At the beginning of every episode of Star Trek, Captain James T. Kirk in a robotic voice would claim that “space” is the “final frontier” “where no man has ever gone”. Although India’s recent testing of “anti-satellite” missile technology may not be a place “where no man has gone before”, it is still an achievement of a rare kind. India became only the fourth nation state in human history to have an overt satellite striking capability.
Why Should India Bother About International Law?
Back in 2005, General Lance Lord, a four star general of the U.S Air force’s Space Command had notably impressed upon the world that, “Space superiority is the future of warfare. We cannot win a war without controlling the high ground and the high-ground in space”.
After Prime Minister Modi’s announcement, a lot of the media scurried their acts together to “analyze” on prime time news whether India violated “international law” by conducting such a test. While there seems to be a consensus amongst international law commentators about the legitimacy of “non-weapon” assets (like spy satellites), putting a weapon in space seems to be the moot point.
A famous professor of international law had once told me, “International law is like a ghost, everyone agrees it exists but no one seems to be able to point at it”. Though normative international rules existed even before the peace of Westphalia, the horrors of the great wars quickened the process of crystallization of international law.
In the public discourse especially in India, international treaties are generally thought to be the body of ‘international law’. The understanding is half baked, the entire gamut of international law can be traced to Article 38 of the charter of the International Court of Justice or the ‘ICJ’.
What Does the International Law Say?
In order to establish whether Operation Shakti, violated ‘international law’, it is has to pass the dual test of-
1. International treaty obligations which includes Outer Space Treaty, 1967 and
2. International customary law.
Let’s start with examining whether India violated Treaty Law?
Article III of the Outer Space treaty is especially relevant, which states that “states parties” to the Treaty shall carry on activities in space, in accordance with international law and the UN Charter, in the interest of maintaining international peace and security among other things.
The United States, China, Russia, and various other countries in their space policies assert that the “peaceful use” of space under the Outer Space Treaty includes ‘defensive maneuvers including the use of weapons’ as per Article 51 of the UN Charter.
Correspondingly, United Nations Convention on the Law of the Sea (UNCLOS), with respect to the use of sea, also has a provision which mandates that sea should be used for “peaceful purposes”. However, we all know that nation states support or rather celebrate the prowess of a true blue water navy.
Article IV of the Outer Space Treaty contains two specific prohibitions on weaponization of space which are
(a) Placing nuclear weapons or any other weapons of mass destruction, and
(b) The weapons are not be used on the moon and other celestial bodies and the state parties should not station such weapons in space.
It is also interesting to note that during the negotiations of the Outer Space Treaty, the U.S and the Soviets deliberately omitted of the term “outer space” from Article IV as a premeditated elimination of an absolute ban on military activities in space. The limitations were restricted to celestial bodies.
What Is Customary International Law on Space Weaponization?
A norm becomes customary international law when it satisfies the following elements-(a) State practice (if the custom is widely practiced/abstained from by states) and
(b) Opinio Juris (if the states acting on/abstaining from such practice believe it is legally incumbent upon them to act in that manner).
The difficulty of accessing if weaponization is a violation of customary international law is that since only a handful of countries are in that club, the same cannot be a “widely practiced” norm and even abstentions can be attributed to the lack of ability rather than Opinio Juris on part of the abstaining state.
The ICJ, however, has addressed this quandary in its famous pronouncement in the North Sea Continental case by bringing in two important sub-sets of customary international law called ‘accelerated customs” and “affected party custom”.
This essentially means that (a) wide state practice and (b) a protracted period of time are not essential requirements for the formation of a ‘custom’.
Hence any custom which is uniformly practiced or abstained from by relevant players, i.e. the space club in this case (as opposed to the world at large) can become a binding custom.
India Violated Neither the Treaty, Nor Any Custom
Various nation states (with the exception of Japan) in their reaction to all historical testing of “A-sats” by the U.S, Russia and China, have never asserted that such testing are “illegal”. The U.S, India, United Kingdom, Canada, Australia and few other countries reacted to Chinese testing using expressions such as “regrettable”, “very troubling”, “destabilizing”, “strong concern”, “may have negative impact on peace”.
However, none of these countries used the term “illegal”. It is interesting to note that even Japan, which was the only country calling the Chinese testing outrightly “illegal” in 2008, authorized military use of space by passing legislation.
Further, in the meeting of the first committee of the Sixty-Seventh United Nations General Assembly, countries such as Brazil, Kazakhstan, and Japan expressed their concerns about testing weapons in outer space though never terming it as “illegal”.
In the ordinary course, the argument that abstention or silence is affirmation of a rule may seem like a hogwash but in the context of international law, this clearly establishes Opinio Juris on part of such states that such tests may be anything but “illegal”.
As one of the leading scholars of international law had aptly put it, “we look to words as well as deeds, and to silences as well as inactions.”
Finally, the European Union's Draft Code of Conduct for Outer Space Activities also accepted “self-defense” as an exception to space weaponization. The carve-out of self-defense clearly demonstrates that the countries of the European Union have also acquiesced to such an exception.
C K Prahalad’s classic essay “Strategic Intent” is quite impressive, especially when you apply it to the world order. India is slowly gaining this fabled “strategic intent” at least in the sphere of national security. It is time now to go full throttle with the rocket. Pun intended of course!
(Pratik Patnaik is a lawyer and a constitutionalist. He can be reached at @chiefdissenter. This is an Opinion piece, and the views expressed are the author’s own. The Quint neither endorses, nor is responsible for them.)
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