Dr Alexander Simmonds

The positioning of a space weapon in Earth orbit by the United States will not come as a surprise to those who follow this field.

It is important to note from the outset that the use of outer space has been inherently intertwined with military purposes since its beginning. The Russian Cosmonaut Yuri Gagarin along with Alan Shepherd and the other Mercury astronauts in the United States were all active-duty military personnel and many, if not most, space activities have a military aspect to them. Space-based telecommunication facilities and remote sensing (satellite) data are used daily by the militaries of Earth.

The positioning of a weapon in outer space is not inherently unlawful or illegal. There is little detail about the weapon itself although it is likely to be an anti-satellite or ‘ASAT’ weapon.

Whilst many interested individuals may look to Article IV of the Outer Space Treaty, Article III is arguably more relevant: “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.” What this means for space weapons is that they must be used in a way that conforms with existing international law on Earth, including accepted rules on armed conflict. In this sense, a space weapon is like any other and should not be used in a way inconsistent with the United Nations Charter or international law.

However, Article IX of the Outer Space Treaty provides that parties should act with “due regard to the corresponding interests of all other States Parties to the Treaty.” As such, the discharging of any space weapon must be proportionate and executed in a manner not calculated to adversely impact non-hostile states.

That the United States has placed a weapon in orbit is not something that will come as a shock to many working in the field of Space Law. At least as far back as the 1998 Rumsfeld Commission the objective of defending space assets has been debated. What remains to be seen is whether other states will follow in their footsteps. If so, we are likely to see a gradual watering down of one of the key purposes of early space law, or at least one that the original framers had in mind, that space should be used for peaceful purposes.