#Current Events - The militarization of space and US President Trump's Space Force proposal...

Question

I think I read somewhere that the militarization of space is illegal. So is what US President Trump is proposing regarding his "Space Force" illegal?

 Answer

My opinion is that the existing treaties concerning space clearly indicate that militarization of space is illegal. However, because of the wording of Article IV of the 1967 Outer Space Treaty, there is an argument that it is legal. However, and again this is my opinion, I believe the legal framework within which the treaty was signed and exists overrules the argument that it is legal.

Analysis

Much of this answer will be coming from the International Committee of the Red Cross and their webpage that address this issue.

They first note that there is not a comprehensive treaty regarding the full range of weapons that could be put into space and used, but that there are existing treaties that can give a framework for at least an understanding of the intent behind the treaties.

The 1967 Outer Space Treaty was signed by the United States and 107 countries and follows its predecessor non-militarization treaty, the Antarctic Treaty of 1961. Throughout the preamble and the articles, there is a constant theme of encouraging space exploration, cooperation, and peacefulness.

However, and this is a big however, the only specific prohibition against weapons in space are in Article IV and they talk about not putting WMD (weapons of mass destruction) or nuclear weapons into space, putting them onto any kind of installation on any celestial body, or station them in any way.

States Parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.

Also in Article IV is the provision that military bases of any kind are prohibited, as is the testing of any kind of weapon:

The moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the moon and other celestial bodies shall also not be prohibited. 

And so while the treaty has all sorts of language about peace in space, there is a glaring exception in the treaty in that it only addresses WMD.

That said, the following articles of that treaty make it clear that militarization of space is a no-no:

Article I:

The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international co-operation in such investigation.

 Article II:

Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.

 Article III:

States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding.

Article XI:

In order to promote international co-operation in the peaceful exploration and use of outer space, States Parties to the Treaty conducting activities in outer space, including the moon and other celestial bodies, agree to inform the Secretary-General of the United Nations as well as the public and the international scientific community, to the greatest extent feasible and practicable, of the nature, conduct, locations and results of such activities. On receiving the said information, the Secretary-General of the United Nations should be prepared to disseminate it immediately and effectively. 

Further, there are other agreements and treaties that expand upon the ideas first laid out in this treaty, including nuclear non-proliferation, assigning liability in the case of one State damaging another State's property, and so forth.

And so, in the end, is the militarization of space illegal? While there are many different ways to interpret the language of the treaty and the legal framework it exists within, my opinion (and this is purely my opinion) is that it would be illegal under the following reasoning:

• It would violate Article I, in that militarization of space is not in the interest of all countries nor in the interest of mankind (space being declared the province of all mankind),
• It would violate Article II, in that militarization of space, by necessity, requires the appropriation of territory through claims of sovereignty, 
• It would violate Article III, in that militarization does not promote international co-operation and understanding,
• It would violate Article XI, in that secrecy is the lifeblood of military operations. "Loose lips sink ships" goes the old adage - and so secrecy will be the hallmark of any attempt to militarize.
• I believe the focus on Article IV of the treaty by those who would argue that the militarization of space is legal is a red herring. While it's unfortunate that it only addresses WMD in terms of specific prohibited weapons in space, and also only specifies general prohibitions on celestial bodies, I believe that language, when read with all the other articles, clearly indicates that militarization in space is not to be done. 

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Questions and comments always welcome!