The Legality of Antisatellite (ASAT) Weapons - 2007 - Jasper Schellekens, LLM

Jasper Schellekens

Developments in the outer space arena post the erstwhile USSR launching the first man-made satellite Sputnik in space on 4 October 1957 have transformed the world significantly. In order to ensure the exploration and use of outer space for peaceful purposes, the Committee on the Peaceful Uses of Outer Space (COPUOS) was set up by the United Nations General Assembly in 1959. Subsequently, this committee led to the foundation of the “Treaty on Principles Governing the Activities of States in the Exploration and use of Outer Space, including the Moon and Other Celestial Bodies”. This treaty is commonly known as the Outer Space Treaty (OST). This treaty was opened for signature on January 27, 1967 as a binding legal instrument. On January 27, 2017, this treaty competes 50 years. Over the years this treaty has largely ensured responsible conduct of space activities. This book attempts to examine and contextualize the treaty and its relevance in the 21stcentury while tracing its journey over the last fifty years.

The main objective of this dissertation is to outline the development of International Space Law in the field of space debris mitigation and remediation. The purpose is to provide a legal analysis starting from the Treaties and Principles of Law that make up the Corpus Iuris Spatialis, up to the proposal of a Code of Conduct for Space Debris Mitigation. The study is focused on the need of defining a technical and juridical set of rules at international level and is divided in three main parts. The aim of the first chapter is to evaluate the role of the already existing Treaties and to technically define what constitutes space debris because of a normative gap in the international regulatory system. Starting from the definition elaborated by Inter-Agency Space Debris Coordination and from the role of the North American Aerospace Defense Command’s space objects catalogue, it will be examined the process of space debris accumulation, i.e. Kessler Syndrome. Indeed, security and sustainability play a primary role for the maintenance of Outer Space calling all the States to act diligently and responsibly in the interest of all international space community actors. The second chapter goes through the actual International legal regime for the mitigation and remediation of space debris, starting from the non-binding IADC and UNCOPUS Guide Lines, passing through the legally binding provisions set out in the International Space Law Treaties, arriving to the Space Situational Awareness system role. In the third part, it will be presented the Case Law concerning Cosmos 954 aiming at providing a concrete example of dispute settlement and to understand how the International Space regulations work. A comparison between International Environmental Law’s provisions, such as the ones included in the 1972 Stockholm Declaration or in the 1992 Rio Declaration, and the provision of Space Law promoting Outer Space and Earth natural environment is also provided. Furthermore, the United Kingdom’s Outer Space Act, entered into force in 1986, shows how international provisions on space debris shall be implemented domestically. In the end, they will be presented the possible ways of enhancing the International Legal system on space debris mitigation through three main options based on the European Center for Space Law proposal: a voluntary regime of adherence, a United Nation Committee on the Peaceful Uses of Outer Space approach or a voluntary Code of Conduct on Space Debris mitigation. To date, the possibility of reaching an agreement on an International Code of Conduct, a voluntary scheme under the coordination of the United Nations, that can combine all three options listed above, seems to be a comprehensive solution and, according to the current dynamics of international norms of Space Law, even the most concrete.

It has become a bit of a cliché to say that outer space has become crowded, congested and contested. No comprehensive international rules or regulations have been framed since the Outer Space Treaty was concluded in 1967 though several limited measures have come about that address specific concerns regarding outer space activities. However, the need for new comprehensive mechanisms is real and there have been different initiatives that have been proposed and considered within the UN Committee on Peaceful Uses of Outer Space as well as the Conference on Disarmament. But there has been no consensus in the international community about these proposals. Most recently, the European Union (EU) effort with regard to an International Code of Conduct (ICoC) for Outer Space Activities has been gaining traction. The ICoC is a comprehensive proposal, trying to establish norms of behaviour for all space activities, both in the civilian and military domains of outer space. But it has been difficult to build consensus around the proposal precisely because it is so comprehensive and covers a range of issues. While it must be acknowledged that the EU has done a commendable job in terms of preparing a comprehensive document, the major difficulty for a significant number of countries has been with the process by which the EU developed this. In spite of these deficiencies and inhibitions expressed by a large number of states, ICoC has the potential to emerge as an important measure that gains wide acceptance if some of the issues addressed in this volume, reflecting the concerns and suggestions from around the world, are addressed by the EU. The editors of this volume hope that this will become an important and handy source for the wide global perspectives on this vital issue.

Table of Contents I. Introduction: The Relevance of ASAT Weapons...........................................................3 1. Definition of Antisatellite (ASAT) Weapons..................................................3 2. History of ASAT Weapons………………………………………………......4 II. Applicable Law.............................................................................................................7 1. Outer Space Treaty....................................................................................9 a. Peaceful Purposes....................................................................10 b. Outer Space Treaty Provisions................................................11 c. Relationship with ABM......................................................... 14 2. Use of Force............................................................................................15 a. Self-Defence...........................................................................17 b. Security Council Authority....................................................20 3. International Telecommunication Union (ITU) Constitution................24 4. Military and Civilian Purposes..............................................................24 II. Legality.....................................................................................................................26 1. Legality of Nuclear Powered ASATs....................................................27 2. Legality of ASAT Weapon Testing.......................................................27 3. Legality of ASAT Testing from the Moon............................................28 4. Other Legal Aspects of Use and Testing ASAT Weapons....................29 a. Debris.....................................................................................29 - Debris of Kinetic Energy Antisatellite Weapons…….29 - Debris and the Legality of ASAT Weapons……...….32 - Legality of Environmental Contamination of Outer Space……………………………………………...…...32 c. Environmental law in bello....................................................35 d. ITU: Harmful interference.....................................................36 3. Liability for ASAT tests or attacks........................................................36 5. Registration............................................................................................39 6. The case in practice: China’s ASAT Test ............................................40 a. Applicable Law.....................................................................40 b. Attribution.............................................................................41 c. Chinese Responsibility under International Law...................41 d. Legality of Chinese ASAT Test............................................42 e. Conclusions...........................................................................44 III. Conclusion- Are ASAT Weapons Illegal?..............................................................46 1. Existing framework...............................................................................46 2. Classification and Control.....................................................................47 3. Legality..................................................................................................48 IV. Bibliography............................................................................................................50 2 I. Introduction: Relevance of Antisatellite (ASAT) Weapons Satellites are scattered along the Earth’s orbit fulfilling a myriad of applications, such as remote sensing, direct broadcasting, navigation and communication.1 As distant as they are, they impact the lives of millions every day. Satellite communications are an important military asset and have been used in many military interventions such as the Vietnam War, the 1983 Grenada Invasion, the 1986 Operation Eldorado Canyon in Libya and Operation Desert Storm in 1991.2 Their crucial use in military operations makes them prime targets for Antisatellite (ASAT) weapons. Definition of Antisatellite (ASAT) weapons A definition of ASAT weapons is important to establish the exact scope of the legal problem to be examined. The most complete and recent definition3 of an ASAT that also has the general acceptance of the international community is provided by the United Nations Institute for Disarmament Research: ASAT weapons are weapons designed to destroy or disable a satellite in space by nuclear or conventional explosion, collision at high speed, or directed energy beam.4 ASATs can be classified into three different types, according to the methods they use to exercise their destructive capabilities. The first method uses kinetic energy and renders its target useless by explosive fragmentation or simple non-explosive collision. Another uses a directed energy system such as a laser beam to incapacitate or Goh, Gerardine Meishan. “Elendemir: Satellites- Threats or the Threatened?” Proceedings of the 45th Colloquium on the Law of Outer Space. ISSL. Houston, Texas. 2002. p. 172; United Nations Institute for Disarmament Research Geneva. Prevention of an Arms Race in Outer Space: A Guide to the Discussions in the Conference on Disarmament. United Nations Publication: New York. 1991. p. 101; Tannenwald, Nina. “Law Versus Power on the High Frontier: The Case for a Rule Based Regime for Outer Space.” Project on the Advanced Methods of Cooperative Security Centre for the International and Security Studies at Maryland University. April 2003. Also Published in Yale Journal of International Law. Summer 2004. <<http://www.cissm.umd.edu/papers/files/tannenwald.pdf>> 2 Goh, Gerardine Meishan. “Elendemir: Satellites- Threats or the Threatened?” Proceedings of the 45th Colloquium on the Law of Outer Space. ISSL. Houston, Texas. 2002. p. 172. 3 Another definition given by Dana St. James only includes space-based anti-satellite weapons. See St. James, Dana J. “The Legality of Antisatellites.” Boston College International and Comparative Law Review. Vol. 3 (2). 1980. p. 468. 4 United Nations Institute for Disarmament Research Geneva. Prevention of an Arms Race in Outer Space: A Guide to the Discussions in the Conference on Disarmament. United Nations Publication: New York. 1991. p. 177. 1 3 interfere with other space objects. The third type uses radiation from a nuclear explosion to neutralize a space object.5 ASAT weapons may be ground- or space-based, air or sealaunched.6 History of ASAT weapons The international laws governing the militarization of outer space are still underdeveloped, as spacefaring nations compete for dominance of outer space. ASAT weaponry is a crucial element in the further development of space weapons and the legal status of their use and their repercussions thereof is, as of yet, unresolved and the current regime is unsatisfactory and requires some tweaking or perhaps even major overhauls. The United States and specifically the former U.S. Space Command (SPACECOM) opposes the view that international law should preserve space for exclusively peaceful purposes.7 The United States vision for 2020 is one of US dominance of the space medium and integrating Space Forces into warfighting capabilities across the full spectrum of conflict.8 The space technology and weaponry, which has traditionally been the domain of Russia and the United States, has become and will over the course of time become accessible to more countries, as China’s ASAT Test has demonstrated. Other nations, and in particular China, believe that the United States vision of dominance in space is incompatible with the legal regime already in place in space.9 5 United Nations Institute for Disarmament Research Geneva. Prevention of an Arms Race in Outer Space: A Guide to the Discussions in the Conference on Disarmament. United Nations Publication: New York. 1991. p. 177; St. James, Dana J. “The Legality of Antisatellites.” Boston College International and Comparative Law Review. Vol. 3 (2). 1980. p. 468. 6 United Nations Institute for Disarmament Research Geneva. Prevention of an Arms Race in Outer Space: A Guide to the Discussions in the Conference on Disarmament. United Nations Publication: New York. 1991. p. 177., St. James, Dana J. “The Legality of Antisatellites.” Boston College International and Comparative Law Review. Vol. 3 (2). 1980. p. 468. only includes space-to-space weapons in his definition of ASATs. 7 see also Tannenwald, Nina. “Law Versus Power on the High Frontier: The Case for a Rule Based Regime for Outer Space.” Project on the Advanced Methods of Cooperative Security Centre for the International and Security Studies at Maryland University. April 2003. Also Published in Yale Journal of International Law. Summer 2004. <<http://www.cissm.umd.edu/papers/files/tannenwald.pdf>> 8 Estes III, Howell M. “Vision for 2020.” US Space Command. Feb. 1997. p. 3. Available at: <<www.fas.org/spp/military/docops/usspac/visbook.pdf >> 9 Tannenwald, Nina. “Law Versus Power on the High Frontier: The Case for a Rule Based Regime for Outer Space.” Project on the Advanced Methods of Cooperative Security Centre for the International and Security Studies at Maryland University. April 2003. Also Published in Yale Journal of International Law. Summer 2004. <<http://www.cissm.umd.edu/papers/files/tannenwald.pdf>> 4 Under the current international agreements covering military space activities, some activities are clearly prohibited, nevertheless there are many loopholes and gaps and provisions open to a variety of interpretations.10 Anti-satellite weapons fit into this gap, as there is no treaty that specifically prohibits their use or stationing in outer space provided that they do not have nuclear capabilities, in which case other treaties that govern nuclear weapons can regulate them.11 The Chairman of the International Law Association’s Committee on Outer Space, D. Goedhuis recognized the possible problems in determining the legal implications of ASAT weapon systems as early as 1984.12 Although at the time ASAT weapons seemed something of the distant future the severity of the gaps in international space law became even more evident twenty-three years later after China successfully tested a direct ascent anti-satellite weapon on January 11, 2007.13 The development of treaties on ASAT weapons may have stagnated in the past because only two nations, the former Soviet Union and the United States, had completed ASAT tests.14 As more countries gain the technology and resources to develop ASAT weapons and as the development of space weapons by nations such as Russia and the United States and now China is increasing, whatever the reasoning behind their ASAT Tests, they demonstrate the need for further development of space law in this area. The growing amount of nations capable of ASAT technology and the important roles fulfilled by orbiting satellites make this futuristic scenario a legitimate concern. An increase in the availability of ASAT technology is not the only reason that the current system of international law is insufficient. The development of satellite technology has also 10 Jasentuliyana, Nandasiri. “International Space Law and the United Nations.” Kluwer Law International. The Hague: 1996. p. 115. 11 Jasentuliyana, Nandasiri. “International Space Law and the United Nations.” Kluwer Law International. The Hague: 1996; Nuclear Test Ban Treaty. 12 see D. Goedhuis. “Legal Implications of the Present and Projected Uses of Outer Space.” Maintaining Outer Space for Peaceful Uses. United Nations University. 1984. 13 Lieggi, Stephanie C. “Space Arms Race: China’s ASAT Test a Wake Up Call.” Centre for Nonproliferation Studies Research Story. January 24, 2007. <<http://cns.miis.edu/search97cgi/s97_cgi? action=View&VdkVgwKey=..%2F..%2Fcnsweb%2Fhtdocs%2Fpubs%2Fweek %2F070124.htm&queryzip=china+asat+test&Collection=CNS+Web+Site>>; Gill, Bates and Martin Kleiber. “China’s Space Odyssey: What the Anti-Satellite Test reveals about Decision-Making in Beijing.” Foreign Affairs. May/June 2007. 14 William J. Broad and David E. Sanger, “Flexing Muscle, China Destroys Satellite In Test.” New York Times. January 19, 2007. Pg. 2. 5 resulted in several changes in international law.15 The legal implications of ASAT weapons may seem like a distant problem, but satellites serve numerous important functions, affecting the lives of people all around the world: remote sensing satellites aid in the management of natural disasters and navigation satellites like the Global Positioning System (GPS) and Galileo are used by millions everyday. 16 Particularly the fact that satellites are often used for military purposes makes the threat of ASAT attacks very real. The problem of legal implications of the use of ASAT weapons does not end after the destruction of their target, since the debris created by the ASAT may be a threat and a violation of several treaties and recognized environmental principles. Therefore, the legality of ASAT weapons is not solely based upon the treaties regulating the use of force such as the UN Charter and several provisions of the Outer Space Treaty, but it is also based upon liability agreements and environmental principles. II. Applicable Law 15 Castillo, Luis F. “Satellite Technology as Source of Integration: A comparative analysis.” Proceedings of the 45th Colloquium on the Law of Outer Space. ISSL. Houston, Texas. 2002. p. 396. 16 Goh, Gerardine Meishan. “Elendemir: Satellites- Threats or the Threatened?” Proceedings of the 45th Colloquium on the Law of Outer Space. ISSL. Houston, Texas. 2002. p. 172. 6 “Space law is a part of international law, and as such subject to the rules set by international law.”17 As part of international law, space law is therefore subject, not only to the treaties governing space specifically, but also the broader treaties and principles of international law. The applicable law for ASATs can be divided into three main fields of international law: first, the Outer Space Treaty and related treaties regarding outer space and celestial bodies; second, the relevant international law regarding testing and using weapons: UN Charter, Arms Control Agreements, ITU Constitution and Convention; and third, the relevant Environmental Law. The UN Charter establishes norms of conduct among states and is often referred to by international agreements on outer space. In fact the Outer Space Treaty draws heavily upon the principles in the UN Charter and even refers to them in the provisions of the treaty, indicating that Space Law is, in fact, a part of international law. It has been contended that because the Charter does not specifically mention outer space it may not be applicable in the prevention of an arms race in outer space.18 Most States opposed this view and countered that since the Charter does not verbis expressis exclude outer space, it should therefore be considered an environment in which the provisions, in particular concerning use of force, are legally binding.19 The UN Charter is the fundamental treaty underlining the obligations among States and is often referred to by international agreements relating to outer space.20 As stated in the Preamble it seeks to ensure inter alia that armed force shall not be used save in the common interest of the State Parties.21 Therefore, the prohibition on armed force in outer space is not completely without exception either, however the ‘exceptions’ may be 17 Benkö, Marietta, Willem de Graaff and Gĳsbertha C.M. Reĳnen. Space Law in the United Nations. Nijhoff: Doordrecht. 1985. p.178. 18 United Nations Institute for Disarmament Research Geneva. Prevention of an Arms Race in Outer Space: A Guide to the Discussions in the Conference on Disarmament. United Nations Publication: New York. 1991. p. 57. 19 Vereshchetin, V.S. (UNIDIR). Prevention of an Arms Race in Outer Space: International Law Aspects. United Nations Publications: New York. 1986. 20 United Nations Institute for Disarmament Research Geneva. Prevention of an Arms Race in Outer Space: A Guide to the Discussions in the Conference on Disarmament. United Nations Publication: New York. 1991. p. 57. 21 Charter of the United Nations (UN Charter). San Francisco. 24 October 1945. Preamble 7 considered as part of the prohibition itself.22 Although, the situation may be difficult to imagine, ASAT weapons could be used for the common interest of the State Parties. The use of force could include ASAT weapons, so in fact their creation and maintenance would not be illegal under the Charter so long as they are only used in the common interest of the State Parties. In fact, the question of the legality of ASAT weapons is a question on the legality of use of force in outer space. Chapter VII and Article 103 of the UN Charter contain the core relevant rules regarding the use of force in general and since the use of ASAT weaponry is to the greatest extent a legal problem concerning the use of force examine these provisions in detail is crucial. The legal status of the use and testing of ASAT weapons and the consequences thereof in space draws upon the Corpus Juris Spatialis,23 arms control agreements, and customary international law. General Assembly Resolutions have also played an important part in the development of space law, despite being considered generally non-legally binding as indicated by UN Charter Article 13(1)(a) whereby they are empowered only to “initiate studies and make recommendations for the purpose of: a. …encouraging the progressive development of international law and its codification.”24 Nevertheless there exists the contention that the Assembly does have some legislative powers pertaining only to outer space, since these resolutions are passed unanimously.25 Other than the Outer Space Treaty and general international law, it is also relevant to examine the Constitution and Convention of the International Telecommunication Union 22 see UN Charter. Art. 2(4); Tannenwald, Nina. “Law Versus Power on the High Frontier: The Case for a Rule Based Regime for Outer Space.” Project on the Advanced Methods of Cooperative Security Centre for the International and Security Studies at Maryland University. April 2003. Also Published in Yale Journal of International Law. Summer 2004. <<http://www.cissm.umd.edu/papers/files/tannenwald.pdf>> p.7-8; Blokker, Niels and Nico Schrijver (eds.). The Security Council and the use for force. Leiden: Nijhoff. 2005. p. 31-37. 23 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies. 10 October 1967 (Outer Space Treaty); Convention on International Liability for Damage Caused by Space Objects. September 1972 (Liability Convention); Convention on registration of objects launched into outer space. September 1976 (Registration Convention); and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies. Entered into force: 11 July 1984 (Moon Treaty). 24 UN Charter. Art. 13(1)(a). 25 Hurwitz, Bruce. The Legality of Space Militarization. Elsevier Science Publishers, B.V.: Amsterdam. 1986. p. 13., see also Bin Cheng. “The United Nations Resolutions on Outer Space: ‘Instant’ International Customary Law?” Indian Journal of International Law. Vol. 23(5). 1965. p. 36. 8 (ITU), since satellite telecommunications are mainly regulated by these documents. It also covers the status of satellites in international law and the agreements made to protect them so far. The ITU Treaty covers the agreements States have made concerning the actual satellite transmissions and although it is not directly related to the status of ASAT weapons in international law, the ITU Constitution and Convention may provide indications as to how states perceive the status of the satellites themselves. And as mentioned before, a satellite may also be rendered useless through radio interference and this type of interference is regulated by the ITU. The rendering useless of a satellite through radio interference is by definition still an ASAT weapon, but it appears that rather than applying only the rules governing the use of weapons (i.e. force) certain provisions of the ITU Constitution and Convention must also be taken into account. Outer Space Treaty The Outer Space Treaty is the main treaty governing the use and exploitation of outer space and is therefore the first treaty that will be examined. The question of the legality of ASAT weapons is at least partially a question on the legality of use of force in outer space and partially a question on the norms established for the exploration and use of outer space. As mentioned earlier, ASAT weapons are not explicitly forbidden by any international treaty concerning outer space. ASAT weapons may not be in violation of the letter of the 1967 Outer Space Treaty there are however, general principles of customary international law and provisions in the UN Charter that may prohibit their use, not specifically as ASAT Weapons, but rather they may be prohibited by the more general norms, such as those promoting peace and international cooperation and prohibiting the use of force in general. Peaceful Purposes One of the keys to determining the legality of ASAT weapons and use of force in outer space in general is the definition and interpretation of the term “peaceful purposes” that is stated in the Preamble of the Outer Space Treaty. The Outer Space Treaty was drafted to prevent future conflicts and promote the use of outer space for what was referred to as “peaceful 9 purposes”.26 Nonetheless, the treaty does not define what sort of activities can be classified as ones for peaceful purposes.27 Nations attributed their own definition to peaceful purposes, some defined “peaceful” as “non-aggressive” and others - particularly the smaller nationsconsidered it to be the antithesis of military.28 The Antarctic Treaty may provide a guideline and arguments to the meaning of peaceful29 as the Treaty prohibits “any measures of a military nature… as well as any weapons.”30 This can be stretched as far as arguing that using space for military purposes goes against the intention of the states when creating the treaty, against the spirit and against the object and purpose of the Outer Space Treaty.31 If the development, testing and deployment of ASAT weapons could be considered to have a destabilizing effect, then it would be necessary to examine whether the general objectives of the Treaty are being violated.32 However, the very fact that the military provision was conspicuously absent as compared to the Antarctic Treaty points to the fact that the omission was intentional and therefore allows for the use of outer space for military purposes. And current practice in international law confirms this, as 70% of the satellites in orbit are military in nature33 and much of the information required for launching an object into space is kept unhelpful under auspices of military purposes.34 Article 31.3 (b) of the Vienna Convention on the Law of Treaties provides that, in addition to the context of the Treaty “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” may be used to interpret a Treaty.35 Interpreting the treaty 26 Bashor, Harold W., Jr. The Moon Treaty Paradox. 2004. p. 43. Also Jasani, Bhupendra (ed.). Peaceful and non-peaceful uses of space : problems of definition for the prevention of an arms race. Taylor and Francis:New York. 1991. 28 Bashor, Harold W., Jr. The Moon Treaty Paradox. 2004. p. 43; Goh, Gerardine Meishan. “Elendemir: Satellites- Threats or the Threatened?” Proceedings of the 45th Colloquium on the Law of Outer Space. ISSL. Houston, Texas. 2002. p. 174; Jasani, Bhupendra (ed.). Peaceful and non-peaceful uses of space : problems of definition for the prevention of an arms race. Taylor and Francis:New York. 1991. 29 Mosteshar, Sa’id. “Militarization of Outer Space: Legality and Implications for the Future of Space Law.” Proceedings of the 47th Colloquium on the Law of Outer Space. ISSL. Vancouver, Canada. 2004. p. 478. 30 The Antarctic Treaty. Entered into force: 23 June 1961; Catena, Johanna. “Acquisition of Space Weapons, the Legal, Political and Military Impact for International Peace and Security.” .” Proceedings of the 45th Colloquium on the Law of Outer Space. ISSL. Houston, Texas. 2002. p. 272. 31 See also Hurwitz, Bruce. The Legality of Space Militarization. Elsevier Science Publishers, B.V.: Amsterdam. 1986. p. 127. 32 Christol, Carl Q. The Modern International Law of Outer Space. Pergamon Press: New York. 1982. p. 781. Outer Space Treaty 33 People’s Republic of China and the Russian Federation. “Definition Issues Regarding Legal Instruments on the Prevention of the Weaponization of Outer Space.” Conference on Disarmament CD/1779. May 22, 2006. Working Paper. 34 Robinson, George S. “Interplanetary Contamination: The Ultimate Challenge for Environmental and Constitutional Lawyers?” Journal of Space Law. Vol. 31(1). 2005. p.161. 35 Vienna Convention on the Law of Treaties. Vienna, 23 May 1969. Art. 31.3(b) 27 10 in this way would clearly indicate that the use of outer space for “peaceful purposes” would not exclude military uses. This is reinforced by State practice. Although the validity of this practice could be debated, due to the domination of certain States in the exploration and exploitation of outer space, nevertheless the legal principle of interpretation as enshrined in Article 31 of the Vienna Convention stands, as a result the current interpretation of the term “peaceful purposes” does not exclude military uses. Outer Space Treaty Provisions The Outer Space Treaty contains norms other than its adherence to “peaceful purposes” that may restrict the use of ASAT weapons. The “common interest” principle is the basic principle of space law and is enshrined in Article 1(1) of the Outer Space Treaty.36 Article I of the Outer Space Treaty is essentially a qualification of the right of freedom of exploration and use. It could be interpreted as assigning States with the duty to use outer space in such a way that neither the earthbound interest of other States, including national security, nor the potential interests of the latter in the exploration and use of outer space, is jeopardized.37 To assign it as a duty may attribute too much strength to the provision. Article III of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial bodies contains a general provision, that the activities should be in accordance with international law and the UN Charter and “in the interest of maintaining international peace and security and promoting international co-operation and understanding.”38 With so many general terms, this rule is nearly devoid of legal substance; since the terms are open to very broad interpretation it could be useful only in the most extreme cases. Nations may consider ASAT weaponry in the interest of maintaining international peace and security, arguing that it can be used for protection. 36 Outer Space Treaty. Art. 1(1); Abeyratne, R.I.R. “The Use of Nuclear Power Sources in Outer Space and its Effect on Environmental Protection.” Journal of Space Law. Vol. 25(1). 1997. p. 20. 37 As done by Smith, Delbert D. Space Stations: International Law and Policy. Westview Press: Boulder, Colorado. 1979. p. 93. 38 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space. 10 Oct. 1967. Art. III. 11 The most important provision in the Outer Space Treaty regarding the use and testing of any sort of weaponry and other military aspects is Article IV. The military aspects of the Treaty are covered in Article IV, where it also distinguishes outer space from the Earth orbit, the moon, other celestial bodies, and even the moon from other celestial bodies.39 Article IV reads as follows: “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 to the Treaty 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 for 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.”40 Although it would appear to have a broad implication prima facie its scope is limited and gives rise to controversy for several reasons. First, it prohibits the placement of objects carrying nuclear weapons or any other kind of weapons of mass destruction in respect of Earth orbit and the stationing of such weapons in outer space and the installation of such object on celestial bodies. The terms used in the first paragraph of Article IV are very specific as it prohibits a State to “place in orbit”, “install”, or “station in any other manner” such weapons in outer space. The omissions therefore become important since it does not specifically mention space objects that would not orbit the Earth, but only transit through outer space.41 Second, only the moon and celestial bodies shall be used for exclusively 39 Outer Space Treaty. Art IV. See also United Nations Institute for Disarmament Research Geneva. Prevention of an Arms Race in Outer Space: A Guide to the Discussions in the Conference on Disarmament. United Nations Publication: New York. 1991. p. 60. 40 Outer Space Treaty. Art. IV. 41 United Nations Institute for Disarmament Research Geneva. Prevention of an Arms Race in Outer Space: A Guide to the Discussions in the Conference on Disarmament. United Nations Publication: New York. 1991. p. 61; Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on 12 peaceful purposes, while this in not specified for outer space as a whole, thereby military use of outer space could not be excluded legally.42 Also, the second paragraph of Article IV could be argued to create two separate legal regimes: one applicable to space and the other to the moon and other celestial bodies.43 Article IV does not, in fact, prohibit military uses of outer space, however it does at the very least provide for the demilitarization of celestial bodies and prohibits the deployment of weapons of mass destruction in space.44 Furthermore the specific wording of the article also could lead to the conclusion that the “peaceful purposes” is applicable solely to the Moon and other celestial bodies.45 The specific prohibition of nuclear weapons and weapons of mass destruction would suggest that conventional weapons such as kinetic energy ASATs and directed energy ASATs are not prohibited by the provisions of the Outer Space Treaty. The reference to “peaceful purposes” in Article I of the Treaty is also not sufficient proof to deny that the intention of the Treaty was to limit all military activities in outer space. Therefore, in accordance with the Outer Space Treaty ASAT weapons are legal de lege legata. Of course, they are still subject to other arms control documents, the UN Charter and customary international law, but as ASATs are conventional weapons the other treaties are unlikely to do more than delineate the terms of their use. Relationship with ABM Treaty Guidelines delineating the legality and terms of use of ASAT weapons may be found by examining the treaties related to a similar type of weapon, namely (anti-) ballistic missiles. the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 96, 112. 42 United Nations Institute for Disarmament Research Geneva. Prevention of an Arms Race in Outer Space: A Guide to the Discussions in the Conference on Disarmament. United Nations Publication: New York. 1991. p. 60. 43 United Nations Institute for Disarmament Research Geneva. Prevention of an Arms Race in Outer Space: A Guide to the Discussions in the Conference on Disarmament. United Nations Publication: New York. 1991. p. 60., Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 95. 44 Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 93. 45 Outer Space Treaty. Art. IV. 13 These weapon systems that are governed by a specific treaty can serve a dual purpose as ASAT weapons. For example, apart from dedicated ASAT weapons, the ground-based interceptors already deployed as part of the U.S. Ballistic Missile Defense system as well as the planned space-based missile defence interceptors could also be used as Kinetic Energy Antisatellites (KE-ASATs).46 Since massive ASAT capability could be equivalent to antiballistic missile capability, the ABM Treaty was always in danger of being eroded, demonstrated by the US withdrawal from their bilateral agreement with Russia which has rendered the treaty useless.47 In fact, the cancellation of the ABM Treaty makes it necessary to distinguish whether the use of space weapons would be according to international law, including international space treaties. At best the text of the ABM Treaty can still function as a guideline as to what the most dominant spacefaring nations – Russia and the United Statesconsidered the rules of their use. An interesting rule that is useful for the future regulation of ASAT weapons in relation to their registration is the first paragraph of Article IV that requires each Party to undertake “not to develop, test, or deploy ABM systems or components which are sea-based, air-based, space-based, or mobile land-based.”48 The only ABM systems that were allowed through this treaty would be stationary and land-based. The practical implications of monitoring ABM systems would be similar to monitoring that of ASAT weapons. ASAT weapons also have the possibility of being stationed in the sea, the air, or space. In fact, ASAT weapons can be mounted onto aircrafts.49 If used in this manner, the use of ASAT weapons would be extremely difficult to monitor and regulate. Therefore, if considered legal ASAT weapons should only be allowed as stationary and land based installations as had been earlier agreed on regarding ABM systems. Use of Force 46 Wright, David and Laura Grego. “Anti-Satellite Capabilities of Planned US Missile Defense Systems.” Global Security. December 9, 2002 <<http://www.ucsusa.org/global_security/space_weapons/asat-capabilitiesof-us-missile-defense-systems.html>> 47 Christol, Carl Q. The Modern International Law of Outer Space. Pergamon Press: New York. 1982. p. 781; Meredith, Pamela L. “The Legality of a High-Technology Missile Defense System: The ABM and Outer Space Treaties.” American Journal of International Law. 78(2). 1984, Outer Space Treaty. 48 Anti Ballistic Missiles Treaty. Moscow. Entered into force: 3 October 1972. No longer in force. 49 US ASAT Test. 14 The issue of the legality of ASAT weapons is primarily an issue of use of force, but then related to outer space. Hence, as discussed earlier the Charter provisions concerning the prohibition of the use of force must be examined and put into the context to determine if the legal uses of ASAT weapons, if any exist. Even if ASATs would be considered conventional and legal weapons they would be restricted by the prohibition on the use of force. It could be argued that if ASAT weapons can hold themselves to the limitations imposed by the prohibition on the use of force that they could indeed be considered legal and conventional weapons. The authoritative principles relating to the issue of the use of force on Earth can be found in the UN Charter.50 In the Nicaragua case the ICJ determines that the general customary international rules governing the lawful use of force are in fact identical to those provided in the Charter.51 The significance of the UN Charter can be found in Article 103, which states that: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”52 Article 103 establishes that the obligations under the UN Charter prevail over the obligations under any international agreement, which naturally includes agreements concluded concerning outer space such as the Outer Space Treaty. Under Article 2(4), the UN Charter provides that States are to refrain “from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”53 This principle has been found to be jus cogens by the International Court of Justice, therefore binding on all States as 50 Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 99. 51 Military and Paramilitary Activities in and against Nicaragua (Merits), 1986. ICJ. 14 (June 27). para.187. 52 UN Charter. Art. 103. 53 UN Charter. Art. 2(4), see also Schachter, Oscar. “The Right of States to Use Armed Force.” Michigan Law Review. Vol. 82(5/6). 1984. p. 1644. 15 a customary norm.54 Nevertheless, there are exceptions to this principle in Article 51 and Chapter VII of the Charter, where the Security Council may authorize the use of force “to maintain or restore international peace and security” if there is a “threat to the peace, breach of the peace, or act of aggression” for which more than economic and trade sanctions are necessary.55 As Simma eloquently states, Chapter VII “constitutes the very heart of the global system of collective security.”56 Self-Defence Article IV of the 1967 Outer Space Treaty provides limited demilitarisation of space, nevertheless as the United States maintained, States still had recourse to the inherent right of self-defense as enshrined in Article 51 of the UN Charter and customary international law.57 Article 51 provides that the inherent right allowing states to use force for individual or collective self-defence “until the Security Council has taken measures necessary to maintain international peace and security.”58 It is difficult to determine situations in which this could be applicable since an ASAT weapon’s targets (i.e. other satellites) are generally considered to be defensive in nature and therefore ASAT weapons would seem to only have use in an offensive situation.59 It could be argued that there are offensive satellites, such as espionage and reconnaissance satellites, which would merit a defensive use of ASAT weapons. Espionage and reconnaissance have been considered acts that justify a military response in the past, such as had occurred several times with American planes flying over Soviet territory, such as the U-2 54 Military and Paramilitary Activities in and against Nicaragua (Merits), 1986. ICJ. 14 (June 27). See also the Corfu Channel (UK vs. Albania), 1949. ICJ Judgement 9 April. p. 35; Legality of the Threat or Use of Nuclear Weapons. ICJ Advisory Opinion 1996. para. 41; Oil Platforms (Iran vs. US), 2003. ICJ Judgement (6 Nov. l). para .76. 55 Blokker, Niels and Nico Schrijver (eds.). The Security Council and the use for force. Leiden: Nijhoff. 2005. p.36, Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 103. 56 Simma, Bruno. “NATO, the UN, and Use of Force: Legal Aspects.” European Journal of International Law. Vol. 10 (1). 1999. p.4. 57 Hurwitz, Bruce. The Legality of Space Militarization. Elsevier Science Publishers, B.V.: Amsterdam. 1986. p. 119. Christol, Carl Q. The Modern International Law of Outer Space. Pergamon Press: New York. 1982. p. 781. 58 UN Charter. Art. 51. 59 Christol, Carl Q. The Modern International Law of Outer Space. Pergamon Press: New York. 1982. p. 781. 16 incident.60 However, the type of offensive information operation conducted by satellites is difficult to qualify as an armed attack or a use of force, hence it is doubtful that such a satellite could be legally destroyed using the right of self-defense as enshrined in Article 51. The prevailing view on the notion of force limits it to armed force, but this armed force may in turn be interpreted broadly to include indirect uses of force.61 Only when the effects produced by such a satellite are the equivalent to those of a kinetic attack could the threshold of Art. 2(4) be crossed and the right to self-defense under Article 51 be activated.62 Regardless the measures taken against the offending satellites must be proportional, as established under conventional and customary international law.63 This results in an interesting division on the legality of ASAT depending on their type (i.e. nuclear, kinetic energy, directed energy beam ASATs). Each type of ASAT weapon has a particular result or consequence which must be taken into account when determining proportionality and thereby evaluating their legality in that particular situation. If the acting under the premises of selfdefense under jus ad bellum and failing to comply with proportionality the actions taken cannot be justified as lawful means of self-defense.64 For example, the destruction of an offending information satellite by a kinetic energy ASAT weapon may not be proportional if the damage done by the satellite is merely temporary and reversible. In this case, an ASAT that functions by disabling the offending satellite by blinding it through for example laser or radio interference would be proportionate since the effect is reversible. Whereas using other types (i.e. nuclear powered and kinetic energy explosives) of ASAT weapons would be unproportional, and therefore illegal. While proportionality needs to be examined on a case-by-case basis, Article 2(4) raises a difficult question as to the use of force in space in general, since the exact wording prohibits use of force only “against the territorial integrity or political independence of any State.”65 60 Wright, Quincy. “Legal Aspects of the U-2 Incident.” American Journal of International Law. Vol. 54(4). 1960. p.851. 61 Mossler, Herman and Bruno Simma (ed.) The charter of the United Nations : a commentary. Oxford: Oxford University Press. 2002. p. 117-119. 62 See further Wingfield, T.C. “Legal Aspects of Offensive Information Operations in Space.” 1998. <<www.au.af.mil/au/awc/awcgate/dod-io-legal/wingfield.doc >> 63 Gardam, Judith Gail. “Proportionality and Force in International Law.” American Journal of International Law. Vol. 86(3). 1993. p.391; Nicaragua Case. Merits. Para 176 (June 27). 64 Gardam, Judith Gail. “Proportionality and Force in International Law.” American Journal of International Law. Vol. 86(3). 1993. p.392. 65 UN Charter. Art. 2(4). 17 This allows for a distinction to be made between annexations or permanent occupations, which infringe territorial “integrity” and activities such as, trespassing, which infringes territorial “inviolability” of a State.66 This literal and limited approach provides a way for States to shirk their obligations, as Brownlie stated, “it is difficult to accept a ‘plain meaning’ which permits evasion of obligations by means of a verbal profession that there is no intention to infringe territorial integrity.”67 Furthermore, as one of the Purposes of the United Nations is to “maintain peace and security” and any use of force regardless of whether it infringes the territorial integrity of a State, is contrary to the Purposes of the United Nations and therefore also in contravention of Article 2(4).68 It could be argued that even using the narrow or literal interpretation use of force against ASAT weapons in space is illegal in accordance with the Charter because it does threaten a State’s territorial integrity and political independence. Destroying an important satellite (or even not so important) can be construed as an act of intimidation, which would compromise the political independence of the State who was the victim of such an attack. Also, satellites are considered to be under the jurisdiction of the State that owns them, attacking governmental satellites could be construed as an act infringing the virtual territory of the State. Article 51 of the Charter provides for the inherent right of self-defence, stating that: “Nothing in the present Charter shall impair the inherent right of individual or collective self defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under 66 Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 104. 67 Brownlie, Ian. International Law and the Use of Force by States. Oxford University Press. 1963. p. 267-68. 68 Harris, David. Cases and Material in International Law. Sweet and Maxwell. 1998. p. 866; see also Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 104. 18 the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”69 Therefore under Article 51 it becomes apparent that the Charter considers self-defence to be a right that is incorporated into the prohibition on the use of force, rather than an obligation as such. As a result Article 103 which applies only to obligations and not rights, would have no application on Article IV of the Outer Space Treaty. Although States remain prohibited from using force under the UN Charter, jus cogens and customary international law, the exception of self-defence is valid in outer space also and is not limited by Article IV. As discussed previously, it would not prevent the use of force by States in self-defence, unless it involved the deployment of weapons of mass destruction or the use of the Moon or other celestial bodies.70 Security Council Authority When dealing with the question of legal use of force it is difficult to ignore the important role played by the UN Security Council: any threat or use of force that is not justified as selfdefence against an armed attack nor authorized by the Security Council must be regarded as a violation of the UN Charter.71 Article 24 of the UN Charter confers upon the Security Council the primary responsibility for the maintenance of international peace and security and can recommend or command military enforcement action as a last remedy in the case of a threat to the peace, breach of peace, or act of aggression.72 In this vein the Security Council can authorise the use of ASAT weapons as military enforcement action, provided that their use does not conflict with jus cogens. In other words, provided that the prohibition of ASAT is not accepted as a principle of jus cogens, the Security Council may authorise their use (also taking into account the regular limitations on legitimate use of force). Although not a 69 Italics added. Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 106-7. 71 Simma, Bruno. “NATO, the UN, and Use of Force: Legal Aspects.” European Journal of International Law. Vol. 10 (1). 1999. p.4. 72 UN Charter. Ch. V. Art. 24(1); Blokker, Niels and Nico Schrijver (eds.). The Security Council and the use for force. Leiden: Nijhoff. 2005; Mossler, Herman and Bruno Simma (ed.) The charter of the United Nations : a commentary. Oxford: Oxford University Press. 2002. p.125. 70 19 legislative body in itself, the approval or condemnation by the Security Council of the use of ASAT weapons would provide a good basis for further legislation. However, in general the scope of the Security Council is on a case-by-case basis, although in recent times has made broader declarations, such as Resolution 1373(2001).73 The Security Council can recommend action that involves the use of ASAT weapons, since as has been discussed earlier their use does not violate jus cogens. The measures that the Security Council may take are enshrined in Article 41 and 42 of the Charter. Article 41 determines the measures the Security Council may utilize to give effect to its decisions not involving armed force, which includes “complete or partial interruption of economic relations and of sea, air, postal, telegraphic radio and other means of communication.”74 As an obligation arising directly from the Charter, Article 103 would apply in this case. These are limited to internal steps; external steps to disrupt another State’s communications would amount to a use of force. Lee provides an analogy with shipping links, where a State would be required to ensure that no shipping under its flag reached the target State and no shipping of the target State is serviced through its territorial waters and ports. In this case, it is also not allowed to actively undertake a naval blockade or arrest or attack ships in the international waters that are destined for the target State.75 Under Article 41 the Security Council can order any non-forcible measure that helps to limit a breach or threat to the peace.76 The problem is that with ASAT it can be difficult to determine whether a measure can be described as using force or not. Applied to satellites communications in outer space, the activities that the Security Council may require of State Parties under Article 41 would mean that, States would have to ensure that no transmissions from ground segments within their control are relayed through satellites to the target State. And also that satellites registered to other States would be required to end transmissions to the target State. Article 41 does not, however give the legal authority for the Security Council to order States to disrupt or interfere with the satellite transmissions of the target State as that 73 UN Security Council. Res. 1373(2001). UN Charter. Ch. VII. Art. 41. 75 Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 108. 76 UN Charter. Ch. VII. Art. 41. 74 20 would amount to a use of force by the interfering States.77 If interference with another State’s satellite communications is considered a use of force then ASAT weapons cannot be used under the auspices of Article 41 of the UN Charter. Although, a device that causes intentional interference that resulting in the neutralization of a satellite could be technically classified as an ASAT weapon, it is debatable whether such action could in fact be considered a use of force. On the other hand Article 42, provides the legal basis for the Security Council to authorize the use of force by States. If pursuant to Article 39, the Security Council determines there is a breach of the peace, a threat to the peace or an act of aggression, it can decide to take measures, which includes armed force.78 It allows the Security Council to “take such action by air, sea, or land forces” as specified in Article 42.79 The authorization granted by Article 42 could be concluded to be limited to air, sea, or land forces, as it specifically lists them and avoids any mention of space forces.80 Even though it would be extremely far-fetched to interpret Article 42 in this fashion some countries have argued for this interpretation. It would mean that the scope of authority granted to the Security Council is limited to air, sea and land forces then the Security Council would have no authority to require States to take military action in space.81 Effectively this would result in a total ban of military use in space as only use of force as self-defence as confined by Article IV would be allowed.82 As the Security Council bears burden of acting in the event of a threat to the peace, a breach of the peace or and act of aggression to do so legally with force would require that Art. 42 should apply to space as well for it to carry out those duties it was assigned.83 Furthermore, a much more logical and accepted interpretation is that the people who drafted the UN Charter did 77 Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 108. 78 Mossler, Herman and Bruno Simma (ed.) The charter of the United Nations : a commentary. Oxford: Oxford University Press. 2002. p.125. 79 UN Charter. Art. 42. 80 Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 109. 81 Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 110. 82 Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 110. 83 Mossler, Herman and Bruno Simma (ed.) The charter of the United Nations : a commentary. Oxford: Oxford University Press. 2002. p.125 21 not foresee the possibility of military combat in space.84 After all, the UN Charter was drafted in 1945 and it was not until 12 years later in 1957 that the first artificial satellite Sputnik I, was successfully launched.85 Also, as there is no legal review of the authority of the Security Council it is unlikely that different interpretations of Article 42 would any impact on the authority of the Security Council, even in space and regarding the limitations imposed by Article IV of the Outer Space Treaty. 86 Any difficulties can be overcome by the subsequent practice of States as has been done before as concerns Article 27 of the UN Charter.87 The Security Council also plays an important role in evaluating the legality of self-defence with regards to the principle of proportionality. The Security Council declared illegal some of the reprisals that were made in alleged self defence due to the higher number of casualties.88 This determination of proportionality should pose an interesting dilemma for the Security Council when trying to determine the proportionality of an attack by an ASAT, since it most likely does not involve any direct casualties. ITU Constitution The ITU Constitution and Convention provides for certain limitations on the military uses of satellites and radio interference. Article 48 of ITU Constitution and Convention provides that States “retain their entire freedom with regard to military radio installations,” but they must take observe statutory provisions relative to “the measures to be taken to prevent harmful interference.”89 Under this provision States are allowed to have military radio installations provided that they take the necessary measures to assure that no harmful interference occurs. The freedom granted to military radio is subject only to the limitations set out in the second paragraph of Article 48, which according to some scholars amounts to an implicit 84 Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 110. 85 Steve Garber. “Sputnik and the Dawn of the Space Age.” NASA. Updated January 19, 2007. <http://history.nasa.gov/sputnik/> 86 Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 111. 87 Change in voting procedure: Security Council abstentions. 88 Schachter, Oscar. “The Right of States to Use Armed Force.” Michigan Law Review. Vol. 82(5/6). 1984. p. 1637. 89 Constitution of the International Telecommunication Union.Art 48. 22 endorsement of the view that Article IV of the Outer Space Treaty does not amount to a general requirement that outer space be used for peaceful purposes only as this interpretation would eliminate the existing freedom concerning military radio installations.90 Under the ITU Constitution and Convention States are under obligation, in so far as possible, to prevent harmful interference. The interference must come from a station therefore, although, laser attacks and other methods of disabling radio communication systems, such as destroying it by kinetic energy weapons, could be construed as contrary to the Constitution.91 Obviously, intentional harmful interference would be a breach of this obligation; nevertheless Article 103 of the UN Charter would allow a binding decision of the Security Council under Article 41 to override the operation of the ITU Constitution and Convention. Military and Civilian Purposes Satellites often serve both military and civilian purposes, they can function both as private and public actors. The provisions of international treaties directly limit the rights and interests of States, but only indirectly those of private commercial entities, through domestic legislation or other forms of legal implementation.92 Consequently, when domestic space law is absent, private space activities may not be subject to any legal duty or obligation arising from international jus ad bellum and there would be no impact on private operators for such activities under international law.93 Neither would there be any protection for privately owned satellites, which could easily become the target of an attack since the Air Force relies on commercial satellites for about fifty percent of its military communications and is also the largest customer for commercial satellite imagery.94 90 Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 114. 91 Mosteshar, Sa’id. “Militarization of Outer Space: Legality and Implications for the Future of Space Law.” Proceedings of the 47th Colloquium on the Law of Outer Space. ISSL. Vancouver, Canada. 2004. p. 476. 92 Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 94. 93 Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 94. 94 Tannenwald, Nina. “Law Versus Power on the High Frontier: The Case for a Rule Based Regime for Outer Space.” Project on the Advanced Methods of Cooperative Security Centre for the International and Security Studies at Maryland University. April 2003. Also Published in Yale Journal of International Law. Summer 2004. <<http://www.cissm.umd.edu/papers/files/tannenwald.pdf>> 23 Although a private entity is limited by the legal restrictions on its State, only a State can be found liable for breaches of international law and these may be attributed to the State under the principles of state responsibility.95 Activities undertaken illegally, such as an unlawful use of force, by a private operator cannot be dealt with directly by the international community since there is no international enforcement capability capable of punishing private actors.96 This creates problems as many of the satellites have a dual use, including both military and civilian uses and joint ownership.97 This becomes a problem when such a satellite undertakes an offensive action, which would allow for the activation of Article 51, since it could be the activities of a private entity and therefore not subject to the jus ad bellum. The problem here would be the difficulty in attributing the attack. Military and thereby State uses of offensive satellite action, may warrant use of force in self-defence such as ASAT, but if the offensive action can be attributed to a private entity it would not in necessarily be an infringement on the owner State to destroy it since the satellite would have not been acting in “national capacity”. Under the Draft Articles of State Responsibility actions of civilian institutions in the function or on assignment by the government can be attributed to the government.98 This frequent situation of dual military and civilian uses of satellites makes it a true challenge to determine who exactly was in control of the satellite at the moment and whose satellite was exactly destroyed as it is unclear whether it belonged to the State or to the civilian institution, resulting in a difficulty deciding what law is applicable. 95 Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 94. 96 Lee, Ricky J. “The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space.” Journal of Space Law. Vol. 29. 2003. p. 94. 97 Goh, Gerardine Meishan. “Elendemir: Satellites- Threats or the Threatened?” Proceedings of the 45th Colloquium on the Law of Outer Space. ISSL. Houston, Texas. 2002. p. 176. 98 International Law Commission’s Draft Articles on State Responsibility for Internationally Wrongful Acts. 2001. Articles 5, 6, 7, 8, 9, 10, and 11. 24 III. Legality The legality of nuclear powered ASAT weapons As described earlier there are different types of ASAT weapons, the type of weapon may have influence on their legality, although this is by no means a prohibition of the weapon. Rather, it is merely the result of a different prohibition that stands separate from the legality of ASAT weapons, dealing with nuclear testing, nuclear weapons and nuclear energy as embodies in a series of treaties. A clear prohibition on the use of nuclear weapon test explosions in the Nuclear Test Ban Treaty which requires State Parties to the treaty to undertake to prohibit, prevent and not carry out any nuclear explosion at any place under its jurisdiction or control or in outer space or any other environment that causes radioactive debris to be present outside the territorial limits of the State under whose jurisdiction or control such an explosion occurred.99 The 1978 COSMOS 954 incident, where radioactive debris was scattered over 600 kilometres of Canadian territory after the disintegration of a Soviet satellite, indicated the relevance of environmental protection in relation to the exploration and exploitation of outer space, particularly as regards nuclear explosions.100 The Nuclear Test Ban Treaty prohibits any sort of nuclear detonation in outer space, both for testing and non-testing purposes. As a result electromagnetic pulses generated via nuclear detonation as ASAT weapons are also prohibited by this treaty.101 99 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Over Water. (Test Ban Treaty) Entered into force 10 October 1963. 100 Abeyratne. RIR. “The Use of Nuclear Power Sources in Outer Space and its Effect on Environmental Protection.” Journal of Space Law. Vol. 25(1). 1997. p.17. 101 Goh, Gerardine Meishan. “Elendemir: Satellites- Threats or the Threatened?” Proceedings of the 45th Colloquium on the Law of Outer Space. ISSL. Houston, Texas. 2002. p. 176. 25 The legality of ASAT weapon testing Provisions of customary international law do not refer to the stationing of ASATS weapons in outer space or the planets. These provisions also do not cover the legality of testing ASAT weapons on objects within their own jurisdiction, as this does not fall in the realm of use of force. In fact, in accordance with Article VIII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, objects launched into outer space remain under the jurisdiction and control of the state on whose registry it was launched.102 The legality of ASAT on objects within a State’s own jurisdiction will be examined more thoroughly later, using the example of China’s ASAT test of January 2007. The Outer Space Treaty covers the matter of weapon testing in Article IV: “The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden.”103 The question here is whether it was the intention of those drafting the treaty to prohibit the testing of weapons solely on celestial bodies, or whether intention was to prohibit the testing of weapons in outer space in general.104 From the text it can be deduced that the intention was solely to prevent the testing of weapons on celestial bodies, since the drafters took care to include “celestial bodies” in the provision. The omission of the term “celestial bodies” would have resulted in an all-encompassing ban on weapons testing in outer space. However, this was not the case and therefore it must be concluded that ASAT testing is not illegal under Article IV of the Outer Space Treaty. Both the Secretary-General of the United Nations as well as the public and scientific community need to be informed of any outer space activities under Article XI of the Outer Space Treaty.105 Nevertheless, this provision is weak as it allows this information to be given 102 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space. 10 Oct. 1967. Art. VIII. 103 Outer Space Treaty. 10 Oct. 1967. Art. IV. 104 VCLT. Art. 31. 105 Outer Space Treaty. Art XI. 26 “to the greatest extent feasible and practicable.”106 As shall be demonstrated later in the case of China, this is quite simple to circumvent.107 The legality of ASAT weapons and testing from the Moon Although in general international law there are loopholes, gaps and provisions open to interpretation as regards ASAT weapons and testing, the Moon is a different matter. Particularly the Agreement Concerning the Activities of States on the Moon and Other Celestial Bodies (Moon Treaty) forbids ASAT weapons and testing from the Moon. Not by specifically mentioning them, but rather by clearly delineating the activities that are allowed on the Moon. In the Outer Space treaty Article IV provides with clarity than any form of weapons testing is prohibited on the Moon.108 Any form of military installation is also prohibited under the same article and therefore it is established already in this initial treaty that the Moon is to remain devoid of ASAT weapons and testing. In any case, this treaty explicitly forbids the placement and use of ASAT weapons on the Moon. Nevertheless, there is a clause in Article IV that allows for unforeseen changes in the future, which might necessitate the construction of some sort of military installation on the Moon. This clause allows the “use of any equipment or facility necessary for the peaceful exploration of the Moon and other celestial bodies shall also not be prohibited.”109 The Moon Treaty elaborates on the prohibition already entailed in the Outer Space Treaty, establishing more clearly the rules pertaining to the activities related to the Moon. Interesting to note is the fact that the Moon Treaty includes the orbits around or trajectories to or around it.110 This may have legal consequences for the satellites that are in the Moon’s orbit. Since Article 3 specifies “any use of force or any other hostile act or threat of hostile act on the Moon is prohibited,”111 the destruction of satellites in orbit around the Moon with ASAT weapons could in some case be construed as a violation of the treaty. To draw upon the 106 Outer Space Treaty. Art. XI. Gill, Bates and Martin Kleiber. “China’s Space Odyssey: What the Anti-Satellite Test reveals about Decision-Making in Beijing.” Foreign Affairs. May/June 2007. 108 Outer Space Treaty. Art. IV. 109 Outer Space Treaty. Art. IV. 110 Moon Treaty. Art. 1. 111 Moon Treaty Art. 3(2). 107 27 China’s ASAT test, if such as test were conducted on a satellite orbiting the Moon it could be considered a hostile act or threat of a hostile act. Of course such a test itself is already in violation of the Moon agreement as it is forbidden to test any weapons on the Moon.112 The Moon Treaty is perhaps a demonstration of the next step to be taken as regards the militarization of outer space: a comprehensive or very nearly comprehensive ban on the testing and use of all weapons, including ASATs. Other Legal Aspects of Use and Testing ASAT weapons It is far too simple to merely examine the legality of ASAT weapons solely as weapons. Just as Nuclear Weapons have drastic side effects, such as fallout and radiation, the use of Kinetic Energy ASAT weapons litters space with debris. It is not unusual in international law to determine the legality of a weapon according to its unique characteristics.113 Essentially the use of ASAT weapons results in the pollution of outer space, specifically the Earth’s orbit. Perhaps not such a problem at the moment but if there are no rules governing the use of ASAT weapons, particularly in the Lower Earth Orbit the debris could become a serious problem. Debris As regards the debris of a Kinetic Energy Antisatellite Weapons Of the three types of ASAT weapons, the nuclear powered one is illegal and the directed energy beam does not create debris so therefore the most relevant as concerns debris is the Kinetic Energy ASAT weapon which is not illegal under international law as it is seen as a conventional weapon and creates the most debris. 112 113 Outer Space Treaty. Art. IV; Moon Treaty. Art. 3(1), Art. 3(4). Legality of the Threat or Use of Nuclear Weapons. Advisory Opinion of 8 July 1996. para. 35. 28 There are other aspects involved when ASAT weapons are used, including the consequences of their use, namely the creation of debris.114 Many inoperational satellites and satellite remnants remain in space and completely out of control.115It may not be an initial cause of concern, but the European Space Agency affirms that the threat posed by small, untracked space debris is significant.116 Their presence is a nuisance to operational satellites, disturbing signal transmittance to Earth.117 Larger, tracked debris is monitored and when the risk of collision reaches a predefined threshold an alarm is sounded and mission controllers can notify the involved spacecraft and order them to move.118 Only debris that is larger than 10 centimetres can be tracked and spacecrafts such as the Space Shuttle have executed collision avoidance maneuvres to avoid these.119 Very small debris, ranging from microscopic dust to objects of about 1 centimeter in diameter are a threat, but protective shielding is usually sufficient to deal with these.120 Still, a fleck of paint as small as four one-hundredths of one millimetre could severely damage the Shuttle’s window.121 The debris that raises the most worries are those objects that range in size from about 1 to about 10 centimeters in diameter, since these are too small and numerous to track yet capable of crippling or killing any craft they come upon.122 It is important to have a better understanding of how much debris actually results from the destruction of a Kinetic Energy Antisatellite weapon to have a good indication of how significant the threat from the debris is. The lifetime of space debris produced when a Kinetic Energy Antisatellite weapon hits a Low Earth Orbit (LEO) satellite can be calculated by 114 Ting, Wang. “The Consequences of Using Kinetic Energy Anti-Satellite Weapons.” The INESAP Bulletin 26, August 2006, pp 60-63. <<http://www.inesap.org/bulletin26/art14.htm>> 115 Reijnen, G.C.M and W. de Graaff. “Pollution of Outer Space, in Particular of the Geostationary Orbit.” Utrecht Studies in Air and Space Law. Martinus Nijhoff. 1989. p.38. 116 European Space Agency. “Space Debris: Assessing the Risk.” Focus On. March 16, 2005. <<http://www.esa.int/esaCP/SEMZL0P256E_FeatureWeek_0.html>> 117 Reijnen, G.C.M and W. de Graaff. “Pollution of Outer Space, in Particular of the Geostationary Orbit.” Utrecht Studies in Air and Space Law. Martinus Nijhoff. 1989. p.38. 118 European Space Agency. “Space Debris: Assessing the Risk.” Focus On. March 16, 2005. <<http://www.esa.int/esaCP/SEMZL0P256E_FeatureWeek_0.html>> 119 Mirmina, Steven A. “The Ballistic Missile Defense System and its Effects on the Outer Space Environment.” Journal of Space Law. Vol. 31(2). 2005. p.300. 120 European Space Agency. “Space Debris: Assessing the Risk.” Focus On. March 16, 2005. <<http://www.esa.int/esaCP/SEMZL0P256E_FeatureWeek_0.html>> 121 Mirmina, Steven A. “The Ballistic Missile Defense System and its Effects on the Outer Space Environment.” Journal of Space Law. Vol. 31(2). 2005. p.300. 122 European Space Agency. “Space Debris: Assessing the Risk.” Focus On. March 16, 2005. <<http://www.esa.int/esaCP/SEMZL0P256E_FeatureWeek_0.html>> 29 applying NASA’s spacecrafts an rocket bodies breakup model and the latest atmosphere model.123 David Wright calculates that the debris from the kinetic energy ASAT test on the FY-1C satellite, with a mass of around 954 kg resulted in roughly 1,000 with a size of 10 cm or greater, 50,000 with a size of 1 cm or greater, and 2.6 million greater than 1 mm in the LEO.124 Relatively this means that the debris from this test will double the density of debris larger than 1 centimetres for the next five years around altitudes of 850 kilometres.125 Destruction of satellites that are larger than FY-1C will result in significantly more debris.126 Satellites more likely to be targeted for ASAT attacks, such as spy satellites, have ten times the mass of FY-1C and upon breakup it would double the amount of space debris that is larger than 1 centimetre in the LEO.127 The chance of a satellite being significantly disturbed or disrupted by space debris increases with the size of the satellite and its orbital lifetime, so as a result highly complex scientific satellites such as the Hubble Space Telescope and the International Space Station are particularly threatened by space debris.128 The French micro satellite Cerise collided with part of the Ariane rocket in 1996 and became the first validated collision between two catalogued objects.129 Debris and the legality of ASAT Weapons Legality of Environmental Contamination of Outer Space 123 Ting, Wang. “The Consequences of Using Kinetic Energy Anti-Satellite Weapons.” The INESAP Bulletin 26, August 2006, pp 60-63. <<http://www.inesap.org/bulletin26/art14.htm>> 124 Ting, Wang and David Wright. “Space Weapons and Technical Issues: Debris from China's Kinetic Energy ASAT Test.” Union of Concerned Scientists. February 2, 2007. <<http://www.ucsusa.org/global_security/space_weapons/debris-from-chinas-asat-test.html.>> also << http://www.armscontrolwonk.com/1374/an-assload-of-debris>> 125 Ting, Wang and David Wright. “Space Weapons and Technical Issues: Debris from China’s Kinetic Energy ASAT Test.” Union of Concerned Scientists. February 2, 2007. <<http://www.ucsusa.org/global_security/space_weapons/debris-from-chinas-asat-test.html.>> 126 Ting, Wang and David Wright. “Space Weapons and Technical Issues: Debris from China’s Kinetic Energy ASAT Test.” Union of Concerned Scientists. February 2, 2007. <<http://www.ucsusa.org/global_security/space_weapons/debris-from-chinas-asat-test.html.>> 127 Ting, Wang and David Wright. “Space Weapons and Technical Issues: Debris from China’s Kinetic Energy ASAT Test.” Union of Concerned Scientists. February 2, 2007. <<http://www.ucsusa.org/global_security/space_weapons/debris-from-chinas-asat-test.html.>> 128 Jasentuliyana, Nandasiri. “Space Debris and International Law.” Journal of Space Law. Vol. 26(2). 1998. p. 139. 129 Williamson, Mark. “Protection of the Space Environment: The First Small Steps.” Proceedings of the 45th Colloquium on the Law of Outer Space. ISSL. Houston, Texas. 2002. p. 456. 30 Activities conducted in outer space, should be conducted in accordance with international law. This is reinforced by the 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space where the parties declared to respect the principles of the Declaration, which included the general principle of international cooperation and adherence to customary international law in outer space.130 Space debris generated from the destruction of satellites, whether by a test or attack, is essentially pollution,131 therefore in addition to liability for damages the state conducting the test or attack is also responsible under the treaties that address the protection of the outer space environment and some general principles of international law recognized in the jurisprudence of the International Court of Justice. These treaties and general principles will be evaluated and applied to ASAT weapons. Although China did not create the debris, as their satellite was legally in space, nevertheless they did make the space environment more dangerous by converting the satellite into smaller man-made debris that is more difficult to track and therefore more dangerous. The 1963 Declaration of Principles by General Assembly Resolution, which is in fact a sort of precursor to the Outer Space Treaty, establishes general principles that govern the activities of States in space, stating that: “In the exploration and use of outer space, States shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space with due regard for the corresponding interests of other States. If a State has reason to believe that an outer space activity or experiment planned by it or its nationals would cause potentially harmful interference with activities of other States in the peaceful exploration of outer space, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State which has reason to believe that an outer space activity or experiment planned by another State would 130 GA Resolution. Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. 13 Dec. 1963. A/RES/1962 (XVIII); Abeyratne, R.I.R. “The Use of Nuclear Power Sources in Outer Space and its Effect on Environmental Protection.” Journal of Space Law. Vol. 25(1). 1997. p. 24-25. 131 In fact N. Jasentuliyana refers to is as “space garbage” in his article “Space Debris and International Law.” 31 cause potentially harmful interference with activities in the peaceful exploration and use of outer space may request consultation concerning the activity or experiment.”132 Depending on the legal weight attributed to the Resolution, ASAT weapons can be considered a clear interference as can the testing thereof considering the generation of space debris and the potential danger it poses for the use of space. The Rio Declaration is the foundation of international environmental law and its second Principles provides that all States have the inalienable right to exploit their own resources pursuant to their own environmental and developmental policies while at the same time recognizing the responsibility to ensure that the activities within their jurisdiction do not cause damage to the environment of other States or of areas beyond the limits of their national jurisdiction.133 Outer Space is clearly an area outside of any State’s jurisdiction as it is considered the “common heritage of mankind,”134 hence any activity that causes damage to the environment in space can be considered a violation of Principle 2 of the Rio Declaration. Environmental damage may sound distant and absurd, at first. The danger of satellite debris is not limited to spacecraft and astronauts in orbit, but in rare cases also has drastic effects on Earth. The COSMOS 954 incident, where a Soviet satellite disintegrated over Northern Canada, demonstrates that should the debris of certain satellites return to Earth it could have drastic environmental consequences.135 As a result of the satellite disintegrating debris was scattered over 600 kilometres of Canadian territory and most of the debris was found to be radioactive.136 The debris from resulting from the destruction of satellites, particularly during ASAT testing is an unnecessary endangerment. The debris may become untraceable, but 132 GA Resolution. Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space. 13 Dec. 1963. A/RES/1962 (XVIII) 133 Rio Declaration on Environment and Development. Rio de Janeiro.3-14 June 1992. Principle 2. <<http://www.unep.org/Documents.Multilingual/Default.asp?DocumentID=78&ArticleID=1163>>; Abeyratne, R.I.R. “The Use of Nuclear Power Sources in Outer Space and its Effect on Environmental Protection.” Journal of Space Law. Vol. 25(1). 1997. p. 25. 134 Outer Space Treaty. Art. 1. 135 Abeyratne, R.I.R. “The Use of Nuclear Power Sources in Outer Space and its Effect on Environmental Protection.” Journal of Space Law. Vol. 25(1). 1997. p. 17, 25. 136 Abeyratne, R.I.R. “The Use of Nuclear Power Sources in Outer Space and its Effect on Environmental Protection.” Journal of Space Law. Vol. 25(1). 1997. p. 20. 32 nevertheless could still cause severe damage to space objects and those involved managing them, not to mention the space environment as a whole. The Inter-Agency Debris Coordination Committee (IADC)137 has made efforts at establishing some sort of system to coordinate the issues related to debris in the form of the to Debris Mitigation Guidelines. Although the document is not binding as such in itself, it demonstrates the intention of the States and it also demonstrates that the States involved has also recognized the dangers of debris. The guidelines provide that intentional destruction of space systems and other harmful activities that may increase the risk of collision with other systems should be avoided.138 The 1977 Environmental Modification Convention entered into force thereby establishing norms to limit the use of military and hostile acts of new technologies that could modify the earth or space environment.139 Article I (1) of the Convention requires that States do not engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party.140 Although the terms mentioned in the provision could be considered too vague to bear legal significance, they were defined in the “Understandings Relating to the Conventions on the Prohibition of Military or any other Modification Techniques,” worked out at the Conference of the Committee on Disarmament. Most of the space objects that re-enter the Earth’s atmosphere do not survive the intense reentry environment, but nevertheless some parts return to Earth after orbital decay 137 Inter-Agency Debris Coordination Committee is a forum of governmental bodies for the coordination of activities related to the man-made and natural debris in space. Members include: Italian Space Agency (ASI), British National Space Centre (BNSC), Centre National d’Etudes Spatiales (CNES), China National Space Administration (CNSA), Deutsches Zentrum fur Luft-und Raumfahrt e.V. (DLR), European Space Agency (ESA), Indian Space Research Organisation (ISRO), Japan, National Aeronautics and Space Administration (NASA), the National Space Agency of Ukraine (NSAU) and Russian Aviation and Space Agency (Rosaviakosmos). 138 IADC Debris Mitigation Guidelines. 15 October 2002. <<www.iadc-online.org/docs_pub/IADC101502.Mit.Guidelines.pdf >> 139 Takaya, Yuri. “The Usage of Space Weapons and International Law.” ISSL Proceeding of the Forty-seventh Colloquium on the Law of Outer Space. 4-8 October 2004. Vancouver, Canada. p. 495. 140 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques. Geneva. May 18, 1977 (Environmental Modification Convention). Art. I(1). 33 (uncontrolled re-entry). 141 As a result although the risk is minimal, the Earth environment is under minor threat from the debris created by ASAT weapons. Environmental law in bello Unfortunately, when dealing with the use of ASAT weapons in self-defence many of the environmental treaties cannot be taken into account, as was the case in the Advisory Opinion on Nuclear Weapons, because these treaties could never have had the intention to impinge upon a State’s right to self-defence.142 However, in that case the Court also reminded states that environmental considerations must be taken into account when pursuing legitimate military activities.143 To support this view the Court referred to Principle 24 of the Rio Declaration: “Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary.”144 Rather than support the fact that the treaties pertaining to environmental law were not applicable to wartime situations, including self-defence and that military activities merely require “environmental considerations”, it seems that Principle 24 of the Rio Declaration would emphasize that these treaties are still valid and binding during warfare, without making any exception for self-defence. It unambiguously stipulates that States shall “respect international law providing protection for the environment in times of armed conflict”. ITU: Harmful interference 141 NASA Orbital Debris Program Office. “Orbital Debris: Re-entry.” <<http://www.orbitaldebris.jsc.nasa.gov/reentry/recovered.html>> 142 Legality of the Threat or Use of Nuclear Weapons. Advisory Opinion of 8 July 1996.. para. 30. 143 Legality of the Threat or Use of Nuclear Weapons. Advisory Opinion of 8 July 1996. Para.30. 144 Rio Declaration. Principle 24. 34 The ITU establishes that telecommunications devices cannot be operated in such manner that causes “harmful interference” to the radio communications or services of other States.145 The Annex of the ITU Constitution defines “harmful interference” as “interference which endangers the functioning of a radionavigation service or of other safety services or seriously degrades, obstructs or repeatedly interrupts a radiocommunication service operating in accordance with the Radio Regulations.”146 As regards the liability for ASAT tests or attacks Under international law it is generally established that the breach of a duty involves the obligation to make reparation, the reparation is regarded as the indispensable complement of failure to apply a convention yet it need not be mentioned in the breached convention.147 To such an extent that in the 1949 Corfu Channel case148 the ICJ held Albania responsible under international law to pay compensation to the United Kingdom, for not warning them of the mines they had laid in Albanian waters which exploded and caused damage to the United Kingdom’s ships. Under Article VI and VII of the Outer Space Treaty each State Party is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by an object launched from their territory or facility or its component parts on the Earth, in air or in outer space, including the Moon and other celestial bodies.149 These Articles of the Outer Space Treaty require that State Parties are liable for damage to another State Party or to its natural or juridical persons, therefore State Parties are not necessarily liable for acts which led to the general pollution of space itself.150 145 ITU Constitution. Art. 45. Definition of Certain Terms Used in this Constitution, the Convention and the Administrative Regulations of the International Telecommunication Union. Annexed to the ITU Constitution. 147 Abeyratne, R.I.R. “The Use of Nuclear Power Sources in Outer Space and its Effect on Environmental Protection.” Journal of Space Law. Vol. 25(1). 1997. p. 20. 148 Corfu Channel Case. 4 at 23. 149 Outer Space Treaty. Art. VI and VII. 150 Reijnen, G.C.M and W. de Graaff. “Pollution of Outer Space, in Particular of the Geostationary Orbit.” Utrecht Studies in Air and Space Law. Martinus Nijhoff. 1989. p.49. 146 35 Article IX also relates to debris considerations as it requires States pursuing studies of outer space to “conduct exploration of them so as to avoid their harmful contamination” and to “adopt appropriate measures for this purpose.”151 States are therefore responsible for any damaged caused by their activities in outer space, including ASAT tests or attacks. In addition they must avoid any harmful contamination, which may result from their testing.152 The Treaty, however, fails to define what is meant with harmful contamination and how to prove it. Even if it could be proven that harmful contamination occurred, it is still questionable whether it would be possible to identify under which State’s jurisdiction the harmful contamination occurred for it to receive compensation.153 Nevertheless, as mentioned earlier much of the lethal debris that results from the destruction of an orbiting satellite is between 1 centimetre and 10 centimetres in size and therefore impossible to track. Actual attribution is therefore unlikely to ever occur. Unfortunately, this renders the liability provision near useless as a deterrent, since bigger objects can be tracked and warnings can be made while smaller objects do not usually pose a significant threat. It does not serve in any way as a deterrent of ASAT testing or weaponry, since in most cases regarding liability it will not be possible to identify who was responsible for the damage or even who should be compensated for general pollution of outer space. The Outer Space Treaty makes no distinction between the liability for the omission of steps to protect damage and the liability for damage that has effectively occurred. What is established is that States have equal rights in the undisturbed use and exploration of outer space and that space debris, even unintentionally, colliding with space objects that are the property of another State infringes on the right of a State to undisturbed space missions.154 Under Article VIII of the Outer Space Treaty a State retains jurisdiction over its space objects while in outer space or on a celestial body and therefore every launching State is responsible for the debris that its launchings create.155 As referred to earlier ASAT weapons reduce the existing space debris into smaller, 151 Outer Space Treaty. Art. IX, see also Mirmina, Steven A. “The Ballistic Missile Defense System and its Effects on the Outer Space Environment.” Journal of Space Law. Vol. 31(2). 2005. p.303. 152 In reference to harmful contamination which may result from ABMs. Mirmina, Steven A. “The Ballistic Missile Defense System and its Effects on the Outer Space Environment.” Journal of Space Law. Vol. 31(2). 2005. p.303. 153 Reijnen, G.C.M and W. de Graaff. “Pollution of Outer Space, in Particular of the Geostationary Orbit.” Utrecht Studies in Air and Space Law. Martinus Nijhoff. 1989. p.39. 154 Outer Space Treaty. Art. 1; Reijnen, G.C.M and W. de Graaff. “Pollution of Outer Space, in Particular of the Geostationary Orbit.” Utrecht Studies in Air and Space Law. Martinus Nijhoff. 1989. p.50. 155 Reijnen, G.C.M and W. de Graaff. “Pollution of Outer Space, in Particular of the Geostationary Orbit.” Utrecht Studies in Air and Space Law. Martinus Nijhoff. 1989. p.51. 36 untraceable pieces, making it impossible to determine the responsible State and increasing the danger of impact. States could destroy their satellites to make the debris untrackable thereby avoid being responsible for any damage that they may cause in the future. In addition to the broad regulations concerning liability in the Outer Space Treaty, the 1972 Convention on International Liability for Damage Caused by Space Objects is the primary source of international law that directly covers the issue of liability in outer space for damage caused by orbital debris. The term “space object” is broad enough to include man-made debris and the definition provided for by the Liability Convention includes “component parts of a space object as well as its launch vehicle and parts thereof.”156 Registration Since ASAT weapons do not necessarily require launching into outer space the Registration Convention currently does not include ASAT weapons as objects to be registered under Article II, paragraph 1: “When a space object is launched into earth orbit or beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall inform the Secretary-General of the United Nations of the establishment of such a registry.”157 If in the future the use of ASAT weapons would be deemed lawful, then there should be an effective system in place to monitor the existing ASAT weapons to determine when they are used lawfully. Therefore, ASAT weapons should be either added under Article II of the Registration Convention or a separate treaty document entailing the mandatory registration of the ASAT weapons. 156 157 Liability Convention. Art. I(d). Registration Convention. Art. II. Italics added. 37 Although the Registration Convention could be key to at the very least controlling the use of ASAT weapons, its effectiveness is questionable, in terms of identifying the State responsible for the damage done by untracked debris. When launching objects into outer spaces, the United States and the former Soviet Union, and now some additional spacefaring nations, frequently provide the launch date usually with an unclear characterization of its purpose and without other significant information from the launching State.158 These nations have also been known to cite military purposes as justification for non-compliance with the registry requirements159 and since ASAT can only be envisioned as serving military purposes, the chances that they will be correctly registered are even smaller. The Registration Convention also provides a move to resolve the issue of identifying manmade space debris, but it does not define its terms specifically enough and only binds states in providing the information regarding their launch activities “as soon as practicable.”160 China’s ASAT Test The People’s Liberation Army (PLA) successfully tracked and destroyed a satellite with a direct, kinetic impact.161 Aviation and Space Technology indicated that the Chinese Feng Yun 1C (FY-1C) polar orbit weather satellite launched in 1999 was attacked by an ASAT system launched from or near the Xichang Space Center.162 This case provides a practical perspective to the theoretical and legal aspect of ASAT weapons. Not only does it allow clear for a clear delineation of the treaties that govern ASAT weapons and testing, it also provides 158 Robinson, George S. “Interplanetary Contamination: The Ultimate Challenge for Environmental and Constitutional Lawyers?” Journal of Space Law. Vol. 31(1). 2005. p.161. 159 Robinson, George S. “Interplanetary Contamination: The Ultimate Challenge for Environmental and Constitutional Lawyers?” Journal of Space Law. Vol. 31(1). 2005. p.161; Tannenwald, Nina. “Law Versus Power on the High Frontier: The Case for a Rule Based Regime for Outer Space.” Project on the Advanced Methods of Cooperative Security Centre for the International and Security Studies at Maryland University. April 2003. p.53. Also Published in Yale Journal of International Law. Summer 2004. <<http://www.cissm.umd.edu/papers/files/tannenwald.pdf>> 160 Jasentuliyana, N. “Space Debris and International Law.” Journal of Space Law. Vol. 26(2). 1998. p. 144. 161 Gill, Bates and Martin Kleiber. “China’s Space Odyssey: What the Anti-Satellite Test reveals about Decision-Making in Beijing.” Foreign Affairs. May/June 2007. 162 Covault, Craig. “Chinese Test Antisatellite Weapon.” Aviation Week & Space Technology. Jan. 17, 2007. <<http://www.aviationweek.com/aw/generic/story_channel.jsp?channel=space&id=news/CHI01177.xml>>; Hagt, Eric. “Chinas’ ASAT Test: Strategic Response.” China Security. Winter 2007. p. 31-51; Hitchens, Theresa. “U.S.-Sino Relations in Space: From “War of Words” to Cold War in Space?,” China Security. Winter 2007. 38 an actual example of the collateral legal problems that may arise from the use and testing of these weapons. Applicable Law China is Party to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies as per accession 30 December 1983.163 China has also been a member of the International Telecommunications Union since 1920 and is therefore bound by its Constitution and Convention.164 Attribution There seem to be some doubts as to what organization was exactly responsible for the execution of the Chinese ASAT test, as the People’s Liberation Army (PLA) most likely proceeded without consulting other key parts of the Chinese security and foreign policy bureaucracy. 165 Nevertheless Article VI of the Outer Space Treaty provides that State Parties to the Treat shall bear international responsibility for national activities carried out in space, regardless of whether the agencies carrying out the activities are governmental or not.166 The Liability Convention attributes responsibility to the “launching state.” The launching state has two definitions: a “State which launches or procures the launching of a space object” and “State from whose territory or facility a space object is launched.”167 Regardless, of what organization was ultimately responsible for the ASAT test or even if it was ultra vires under space law as lauching state the ASAT test is automatically attributed to China. Chinese Responsibility under International Law 163 Outer Space Treaty. <<http://www.state.gov/t/ac/trt/5181.htm>> International Telecommunications Union. Membership List. <http://www.itu.int/cgibin/htsh/mm/scripts/mm.list?_search=ITUstates&_languageid=1> July 27, 2007. 165 Gill, Bates and Martin Kleiber. “China’s Space Odyssey: What the Antisatellite Test Reveals About Decision-Making in Beijing.” Foreign Affairs. Vol. 86(3) May/June 2007. 166 Outer Space Treaty. Art. VI; Abeyratne, R.I.R. “The Use of Nuclear Power Sources in Outer Space and its Effect on Environmental Protection.” Journal of Space Law. Vol. 25 (1) 1997. p. 21. 167 Liability Convention. Art. 1. 164 39 To determine if China is reponsible under the International Law Commission’s Draft Articles on State Responsibility for Internationally Wrongful Acts two aspects need to be evaluated. First, whether the activity is attributable to the State under international law, which has already been confirmed in the previous paragraph. And second, the activity needs to constitute a breach of an international obligation.168 The International Law Commission’s Draft Articles on State Responsibility for Internationally Wrongful Acts, do not impose any obligations on China in this case since the ASAT test was not an internationally wrongful act. However, neither the Outer Space Treaty nor the Liability Convention specifies that the State need commit an internationally wrongful act to be held responsible for damages. Legality of the Chinese ASAT Test China conducted its ASAT test on their own aging meteorological satellite, therefore in accordance with Article VIII of the Outer Space Treaty the test resulted in the destruction of an object that was within their jurisdiction.169 The Outer Space Treaty does address the issue of weapons testing in Article IV, but it is a prohibition of weapons testing of any type that is limited to celestial bodies.170 As mentioned earlier, the conspicuous omission of outer space and the specific mention of celestial bodies, leads to the interpretation that weapons testing is only prohibited to celestial bodies. Nevertheless, under Article IX and Article XI there are some procedures that States should follow before undertaking any activities in outer space. Article IX provides that if a State party to the Treaty has reason to believe that an activity they have planned that could cause potentially harmful interference with the activities of other States in outer space it shall take the appropriate international consultations before proceeding.171 Article XI elaborates the consultation related to potentially harmful interference and includes that both the SecretaryGeneral of the United Nations as well as the public and scientific community need to be informed of the the nature, conduct, locations and results of any activities in outer space.172 168 International Law Commission’s Draft Articles on State Responsibility for Internationally Wrongful Acts. 2001. 169 Outer Space Treaty. 10 Oct. 1967. Art. VIII. 170 Outer Space Treaty. 10 Oct. 1967. Art. IV. 171 Outer Space Treaty. Art. IX 172 Outer Space Treaty. Art XI. 40 Several news reports indicated the alarm of the international community (and in particular the United States) at the successful Chinese ASAT test.173 Which indicates that China could be in violation of both Article IX and Article XI, not having notified any states or international organizations of their plans to conduct a kinetic energy ASAT weapon test. However, the wording of both these articles is weak and even though they are binding they can easily be escaped and circumvented. Article IX’s weakness is that the State party is only under obligation to undertake international consultations before proceeding if they have reason to believe that an activity or experiment planned by it or its nationals in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities of other States.174 The escape clause in Article XI rest on the phrase “to the greatest extent feasible and practicable,” as there are no objective qualifications to qualify and measure this, China could argue that they have not violated this provision of the Outer Space Treaty. As nations cite military purposes as justification for non-compliance with the registry requirements175 China could cite military purposes or reasons of national security to demonstrate that they had provided the necessary information to the greatest extent practicable. As there was an apparent miscommunication between the military branch and the foreign affairs beaurocracy, 176 it could easily be demonstrated that considering the circumstances it was not possible to deliver on the obligation to provide details of the nature, conduct, locations and results of their activities. It would not have been possible for China to deliver on their obligation to inform the Secretary-General of the UN, scientific community, and public because the organ responsible for this, the foreign affairs beaurocracy, was not aware of the activity. 173 Covault, Craig. “Chinese Test Antisatellite Weapon.” Aviation Week & Space Technology. Jan. 17, 2007; Gill, Bates and Martin Kleiber. “China’s Space Odyssey: What the Anti-Satellite Test reveals about DecisionMaking in Beijing.” Foreign Affairs. May/June 2007; EU Presidency Declaration on Chinese test of antisatellite weapon. Brussels, 23 January 2007. <http://www.europa-eu-un.org/articles/en/article_6695_en.htm>; Hagt, Eric. “Chinas’ ASAT Test: Strategic Response.” China Security. p. 31-51; Hitchens, Theresa. “U.S.-Sino Relations in Space: From “War of Words” to Cold War in Space?,” China Security. Winter 2007. 174 Outer Space Treaty. Art. IX. 175 Robinson, George S. “Interplanetary Contamination: The Ultimate Challenge for Environmental and Constitutional Lawyers?” Journal of Space Law. Vol. 31(1). 2005. p.161. 176 Gill, Bates and Martin Kleiber. “China’s Space Odyssey: What the Anti-Satellite Test reveals about Decision-Making in Beijing.” Foreign Affairs. May/June 2007. 41 However, customary international law has evolved since the drafting of the Outer Space Treaty and it can even be argued that there is an obligation under customary international law to conduct an Environmental Impact Assessment before proceeding with serious transboundary projects as evident from the Gabcikovo-Nagymaros case.177 Even this customary international law obligation is not strong enough in the case of China, because of the deficiency in knowledge about the processes taking place in outer space. China could argue that an EIA would be near useless, without the appropriate knowledge and in addition to that it would be too expensive and time consuming to be a viable activity.178 Hence, it would fall under the limitation of Article XI again. Conclusions to be drawn from the Chinese ASAT Test As the EU Presidency declared, “the test of an ASAT weapon is inconsistent with international efforts to avert and arms race in outer space and undermines security in outer space”,179 nevertheless it is not inconsistent with international law. Since it was not self-defense or an offensive attack, but merely a test on an object that was under Chinese jurisdiction, it is not necessary to examine in full the aspect of use of force in international law with regard to this particular test. However, that is not to say that in other cases it may be necessary to delve further into this matter, as an ASAT test that has an ulterior motive of intimidation would necessitate further examination in relation to use of force and the threat to use force. Additionally, although the test itself was not in violation of international law, under the Liability Convention China is still responsible for the damages caused by their ASAT test.180 Nevertheless, attributing anything to China will be difficult as the debris may be too small to track and also may be difficult to identify due to the lax application of the registration convention.181 177 Gabčíkovo-Nagymaros Project (Hungary/Slovakia). International Court of Justice. Judgment of 25 September 1997; Viikari,L.E. “Environmental Impact Assessment and Space Activities.” Proceedings of the 45th Colloquium on the Law of Outer Space. ISSL. Houston, Texas. 2002. p. 476. 178 ; Viikari,L.E. “Environmental Impact Assessment and Space Activities.” Proceedings of the 45th Colloquium on the Law of Outer Space. ISSL. Houston, Texas. 2002. p. 478. 179 EU Presidency Declaration on Chinese test of anti-satellite weapon. Brussels, 23 January 2007. <http://www.europa-eu-un.org/articles/en/article_6695_en.htm> 180 Liability Convention. Art. II and III. 181 Will be elaborated on later under: As regards the debris of Kinetic Energy ASAT Weapons. 42 On the other hand, what the Chinese ASAT test does demonstrate is that there are other aspects to consider when evaluating the legality of ASAT weapons. In the case of nuclear weapons the International Court of Justice took into account the “certain unique characteristics of nuclear weapons.”182 The fact is that the use of ASAT weapons for the destruction of satellites creates untraceable debris that poses a threat to the future and further exploration of space and in the similar way as nuclear weapons “would be a serious danger to future generations.”183 182 183 Legality of the Threat or Use of Nuclear Weapons. Advisory Opinion of 8 July 1996. para. 35. Legality of the Threat or Use of Nuclear Weapons. Advisory Opinion of 8 July 1996. para. 35. 43 III. Conclusion-Are ASAT Weapons Illegal? After having analyzed both the theoretical and the practical aspects of the use of ASAT weapons, it is possible to determine the current status and plot the path of the normative status of these weapons in international law. As of yet there are no guidelines or legal norms specific to the use and testing of ASAT weapons in outer space and as ASAT technology increases, so does the need for these guidelines. Existing framework It has not escaped the international community's attention that the existing framework on space weaponization and militarization is insufficient and severely lacking, and have started initiatives to discuss disarmament issues related to outer space.184 Efforts are being made by the disarmament committee with documents like the Hague Code of Conduct Against the Proliferation of Ballistic Missiles, but this counts only 111 members and does not include China. Additionally many of the important space faring nations such as the Russian Federation and the United States are very careful to ensure the understanding that the document is a politically binding agreement.185 The solution generally thought of to be most appropriate, practical and politically desirable is the establishment of legal norms conferring immunity on satellites, rather than their passive 184 Goh. 45th Colloquium. P. 178. 'On the International Launching Conference for the International Code of Conduct Against Ballistic Missile Proliferation', Statement by Alexander Yakovenko, Official Spokesperson for the Russian Ministry of Foreign Affairs, Russian Foreign Ministry Document 2452-27-11-2002, November 27; 'International Code of Conduct Against Ballistic Missiles Launching Conference', Statement to Parliament by Foreign & Commonwealth Office Minister of State Mike O'Brien, November 26; US is Confident in Future Potential of Missile Code of Conduct, US State Department (Washington File), November 25. Available at <http://www.acronym.org.uk/docs/0211/doc13.htm> 185 44 or active physical protection.186 Passive protection through the hardening of satellite structures or the introduction of protective shields would not solve the problem of satellites already in earth orbit, nor would it be a financial or technically feasible method. Active protection by means of on-board defensive weapon systems would both institutionalise the introduction of weapons into outer space and make the task of identifying defensive/offensive space devices virtually impossible.187 Space law, in fact, provides an opportunity to avoid the mistakes that were made on Earth, where the rules for the protection of the environment may have come too late. The Moon Treaty and the Antarctic Treaty could be envisioned as guidelines as to the rules that should regulate outer space; there does not seem to be a viable reason why the laws for outer space should be any different from those of the celestial bodies. It even seems counterproductive to separate space into such dimensions, creating different rules for each. It would be safer and more conducive to international peace and security to rule that use and testing of ASAT weapons is illegal, both on the celestial bodies and in the rest of outer space. Of course, this would probably be the case with any sort of weapon; unfortunately there are no grounds to dispute the legality of ASAT weapons in use of correctly proportional self-defence. In fact, ASAT weapons are conventional (as in not biological, chemical and in most cases not nuclear) weapons that as far as is known causes no particular amount of human suffering. The fact that they cause no particular harm or suffering speaks in favour of the legality of ASAT weapons, since they do not even directly threaten human life. Nevertheless, the difficulty of establishing liability in outer space and the deficiency of knowledge makes it clear that should ASATs be considered legal weapon they must be regulated strictly and efficiently. Classification of ASAT Weapons 186 United Nations Institute for Disarmament Research Geneva. Prevention of an Arms Race in Outer Space: A Guide to the Discussions in the Conference on Disarmament. United Nations Publication: New York. 1991. p. 101. 187 United Nations Institute for Disarmament Research Geneva. Prevention of an Arms Race in Outer Space: A Guide to the Discussions in the Conference on Disarmament. United Nations Publication: New York. 1991. p. 101. 45 Legal classification of the different types of ASAT weapons is an important step to take should they be considered as lawful means of self-defence. The principle of proportionality prohibits collateral damage to civilians and property that is disproportionate to the military value of the objective.188 Each type of ASAT weapons has different consequences for the property and in rare cases civilians in outer space and should therefore be divided. In addition, should ASATs and their testing be affirmed as legal and as long as they are used in lawful measures, then methods should be coordinated as regards the liability of untraceable debris and damage to the space environment in general. Jasentuliyana suggest standards and recommended practices by an international technical body for the monitoring of international environmental law in space, in a similar fashion as is used for the ICAO in civil aviation.189 It may well be possible for the regulation of ASAT weapon practices, particularly as their regards to their side effects (i.e. debris) on the outer space environment. States testing ASAT weapons should be required to conduct Environmental Impact Assessment and take care that any ensuing debris does not interfere with the use of space by others. Jasentuliyana proposes for example that debris, such as obsolete satellites, should be moved to a different orbit where they do not interfere with the further exploration and exploitation of outer space.190 If this is truly a solution to the contamination of space, then perhaps the testing of ASAT weapons should be restricted to certain areas. To ensure compliance to using ASAT weapons in lawful ways there should be a strict and obligatory registration of all ASAT weapons and as in the ABM, all ASAT installation should be land-base and stationary so as not to circumvent any obligations. Legality Although to determine that ASAT are illegal would be more in line with the principle that Outer Space, just as “the Area” in the Law of the Sea, is the Common Heritage of mankind, it 188 Goh. 45th Colloquium. P. 180. Abeyratne, R.I.R. “The Use of Nuclear Power Sources in Outer Space and its Effect on Environmental Protection.” Journal of Space Law. Vol. 25(1). 1997. p. 27. 190 Jasentuliyana, N. “Space Debris and International Law.” Journal of Space Law. Vol. 26(2). 1998. p. 155. 189 46 is not a realistic conclusion. Already the practice of States has indicated that outer space can be used for military purposes and the ambitions of the States still rest on making use of space for military activities. 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