Several years ago, as a junior in the chambers of the legendary corporate lawyer, Shardul Shorff, I was often given an onerous task, a pat on the back and the rider, “It’s not rocket science, son.” However, if one were to do some quick maths, the history of progress of rocket science far outstrips that of legal regulation of incidents arising out of rocket science. In the aftermath of the space debris left behind by China’s satellite-killing missile test, it becomes necessary to ponder over these legal aspects. Now is also the time to identify the lacunae in the internal legal framework and outline a definitive treaty on de-weaponising outer space. The launch of the Sputnik in 1957 brought together a set of legal instruments purporting to govern outer space, including the 1963 Limited Test Ban Treaty (LTBT), the 1967 Outer Space Treaty (OST), the 1976 Convention on the Prohibition of Military (CPM) and the 1979 Moon Agreement (MA) as well as some important bilateral agreements. Article I (1) (a) of the LTBT prohibits “any nuclear weapon test explosion, or any other nuclear explosion” from being carried out “in the atmosphere, beyond its limits, including outer space”. The major limitation of the LTBT is that it addresses activities regarding only nuclear weapons and does not cover conventional weapons. Article IV (1) of the OST proscribes the signatories placing “in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction (WMD), install such weapons on celestial bodies, or station such weapons in outer space in any other manner.” The OST once again is limited, since it does not deal with weapons other than WMD. Article 3(2) of the MA, in no uncertain terms prohibits testing of any type of weapons and the conduct of military manoeuvres on the moon. In comparison to the LTBT and the OST, the MA, probably having the benefit of hindsight, appears as a relatively comprehensive legal instrument on restricting military activities on the moon and its orbit. For all its good legal drafting, it falls into the all too familiar “good economics-bad politics” tangle, with only 11 states having ratified it till date. Article I (1) of the CPM prescribes a relatively soft obligation on its signatories not “to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage. to any other State Party.” The term ‘environment’, as used in the CPM, includes outer space. The CPM provisions are significant, given that it bans the use of any environmental modification techniques in outer space. In the bilateral sphere, we had two aborted attempts at control and regulation of military activities in outer space in the 1979 Treaty between the US and then USSR on the Limitation of Strategic Offensive Arms, which expired in 1985, and the 1972 Anti-Ballistic Missile Treaty which became defunct in 2002, with the US withdrawing from it. So what do we really have? A plethora of international legal instruments which are unable to effectively prevent the testing, deployment and use of weapons other than WMD and nuclear weapons in outer space. Another important question concerns the use of force, or threat of the use of force, against objects in outer space. The best way is to enact through negotiations an international treaty explicitly on the subject of the prevention of the weaponisation of outer space. Substantial work has already been done on this by the Conference on Disarmament Ad Hoc Committee. Such a treaty should delineate three key binding obligations on member states: (i) not to place in orbit around the earth any objects carrying any kind of weapons; (ii) not to install such weapons on celestial bodies; and (iii) not to station such weapons in outer space in any other manner. As a confidence building measure, a moratorium on placement of combat devices in space, pending the conclusion of such a treaty requires to be placed to prevent nations capitalising on the regulatory arbitrage. Moving ahead in this direction is difficult but, as my senior said, ‘it’s not rocket science, son’.The writer is advocate, Supreme Court of India
