How can space law address space militarization?

Space militarization is a pressing issue. If military conflicts occur in space, this could hinder space exploration. It could worsen life back here on Earth. Law has a major role to play in determining the extent of such militarization. To learn more about space law and space militarization, we spoke to Dr. Bin Li at The University of Newcastle, Australia. He shares his thoughts on how space law can be further developed to address space militarization.

How did you become interested in space law?

I started my career at Beijing University of Aeronautics and Astronautics (Beihang University), in its School of Law in 2007 after I attained my PhD degree. Beihang University is China’s leading aerospace technology and engineering university and it has global prestige. From that time, I was thinking that as a law staff member, it would make sense to look into space law and policy issues as this would align with the future and strategic plan of the university.

Fortunately, my academic background is international law, of which international space law is a part. That made my focus on space law easier. Even more fortunately, the university and the law school there were supportive of me developing space law expertise. In addition, the Chinese government has been keen to develop its space programs and capabilities. This requires legal and policy advice to ensure space activities follow international rules while maximizing China’s national interests. All those factors contributed to my interest in space law since 2007, when much less attention in the world was paid to this fascinating area of law.

How does space law affect the extent of militarization of space?

Space law has struggled to address militarization in an effective way.

Space law is a “young” body of rules compared with other branches of international law, such as the law of the sea. It literally emerged in the 1950s when the first manmade satellite was launched by the USSR. As is known to all, 1950s was an era when competition between the USSR and the United States began to intensify across all sectors of life, particularly in national security and military arenas. Obviously, the successful launch of the satellite gave the USSR a military and strategic advantage over the United States. It demonstrated the USSR’s capability to carry out military activities in outer space. To catch up, the American government responded by urgently investing more resources to build its own space program. The United States eventually outperformed the USSR by sending astronauts to the Moon in late 1960s.

This is the historical background to understand the relationship between space law and the militarization of space. In the very beginning, space law was developed in the context of strategic competition and an arms race between two big powers. Therefore, the militarization of outer space has been one of the focuses of space law since its inception. 

As a result, there are several principles and rules in space law that are relevant to militarization. The Moon and other celestial bodies, for instance, should be used exclusively for “peaceful” purposes. Unfortunately, however, how to interpret “peaceful” has been a contentious issue, as demonstrated by the anti-satellite test conducted by India in April 2019. (In fact, other countries conducted similar tests before 2019.) Another example is that according to space law, countries 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. This principle is very clear about prohibiting weapons of mass destruction in outer space. From these examples, we can safely say that space law addresses the issue of militarization of outer space to some extent. So far, no country dares to say that it will not follow space law in its space programs.

The problem with space law mainly relates to two factors. One factor is the various interpretation of “peaceful”. The second is the rapid progress of space technologies – when current space law was formed before the 1980s, people thought the prohibition of weapons of mass destruction would be good enough to make space a safe place. However, newer technologies challenge this dated assumption. Sophisticated jamming and spoofing technologies, for example, can interfere with or even disable a rival’s satellites. This is impactful, given how many countries across the world have space assets in orbit. Unsurprisingly, space law does not say anything about such new technologies.

What do you think are some areas where space law can be further developed to address militarization of space?

In terms of developing space law to deal with militarization, I would suggest that this should be put into the broader context of international law. Space law, after all, comes primarily in the form of international rules. In this regard, the Charter of the United Nations sets out some of the fundamental norms about how to address the use of force between countries. These rules should be applied in outer space as well. For example, according to the Charter, every country enjoys the right to self-defense if it has been attacked by another country. Therefore, we need to think about, in the space law context, whether certain radio interferences with space objects constitute an armed attack. If so, this implies that the owner of attacked space assets can legally defend itself by using all kinds of force.

In terms of space law itself, there are several specific areas, including responsibility and liability regimes, where development is needed to make it more effective in addressing militarization. Military activities in space potentially threaten space assets of other countries and damage the space environment. The damage caused by space debris arising from satellite attacks is an example in this respect. Although space law has rules in place for dealing with responsibilities and liabilities of relevant countries, those rules are vague and hard to enforce. This is an area where clarifications of space rules are urgently needed.

I would like to emphasize that the development of space law essentially depends on the strong political will of the world, in particular the will of those active spacefaring nations. In this sense, it is important to enhance public awareness of the significance of outer space. Space law is of particular importance to future generations. Greater public awareness will push every nation to contribute to ensuring safety in outer space.