Space Security Norms and Dual-Use Technology Challenges: Analysis of Alternative Approaches

Since the end of the Second World War the potential use of outer space for military purposes persisted to be intrinsically linked to the development of space technology and space flight. The launch of the first artificial satellite, Sputnik 1, by the USSR in 1957 made Western states realise that a surprise attack from space was a real possibility, resulting in the so-called "space-race" between the USA and the USSR. During the Cold War space activities were intrinsically linked to the political objectives, priorities and national security concerns of the USA and the Soviet Union. After the Cold War the political relevance and benefits of space continued to be recognised by states. In view of the recent emergence of new major space powers such as China, the focus has again shifted to the military use of outer space and the potential that a state with advanced space technology may use it for military purposes in order to dominate other states. Article IV of the Outer Space Treaty prohibits the installation of nuclear weapons and weapons of mass destruction in outer space and determines that the moon and other celestial bodies shall be used for peaceful purposes only. Due to the dual-use character of many space assets, the distinction between military and non-military uses of outer space is becoming increasingly blurred. This article discusses a number of legal challenges presented by article IV of the Outer Space Treaty, relating specifically to the term peaceful, the distinction between the terms militarisation and weaponisation and the nature of a space weapon. It is concluded that article IV is in many respects outdated and that it cannot address the current legal issues relating to the military use of outer space. The legal vacuum in this area may have grave consequences not only for maintaining peace and security in outer space, but also on earth. Consequently, an international dialogue on the military uses of outer space should be facilitated under the auspices of the UNCOPUOS to address these uncertainties as a matter of urgency. Although it is agreed with the proponents of a hard law approach that a legally binding instrument should be adopted to regulate the military use of outer space, it is submitted that, as an interim measure, soft law guidelines should be developed to provide a framework for the eventual creation of a consolidated and binding legal instrument on all aspects relating to the use of outer space.

Chapter 24 - Regulations for future space traffic control and management

Fairness and equitability in the use of outer space can be reached in various ways. They could be approached through single steps and actions, or they could be approached through applying a comprehensive new concept for regulating space activities. Such a concept is Space Traffic Management (STM). STM received its first full conceptualisation in a study published in 2006 by the International Academy of Astronautics (IAA).138 Following this, numerous academic studies as well as practitioners’ activities have been undertaken to further refine and give substance to this concept. In parallel, major policy initiatives (the EU Draft Code of Conduct, the proposal by the former UNCOPUOS Chairman Gerard Brachet on the sustainable use of outer space and the proposal by the currentUNCOPUOS Chairman Ciro Arévalo Yepes on a UN space policy) have addressed the content of STM. This article will set out the policy and legal framework for STM139 and provide links to the current policy initiatives. It further explains how STM can be used as the framework and enabler for introducing elements of fairness and equitability in the use of outer space. KeywordsSpace ActivityOuter SpaceSpace DebrisInternational Civil Aviation OrganizationGeostationary Earth OrbitThese keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

This chapter describes legally binding and non-legally binding international frameworks for enhancing space security and concludes that non-legally binding norms may possibly maintain and enhance space security. For more than half a century, only stationing weapons of mass destruction in outer space and the threat or use of force to, from, and in outer space have been prohibited under international law. Moreover, there is no clear picture of laws of armed conflict applicable to space armed conflicts. However, the recent United Nations General Assembly (UNGA) Resolution on Responsible Behaviors is promising in generating new norms for space security. So are the Long-Term Sustainability (LTS) Guidelines made in the UN Committee on the Peaceful Uses of Outer Space as concrete specifications to be made would assist in the implementation of the said UNGA Resolution together with other guidelines. The feedbacks and virtuous cycles between national, regional, and international norm-making processes can hopefully enhance space security, with emerging Space Traffic Management (STM) rules and guidelines.

A path forward to better space security: Finding new solutions to space debris, space situational awareness and space traffic management

The 40th Anniversary of the 1963 Treaty Banning Nuclear Weapon Test in the Atmosphere, in Outer Space and Under Water (1963 NTB)

Outer Space could be seen extensively threatened by the inability of States to universalize commitments against conduct of destructive direct-ascent anti-satellite missile tests, and placement of dual-use nature of space-based capabilities which further aggravate outer Space weaponisation through the presence of over 170 million pieces of debris in orbit, causing collision, damages and outright loss of space assets to developing Space fairing nations like Nigeria. It was against this background that this study adopts Liberal Institutionalism to examine outer Space Weaponisation, and international Security on developing nations. The study deconstructed space weaponisation into implications on Nigeria space assets and adoptable strategies to improve Nigeria’s assets in the outer space. Findings from the study established the nexus between space weaponization and space insecurity, which ultimately trigger the failure of Nigeria’s NIGCOMSAT-1, increasing cost of launching, maintaining space assets and causing apprehension in the global community. This study also situates the possibility of stronger nations blocking developing State’s access to space know-how and making space access development by developing countries like Nigeria very expensive and out of reach. This study therefore recommends that due to the presence of ideological and doctrinal difference among the veto wielding permanent members on the use of outer space, Nigeria should join forces with other nations that oppose weaponization of space and accordingly spearhead the drive towards a stricter new space treaty banning the testing, deployment and use of all kinds of intentional, harmful, and dual use weapons in space. That Nigeria should devote an accountable proportion of her GDP between 2-4% to space-related programmes in order to generate and develop scientific and technological capacities as by-products that would enhance national development.

Space traffic management: The new comprehensive approach for regulating the use of outer space—Results from the 2006 IAA cosmic study

Space security means safe and permanent access to space and limiting threats coming from there. This definition also includes the security aspects of man-made devices sent into space and of ground stations. Space infrastructure can be described as a network of space and ground systems connected by communication channels and allowing access to space. Today, the largest space powers have begun to consider space as an operational domain of warfare. Space more and more often appears to be a field for competition, which might become an arena of conflict. The aim of this article is to present today’s many law challenges to the security of space infrastructure, such as unintentional threats (space debris, geomagnetic and solar storms, and other random disturbances), intentional threats (ASAT anti-satellite weapons, malicious interference, and cyber-attacks), the growing problems of Earth orbit congestion, and the increasing amount of space debris from devices launched into space. The article also presents the role of international organizations (such as the UN Committee on the Peaceful Uses of Outer space) in making laws that are intended to observe and react to all changes necessary in the outer space environment and to be proactive to help outer space to be safe and secure for all mankind. The conclusion is, however, not optimistic. Space security is a sensitive issue, mainly during conflicts or wars. States are not inclined to bind themselves by international law in this matter. Thus, due to the absence of hard international law (treaties), bilateral and multilateral agreements as well as the best practices from countries that organize space flights must apply. Space monitoring systems, such as the Situational Awareness System (SSA), the code of conduct in space, the UN Long Term Sustainability, or the space Traffic Management rules are legal tools to manage the above challenges in space today.

Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and other Celestial Bodies 1967 (The Outer Space Treaty) is an agreement established by the Contracting Parties to regulate the use of outer space and its activities in Other celestial bodies. Outer space has limited natural resources in the form of orbit, these natural resources are the pathways for satellite orbits. According to The Outer Space Treaty, the use and utilization of celestial bodies are essentially exclusively for peaceful purposes. In practice, there are some countries engaged it’s activities on military purposes. By using normative juridical approach, this research examine how The Outer Space Treaty regulate human activities in outer space in the use and exploration of the moon and other celestial bodies and how it implement in the case of the use of GSAT - 7 communicatio n s satellites does for military purposes in India. This research concluded that the international outer space law has regulate human activities in the use and exploration of outer space for military purposes specifically in article 4 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and other Celestial Bodies 1967 and India’s act by launching communication satellite GSAT-7 for military purposes is violation against The Outer Space Treaty even it’s non – aggressive military manuver.

Under International Space Law (ISL), the exploration and use of Outer Space shall be carried out for the benefit and interest of all countries without any discrimination of any kind, and be used by all states for “peaceful purposes”. However, ISL does not seem to have provided any clear cut normative direction to States beyond stipulating the nature and scope of the use of Outer Space by States. As a result, powerful space-faring States began asserting unlimited freedom on the use of Outer Space. This has been done by interpreting the phrase “peaceful purposes” more restrictively, to mean “non-aggressive purposes”. This interpretation permits the use of Outer Space by a State for “military” and “self-defence” purposes also. Except what is clearly prohibited under ISL, namely placing of nuclear weapons and WMDs on Outer Space by a State, every other use of Outer Space seems to be in consonance with ISL. The exercise of unlimited freedom by States led to the congestion of space environment with space assets of different kinds owned and used by States and other entities and space debris created by natural and man-made causes, including by the use of anti-satellite (ASAT) weapons and debris resulting from electronic attacks on satellites. Safety and security of space assets assume paramount importance today without which use of Outer Space for the benefit and interest of all becomes an empty slogan. Suggestions are made to address the issue by prohibiting the use of ASAT, by applying the agreed provisions of ABM treaties and also applying law of armed conflicts where possible. However, USA rejected the idea of prohibition of ASAT. The regulatory efficacy of agreed provisions of ABM Treaty on parties in this regard appears to be doubtful. The use of dual purpose technologies in space assets makes the application of law of armed conflicts ineffective. In my conclusions, I suggested a combination of hard and soft law and national policies as a possible legal regime.

The article considers the experience of regulating the established legal regime for the use of airspace and outer space from the point of view international law norms and legislation of the Republic of Kazakhstan and other countries. During the research of this issue, legal norms were analyzed, as well as the features of the legislations development in these fields. The boundary of space is given increasing importance because air law and space law have differences in their rules. These branches of international law are based on different principles and have different legal regimes. And these differences must be taken into account, in connection with new developments in space operations, including space tourism (flights), and the increasingly ambitious and far-reaching programs of some space powers. The relevance of the subject matter is determined by the risen interest of the majority of states in the world to the use of these areas for commercial purposes and more recently for military purposes. These processes have created new legal challenges to space law. This study reveals the need to adopt specific legal provisions in the field of exploration and use of outer space. As a result of the rapid pace of technological development, as well as taking into consideration the trends in developing commercial space activities, it became necessary to adopt international documents, specific legal provisions regarding the control of the activities of states in this sphere. The study also concludes, that the current airspace concept, needs to be updated in terms of its flexibility and adaptability to current changes.

Since the launch of the first artificial satellite, Sputnik 1 in 1957, the outer space arena has evolved to include non-state entities, which are becoming serious participants in outer space activities themselves, including venturing into the space tourism market. Although space tourism is still in its infancy, it is estimated that the number of space tourists will substantially increase within the next few years. As space tourist activities increase, accidents will inevitably occur, which will give rise to legal questions relating to the duty of states to rescue space tourists in distress, and the liability for damages. This contribution points out that the current outer space treaty regime, which focuses on the use of outer space by states, is to a large extent outdated and that it cannot adequately deal with the unique legal challenges presented by the rapidly developing space tourism industry. This situation is exacerbated by the fact that the outer space legal framework is very fragmented – consisting of treaties, UN principles and guidelines, regional regulations and intergovernmental agreements, as well as national guidelines and legislation. In order to ensure that space tourism is indeed to the benefit of all mankind, it is imperative that clear international legal rules relating to space tourism be formulated, where standards are set for the authorisation and supervision of commercial space activities and the interests of states, passengers and private actors are balanced as far as possible. In view of the urgent need to address these legal questions and the consequent lack of time to negotiate a binding legal instrument, it is submitted that, as an interim measure, soft law guidelines should be developed in relation to space tourism in order to provide a framework for the eventual creation of a consolidated and binding legal instrument on all aspects relating to the use and exploration of outer space.

Nowadays, space management is widely recognized as an important area of global governance. The management of outer space is very complex, therefore activities of states in outer space realm are regulated by Outer Space Treaty. However, due to a number of ambiguities in the provisions of the Outer Space Treaty regarding the military use of space, loopholes for an increase in militarization and weaponization of space have emerged, thus causing serious problems with space security and affecting the sustainable use of space. Such shortcomings in the regulation of the military use of outer space by the Outer Space Treaty, including the lack of definition of certain terms and the establishment of appropriate procedures, allow the parties to freely interpret the relevant terms, and also conduct experiments in space, which contribute to the militarization and weaponization of space. Naturally this issue poses global security threat, because once the militarization or weaponization of outer space has started, it is almost impossible to reverse this process. In addition, the development of anti-satellite weapons and the dual purpose of satellites orbiting the Earth undoubtedly adds to the political and legal challenge of managing outer space. Therefore, this articles claims, that the legal regulation of outer space requires thorough revision in order to effectively address the issue of legal mechanisms in outer space.

The creation of space law is rooted in the aftermath of the Cold War. The two world powers of the time—the United States and the USSR—joined forces in the UNCOPUOS (UN Committee on the Peaceful Uses of Outer Space) to introduce law to outer space and ensure that the use and exploration of this domain was conducted for peaceful purposes. Against this backdrop, the negotiations underlying the drafting of the Magna Carta of outer space—the Outer Space Treaty—demonstrate how these two world powers set aside various political differences in order to reach a legal compromise for the benefit of the world as a whole. Today, half a century after this milestone, the landscape of the use and exploration of outer space has changed dramatically, particularly in terms of the technology involved. As a result, the question is whether international space law and UNCOPUOS are still able to provide a relevant framework within which the peaceful use and exploration of outer space can progress.