In recent years, the incorporation of space into national defense strategies has intensified, with the deployment of military satellites becoming increasingly common.
As Commissioner for Internal Market, Thierry Breton, said: „Space plays a vital role in both our economic and security interests, but it is also an increasingly contested arena with competing interests vying for dominance. The EU's new strategy marks a paradigm shift, aimed at bolstering our resilience in and from space. It bridges the gap between space and defence, breaking down silos and strengthening our flagship programs in space for security and defence purposes.”
As military space operations grow, so do the associated challenges, particularly in navigating the application of space laws to governmental military activities and adhering to sustainability principles outlined in international agreements and domestic space regulations. Key concerns include the conduct of anti-satellite (ASAT) tests and the proper registration of military space assets. The intersection of military operations in outer space with sustainability concerns presents a multifaceted dynamic that warrants careful examination. While military activities may initially appear similar to civilian applications, they introduce unique considerations. Depending on the perspective, the escalating military utilization of outer space can be seen as either a formidable challenge or an opportunity to bolster sustainability within the space domain.
Challenges in Applying Space Regulations to Military Activities
One of the primary challenges in applying space regulations to military activities lies in the interpretation and implementation of these regulations. While commercial operators are routinely subject to established rules, the regulatory landscape becomes obscured when addressing military space activities. The specific requirements and priorities of spacefaring nations often influence the interpretation of regulations, leading to ambiguity in their application. This ambiguity presents a growing challenge to regulatory frameworks and raises questions about the integration of military elements into space law and their alignment with established principles and in particular, the technical safety standards and sustainability. Furthermore, the rapid advancement of military and defense applications in space exploration raises governance concerns at international, national, and regional levels, including within the European Union (EU) framework.
As has been admitted by the secretary of defence of the US: “for decades, the U.S. military conducted space activities with little regards for how they polluted orbits with debris that posed threats to existing and future space - based assets” and “in the past, the focus was primarily on achieving military objectives, which not much considerations given to the long-term sustainability of space environment”
The Principle of Sustainability in Space Law
In recent years, sustainability has emerged as a pivotal principle guiding space strategies, laws, and legal endeavors. This principle finds expression at various levels, including the United Nations (UN), the EU, and in national space strategies and legislation. The concept of sustainable development in outer space extends to both civilian and military applications, although legal frameworks predominantly emphasize requirements for commercial operators. While this alignment with civilian laws seems intuitive, uncertainties arise concerning the military's utilization of outer space, often excluded from conventional licensing regimes and consequently subject to questionable adherence to technical standards aimed at mitigating space debris and ensuring overall sustainability in space exploration.
International space law exhibits notable gaps in addressing military activities in space, particularly regarding sustainability. One such gap pertains to the application of sustainability principles to both civil and military space exploration. In response, sustainability has been introduced into soft law measures, such as the UN Guidelines for the Long-Term Sustainability of Outer Space Activities, indicating the need for careful consideration regarding its application to military space activities.
Academic initiatives on regulating space military operations can also play an important role in raising awareness of the need to apply the principles of sustainable development in military operations in space. An example of such initiatives can be the project launched in May 2016, the Manual on International Law Applicable to Military Uses of Outer Space (MILAMOS) Project aims to develop a widely-accepted manual clarifying the fundamental rules applicable to the military use of outer space in time of peace, including challenges to peace.
It consists of 52 Rules of the world’s first manual clarifying international law applicable to military uses of outer space. Its authors stated: „It is our firm belief that this unique and innovative project will have a positive impact and influence on the future and sustainability of humankind’s ventures in outer space.”
Institutionalization of Space Activities and Responsibilities
The proliferation of space activities in the context of defense and security entails the institutionalization of activities and the separation of responsibilities between bodies responsible for military space matters and commercial space activities. Such proliferation, especially at the national level, may impact the precise application of norms of responsible behavior. This raises fundamental questions about the roadmap for applying sustainability postulates to the military use of space and how these postulates can be made enforceable. Additionally, how can the challenges of making military activities sustainable be turned into an opportunity that also enhances peace and security?
Analyzing ASAT Tests and Their Permissibility
One of the critical issues in military space activities is the conduct of ASAT tests. These tests pose significant risks to sustainability due to the generation of space debris, which can have long-lasting detrimental effects on the space environment. Efforts have been made at international and European levels to address the permissibility of ASAT tests and to develop measures to halt their conduct. For example, the Moratorium on ASAT testing initiated by the United States in 2022 represents a unilateral commitment to reducing the risk of space debris. Similarly, the EU has proposed comprehensive approaches to the space sector that emphasize sustainability and responsible behavior.
Licensing Regime for Military Space Activities
Another critical aspect is the regime of licensing space activities, particularly the inclusion of military space activities in concise licensing frameworks. At both international and national levels, space law primarily focuses on civilian applications, leaving military matters in a regulatory grey area. Military space activities are often not subject to licensing, resulting in a lack of clear adherence to technical standards, particularly concerning space debris prevention and sustainability. This gap poses a significant threat to the future of human activities in space, both in terms of the security of space assets and ground security.
Governance of Military Space Activities
The governance of military space activities and the role of space agencies are crucial for achieving sustainable and responsible space exploration. International and national "hard laws" play a significant role in this governance. Additionally, acts of political will in areas not covered by binding laws can shape international standards, good practices, and eventually binding custom, which serve as sources of international law. Analyzing space strategies and space legislation across international, regional, and national levels reveals the ongoing development of strategic documents tailored specifically to the space defense domain. This process involves institutionalizing activities and delineating competencies between bodies responsible for space military issues and commercial space activities.
The Role of International and Regional Bodies
International and regional bodies, such as the UN and the EU, play crucial roles in achieving sustainability goals in space activities. These organizations have the potential to shape international standards and promote responsible behavior in outer space. The UN Guidelines for the Long-Term Sustainability of Outer Space Activities provide a framework for sustainable space exploration, and their principles can be extended to military activities. Similarly, the EU's comprehensive approach to the space sector emphasizes sustainability and responsible behavior, setting a precedent for other regions to follow.
Opportunities for Sustainability in Military Space Activities
Despite the challenges, the military's involvement in space activities also presents opportunities to bolster sustainability within the space domain. By integrating sustainability principles into military space operations, nations can enhance the security and stability of space assets and contribute to the overall sustainability of space exploration. For instance, adopting stringent measures to prevent the generation of space debris during military operations can mitigate long-term risks to the space environment. Additionally, the development of international standards and good practices for military space activities can promote responsible behavior and enhance global cooperation in space exploration.
Conclusion
The intersection of military space activities with sustainability concerns presents a complex and multifaceted dynamic that requires careful examination. While challenges exist in applying space regulations to military activities, opportunities also arise to enhance sustainability within the space domain. By integrating sustainability principles into military space operations, nations can contribute to the long-term security and stability of space assets and the overall sustainability of space exploration. International and regional bodies, such as the UN and the EU, play crucial roles in shaping standards and promoting responsible behavior in outer space. Through coordinated efforts and the development of comprehensive legal frameworks, the challenges of making military activities sustainable can be turned into opportunities that also enhance peace and security in space exploration.
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