ASAT: A STEP TOWARDS DESTRUCTION

Image source- Google Image by-Leticia Riente

“Searching for satellites and celestial spheres 

nurturing acolytes down through the years” 

-Searching for satellites, Wishbone Ash 2011 

Lyrics are like a code that you decipher from your own perspective. The lyrics above artfully express Wishbone Ash’s discreet tribute to public international law. But that’s my perception.

In our current political climate, it is of utmost importance that we safeguard outer space. ASAT, an anti-satellite weapon, threatens to endanger the peaceful exploration of space due to unwanted space debris unless international laws come to our rescue. However, the Outer Space Treaty, often hailed as “The Magna Carta of International Space Law,” does not define the term "outer space" comprehensively. Consequently, the jurisdiction over ASATs remains ambiguous; it is unclear whether any experiment aimed from the ground to disrupt a satellite orbiting Earth falls under terrestrial boundaries or outer space regulations.

It is high time that we consider negotiating a new outer space disarmament pact to prevent the use of ASATs and to broaden the scope of existing laws for outer space security.

METHODOLOGY OF INTERPRETATION

Let us open the curtains of international law concerning the pursuit of outer space safety. The International Court of Justice (ICJ) has adopted a method to interpret treaties under Articles 31 and 32 of the Vienna Convention:

Article 31: General Rule of Interpretation, states:

1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning of the terms of the treaty in their context and in light of its object and purpose.

2. The context for the purpose of interpreting a treaty shall comprise, in addition to the text, including its preamble and annexes:
   (a) any agreement relating to the treaty made between all the parties in connection with its conclusion;
   (b) any instrument made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as related to the treaty.

3. Together with the context, there shall be taken into account:
   (a) any subsequent agreement between the parties regarding the interpretation or application of the treaty’s provisions;
   (b) any subsequent practice in the application of the treaty which establishes the parties’ agreement regarding its interpretation;
   (c) any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 32: Supplementary Means of Interpretation, states:

Recourse may be had to supplementary means of interpretation, including preparatory work of the treaty and the circumstances of its conclusion, to confirm the meaning resulting from the application of Article 31, or to determine the meaning when interpretation under Article 31:

(a) leaves the meaning ambiguous or obscure; or

(b) leads to a result which is manifestly absurd or unreasonable.

JURISDICTION OVER ASATs

Hitherto, the horizons of customary laws have limited states parties’ activities in outer space through various international agreements and treaties. Among all of them, the king of multilateral treaties for outer space security is the 1967 Outer Space Treaty.

Various provisions of the UN Charter also apply to space activities, such as Articles 2(3), 2(4), 5(1), and 4. Edward R. Finch, Jr. argues that “…express prohibition is intended… against ‘the testing of any types of weapons’ in outer space in Article IV.”

ASATs VIOLATE THE OUTER SPACE TREATY

Unleashing satellites in the name of exploration has caused environmental imbalance in outer space by creating debris hazards. An amendment to the Outer Space Treaty has become inevitable in light of ASATs.

Article I of the Outer Space Treaty deals with the interests of all states, which are being violated by the launch of ASATs:

Article I:

The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind. Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all states without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and states shall facilitate and encourage international cooperation in such investigation.

Article III provides that only states parties can explore outer space while maintaining international peace and security.

Article III:

States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.

Article IV prohibits the use of weapons of mass destruction in Earth’s orbit.

Article IV:

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 exclusively for peaceful purposes. The establishment of military bases, installations, and fortifications; the testing of any type of weapons; and the conduct of military maneuvers on celestial bodies shall be forbidden. The use of military personnel for scientific research or 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.

ARGUING THE THREATS OF ASATs

Article I, which uses the term “interests of all countries,” states that the exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries.

The objective of this provision is to require all States Parties—especially space-faring countries—to enact domestic legislative and executive measures to ensure that outer space use is “for the benefit and in the interests of all countries.”

Permitting destructive weapons that create massive amounts of debris leads to hazardous situations for future launches.

How can such launches be considered in the interests of all states?

What is the legal status of non-prohibitive military activities under this treaty?

Secondly, under Article IV, the treaty creates a loophole by not defining the legal term “peaceful purposes,” which is used throughout the treaty as well as in UN General Assembly resolutions and declarations.

What is the meaning and scope of “peaceful purposes” in the context of these provisions?

Lastly, Article IV(2) states that the use of the moon and other celestial bodies should be made “exclusively for peaceful purposes.”

Is there a legal difference between “exclusively for peaceful purposes” and “peaceful purposes”?

Further reading reveals that the treaty permits military personnel to conduct scientific research or any other “peaceful purposes,” using “any” equipment or facility necessary for exploration, without defining the limits of “peaceful purpose.” This makes it virtually impossible to hold states accountable for their actions.

How can military personnel use “any” equipment or facility necessary for exploration under “peaceful purposes” as per Article IV?

CONCLUSION

The treaty is silent on appropriate measures or authoritative evaluations to determine whether a state has taken adequate steps to avoid harmful contamination. There are no provisions regarding destruction caused by the launch of ASATs. We should focus on improving international laws to prevent avoidable launches in the future. Mount Stromlo houses one of the most remarkable tracking tools worldwide, and states should show enthusiasm to advance their technologies as well.

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