the notion of the celestial body by the fact that the reference to the Moon in the space treaties, would make us understand how we refer only to bodies of the Universe having the same dimensional properties.
This interpretation would not reduce the risks deriving from a militarisation of the planets and thus, it must not be forgotten how many individuals consider this to be an outdated vision, considering the progress of spatial research. Nevertheless, there are some principles which, however vague in some respects, are capable of limiting a possible militarisation of celestial bodies, such as that of the respect for the environment (also applicable to the cosmos). Furthermore, Article IX of the 1967 Outer Space Treaty foreseeing no changes in the Earth’s environment due to material coming from space, and that the exploration of the Moon and other celestial bodies cannot lead to their contamination. Additionally, other principles contained both in the aforementioned treaty and in the 1979 Moon Agreement, such as the exploration and use of celestial space and bodies for peaceful purposes in the interest of humanity and with the intention of promoting peace, security and international cooperation are examples of the aforementioned principles.
Because of the debates on the definition of a celestial body, the set of rules applicable to them appears to be rather indeterminate, if only because of the lack of uniformity that instead characterises open space. In the category of celestial bodies, depending on the type of definition carried out, they can in fact include meteorites, comets, cosmic dust, planets, moons… All these components, however, have different peculiarities and cannot be the recipients of a homogeneous discipline. Hence, the duty to formulate a more detailed regulation with respect to that dictated for the cosmos, precisely because of the specificities of the different celestial bodies. Looking at the results recently achieved, projects such as that of Rosetta, a space probe built by the European Space Agency (ESA), indicate that now space operations can be carried out even on bodies of mass less than the Moon and consequently, the thesis stating space rights of celestial bodies is only given to bodies with similar dimensions of the Moon, must now be definitively abandoned.
From a future perspective, the possibility of carrying out operations on comets and similar bodies, could extend the panorama of military actions: in this case, the current law would not be able to include such initiatives, requiring an ad hoc regime. We have already mentioned how the development of science and technology influences that of space law; if there is no awareness that the expansion of the first two will inevitably lead to more specific space military operations, it will end up being an escape route for countries willing to take military actions in the cosmos, allowing it to circumvent the bans currently in force. With a bit of foresight, it is possible to understand how Rosetta-type missions are likely to arouse the interest of States to experience their offensive potential in places of the cosmos never before explored, turning them into strategic war outposts.
Moreover, the problem of opposition between soft and hard law is present: which of the two regimes possess the most appropriate characteristics for celestial bodies? Given the divergence of disciplines in some respects between the latter and the open space, is it possible to imagine a dual system involving the application of the two branches to different areas of the cosmos? Keeping in mind the considerations illustrated on celestial bodies and the regulatory gaps that characterise them, it would be preferable to adopt a hard law approach at least to mitigate the risks deriving from a possible modification of their nature. Such a hard law approach would have a binding nature, there would be a high degree of irreversibility and less space would be given to the possibility of comparisons, dialogues and modifications. At present it is considered advisable to take this approach, if only because it can provide greater guarantees in terms of protection of the space environment. In other words, the binding nature of the hard law approach would prevent the deficiencies of space law from being exploited to the point of justifying imprudent conduct capable of completely transforming the way of understanding the cosmos. The security of space and celestial bodies then depends on the coordinated behaviour of the different players operating on the scene: there are in fact many States and organisations that play a role in this field and, in addition to having to act in concert, will have to disclose the character of their initiatives in the most transparent way possible.
In fact, prior knowledge of the actions of others is a fundamental criterion for maintaining equilibrium in the outer space context. If, for example, some random characteristics of an operation were to be revealed only after or during its development, this would undoubtedly affect self-defense and the activities of others, directing them towards greater secrecy and hostility. In this case then, the process necessary to change course would not be short due to factors such as the life of the space equipment and the huge costs to be borne: if, for example, a State sent into orbit or on a celestial body a machine considered a threat to other countries, it would essentially have three steps to retrace in order to reassure the rest of the international community. It would have to bring it back to the ground ahead of schedule (bearing additional costs), destroy it (creating yet more space debris and in general, affecting the cosmic environment) or end the program ahead of time. In this last hypothesis, besides the economic losses, the other States, continuing to perceive a threat to their own safety, fearing that the equipment could come into operation at any time, could protect themselves with defensive military actions. Hence the subtraction of time and resources from the use of space for research and cooperation purposes. This threat is most felt on celestial bodies because their eventual militarisation would create structures that are probably permanent and therefore more difficult to remove than the hypothesis of open space. Also, the distance of these bodies from Earth, being greater than that between our planet and the systems orbiting around, could help alleviate the feeling of danger and therefore disincentive its demilitarisation.
In the current case of the militarisation of celestial bodies, the proximity of the equipment to Earth’s orbit involves a greater degree of attention and discipline on the part of the States that manage it. To this, is added a high degree of surveillance of the same by the dense network of terrestrial and satellite devices. These conditions could hardly be replicated in the case of weapons being placed on or near celestial bodies that are far from Earth: this “isolation” could result in a lower consideration towards them or the possibility for nations to develop them sheltered from pressure. The possibility of an “all-encompassing militarisation”, which aims to prevent the isolation described with regard to weapons on celestial bodies, would increase the preventive protection of States, which to control equipment on celestial bodies, would send their machines into orbit and therefore in reality, create a much greater number of space war devices with monitoring and defense functions in case of attacks by others. This would in turn lead to a far greater disequilibrium than the current context, translating all of this into a step backwards from varying points of view. Current space law, which already has some shortcomings, must therefore be given more detail and strictness in order to avoid this outcome. The outcomes on the protection of the cosmos, once obtained, must be continually defended, and one of the ways to do so is to be aware that the goals achieved in the future in the space field will have repercussions on terrestrial and interplanetary militarisation.