Analysing Scope and Limitations of Military Space Operations Assessment Answer

Analysing the scope and limitations of Military Space operations on outer space bodies under Article 4 of Outer space treaty

Introduction: The Outer Space Treaty (OST) is a treaty based on the doctrines that govern the activities of the States in the Exploration and Use of Outer space along with the Moon and Other Celestial Bodies (1967). This international treaty requires the parties to only use space for nonviolent purposes. The United Nations and USSR gave draft treaties to the UN regarding the use of outer space in 1966. After several months of reconciliation the treaties were reconciled in the UN Legal Subcommittee on Peaceful Uses of Outer Space and the final document was endorsed on Dec. 19, 1966 by the UN General Assembly and was available for signatures on January 27, 1967. After it was approved by the USA, USSR, the UK and several other nations, it was implemented on Oct. 10, 1967.

According to the terms of e treaty, the parties are banned from putting nuclear weapons or other weapons of mass destruction in the orbit of the earth, the Moon or any other celestial body. The nations are also not allowed to claim dominion over Moon and other bodies present in outer space. Nations will be held accountable for their undertakings in space, are accountable for the objects launched from their territories and are required to help the astronauts in distress. The space installations and vehicles made of the States should be available to the representatives of other countries on the basis of a reciprocal and all parties should agree to undertake space exploration in accordance with the international law.

When space activities first appeared the first limitation that came with it was for the two major powers of the cold war and the UN to demilitarize and denuclearize the space and establish the peaceful use of space. Certain military activities are permissible in the space as mentioned in the OST. According to chapter 2 of the UN Charter, the organization and the member States are required to act according to the ensuing principles

There is an undeniable right available to all the states to develop nuclear power for civil use on the condition that this power is not used for making nuclear weapons and only use it for peaceful purposes. However, the right to possess these weapons is given to five countries, the USA, France, Russia, China and UK. Due to this reason, there was a debate raised both legal and ethical implications. For its opponents, a long-term risk is posed by the nuclear energy which cannot be controlled by science. Some serious risks of use of nuclear energy include, major nuclear mishaps, radioactive leftover and the use of nuclear energy for military use that are uncontrollable. Consequently, the defenders of nuclear energy portray it as safe and a potential source of energy in sustainable development. They think that nuclear energy is a dependable mean of fighting global warming and it will also help in solving the problem of energy deficiency present today. After examining and analyzing all the arguments made in favor and against nuclear energy, it is deduced that the legitimacy and lawfulness of such an industry is unreliable. 

On October 4, 1957 the USSR was able to orbit Sputnik 1, the first object put in space, which gave them the ability to use intercontinental ballistic missiles (an ICBM is a guided ballistic missile used primarily for the delivery of nuclear weapons – one or more thermonuclear warheads with a minimum range of 5500 kilometers) against its opponents including the USA. Since, the issue of militarizing space is a very complex matter, as it is highly tactical and the nations do not agree easily on it often lead to more misunderstandings. The UN Gen. Assembly made a resolution on Dec. 13, 1958 to only use space for peaceful purposes. According to the General Assembly it did not wish to take the national rivalries into the outer space and wanted the nations to explore and use the outer space for the benefit of humanity while co-operating with each other so that it will be based on common understanding and consolidation of friendly relations among the States. Based on the Partial Test Ban Treaty, signed on 5 August, 1963, the nations are not allowed to test nuclear weapons in the atmosphere and beyond its limits which includes the outer space or underwater, either in territorial waters or high seas. This treaty also has the merit of endorsing prohibitions to areas under the States and to the areas which have been removed from the sovereignty of the States. In this context, it should also be mentioned that resolution 1884 (XVIII) refrains the States from placing any objects which contain nuclear weapons in the orbit of earth or from installing weapons of mass destruction on celestial bodies, was unanimously passed by the UN Gen. Assembly on 17 Oct. 1963.

Certain military activities are permissible in the space as mentioned in the OST. According to chapter 2 of the UN Charter, the organization and the member States are required to act according to the ensuing principles. Since, the UN is based on the norm of treating all the members equally, for securing their rights and benefits, the members should fulfill their obligations mentioned in the charter in good faith. The members should settle differences in a way which does not cause harm to international peace and justice. All the members should refrain from threatening or using force as it is not in accordance with the objectives of UN. The member States must assist the UN in any action taken according to UN Charter and should also avoid providing help to a State against which preventive or enforcement action is being taken by the UN. The organization will make sure that the states that are not a part of the United Nations also follow these principles in order to maintain international peace and security. The present Charter does not allow the United Nations to intervene in the matters that come under the domestic jurisdiction of the states but this principle will not prejudice the use of enforcement actions under Ch. VII.             

About 10 years ago, Russia took a unilateral obligation of not being the first nation to put any arms in space and is also encouraging other nations to do so as well. The UN has also supported this endeavor and so far 21States have agreed to such commitment. They are not permitted to place conventional weaponries in the space as long as any other State does it before them. This is actually likely to occur as today as States are establishing space forces to decrease the vulnerability of their space assets and increase their defense capabilities by equipping the forces with weapons. 

In case of self-defense, the use of nuclear weapons in space that is prohibited by OST is put into question. The ICJ has examined the validity of the threat of using nuclear weapons. According to the ICJ, it is difficult to decide if the use of nuclear weapons even in extreme event of self-defense that puts the survival of a nation at risk is lawful or not. Planetary defense is another issue that arises in the case of use of nuclear weapons. Many argue that in such a case, nuclear weapons may be the only option available to us. It could be said in this regard that the wrongfulness of using nuclear weapons to destroy an asteroid or habitable space station approaching earth can be based on the necessity of the situation. 

The prohibition on using celestial bodies for military purposes is rather strict as the use of outer space. As mentioned in the OST, the moon and other celestial bodies are only to be used for nonviolent objectives. Moreover, the testing of nuclear weapons and other WMDs are also not allowed on these bodies. The establishment of military bases, installations and fortification and the conduct of military exercises on celestial bodies are also forbidden.  When the consultation is being done, all the circumstances should be taken into account and they should be assessed reasonably without impartiality on a case to case basis.

The Moon Agreement consists of a legal framework of military activities that could be done on celestial bodies. This agreement not only forbids the use of WMDs on these bodies but also in them. Another limitation introduced in this agreement is that the objects put in the orbit or other trajectory around any celestial bodies should not contain any nuclear missiles or WMDs. The Moon Agreement, by eliminating the use of trajectories also forbids the redirecting of such weapons by the use of gravitational assistance of the celestial bodies. As a result, objects containing WMDs are not allowed to transit in the orbits of celestial bodies.   

The Moon Agreement restates the ban of threatening or using force which has also been mentioned in Article 2(4) of the UN Charter and also disallows any hostile act or even the threat of a hostile act. The Moon Agreement does not give any details of the legal content that was given by the drafters to the concept of a ‘hostile act’. According to the Moon Agreement, an act which might be less severe than the use of force is both prohibited by the Agreement.

Regarding the regulation of military undertakings in the space there is another set of rules which must be followed which is a twofold mechanism of prior consultation. Such a consultation may be undertaken or it might be requested. This mechanism is used when the planned space activities of one state are believed to cause harmful interference to the activities of other state. Though, the definition of harmful interference is given in space law, space activities of other states might be interfered by the military activities of another state. For example, if a destructive military operation of one state produces space debris which might be harmful to another state’s activities then the latter mentioned state needs to take a prior consultation. This mechanism of prior consultation is only applicable to the space activities that are being interfered with which are peaceful, if not then the consultation mechanism is not valid. When the consultation is being done, all the circumstances should be taken into account and they should be assessed reasonably without impartiality on a case to case basis. At last, there is no obligation which forces the states to enter a consultation or to remain in consultation until a resolution has been achieved and the states can proceed with their planned space operations even without prior consultation.

Regarding the legality of military activities taking place in space, it has been provided by Art IV of the OST that there is a difference present between the legal regime related with space and the special limits related with Moon and celestial bodies. It has been mentioned in this regard that “the state parties to the Treaty have undertaken not to place your bid around the Earth and the objects carrying nuclear weapons or any other type of weapons of mass instruction, install such weapons on the celestial bodies or station these weapons in outer space in any other manner.” It has been further provided in the OST that Moon and other bodies are going to be used by all the state parties to the OST only for nonviolent objectives. As a result, the treaty prohibits establishing military bases, fortifications and installations as well as testing weapons and conducting military exercises on Moon and other bodies. However, the unique feature present in case of the space law is a regime of international responsibility in case of national activities occurring in space. When compared with customary law under state responsibility, the threshold for attributing particular conduct to the state is lower. The states are considered to be liable not only for the activities of government agencies taking place in the also regarding the activities of nongovernment entities which include individuals and private corporations. Therefore, it is certainly applicable in case of the activities in the space that have been licensed by the State. At the same time, it has also been argued that all the activities in space that have been conducted on the territory of a particular state and all activities in space that have been conducted by the national entities of the state on any territory, are going to be considered as national space activities of such a state and the liability of such a state will be present in this case. It is not only significant when the liability for internationally wrongful act has to be invoked, but it may also impact the determination of the parties in case of an armed conflict and applying the Law of neutrality. 

When it comes to international liability, the general rule mentions that the launching state will be considered internationally responsible regarding the harm caused by space object on the earth or in space. However, this rule is going to be suspended between belligerents and is not going to apply in case of armed conflicts. However, the ruling is relevant in case of military space operations taking place during the peacetime. It is also worth mentioning at this point that liability can be invoked only if the damage has been caused on account of a space object, for example, due to a physical collision. On the other hand, in case the harm has not been caused by such object, for example by using radiofrequency spectrum, it is not going to be covered under the rules related with liability. 

Article I, OST provides that the use and exploration of space, including the celestial bodies and Moon, is going to take place only for the benefit of all the nations, regardless of their level of fiscal and technical development and it is going to be the provisions of all mankind. At the same time, it has been provided by this Article of the Treaty that there is good, but the freedom of scientific investigations to be conducted in space and the nations are required to encourage and enable global collaboration for such investigation. 

It has been further added by Article X of the 1967 Treaty that the objective of promoting international cooperation in exploring and using the space including celestial bodies, according to the provisions of this Treaty, the state parties to the Treaty are required to consider any request made by other state parties on the basis of equality, to be afforded a chance for witnessing the launch of space objects that are going to be launched by such a state. The nature of this type of opportunity for observation and the conditions regarding providing such an opportunity has to be decided by agreement between the two states.

It also needs to be noted that Article XI of the OST has further provided that for promoting global cooperation to peacefully explore and use of space, the State parties conducting operations in Outer space, have agreed to notify Sec. Gen. of the UN and also the public and international scientific community regarding the nature, location and the results of these activities. When the UN Secretary General had received certain information, it is going to be disseminated effectively and immediately. 

It is mentioned in Article XII of the 1967 Treaty that all installations, stations, space vehicles and equipment present on the Moon or other celestial bodies is going to be open for representatives of the other state parties on reciprocal basis. Such representatives have to provide a reasonable notice in advance for projected visit, so that appropriate consultations can be held and maximum precautions can be taken for assuring safety and avoiding any interference with normal operations at the facility, which is going to be visited. 

Another relevant provision present in this regard in the Treaty is mentioned in Art. XIII, which has provided that Treaty provisions are going to be applicable in case of the actions of States in exploring and using space weather these activities have been undertaken by a single State or together with other State parties, including the cases where such activities have been performed within the structure of worldwide transnational establishments. Any issues that may arise regarding these activities carried by such organizations in exploring and using outer space is going to be resolved by State parties by using appropriate international organization or with the help of one or more States of such institutions. 

Article IV of the OST had imposed an obligation on the State parties to perform it is related to exploring space according to international law which includes the UN Charter in the interest of the maintenance of international peace and security and also to promote international understanding and cooperation. At the same time, Article IV had further provided that the State parties are required that they should not place any objects transporting nuclear arms or other WMDs in the orbit around the Earth or to places such weapons on celestial bodies or station than in the Outer space. As a result, an obligation as report on the state parties that the Outer space should be used only for peaceful purposes. It has been clearly mentioned in the Treaty that it is the responsibility of all the State parties to the Treaty that the exploration of outer space takes place only for peaceful objectives. However this objective has not been achieved effectively by the Treaty.

Under the circumstances, it can be stated that OST provides that the state parties should use the Space only for peaceful commitments. On account of the terms of this Treaty, the state parties are forbidden from placing any nuclear weapons or WMDs in orbit, on Moon and other celestial bodies. At the same time, in view of the provisions of this Treaty. It has also been provided that the States cannot claim sovereignty over the moon and other similar bodies. This treaty has also fixed the liability of the States for the activities undertaken by them in the Outer space as well as any damage that may be caused as a result of the objects launched by the state into the space from their territory. At the same time, the Treaty also provides for the responsibility of the State parties to assist the astronauts in trouble. The vehicles and space installations of the State parties are going to be open races to the representatives of the other nations and at the same time, all the parties have also agreed to conduct their activities in outer space opening and according to the provisions of the international law.

From legal perspective, it needs to be noted that while evaluating the legitimacy of military operations in the space, the OST allows some military activities as there is no total ban on weapons in the space. The result is that there are certain defensive military activities that are permissible under the Treaty. It also needs to be noted that while considering the legality of military activities in outer space, it is lawful to manufacture and deploy anti-satellite even if their possible use can be subject to review. It can be envisioned that the State party on the doctrines governing activities of states in exploration and use of space, which may multiply antisatellite systems is going to be considered as divesting the OST of its objective. Therefore in such a case the other state parties can withdraw according to the one-year notice that is required under Art XVI. 

Conclusion: However it can be stated in the end that the Outer Space Treaty provides an object should part of the State parties to the Treaty that the space, including the Moon and other bodies should be used for nonviolent objectives. At present the Outer space Treaty provides the main framework for space law including regulating military activities in the space. It has a recognized by this Treaty that it is very significant that the scientific exploration of space should be a place for the benefit of all the nations of the world. The result is that this treaty has prohibited national sovereignty in space. At the same time, the Treaty prohibits the installation of all types of weapons of mass destruction, as well as the expeditions or the testing of any type of weapons in the space or other celestial bodies. It has been clearly mentioned in the Treaty that it is the responsibility of all the State parties to the Treaty that the exploration of outer space takes place only for peaceful objectives. However this objective has not been achieved effectively by the Treaty.