[Lakshay Beniwal is a student at School of Law, Christ University]
Introduction
On November 15, 2021, Russia launched a direct ascent anti-satellite (ASAT) missile that struck one of its own satellites, the Cosmos-1408. This strike created thousands of pieces of space debris, 1500 of which are trackable from ground-based tracking stations. The United States called this action “dangerous and irresponsible” as this not only endangered the American and Russian crew at the International Space Station but also the Chinese Space Station and the taikonauts aboard.
A couple of months before this incident on March 27, 2019, India sprung an unwelcome surprise on the international community by announcing that it had successfully conducted an anti-satellite (ASAT) test earlier that day. It was done by the Prithvi Delivery Vehicle Mark-II, developed by the Defense Research and Development Organization (DRDO), which struck and destroyed an Indian Microsat-R satellite at an altitude of 282 km in the Lower Earth Orbit (LEO). This made India only the fourth country in the world to conduct an ASAT test, after the United States, Russia and China. This obviously sent ripples across the international community and gave rise to a legitimate fear that it would result in more debris-causing ASAT tests in the future. Although the Indian test was designed and meticulously planned in such a manner that it would result in the lowest possible debris at a lower altitude to ensure that the debris disintegrates and falls back to Earth, but it raises an essential question regarding the legality of the anti-satellite (ASAT) tests conducted by these states. To understand that, we must first look at the definition of an anti-satellite weapon, according to the United Nations Institute for Disarmament Research: ASAT weapons are weapons designed to disable or destroy a satellite in space by a nuclear or conventional explosion, collision at high speed or a directed energy beam. ASAT weapons can be ground-based, space-based or land and sea-launched.
The legality of ASAT weapons
Space Law is a species of Public International Law and is therefore subject to international treaties specifically governing outer space and the broader treaties and principles of International Law. The applicable law for ASATs would be the Outer Space Treaty, related treaties governing outer space and celestial bodies, and relevant international law regarding testing and using weapons. Now, the Outer Space Treaty is the primary treaty governing the peaceful use and exploration of outer space. Article I of the Outer Space Treaty talks about the peaceful exploration of space and how outer space is a property of humankind or res communis. Article III of the Outer Space Treaty enumerates how the activities conducted in outer space must be in accordance with international law and in the interest of maintaining international peace and security while promoting “international cooperation and understanding.” There are a whole lot of generic terms used in the text, which are open to interpretation by states. States may interpret ASAT weapons as tools that help maintain international peace and security, thereby staying true to the principles of the Outer Space Treaty.
Article IV of the Outer Space Treaty is perhaps the most important provision in the Outer Space Treaty regarding the use and testing of any sort of weapons in outer space. This article goes on to distinguish outer space from the Earth's Orbit, the moon, and other celestial bodies. Article IV states that parties to the treaty are not to place any objects carrying nuclear weapons or any other kinds of weapons of mass destruction in Earth’s orbit, the moon, celestial bodies or outer space. It also states that the moon and other celestial bodies shall be used for peaceful purposes only, and the establishment of military bases and the conduct of military maneuvers are prohibited.
Here, the terminology used in Article IV becomes very important because, as per Article IV, weapons are required to be “placed in orbit,” “installed,” or “stationed in any other manner” in outer space, this creates an omission and does not mention objects that would not orbit the Earth but only transit through outer space. In addition, the specific prohibition of nuclear weapons and weapons of mass destruction suggests that the provisions of the Outer Space Treaty do not prohibit conventional weapons such as Kinetic energy ASATs and directed energy ASATs. You ask, what is the difference between conventional weapons and weapons of mass destruction? According to United Nations Regional Centre for Peace and Disarmament in Asia and Pacific (UNRCPD), Weapons of Mass Destruction constitute a class of weaponry which have the potential to:
- Produce energy to kill millions of civilians, jeopardize the natural environment and fundamentally alter the lives of future generations.
- Cause death or injury to people through the use of toxic chemicals
- Release disease-causing organisms that are biologically toxic to humans, animals or plants.
- Deliver nuclear explosive devices and chemical, biological or toxin agents to use them for hostile purposes or during armed conflict.
Conventional arms, on the other hand, include all weapons that are not weapons of mass destruction. This creates an extensive category of weapons like battle tanks, combat aircraft, warships, missiles and missile launchers, etc. Thus, conventional weapons that do not orbit the Earth and only “transit” through outer space are not illegal. Due to this, there are no guidelines or legal norms that specifically ban or prohibit the use and testing of ASAT weapons.
Conclusion
There is an immediate need for global consensus in drafting a treaty that addresses the use and concerns associated with ASAT weapons. While countries like the United States have talked about drafting an ASAT treaty that would call for a ban on space-based weapons, the European Union has proposed a non-binding Draft Code of Conduct for Outer Space Activities, which includes a pledge not to cause space debris and would arguably ban the use of ASAT weapons. The United States, Russia and China all want space activities to be sustainable and peaceful in nature. Still, it is different in practice, although there has been a general consensus for the need for norms or guidelines that constrain ASAT testing. In order for such guidelines to be more legally binding, fundamental questions like the interpretation of the Outer Space Treaty will have to be debated upon. However, for the time being, it is imperative that a set of guidelines are created that constrain any further ASAT tests to prevent the creation of more space debris.
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