The week before last, a UN panel approved the creation of a working group to discuss next-generation laws to prevent the militarisation of space. The move comes as space 2.0 seems to be going into hyper-drive, with countries and corporations racing to claim their stake in the final frontier.

It’s timely, as the potential for friction is gathering by the day, with China, India, Russia and the US testing anti-satellite missiles on their own satellites and creating worrisome clouds of debris.

This week’s destruction by Russia of its “dead” satellite, Cosmos 1408, underlined the issue.

Meanwhile, the orbital space around Earth is becoming jammed with machinery; currently, there are 3,372 active satellites whizzing around Earth, but in one or two decades that number is set to leap to potentially 100,000 or more. And that’s ignoring the space stations, telescopes and spyware already in orbit as countries flex their aerospace muscles.

It’s a cosmic fracas. And contested territory is prime fodder for international disputes, as we know. It’s these kinds of disputes the group of UK diplomats who proposed the UN motion want to prevent, by coming to an agreed-upon set of norms for behaviour in space.

Space law: what are the issues at stake?

The current international framework for law in space is the UN’s 1967 Outer Space Treaty (OST), which sets governing principles for the exploration of space, including that space should be free for use by all nations, that celestial bodies like the Moon should be used exclusively for peaceful purposes, and that outer space should not be subject to national appropriation.

Under international law, any and all objects being launched into space must be registered to avoid collisions. On top of these global laws, each nation-state has its own legal framework around the registering and launching of objects into space.

But as technology evolves and new opportunities arise, are these old laws equipped to govern new problems?

The UN’s 1967 Outer Space Treaty sets governing principles for the exploration of space, including that space should be free for use by all nations.

“There exists an incredible amount of applicable law already, and it has served us really well,” says space law expert Steven Freeland, an emeritus professor at Western Sydney University and professorial fellow at Bond University. Freeland is vice-chair of a UN Committee on the Peaceful Uses of Outer Space (COPUOS) working group that is developing laws around the exploitation of resources in space.

“There’s a lot of law at the multilateral level that then filters down to other layers of bilateral or ‘minilateral’ agreements and national laws. But clearly things move so quickly with technology, we’re doing so many more things in space that were beyond the contemplation of the drafters of the original treaties. Ideally we need more.”

Freeland says there are myriad complex, interconnected issues in space that need tighter laws. These include the increasing militarisation of space; the proliferation of satellites, which can lead to overcrowding of “popular” orbits and increased demand for radio-wave spectra; ethical issues around human spaceflight; and the possible extraction of resources on celestial bodies like the Moon.

“We’re doing so many more things in space that were beyond the contemplation of the drafters of the original treaties.”

Steven Freeland, Western Sydney University

Resource exploitation

It might sound like science fiction, but mining in outer space is looking increasingly likely in the not-too-distant future. In September 2020, NASA announced that it would award contracts to private companies for the extraction and purchase of lunar regolith (rock matter) from the surface of the Moon, which could be mined and then studied in situ by the company, before the data and rights are transferred to the space agency.

The move heralds what our space-based future might look like, with private companies mining celestial bodies for their precious resources. In our solar system, composed of millions of celestial bodies both large and small, the opportunities for cashing in look potentially endless – provided technology advances to the level of practical spaceflight.

“Most wars on Earth have historically been fought over a quest for resources,” says Freeland, “so it’s incredibly important [to have appropriate space laws].”

Just last month, scientists announced the discovery of two extraordinarily metal-rich near-Earth asteroids (NEAs), comprised of roughly 85% metals like iron, nickel and cobalt, which are thought to exceed Earth’s entire known metallic reserves. These three highly valuable metals, often known as the “iron triad”, are particularly critical for the energy supply chain and a renewable energy future; they’re used to build lithium-ion batteries, electrochemical capacitators for storing energy, and nano-catalysts for use in the energy sector.

“Most wars on Earth have historically been fought over a quest for resources.”

Steven Freeland, Western Sydney University

Under the OST, outer-space resources cannot be appropriated by nations, but the law and principle around the commercial use of space resources is less clear. The 1979 Moon Treaty holds that any celestial body is under the jurisdiction of the international community and therefore subject to international law. The treaty outlaws the military use of any celestial body as well as providing a legal framing for the “responsible” exploitation of celestial resources.

But, to date, no space-capable nation has ratified the treaty.

Militarisation

That brings us to the militarisation of space. As technology advances, the potential avenues for weapons that cross the border from terrestrial to cosmic continue to proliferate.

So, what laws protect us from a space war?

“The issues about security in space have historically been dealt with by the CD, the Conference of Disarmament, but more recently the UK has led discussions at the United Nations that effectively seek to change the diplomatic language and thinking about space security,” says Freeland.

Currently, the principles for governing space under the OST forbid the military use of space, but space is already used for military purposes such as surveillance, and some missiles carve a path through outer space on their journeys to their targets. As it currently stands, the only weapons found in space are the TP-82 Cosmonaut survival pistols that Russian astronauts regularly take on board the Soyuz spacecraft, intended to protect them from a potential wild animal attack if they are forced to emergency land in “off-the-map” territory.

But as technology proliferates, the opportunities for space-based militarisation also grow. The existing laws were drafted long before many of these technologies were even dreamed up.

The most worrisome technologies currently being trialled are anti-satellite missiles.

“We have this strategic competition going on amongst the major powers,” says Gilles Doucet, a space security consultant based in Canada who worked for 35 years with the Canadian Department of National Defence. Doucet is both an engineer and an expert in space law.

“They all wish to be dominant and make sure that their national security is secured by controlling, or at least not having other people control, outer space.”

But what kinds of defence technologies are being developed in space?

Doucet says the most worrisome technologies currently being trialled are anti-satellite missiles of the sort that Russia deployed earlier this week. Known as direct-ascent anti-satellite missiles (DA-ASAT), they can destroy satellites in low Earth orbit.

“This essentially looks a lot like ballistic missile defence, but it’s happening in outer space against satellites,” he says. In fact, DA-ASAT technology is dependent on the same technology used for midcourse ballistic missile defence – the technology that the US, for example, deploys to defend itself from potential ballistic missile attacks on North America.

These missiles fly at altitudes of around 3,000 to 4,000 kilometres, well within the low-Earth orbit many satellites operate in. This technology is being developed and tested by the US, China, India and Russia.

“Destroying another country’s satellites would only occur in an armed conflict scenario,” Doucet says. “It would be because the other country’s satellite is providing an important military role – for example, a GPS satellite for directing munitions or an imagery satellite for locating your forces.”

Other military applications in space, Doucet says, include the jamming of satellite communications and navigation, as well as interference with some GNSS signals, of which GPS – the satellite navigation system we all use for things like Google Maps – is one.

Satellite jamming can have major disruptive potential.

“You might be conducting an operation in a conflict – let’s say you wish to target a certain facility. Your missile system or your drone-launching missiles rely on GPS to guide them,” Doucet says. “So if you’re on the other end of it wanting to protect yourself, then you’ll send out jamming signals.”

But while these signals can help defend a military target, Doucet says many satellites provide services for military and civilian companies and organisations at once. In this case, jamming a satellite’s signal may also interfere with civilian services it provides, including aircraft and ship navigation, car mapping, even timing signals for financial transactions. This means satellite jamming has major disruptive potential.

And there are other areas where satellite technology could have duplicitous or combative potential.

“Close proximity operations seem to get countries a bit upset,” says Doucet. Close proximity operations, as the name suggests, involve satellites moving close to other satellites.

“One reason might be intelligence or inspection, just to take close images to understand how it’s built. But you may be getting close to intercept signals or to interfere with signals.

“So that is a concern, because it’s one thing to get close for passively collecting information, but if you’re close you may also be in a position to interfere.”

What might new space law systems look like?

“We have a lot of space systems that are dual use, that have the potential to do harm,” Doucet says. “I’d like to see some transparency on the mission, on what you’re doing, to help alleviate concerns.

“That might sound like a small step, but to militaries it’s actually a really big step to provide transparency.”

Doucet says he’d also like to see clarification of the existing principles for space law already set out in the OST and other treaties. In fact, he’s currently working on the MILAMOS Project, developing a Manual on International Law Applicable to Military Uses of Outer Space at Canada’s McGill University.

“I would like to see the existing legal regime being given a bit of life,” he says. “We’ve got tremendously good outer space principles, but over several decades countries have kind of refused to give them life because it’s too controversial.

“The third thing I’d like to see is the major space powers sit down and talk. They’re all potentially losers if this keeps going down this path. I don’t think there’s a winner in a space war.”

“We’ve got tremendously good outer space principles, but over several decades countries have refused to give them life because it’s too controversial.”

Gilles Doucet

For all these complex problems, Doucet is cautiously optimistic about our chances of avoiding a space war.

“I don’t think the issue about space security is as unique as people think,” he says. “Yes, it’s a very unique domain, but the actors are all the same, the interests are all the same. It’s the same people that have struggled over ballistic missile proliferation, nuclear weapons proliferation, treaties about the high seas, about aviation and all kinds of things.

“So, we shouldn’t think this is an unsolvable problem. We may take lessons from how we’ve managed to agree to disagree in other areas beyond national jurisdiction.”

Freeland agrees that even if international tensions may simmer at home, it’s in the best interest of major global powers to come to agreements about laws in space.

“When it comes to these really big issues, particularly issues that have the propensity to go horribly wrong if we follow an irresponsible path, in the end it’s in [governments’] common interest to agree to the rules of the road,” he says. “The important element is that they have had the opportunity to buy in on the framing of those rules.

“I think we need to be optimistic. With a great deal of caution, cool heads will prevail.”