International law holds that outer space and celestial bodies are not subject to national appropriation (no-one can own them), and that exploration and use of outer space should be carried out for the benefit of all to advance international peace and security and promote international cooperation and understanding. However, space is already being used for military operations, in particular surveillance and communications. In addition, a number of countries are researching, developing and testing systems for anti-satellite warfare and other applications of force into or from space.
The Outer Space Treaty and the Moon Treaty prohibit the placement of nuclear weapons or other weapons of mass destruction in space and prohibits the establishment of military installations or the conducting of military exercises on the moon. However, the treaties do not prohibit the placement of conventional weapons systems – or systems which contribute to warfare (such as military command and communications systems) in space. Nor does international law prohibit the targeting of satellites from earth or from space (anti-satellite warfare).
Russia and China have proposed a Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects, but this does not yet receive support from all space active countries (most notably the US). In addition, the European Union has proposed an International Code of Conduct for Outer Space Activities which is not as ambitious as the Russia/China proposal, but which does include provisions to prevent the threat or use of force in outer space.
Relevant international agreements:
- Moon Treaty: Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, 1979
- Outer Space Treaty: Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, 1967
- UN General Assembly Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, 1963
Recommendations:
Parliamentarians can:
- Adopt space launch regulations (in countries that host space launch facilities) to prohibit the launch of payloads that would contribute to the weaponisation of outer space or the threat or use of force in outer space, including attacks on satellites, or the command and control of nuclear weapons systems;
- Promote an optional protocol to the Outer Space Treaty to prohibit the placement of any weapons in space;
- Promote UN negotiations on an International Code of Conduct for Outer Space Activities;
- Support a ban on the development and testing of anti-satellite weapons.
Examples of good parliamentary practice:
European Parliament, Space and Security Resolution 2008
On July 10, 2008, the European Parliament passed a resolution on Space and Security which calls ‘on all international actors to refrain from using offensive equipment in space’, expresses ‘particular concern about the use of destructive force against satellites (…) and the consequences of the massive increase in debris for space security’ and recommends ‘the adoption of legally binding international instruments focusing on banning the use of weapons against space assets and the stationing of weapons in space.’
New Zealand Outer Space & High-altitude Activities Act 2017. Space launch guidelines 2019
The New Zealand Outer Space and High-altitude Activities Act 2017 and 2019 Space launch guidelines govern space launches and payloads under the jurisdiction of New Zealand. Their application is currently of most relevance to the Rocketlab space launch facility located in the Mahia Peninsula of the North Island of New Zealand. The Act, adopted by the New Zealand Parliament, codifies into domestic law obligations under the Outer Space Treaty to ensure that space launches under the jurisdiction of New Zealand do not contribute to:
- placing in orbit around the Earth any objects carrying nuclear weapons or weapons of mass destruction, installing such weapons on celestial bodies, or stationing such weapons in outer space in any other manner;
- establishing military bases, installations, or fortifications on celestial bodies;
- testing any type of weapons or conducting military manoeuvres on celestial bodies.
The 2019 Space launch guidelines, adopted by the New Zealand Government, extend these obligations to prohibit space launches under the jurisdiction of New Zealand that would involve payloads:
- that contribute in any way to nuclear weapons programmes or capabilities,
- with the intended end use of harming, interfering with, or destroying other spacecraft, or systems on Earth,
- with the intended end use of supporting or enabling specific defence, security or intelligence operations that are contrary to government policy,
- where the intended end use is likely to cause serious or irreversible harm to the environment.
The regulations do not prohibit all military payloads, space launch contracts or military applications of space launches. However, they provide probably the most comprehensive regulations in the world for ensuring space launches do not contribute to anti-satellite warfare or space-based weapons systems, and that they conform to principles of international law governing military, security and intelligence systems.
A criticism of the regulations is that they do not provide a role for public scrutiny of the government’s decisions with regard to the granting of launch permits. Such a role is provided in the 1987 New Zealand Nuclear Weapon Free Zone Act with regard to the government’s decisions whether or not to allow port visits of vessels (ships and aircraft) with capacity to carry nuclear weapons. There are also some critics who would oppose any foreign defence contracts for New Zealand space launches due to the difficulty of verifying their compliance with the regulations.
US Space Preservation Act of 2001
In October 2001, Member of the US House of Representatives Dennis Kucinich introduced the Space Preservation Act of 2001 which aimed to ‘preserve the cooperative, peaceful uses of space for the benefit of all humankind by permanently prohibiting the basing of weapons in space by the United States, and to require the President to take action to adopt and implement a world treaty banning space-based weapons.’ The act did not receive sufficient support to be adopted, but remains useful as a model of legislative action to prevent an arms race in outer space.
US Senate draft resolution on peaceful uses of space, 2019
In October 2019, US Senators Tom Udall and Tim Kaine, both members of the Senate Foreign Relations Committee, introduced S-Res 386, Supporting international cooperation and continued United States leadership to maintain access to space and achieve advances in space technology. The draft resolution aims to maintain US leadership in protecting satellites and spacecraft in Earth’s orbit from space debris and ensuring that all nations cooperate to promote the peaceful use of space for research and commercial purposes. The draft resolution highlights the facts that ‘destructive anti-satellite tests threaten international access to space;’ and that ‘a collision or other preventable disaster in space would reduce access to space and threaten future military, civil, and commercial missions in space for all countries,’ and aims to prevent these through US leadership in the guidelines and rules developed in the United Nations Committee on the Peaceful Uses of Outer Space.
Resources:
- United Nations Treaties and Principles On Outer Space, related General Assembly resolutions and other documents, UN Office for Outer Space Affairs
- Fact sheet: Draft International Code of Conduct for Outer Space activities, Secure World Foundation
- Space Dossier File 6: Ballistic Missile Defence and Outer Space Security: A Strategic Interdependence, by Paul Meyer. Published UNIDIR, June 2020
