The Legal and Strategic Imperatives of Space

 

Critical infrastructure is a crucial part of community systems, essential for maintaining societal functions and ensuring the health, safety, and welfare of citizens. This includes energy and water supplies, transportation and communication networks, healthcare, police and emergency services, the financial sector, and food supply chains. Space might seem distant to the average person, but it significantly impacts our daily lives, influencing banking, agriculture, weather forecasts, and television. Notably, space is not that far away—the Kármán line, considered the boundary between Earth's atmosphere and outer space, is only 100 km above the Earth's surface.

Our society relies heavily on infrastructure and satellites for our daily functions. Space is a dual-use domain, where a satellite that appears to be for weather observation can also serve military purposes, or both. Most satellites serve multiple functions, including civilian, commercial, and security roles, making them integral to our critical infrastructure and potential targets for adversaries. For instance, an hour before Russia's invasion of Ukraine, Russian hackers targeted the US satellite company Viasat. Viasat, which provides communication services to numerous homes and businesses, was also used by the Ukrainian military for command and control. The attack involved malware that targeted Viasat modems and routers, erasing all data, rebooting the machines, and rendering them permanently disabled.

The importance of secure and global communication connections has increased, as elaborated by Senior Specialist Jonna Kuusivuori in her column. As space infrastructure becomes more vital, protecting it from external military threats is increasingly relevant. Military operations in space are not lawless; they are regulated by international laws, as pointed out by Lieutenant Senior Grade Juuso Liekkilä in his column on military use of outer space. These regulations are articulated in various legal and normative frameworks, including international space treaties, UN General Assembly resolutions, the UN Charter, and international humanitarian law (IHL). Unlike UN resolutions and guidelines, conventions adopted by the General Assembly are binding on the states that sign and ratify them.

The space treaties were negotiated and adopted within the UN Committee on Peaceful Uses of Outer Space (UNCOPUOS). The first four treaties include the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies (Outer Space Treaty, OST). The OST prohibits the deployment of weapons of mass destruction (WMD) in space and mandates responsible behavior in space activities. Although Article IV of the OST does not explicitly ban conventional weapons in space, it prohibits placing nuclear and other WMDs on celestial bodies, including the Moon. 

The absence of a specific ban on conventional weapons in space raises questions about their permissibility, potentially allowing for the stationing of other weapons, such as laser weapons or frequency jammers. Additionally, the OST does not prohibit firing intercontinental ballistic missiles (ICBMs) or other WMDs through space, as long as they do not enter orbit or are based in space. While the OST does not ban military use of outer space, it mandates demilitarization of celestial bodies and prohibits the deployment of WMDs and nuclear weapons in space.

Various proposals for new legally binding agreements, such as the draft Treaty on the Prevention of an Arms Race in Outer Space (PAROS) and the draft Treaty on the Prevention of the Placement of Weapons in Outer Space (PPWT), have been unsuccessful due to differing state interests. In addition to space-specific treaties, the Partial Test Ban Treaty (PTBT) is relevant as it prohibits nuclear weapons tests in the atmosphere and outer space. Existing legislation does not include a legally binding ban on the development, testing, and use of conventional weapons in space.

International humanitarian law (IHL) constraints military operations during armed conflicts, including those in outer space. IHL aims to protect civilians on Earth from the effects of military operations in space, emphasizing principles such as distinction, prohibition of indiscriminate and disproportionate attacks, and taking feasible precautions in attacks. Increasing reliance on space also increases vulnerability. Space threats can target various segments of the space system, making it enough to disable one segment to render the system useless. IHL rules are particularly relevant given the increasing number of dual-use space objects, as disrupting their civilian functions can impact large parts of our society on earth. International law also protects certain objects and persons in conflict, prohibiting attacks on indispensable resources and medical facilities, even during military space operations.

The number of actors in space is growing, and the development of anti-satellite (ASAT) capabilities continues. Existing legislation does not explicitly prohibit ASAT weapons, except for WMDs. The space industry plays a crucial role in refraining from developing such capabilities and advocating for their regulation. The Space Industry Statement in Support of International Commitments to Not Conduct Destructive Anti-Satellite Testing has garnered support from 49 companies across 14 countries, emphasizing the importance of protecting the space environment and promoting sustainable development in low Earth orbit. These commitments build on the UN General Assembly resolution on destructive direct-ascent anti-satellite missile testing passed in December 2022.

UN General Assembly resolutions, although non-binding, contribute to the consistency of the outer space legal regime and the prohibition of aggressive actions in space. Since 1959, the General Assembly has adopted numerous resolutions on the peaceful use of outer space and the prevention of an arms race in space. These resolutions, widely supported and accepted, can be seen as developing customary international law regarding the prohibition of force in space. The lack of aggressions towards space objects during inter-State wars, despite the technical capability demonstrated in past ASAT tests, may indicate a common practice among states.

Space is inherently global, affecting all users in any conflict—perpetrators, victims, and bystanders alike. Even in conflicts where NATO Allies are not involved, their space capabilities could be directly affected or destroyed. Countries like Finland increasingly rely on space for various missions, including crisis response, disaster relief, and counterterrorism, all of which depend on information from space. Finland, the EU, and civil society must continue to advocate for responsible behavior in space and address challenges and threats to its peaceful use, in compliance with international law, especially within the United Nations framework.

While a legally binding instrument might be possible in the future, states should voluntarily adopt measures to keep outer space sustainable, free, and safe for all.