In the mid twentieth century the notion of space exploration changed from the stuff of whimsical fantasy to multi-trillion dollar endeavour. Since the ability to send craft into the higher atmosphere coincided with the rising tensions of the cold war, it was no surprise that high altitude nuclear tests were taking place by 1958. Humankind was prepared to fill space with nuclear debris three years before Yuri Gagarin became the first human to successfully journey into outer space. Since then, space exploration and colonisation have been far from a purely civil affair.
As nations have turned their gaze towards the heavens, space has transitioned from a frontier of exploration to a domain of strategic importance. The militarisation of space presents unique legal challenges that governments, international bodies, and, increasingly, corporations, must contend with. This article examines the current state of military developments in space, the existing legal framework, and the implications for international law and those of us down below.
Legal foundations in space
The Outer Space Treaty (OST) of 1967 is considered the cornerstone of international space law. Negotiated in the Legal Subcommittee of the United Nations Committee on the Peaceful Uses of Outer Space in 1966, agreement was finally reached in the United Nations General Assembly. Although not every nation signed up to the OST, crucially for the time, the US and the USSR both did.
The OST sets out basic principles governing the activities of states in the exploration and use of outer space. Among other provisions the OST holds that:
- the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind
- outer space shall be free for exploration and use by all states
- outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means
- States shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies or station them in outer space in any other manner
- the Moon and other celestial bodies shall be used exclusively for peaceful purposes
- Astronauts shall be regarded as the envoys of mankind
- States shall be responsible for national space activities whether carried out by governmental or non-governmental activities
- States shall be liable for damage caused by their space objects, and
- States shall avoid harmful contamination of space and celestial bodies.
Aside from the OST the United Nations also agreed the Rescue Agreement in 1967, under which, according to the UN, States "shall take all possible steps to rescue and assist astronauts in distress and promptly return them to the launching State, and that State shall, upon request, provide assistance to launching States in recovering space objects that return to Earth outside the territory of the Launching State".
Notably, astronauts engaged in hostilities lose the benefits of the Rescue Agreement and are considered prisoners of war under international law, theoretically subject to the terms and protections of the Geneva Convention instead.
The OST and the Rescue Agreement remain in force today but as technology evolved beyond what was imaginable in 1967, gaps within the OST framework have been easily identified and exploited by multiple nations (as discussed here). While weapons of mass destruction are banned from being stationed in space, conventional weapons are not explicitly covered by the treaty.
Concerns about an arms race for deploying advanced non-nuclear military technologies into outer space escalated through the 1980's with Ronald Regan's much lauded but ultimately failed Strategic Defence Initiative (known as 'Star Wars') considering space-based missile systems as well as ground-based weapons, The idea that defence systems would intercept and deal with missiles in space did not die with the SDI and while Regan's plans for hundreds of combat centres and lasers spanning the globe have not come to fruition, recent developments suggest that space could yet become battle ground on which conflicts between superpowers new and old will play out.
Recent developments
Over the years, several nations have made significant strides towards enhancing their military presence in space. Satellite systems essential for communication, navigation and surveillance have become integral to national security infrastructures. Anti-satellite (ASAT) weapon tests have demonstrated a capacity to disrupt or destroy these critical assets which could lead to an escalation in tensions among space-faring nations.
Several countries have established dedicated branches within their armed forces focused on space operations, such as the United States' Space Force, founded in 2019. With the commercialisation of near space being led by commercial entities, the role of the state has morphed and arguably begun to shrunk away from exploration in favour of militarisation.
Space is becoming cluttered with debris and populated by the equipment (not least spy satellites) of potentially hostile parties. The provisions of the OST which were always aspirational at best, are beginning to look like a distant, unattainable dream. The international community has no enforcement mechanism to ensure compliance with its non-proliferation or anti space debris provisions.
In March 2024, the US and Japan jointly sought a resolution of the UN Security Council calling on all nations not to deploy or develop nuclear weapons in space – effectively a restatement of and recommitment to the OST. The US told a meeting of the UN Security Council that “any placement of nuclear weapons into orbit around the Earth would be unprecedented, dangerous, and unacceptable.” This was not a random statement but a marker laid down in light of reports, confirmed by the White House that Russia had developed anti-satellite weapons capabilities, weapons that Russia claims are similar to systems the US already has in place.
Worryingly but not surprisingly, Russia's response to the proposed resolution was to call it a propaganda stunt with its Ambassador to the UN, Dmitry Polyansky, telling a press conference that Russia had no interest in engaging with the US, on bilateral arms control issues, even without preconditions, unless the US and NATO reviewed "their anti- Russian course, and when they show that they are ready to participate in comprehensive dialogue", effectively tying opposition to Russia's incursion into Ukraine to discussions on arms control in space. It is hard to see how the US and NATO could satisfy such demands and so meaningful discussions on nuclear proliferation in space seem light years away.
Satellite litigation – legal risks of space militarisation
The expansion of military interests into outer space brings forward major risks and issues for all nations both in space and on Earth, in particular:
Space debris
ASAT tests and other operations create debris that can endanger both manned and unmanned craft. Near space is already full of obsolete junk, broken satellites and other debris, further military testing in space will only add to that clutter just at a time when more commercial spacecraft are getting ready to launch.
Interference
Satellites play a crucial role in modern military operations. They provide communication, navigation (GPS), reconnaissance, and ASAT capabilities to target and destroy satellites. However, satellites also play a crucial role in modern civilian life and these weapons, whether or not deployed, can disrupt communication, surveillance, and navigation systems causing everything from inconvenience to serious danger to those reliant on them on Earth.
Cyber security
Space-based and ground-based systems are equally vulnerable to cyber attack. Space weapons are necessarily operated remotely, no one wants to go into orbit to pull a tigger. Developing military counter measures may be one approach to arms development by a hostile state but leaning how to hack a system and potentially turn your enemy's weapons against them may be just as effective, if not more so than investing in your own weapons systems. This gives smaller and rogue states a more even playing field against the superpowers with the resources to develop their own weapons systems. Hackers are notoriously difficult to control and while many operate at the behest of governments, they are also loose cannons, and their actions cannot easily be predicted or managed. Since hackers do not respect the rules of military engagement, protecting satellites and ground-based infrastructure from cyber threats is essential.
IP enforcement
Technologies developed for civilian purposes can also be utilised militarily, complicating efforts to regulate weapons proliferation but also complicating efforts to protect and enforce the IP rights in them. Aside from the jurisdictional challenges of determining the location of an infringing use of IP in space, the secretive nature of military operations means that infringing uses may slip under the radar, diminishing the value of the IP. While Western military operations do have systems in place to support the development and proper licensing of privately developed IP, enforcing a patent against the Chinese or Russian military is unlikely to be a fruitful endeavour. The appropriation of civilian IP for military purposes is nothing new but when the infringement takes place in space it is harder to spot, let alone prove.
Global security
It goes without saying that a lack of clear legal restrictions on conventional weapons in space and a lack of enforcement of anti-nuclear provisions could lead (and perhaps already has led) to competitive militarisation. Hostile actions could escalate quickly into larger conflicts and the impacts will be felt by civilians on earth and commercial operations in space.
Avoiding confrontation
As we move forward into an era where outer space becomes increasingly occupied, it is clear that genuine international cooperation on military proliferation is needed more than ever (as we discuss here). At present we seem to be at an impasse and careful diplomacy is desperately needed to bring global super powers together to agree an approach that is at least respected, if not easily enforced. The international community cannot boldly go towards a clear solution so many years of fluctuating rhetoric and tentative discussions lie ahead of us. We can only hope that both space and Earth are relatively unscathed by the time real progress is made.
