Effectiveness of Existing Legal Frameworks to Curtail Anti-Satellite Weapons Testing
By David Manthos
On March 27, 2019, India announced their successful test of a kinetic anti-satellite (ASAT) weapon, using a missile to shoot down one of their own satellites over the Indian Ocean. The test, dubbed Mission Shakti, surprised and alarmed experts around the world. NASA Administrator Jim Bridenstine condemned the test as a “terrible thing” and reported that the test created 600 trackable pieces of orbital debris, 24 of which pose a threat to the International Space Station. With this test, India joins Russia, China, and the U.S. as the only nations who have proven their ability to shoot down a satellite, prompting renewed calls for new international agreements to limit the militarization of space.
The principal legal framework for international cooperation in space is the Outer Space Treaty of 1967 (OST). The OST has been signed and ratified by the United States of America, Russia, China, India, and over 100 other nations. Art. IX of the OST provides the clearest framework for how nations should interact with each other, even when deciding to shoot down one of their own satellites.
Article IX of the OST provides:
If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. (Emphasis added).
To determine whether a kinetic ASAT test may cause harmful interference, one need only look to 2007 when China shot down one of their aging weather satellite in a test that created nearly 1,000 trackable pieces of space debris. In total, NASA and the U.S. Dept. of Defense track over 500,000 pieces of space debris from all manner of sources. To date, no nation has publicly blamed another for debris from an ASAT test causing actual damage to a space object, but until every piece of debris returns to Earth, the possibility remains that the remains of a targeted satellite could damage or destroy another nation’s space object.
If debris from Mission Shakti causes damage to the space object of another nation, the Convention on International Liability for Damage Caused by Space Objects (Liability Convention) of 1972 provides the clearest explanation of India’s potential liability. If debris from this test causes damage on the surface of the Earth or to an aircraft in flight, Article II of the Liability Convention states that India would be absolutely liable for such damage. If the debris were to strike a satellite in orbit, Article III of the Liability Convention states that India would be liable, “only if the damage is due to its fault or the fault of persons for whom it is responsible.” The hazards of orbital debris are well documented and debris from such a tests is foreseeable. India has not alleged that necessity compelled this test, unlike the United States which shot down a malfunctioning reconnaissance satellite in 2008, justifying the mission on the basis that the satellite’s toxic hydrazine fuel posed a threat to human life. India will probably have a difficult time showing they were not at fault if debris from this test strikes and damages another nation’s space object, people, or territory.
India’s obligations under the OST or fault under the Liability Convention is a question of international law. Unfortunately, there is little precedent on how such a claim would actually proceed, because the Liability Convention has never been directly invoked. The existing framework for activity in space is applicable to actual damage that could foreseeably result from ASAT weapons testing, but the mechanism for relief is slow and untested. The United States could play a leading role in limiting a new arms race by working hard with space powers and the International Community to develop a new arms control regime to limit the use of conventional weapons in space. To ensure compliance, such a regime could be enforced by economic sanctions and targeted export controls on flight-critical components.