What laws should apply to space? An analysis by Pierre-Stanley PÉRONO

(Published on March 31, 2021 – RSE Magazine)

 

There are strategic weapons and dual-use civilian equipment in space. Is legislation needed to permanently remove this equipment from outer space ?

Such legislation is more than necessary, just as it is desirable to proceed with the total dismantling of the entire military-industrial apparatus accumulated by all military powers. Who would not want to live in a world where people no longer had the means to take up arms, especially when we know that these are eminently destructive weapons?

But even in this state of destitution, we would still find reasons and means to come to blows.

All this to say that this problem goes beyond the scope of space. We would one day reach this state if humanity managed to grow in consciousness to the point of unanimously desiring virtue and using it in the exercise of that force of freedom that has raised it from the earth to the clouds and today to the stars.

But that time has not yet come.

It would therefore be dangerous for a state to divest itself of its arsenal. I would not advise anyone to do so. Nor do I recommend a blind rush to acquire conventional weapons, weapons of mass destruction, or the militarization of civilian equipment.

With regard to dual-use civilian and military equipment, eliminating it would pose a major problem. In my opinion, the militarization of civilian equipment would perhaps be even more difficult to contain than the development of military devices in space.

Being non-military in nature and essentially involving the art of concealment, international regulations would need to establish criteria for identifying civilian equipment that could conceal military potential. However, any civilian equipment, whether placed in space or not, could conceal such possibilities, which would have been carefully considered and anticipated.

The difficulty lies in the fact that a civilian satellite that could, for example, lend itself to this dual use will in fact fulfill its civilian function throughout the entire period of peace. The idea is not to assign it to military use from the outset. In fact, the idea is not to assign it to any military use at all, ideally. Rather, the operation consists of deploying these civilian resources in such a way as to reserve the possibility of mobilizing them in support of other military assets on the ground, in the air, or in space, should a situation of conflict or war ever arise.

In times of peace, it is a question of preparing for war now, but doing so invisibly.

Prohibiting this approach could even lead to a perverse effect: wanting to ban everything and seeing evil everywhere. Such legislation on civilian equipment would be totally counterproductive and could even, although I may be exaggerating, lead to the kind of madness we have already experienced, which could paralyze the natural progress of one of our most precious treasures: the march of science and its practical application in the world for our greater good.

From another perspective, it must be acknowledged that certain satellites with dual civilian and military functions may be highly desirable, as long as weapons of mass destruction exist, whether on land, at sea, or elsewhere. We can see how, throughout the Cold War, reconnaissance satellites helped to maintain the balance of terror and prevent certain escalations. Satellites therefore play an undeniable role in stabilizing terrestrial rivalries. For example, they enabled the United States and the USSR on either side of the Pacific to regularly check the status of enemy forces, reassuring the protagonists about the “missile gap” and thus helping to ease tensions.

These reconnaissance satellites are part of what is known as the militarization of space, i.e., the placing of satellites into orbit to support troops operating on the ground.

Another movement is known as weaponization, which involves placing weapons in orbit with the aim of directly destroying or neutralizing either ground targets or targets in space (such as enemy military or civilian devices outside the atmosphere).

In the case of weapons of mass destruction, this weaponization was initiated very early on by the United States. One of the first operations that made a lasting impression was the nuclear test codenamed Starfish Prime, launched by the Americans on July 9, 1962, at an altitude of 400 kilometers. According to scientists, the explosion created an artificial radiation belt that lasted several months and destroyed numerous satellites, some of which had been launched after the operation!

Shortly thereafter, the Treaty banning nuclear weapons tests in the atmosphere, outer space, and under water was adopted (1963). Then, a few years later, the 1967 Treaty prohibited, in Article 4, the placing in orbit around the Earth of objects carrying nuclear weapons or any other weapons of mass destruction. The 1967 Treaty also prohibited the installation of such weapons on celestial bodies and, more generally, in outer space. Then we have the famous 1972 Treaty (SALT I) between the United States and the USSR on ceilings for strategic offensive arms. Unfortunately, it was very short-lived, expiring in 1977, and its announced successor (SALT II) never saw the light of day.

As for the 1972 ABM Treaty on the prohibition of strategic defensive weapons, i.e., anti-ballistic missile systems, it was terminated on June 13, 2002, following the withdrawal of the United States for strategic reasons in the aftermath of September 11, 2001.

It is clear that there have been advances, but also setbacks in this area. Other partial agreements to limit or ban strategic weapons emerged at the end of the Cold War, particularly in Europe and within the United Nations.

What is important to understand is that prohibiting or limiting the militarization or weaponization of space is largely dependent on progress in regulating arms on Earth (which partly determines the military policies of states on the ground, which may be supported by systems installed in outer space).

But for now, there is a major difficulty with disarmament in space, a difficulty that is clearly a systemic problem for some countries and which I would call the weakness of the strong. The economies of certain powers, foremost among them the United States, as well as their defense apparatus, are highly dependent on space. In my view, space is both their Thor’s hammer and their Achilles’ heel. Persuading them to abandon the development of their defense capabilities in this high place is therefore almost utopian. And this is for the following reason: whoever holds them by this high point could hold them altogether.

The expression “he who holds the high ground holds the low ground,” by which battles have traditionally been won in military history, takes on a whole new meaning, an added significance. The high ground also becomes the point at which the battle risks being lost.

A number of states have introduced legislation regulating takeoffs from their territory, but they do not all agree. What do you think about regulating space?

When it comes to space regulation, if we take the term “regulation” in its broadest sense, one constant emerges: between God and the Devil, the boundary is drawn, the territories are divided. God takes the big principles for himself, and as always, the Devil gets lost in the details.

By this I mean that there is no real debate between states, and that there has not really been any debate on the higher values that should guide space exploration. For example, everyone spontaneously accepts the idea of international accountability for states and national accountability for private actors with regard to the damage that may result from their high-risk space activities.

Thus, we see how spontaneously, from the outset, states refused to engage in what would normally be an attitude consistent with the historical logic of relations between sovereign powers. Indeed, miraculously, from its very beginnings, the space race found itself cradled by a quest for peace, or at least a certain reluctance to engage in direct confrontation.

This is the meaning of Professor C. Chaumont’s words, who made this eloquent remark in the 1960s: “Space law embarked in 1957 on the royal road to freedom.”

To understand how surprising this attitude was, it is important to realize that no state at the beginning of the conquest claimed sovereignty over the outer space above it, even though all states at that time, since the beginning of the 20th century, were fiercely protective of their sovereignty over their airspace. No state therefore prevented another state from flying over its airspace at the time of the first conquests.

To understand the unique nature of the early days of space exploration, it may be necessary to compare it to another great adventure in which part of humanity had to face the unknown in order to advance toward new horizons. This was the great conquest of what Spain, Portugal, and later France and England called the New World. We all know how, from the very first discoveries, the Caribbean Sea, among others, became the scene of bloody and violent clashes in the name of national expansion and wealth. Privateers and pirates prospered. And borders, sovereignty, and their assertion in conflict were at the heart of the logic of the time. The early days of space exploration saw nothing of the sort.

On this point, I could conclude that humanity should be proud of this development. But that would be very naive of me. Because, with the conquest of space, if history has not repeated itself, it is only in terms of broad principles.

And this is where we must give credit where credit is due: the deployment of grand principles, the definition of the concrete terms of their application, and above all their gradual evolution, which is not immune to erosion.

We can see, for example, how in terms of liability, the very principle of broad, extensive state responsibility is diluted, albeit under magnificent terms such as justice and fairness, in a compromise text that is, to say the least, the ultimate misunderstanding. This is Article XII of the 1972 Convention on International Liability for Damage Caused by Space Objects, which provides that the amount of compensation for damage shall be determined “in accordance with international law and the principles of justice and equity.” The wording is so ambiguous that some observers believe that the effectiveness of the compensation system will depend on the willingness and good faith of the State concerned in each case.

I could take another principle: that of the peaceful use of outer space. We can see how this principle is being circumvented by strikes carried out by certain states against their own satellites: China in 2007, and India in 2019. By destroying one’s own satellite, one is not theoretically committing an act of war or aggression, since one is attacking a resource that belongs to oneself. One cannot therefore be accused of violating the 1967 Treaty. However, while complying with the law, we are demonstrating our strength to rival powers and those we would like to subjugate. This demonstration, as we know from the origins of nature, among humans and animals, is still part of the realm of war; and while it sometimes helps to avoid war, it is often a sign that war is coming.

I could go on listing examples, right up to the principle of non-appropriation of space, which the Americans recently, in 2015, rendered meaningless by stating in the Space Act that private American companies will now be able to appropriate space resources. Luxembourg has adopted a similar law. This latest development is of paramount importance, as it no longer follows the logic of circumventing the major humanistic principles that have always driven the space exploration enterprise. It contributes, not entirely yet, but already, to a direct affirmation of the desire of certain states and private actors to move towards establishing a legal basis for their control over outer space.

So what can be done?

I believe that the course of events that is unfolding is inevitable and an integral part of the march of history. What needs to be done is to seize the opportunity that courage always offers: to mitigate the effects in order to best preserve the higher interests of humanity. This would require slowing down the erosion of principles or preserving them despite the irresistible predominance of national and private interests. Balance is possible, and France, with its values and its leadership position at the European level, has a role to continue to play in this battle. But we must give ourselves the means to do so and ensure that, together with Europe, we can bring all our weight to bear. The exercise is all the more worthwhile given that strategic interests for the whole of humanity are now at stake. The issue of space debris and space pollution could become one of the survival of space exploration itself. The emergence of regulation and standardization in these areas should therefore take precedence over all other issues, even beyond all hope.

 

Pierre-Stanley PÉRONO

 

Pierre-Stanley PÉRONO is a business lawyer, registered with the Paris Bar, and an expert in economic intelligence and strategic management. He is the founding president of CABINET PÉRONO CONSEILS, where he works on lobbying, business law, project financing, and international trade cases. He is an economically and socially engaged actor in Europe, Africa, and Latin America on several levels, notably as a member of the Delegation of the Center for Strategic Studies and Forecasting to the Council of Europe, as a member of the Migration Issues Committee of the COING of the Council of Europe, as First Vice-President of the European Academy of Strasbourg, and as an expert on the list of experts of the Caribbean Chamber of Commerce in Europe.