For the launch of a new volume edited by Bill Boothby, titled “New Technologies and the Law in War and Peace”, Opinio Juris hosted an online symposium. I was honoured to receive an invitation to take part, and chose to respond to Melissa de Zwart’s great chapter on outer space. The full blog post appears below, the original can be found as part of the symposium here
Whereas some readers might find Boothby’s volume “New Technologies and the Law in War and Peace” a little light on answering specific legal questions in the application of new military technologies, what is most valuable about the collection of essays is that they bring to the forefront issues which many still see as fantastical and futuristic, when in reality they are anything but. Automated weapons, human enhancement or degradation, nanotechnologies and outer space are all technological areas that militaries already employ, and are already integrated into warfighting techniques – or at the very least into military planning. Indeed, as a space lawyer and space security consultant, the first thing I often have to explain to people is that no, I am not writing treaties with aliens, and yes, a “Space Force” is a real thing.
Melissa de Zwart’s chapter on Outer Space does an excellent job of outlining the history of military uses of outer space, and the fact that the dawn of the space age was characterised by military technological competition. She also highlights the partnerships that were built with the commercial sector for early intelligence capabilities – including a special camera and film developed by Kodak for taking photographs from a satellite – and the fact that reliance upon the commercial sector has only increased with time.
In fact, this is one of the greater pain points of regulating technology used in war and peace in outer space. The interaction between the commercial and military sectors is rapidly increasing both in quantity and complexity. Many satellite services are dual use, that is, a single satellite may be providing services to the military and to commercial customers at the same time. Telecommunications, visual data about weather and geographical information, navigation and timing – all of these services are important for military as well as civilian purposes. Does this mean that a commercial satellite could become a lawful target during hostilities? Does this mean that a State’s military would respond with force if a commercial satellite were targeted by another State?
Some of these questions, namely those which fall under the law of armed conflict applied in space, are currently being dealt with by an international team of experts working on the Woomera Manual on the International Law of Military Space Operations, as Melissa de Zwart points out in her own post on this online symposium. But some questions remain open, or may be more political than legal in nature.
The intertwining of commercial and military interests is also sensitive when we consider that some commercial entities may have clients that cut across traditional political alliances. There is no reason why a company should only sell its services to countries which are politically or militarily aligned if there is a business model to sell to other countries. This may call in to question just how secure certain intelligence or data may be.
One area which seems impossible to regulate is the ways in which new technologies being developed for benign purposes in times of peace may be repurposed as weapons in times of hostilities. For instance, in order to reduce the problem of space debris, technologies are being developed around the world to capture defunct satellites or other large debris. Airbus has recently successfully tested a harpoon, and there are universities working on developing fishing-net style capture techniques. But if it is possible to capture debris, it is also possible to capture an adversary’s satellite. To make things more complex, as just discussed, this may include commercial satellites. Similarly, on-orbit servicing robotics, to refuel or repair a satellite, could easily be repurposed to interfere with an adversary’s space systems, or one element of a system. How do we regulate these technologies, especially when there are enormous commercial interests in developing them for peacetime purposes?
As Melissa highlights in her chapter, China and Russia have proposed a draft treaty numerous times before the UN Committee on Disarmament, for the Prevention of the Placement of Weapons in Outer Space. Other key space faring nations, in particular the U.S. and its allies, have rejected these proposals, citing the fact that there is no satisfactory definition of what exactly is a weapon in space, and there are no verification mechanisms in the proposed treaty. However, no alternative has been proposed by the U.S. or its allies to rectify these problems, and it is clear that there are other political motives behind such rejections. The existing ambiguity in international space law as to what weapons may be unlawful means that States can continue developing and testing covert or ambiguous technologies, and that commercial entities can be part of this development without any repercussions.
In her post on this online symposium Melissa talks about India’s recent anti-satellite weapon test, and the criticism it has garnered for creating dangerous space debris. What is striking about the Mission Shakti test is that it is the first time that a State has openly declared that such kinetic destruction of a satellite was indeed a space weapon test. Previously China and the U.S. have justified the kinetic destruction of their own defunct satellites as attempts to remove space debris or prevent damage on Earth. India called out those previous tests for what they were, and declared proudly that it now belongs to the elite club of those with anti-satellite weapons capacity, that includes China, Russia and the U.S. So not only do we have difficulty defining a space weapon, and not only is there reticence internationally to limit or regulate such weaponization, we also have a situation that is beginning to look like the nuclear arms race.
Not to paint too dire a picture, there is reason for hope as well. One could argue that commercial entities have a vested interest in the continued accessibility and sustainability of space, since their business models depend upon it. Thus those actors who are pushing the boundaries of technology in space may be the greatest allies of those seeking to limit and regulate space weaponization, and to clarify the international law applicable during both peacetime and hostilities in space.