FIFTY YEARS OF THE OUTER SPACE TREATY Tracing the Journey FIFTY YEARS OF THE OUTER SPACE TREATY Tracing the Journey Editor Ajey Lele INSTITUTE FOR DEFENCE STUDIES & ANALYSES NEW DELHI PENTAGON PRESS Fifty Years of the Outer Space Treaty: Tracing the Journey Editor: Ajey Lele First Published in 2017 Copyright © Institute for Defence Studies and Analyses, New Delhi ISBN 978-81-8274-948-1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without first obtaining written permission of the copyright owner. Disclaimer: The views expressed in this book are those of the authors and do not necessarily reflect those of the Institute for Defence Studies and Analyses, or the Government of India. Published by PENTAGON PRESS 206, Peacock Lane, Shahpur Jat New Delhi-110049 Phones: 011-64706243, 26491568 Telefax: 011-26490600 email: [email protected] website: www.pentagonpress.in In association with Institute for Defence Studies and Analyses No. 1, Development Enclave, New Delhi-110010 Phone: +91-11-26717983 Website: www.idsa.in Printed at Avantika Printers Private Limited. Contents Foreword vii About the Contributors xi Introduction 1 SECTION I DEBATING OUTER SPACE TREATY 1. Evolution of the Outer Space Treaty 13 Ram S. Jakhu 2. Outer Space Treaty and International Relations Theory: For the Benefit of All Mankind 20 Joan Johson Freese 3. Outer Space Treaty: An Appraisal 24 G.S. Sachdeva 4. Relevance and Limitations of Outer Space Treaty in 21st Century 48 Ranjana Kaul 5. The Space Arms Race: Domain Asia 62 Ji Yeon-jung SECTION II GLOBAL OUTLOOK 6. The European Union and the Outer Space Treaty: Will the Twain Ever Meet? 75 Frans G. von der Dunk vi Fifty Years of Outer Space Treaty 7. 50th Anniversary of the Outer Space Treaty: US Contributions as We Move into the 21st Century 91 Philip A. Meek 8. Russia and the Outer Space Treaty 102 Aleksandr Klapovskiy and Vladimir Yermakov 9. “All’s Well that Ends Well”: Overview of China’s 60-year Space Activity and Space Law 114 LI Juqian 10. India and the Outer Space Treaty 120 Kumar Abhijeet 11. Japan, Koreas and the Outer Space Treaty 130 Munish Sharma 12. Impact of Outer Space Treaty on Few Observer Organisations in COPUOS 140 Malay Adhikari SECTION III GOVERNANCE AND PROSPECTS 13. Evolution of Policy and Law for International Space Governance 153 Eligar Sadeh 14. Beyond Outer Space Treaty – Time for New Mechanisms? 172 Rajeswari Pillai Rajagopalan 15. The Future of the Outer Space Treaty 185 Ram S. Jakhu Conclusion 195 Appendices Appendix I: The Text of Outer Space Treaty 203 Appendix II: The Outer Space Treaty at a Glance 210 Index 212 Foreword Since the day the first man-made satellite, the Sputnik, spun into earth’s orbit nearly six decades ago, the international community embraced the idea of the use of outer space exclusively for peaceful and scientific pursuits. This soon became the established global norm the very first time the United Nations General Assembly considered the ‘Questions of the Peaceful Use of Outer Space’ in 1958 and encapsulated it in its resolution 1348(XIII). Conscious that space exploration had opened new possibilities for the improvement of life of humankind, the General Assembly also created the Ad-hoc Committee on the Peaceful Uses of Outer Space (COPUOS) to harness outer space activities for cooperative mutual gain. It is remarkable that this happened notwithstanding the heightened Cold War competition between the United States and former Soviet Union. COPUOS thereafter developed five treaties, including the Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies, better known as the Outer Space Treaty, which constitutes the cornerstone of the international legal framework for the peaceful application of outer space. Its four core principles are that the exploration and use of outer space shall be carried out “for the benefit and interest of all countries”, that outer space will be “the province of all mankind”, that outer space shall be “free for exploration and use by all countries”, and that the States Parties of the Treaty undertake not to place in orbit “any object carrying nuclear weapons or any other weapons of mass destruction” in the orbit of the earth, moon or any other celestial body. It further enjoins the States Parties to use these bodies exclusively for peaceful purposes, not to subject these to weapons testing or military manoeuvring, and prohibits the establishment of military bases, installations and fortifications thereon. viii Fifty Years of Outer Space Treaty Indeed, since Sputnik’s launch, the peaceful applications of space technology, especially for communications, education, navigation, and meteorology, have contributed significantly to global growth, besides assisting emerging economies such as India to solve problems of sustainable national development. As with technology in other domains, space technology has dual use features, which lends it to defence applications. It ensures strategic stability by enabling effective intelligence, surveillance, and reconnaissance capabilities. Space situational awareness for early information, high-resolution sensors and imagery to map ground-based offensive systems, and precision guidance for weapons delivery are some of the space based defence applications. Indian satellites in outer space establish global connectivity, and help in eradicating illiteracy, providing health security, improving navigation and meteorological services, optimising management of natural resources and the environment, and coping with extreme weather events and natural disasters. An innovative application has been the setting up, across India, of Village Resource Centres as a single-window delivery mechanism for a variety of space- enabled services, including tele-education, tele-medicine and interactive advisories on land and water management. There has, thus, been a dramatic acceleration, in recent years, in the peaceful uses of outer space and in international cooperation for this purpose. So also has there been an increased potential, in particular for the developing countries, to leapfrog and become full participants in the technology-based global economy of the twenty-first century. Given the increasing dependence globally on the use of outer space for development purposes, and the all- pervasive application of space technology for almost every aspect of modern life, it is imperative to guarantee the security of assets based in outer space, for any threat to them would disrupt space-enabled services to all countries, irrespective of the level of their development. Although the Outer Space Treaty has largely ensured responsible conduct of space activities, the prohibitions contained in the Treaty do not apply to the transit of weapons of mass destruction through outer space if launched by ballistic missiles, or the use of conventional weapons towards, through, and from space. By not unambiguously enumerating the permitted or prohibited activities, it provides an imperfect prescription of the legal obligations and limitations imposed on the States Parties in respect of their offensive activities in outer space, including the development, testing, and Foreword ix possible deployment of kinetic energy Anti-satellite Weapons in outer space designed to destroy space-based assets. India has been unequivocal in its opposition to preventing the weaponisation of outer space. P.V. Narasimha Rao, as Foreign Minister, had suggested in the early 1980s that an arms buildup in outer space would “mean a permanent goodbye to disarmament and peace and plunge mankind into a perpetual nightmare.” Thereafter, India’s unequivocal stand against the weaponisation of outer space continued to be enunciated in national and multilateral forums, including by former President Dr. A.P.J. Abdul Kalam, a well-known space scientist. Addressing a ‘Space Summit’ of the Indian Science Congress nearly twenty years later, he had cautioned the world’s space community “to avoid terrestrial geo-political conflict to be drawn into outer space, thus threatening the space assets belonging to all mankind.” To this day, India has remained strongly supportive of the quest to upgrade the present international legal framework for regulating space activities, set at the relative infancy of the development of space technology, and to strengthen the existing space law for the peaceful use and exploration of outer space. The respect for the safety and security of space assets and capabilities of all countries is a prerequisite for ensuring the continued flow of space- enabled services to all countries, including to developingcountries. The Final Document of the First Special Session of the UN General Assembly devoted to Disarmament (SSOD- I) had stipulated that, in accordance with the spirit of the Outer Space Treaty, further measures should be taken and international negotiations held in order to prevent an arms race in outer space (PAROS). As a consequence, the issue has remained on the agenda of the Conference on Disarmament since 1982, and an Ad-hoc Committee on PAROS functioned for a decade since 1985, mandates to examine, as a first step at that stage, “through substantive and general consideration”, the issues relevant to the prevention of an arms race in outer space. While this exercise did not produce substantive results, the issue remains relevant today, if not more than in the 1980s. Since then, both Russia and China have tabled papers and proposals in the Conference on Disarmament that enable a better understanding of the different dimensions of outer space security, and thus provides a good basis for commencing multilateral negotiations on PAROS, which have not so far materialised. We are exactly fifty years from the date the Outer Space Treaty was opened x Fifty Years of Outer Space Treaty for signatures in New York. This book attempts to contextualise the Treaty and examine its relevance in the 21st Century, while tracing its journey over the preceding five decades.