OUTER SPACE AS THE ULTIMATE HIGH GROUND- ANALYSIS OF LEGALITY

Armies all over the world have always sought high ground to peep into enemy concentrations and observe their troop movements in order to achieve battle dominance. This objective has invariably been decisive for the outcome of the war. In the past, this was achieved by capture of a raised geographical feature on the ground, or through an observer lofted by a flying kite, or in the gondola of a hot-air balloon, or in a chopper, or aboard an aircraft. All these options had advantages in their respective times, yet they also placed severe limitations. Now, with the conquest of outer space, the ultimate high ground has been found and is rapidly being put to use in myriad ways. The potential of this frontier in synergizing the traditional means of intelligence is tremendous.

Reconnaissance and surveillance through dedicated satellites are the commonest exploitation of the medium of the outer space. It is now well established that space assets can serve as real-time informers for war-theater dominance and influence the outcome of battles. The importance of space satellites for their scope of surveillance, precision in pinpointing enemy positions, detection of troop movements, and speed of data transmission back to earth station for analysis and conversion to command instructions is of remarkable advantage. Consequently, concepts of command and control have undergone a sea change. Speedy decision-making based on real-time information is of essence and precision targeting with smart guided weapons help minimize collateral damage even as they significantly augment military might.

This function is best performed by sensor satellites, like SBIRS (space-based infra-red systems). These are already envisaged as space-sensor-platforms for military reconnaissance, surveillance and early-warning systems to ensure a robust national missile defence cover for the USA. The existence of espionage satellites for military intelligence is also well known. Such satellites contribute to battle-characterisation, technical intelligence and overall space dominance by assuring hi-resolution information and speedy crunching to aid effective command and control.

These instrumentalities are regarded as passive satellites and considered as auxiliary aids for defensive assistance. These are not offensive strike space weaponry and thus escape prohibitions under the Outer Space Treaty of 1967. Besides, SBIRS satellites also bear multifarious civilian commercial uses like imagery for remote sensing, geodetic surveys, cartography, forecasting meteorological conditions and similar other applications. Therefore dual uses of this technology can mask varied purposes.

 The other category of passive satellites that also support battle-watch comprise communication and navigation satellites that primarily facilitate connectivity. For example, the GPS (ground positioning system) provides precision in time and positional co-ordinates. This service is now widely used for navigational purposes and traffic control in the air, at sea, and on the ground even as its utility seems to be ever expanding. Military has also made copious use of this innocuous facility for GPS-aided weapons and GPS-guided munitions, as also fighter control in battle areas, particularly in Kosovo war, Iraq, and Afghan conflicts. GPS is aptly suited for monitoring troop movements on the ground as well as search and rescue missions because of its high accuracy on grid-references. Another usefulness of communication satellites lies in cellular networks that enable high-speed informational grid and multi-media facilities such as voice and image transmissions that virtually connect the battleground to the combat commander.

The military is progressively making use of these systems for communication eavesdropping (SIGINT) in peacetime, as well as during war. Thus, space communication, indeed, covers a wide spectrum of service products, some of them specifically customized for military usage. Its further applications and other ramifications are expected to grow exponentially and that too, very soon.

Today, it is fait accompli that outer space has been militarized. Satellites offering dual use, where either military lends facilities for civilian utilities or private assets in outer space partly augment military missions, are common and numerous. Thus, a separation of exclusive military and pure civilian satellites is difficult by definition, and may even be misleading. To compound the situation further, the number of mixed assets in outer space is likely to grow in the future. The stage where outer space was a protected sanctuary for scientific exploration and peaceful activities is long over. The outer space is “militarized” already and there is clamour for broad-based and enhanced defence capabilities and diversified service products from space assets.

There is, however, a strong movement towards preventing weaponisation of outer space. The existing legal regime of outer space and its treaty-domain does not specifically prohibit operation of passive satellites that are non-offensive, non-strike vehicles. Further, the Outer Space Treaty does not contain any, inclusive or exclusive, definitions of peaceful uses, or militarization, or weapons, or other allied terms. This leaves ample room for vested interpretations.

If the benchmark is the purpose and utility of the vehicle, it would appear too presumptuous to tarnish all military connections as opposed to peaceful activities. Therefore, one cannot term all military utilities as “non-peaceful” merely because of military usage per se. It is pertinent to adduce here the provision of the Moon Agreement, which permits deployment of military personnel and facilities and equipment on the moon for scientific exploration. Lawyers have long wrestled on this proposition and it is now practically accepted that mere use of a facility by the military or vice versa does not render it offensive unless the objective is to shoot-to-kill a target. In conclusion, the outer space can validly and lawfully serve as the ultimate high ground in military operations and this proposition does not foul with the existing corpus of space law.

Dr. G. S. Sachdeva is Guest Faculty in Space Law at the Center for International Legal Studies, SIS, Jawaharlal Nehru University, New Delhi

(Disclaimer: The views expressed in this article are those of the author and do not represent the views either of the Editorial Committee or the Centre for Land Warfare Studies)