International relations, National security, Science and technology | Australia, The World

7 June 2018

As more and more militaries look to the stars, Australia can play a role in updating the world’s antiquated space laws, Brody Hannan writes.

In March this year, US President Donald Trump floated the idea of a US ‘Space Force’ to a crowd full of military personnel at a rally in San Diego. Is the president right to describe space as “a war-fighting domain”? And despite prohibitions on the ‘non-peaceful’ uses of space, could space potentially be militarised in the future?

The short answer – it already is.

The UN’s Outer Space Treaty of 1968 and the Moon Agreement of 1979 made clear that all military activities – including the testing of weapons – are prohibited on the moon and “other celestial bodies”. Yet outer space itself was made a little less clear, with the UN declaring that it should only be used for “peaceful purposes”.

The wording of the Outer Space Treaty is such that except for the stationing of nuclear weapons and weapons of mass destruction, all other forms of military activity are permitted in outer space. States are therefore able to get away with having a military presence in space by conflating the somewhat ambiguous term ‘peaceful’ with ‘non-aggressive’.

But the US isn’t the only country open about its intentions to bring space under its military banner. In its Australia’s future in space report, the Australian Strategic Policy Institute described the establishment of Australia’s own sovereign space industry as “an important window of opportunity to …[use] space for defence and national security purposes”.

More on this: Podcast: Australia’s place in the new space race

To an emerging space power, only banning some kinds of military ‘weapons’ leaves plenty of room for exploitation. In the infamous 1960 U-2 incident, a US spy plane was shot down over the Soviet Union while on a reconnaissance mission. When making their initial statement, the CIA attempted to cover up the illegal espionage by claiming a weather plane had merely strayed off course.

But the only reason the U-2 plane was legally able to be shot down by Soviet forces was that the US had flown into Soviet airspace. Nowadays, with satellites that can orbit over countries at altitudes that extend far beyond the Earth’s atmosphere, reconnaissance satellites are legally protected from being shot down – where once they would have been destroyed simply for flying over another state’s air space. Go high enough above the Earth, and you pass the point where states can claim sovereignty over the air and space above them.

While the use of nuclear weapons or weapons of mass destruction in space is explicitly illegal, some direct weapons like ballistic missile destroyers or anti-satellite weapons can also be legal. Other supportive military actions, such as military reconnaissance, navigation and communications, are unlikely to be banned, as doing so would create a dangerous dichotomy with the same remote sensing, GPS and satellite communication services we use in the civilian world.

The question of whether countries are using outer space only for peaceful purposes is beside the point – we already know that this is not the case. Rather, we should ask: How do we control military activities in space so as to prevent World War III from being fought amongst the stars?

One way out of this dilemma would be to establish an international, third-party adjudicator that would manage the capabilities and uses of satellites in space. Such an adjudicator, with the support of states, would then be able to facilitate the strategic disarmament of military activities in space.

In a recent interview, University of Adelaide Law Professor Dale Stephens called for Australian policymakers to lead the charge on updating the world’s space laws, which haven’t been updated since the 1980s. While Australians are already working on developing the Woomera Manual – an internationally definitive document on military and security law as it applies to space – the manual won’t be completed until 2020, and its details remain unclear.

One thing is for certain, however: rather than seeking to throw Australia’s military into an already hotly contested conflict zone in space, Australia’s new space agency has an opportunity to play a leadership role in creating an outer space that is truly peaceful.

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