Capitol Momentum - Jan 2023

#SpaceWatchGL Opinion: Do Space Forces Really Contravene International Space Law?

by Kofoworola Joshua Faleti

Space debris produced by anti-satellite weapons can have dangerous consequences. Credit: Shutterstock

On the heels of Israel’s purported announcement of the development of its “space administration” Space Force, one cannot help but wonder if the emergence of Space Forces is yet another affront to the provisions of the legal framework that governs outer space. The provisions of the Outer Space Treaty are (somewhat) clear on the limits of military activities in space. However, what remains unclear is the need for Space Forces and whether these needs are inconsistent or otherwise with the fundamental tenets of international Space Law.

Military use of outer space

Using space for the military seems only natural, and one can expect using space for military purposes will have similar successful effects as the other facets of human life. This success is evident in the application of satellites for surveillance. Reconnaissance satellites have been used for decades to take surveillance pictures of other countries. With the success of applying space technology for military surveillance, it is a no-brainer that space actors will seek to extend the influence of space technology to other aspects of military application, including warfare or armed aggression. 

That being said, countries are waking up to the potential of space technology for, or in defense of, armed aggression, as set out by the United Nations Charter. The US had long intimated to the world its belief in defending its (space) assets via any means necessary, so it did not come as surprise the fact that in 2019, U.S. President Donald Trump, through the 2020 National Defense Authorization Act, converted the U.S. Space Command into the U.S. Space Force, which was formed as the sixth branch of the United States military. 

Following in the US’s footsteps, Israel has now also launched its version of its Space Force. The Israeli air force has not yet disclosed much about the new segment, except that it will be led by “an officer with the rank of Lieutenant Colonel.” Likewise, its aim is currently unknown as it is to evaluate “how Israel can use space for purposes that cannot be specified.” While one can only ponder why the Israeli air force has deemed it necessary to create a Space Force section, it is permissible to believe that the same motives that color the US’s decision to do the same are what color Israel’s decision. 

What does International Law say about a Space Force?

Before we delve into International Law in relation to Israel and the US’s actions, it is imperative to elaborate on what makes up the relevant aspect of International Law. Spatial activities are squarely within the Space Law domain, which comprises five primary treaties. They include the following;

  • Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (The Outer Space Treaty);
  • Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer Space (The Rescue and Return Agreement);
  • Convention on International Liability for Damage Caused by Space Objects (The Liability Convention);
  • Convention on Registration of Objects Launched into Outer Space (The Registration Convention); and
  • Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (The Moon Agreement).

The Outer Space Treaty is the fundamental space treaty, serving as the skeletal structure of the current international position on Space Law. It is upon the framework of the treaty that the four other space treaties develop. With regard to the legality of Space Forces, the Outer Space Treaty is the relevant international legal text. However, International law is not like most domestic laws, and a good portion of how most states behave in space comes from their interpretations of the space treaties, of which there are many. These interpretations of international space treaties form the bulk of most countries’ national space policies and legislation. 

The Outer Space Treaty, in no uncertain terms, prohibits the use of space for aggressive purposes. However, it does not entirely extend this limitation to the military use of space. Article IV of the Treaty states, “the Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes.” The section goes on to prohibit “the establishment of military bases, installations, and fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies.” Nevertheless, it provides that it does not prohibit “the use of military personnel for scientific research or for any other peaceful purposes.

This may seem straightforward enough, but the question remains, what does “peaceful purposes” entail? Answering this will go a long way in determining the legal status of the US and Israeli Space Forces. However, while the definition of “peaceful purposes” may be significant enough to determine the legality, another provision of the same article of the Outer Space Treaty may be far more critical.

Notably, the general injunction to engage in only peaceful activities only applies to the moon and other celestial bodies, purportedly leaving out other regions of outer space. However, the same article does provide that state parties agree “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.” 

It is a common law principle that the express mention of something is to the exclusion of others. Furthermore, recourse may be had to the common law principle as the Statute of the International Court of Justice provides that in deciding disputes, it shall apply, among other things, “the general principles of law recognized by civilized nations.” Going by this, the argument may be made that Space Forces may not be, by their very nature, illegal.

By the limitations in the provision, there are several aggressive activities that Space Forces may undertake that the Outer Space Treaty is silent on. As Rex Zedalis and Catherine Wade put it, “the Limited Test Ban Treaty of 1963 only prohibited nuclear explosions in outer space. It said nothing about various other military uses of space.” Corroborating this stance, many authors have described the effects of Article IV of the Treaty as a “partial disarmament.”

For example, a Space Force may place any object capable of causing damage or destruction around earth’s orbit, so far it does not carry any nuclear weapon or any weapon of mass destruction. Furthermore, and as already demonstrated, the Space Force may also be able to use land-to-space weapons, like land-based anti-satellite missiles. Despite several complaints and movements to prohibit the use of anti-satellite weapons, it seems the primary concern is the resulting space debris it leaves in its wake rather than how it violates the peaceful purpose clause of the Treaty. 

Regarding peaceful uses, the act only mentions the Moon and other celestial bodies. As such, it raises the presumption that its scope does not extend to outer space. Lending credence to this school of thought is that the US and USSR both agreed that the clause does not apply to outer space. 

Furthermore, assuming this argument does not suffice, and we still require defining what peaceful purposes mean, there are only two options. The first option defines peaceful purposes as non-military. Still, this does not suffice, as the Outer Space Treaty does not prohibit all military action in space. The second option is defining peaceful purposes in line with the UN Charter’s definition of non-aggression. 

One can expect that the UN Charter shall prevail in the case of conflict between the Outer Space Treaty and the UN Charter, as provided in Article 103 of the Charter. Resultingly, using the non-aggressive definition of peaceful purposes, as determined by the UN Charter, proponents of this definition suggest that an act is for peaceful purposes if it does not contravene “the UN Charter and other obligations of International Law.” Following this, the UN charter recognizes two instances where armed aggression may still fall under cover of peaceful purposes. They include:

  • The inherent right of individual or collective self-defense if an armed attack occurs; or 
  • Military enforcement measures authorized by the UNSC in conformity with article 42 UN Charter. 

As a result, one may argue that if the Space Force exists to respond to attacks, expressing their inherent right of self-defense, their actions may not violate the tenets of the Outer Space Treaty. Sentiments around the US’s Space Force seem to suggest that its establishment is more of a cautionary and defensive measure rather than an offensive one. The then Secretary of Defense Mark Esper commented, “the establishment of the U.S. Space Force is a historic event and a strategic imperative for our nation. Space has become so important to our way of life, our economy, and our national security that we must be prepared as a nation to protect it from hostile actions.” However, whether the Israeli Space Force intends to take this route is unknown. 

Cracks in the Outer Space Treaty

It seems fairly apparent that the Outer Space Treaty has left cracks in its machinations, cracks which the emerging Space Forces are leveraging to thrive. Many actors have called for an update of the seminal legal text, citing, among other reasons, that the provisions have become far too outdated and ambiguous to deal with modern-day realities revolving around the use of space. As Rex Zedalis Catherine Wade put it, “as long as disputes over the meaning of peaceful purposes and the clause’s applicability to outer space proper continue, nations possessing the technological capability to do so surely will continue to use outer space for military objectives.” As a result, perhaps, the validity that should be in question is the Outer Space Treaty’s rather than the Space Force’s.

 

Kofoworola Joshua Faleti. Credit of the author

Kofoworola Joshua Faleti is a Barrister and Solicitor of the Federal Republic of Nigeria. He got his degrees from The University of Ibadan and the Nigerian Law School. He is a proud trustee of LearnSpace Foundation. Joshua is also an editor at Space Watch Global, and an alumnus of the Manfred Lachs Space Moot Competition.

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