Tejas Bharadwaj
Since the incident surrounding the Chinese balloon that was brought down by the U.S. over its airspace in February 2023 captured world attention, there have been reports claiming such balloons being spotted over Indian airspace in the past.
Indian media has reported that balloons were spotted over India’s Andaman and Nicobar Islands in January 2022 when a tri-service military drill exercise was in progress. These were apparently similar to the ones that floated in U.S. airspace.
An official statement from the Indian government in this regard is awaited.
Meanwhile, it is paramount for India to evaluate threats arising from air or space from any adversary, considering that India is situated between two nuclear-armed neighbors with which it has unresolved border disputes, as any miscalculated act may lead to conflict, threatening the peace of the region.
At a time when countries and companies are seeking to develop strategic aerial technologies, this article analyses whether the re-entry of space objects can be militarized by states and how would they affect India’s obligations under international law.
Although countries are operating sophisticated surveillance satellites, air balloons offer certain advantages. Satellites orbiting the earth can be detected as they near a point of observation, often cautioning the subjects to conceal their acts. However, balloons can remain relatively stationary and undetected. They can be comparatively maneuvered and stationed over a specific spot and offer better imaging capabilities over specific spots. They are easier to build and launch and are also expendable. The strategic advantage is reflected in the statement from U.S. defense officials that the Chinese surveillance balloon purposefully transited over sensitive areas for a long duration of time.
However, operating a balloon in an airspace for prolonged surveillance may result in violation of a country’s sovereignty and could be shot down.
Therefore, surveilling countries may repurpose a space object from outer space re-entering as a balloon in the airspace of another country for surveillance.
Considering that space objects use parachutes for a controlled re-entry, using an improvised version of a parachute for prolonged surveillance over a location upon re-entry cannot be ruled out in the future. With the development of reusable launch vehicles and growing support for developing multilateral agreements on controlled re-entry, it may be probable for countries to pursue such capabilities in the future.
There have been instances of uncontrolled re-entries of space objects impacting territories of other countries. However, it becomes a concern if any country performs a controlled re-entry for conducting prolonged surveillance or for other military activities, considering that it may use such measures to claim immunity that is afforded to space objects under international law.
Regarding international air law, the Chicago Convention states that countries exercise exclusive sovereignty over their airspace. However, concerning space law, The Outer Space Treaty, 1967, prohibits countries from claiming outer-space sovereignty, thereby permitting a country to operate space objects over others, without violating their sovereignty.
Further, the application of space law is not limited only to “Space Objects” in Outer Space but is also extended to “Space Objects” that re-enter the airspace of any country and impact them. This can be seen in Article VIII of the Outer Space Treaty, which obliges countries to return the space object to the owner country, if they find them and further expounded in Article 5 of the Return and Rescue Agreement, 1968, which obliges countries to notify the U.N and the owner of space objects found on their territory and to facilitate the return to the owner state.
In that case, will countries return such a space object to the operating country in an event where the surveillance object has re-entered from space?
Analyzing state practices pursuant to Return and Rescue Agreement, according to the U.N. Registry, components of China’s Long March-7 launch vehicle found by the U.S. upon their re-entry, were notified to the U.N. and returned to China in 2016. This practice clearly differs from the recent balloon incident where the U.S. refused to return the debris to China.
Further, neither the Outer Space Treaty nor the Return and Rescue Agreement defines a “Space Object” or when or where an object ceases to be a space object, creating ambiguity over the governance of such an object re-entering the airspace. Therefore, using space objects repurposed as surveillance crafts upon re-entry can be used to claim immunity for space objects, against actions on them in the airspace.
India, too, has been affected by the uncontrolled re-entry of space objects in the past. For example, as reported by the Indian Space Research Organization (ISRO) in May 2022, components of China’s Chang Zheng 3B Rocket impacted parts of Gujarat.
Similarly, debris suspected to be components of Chinese CZ-3B rocket bodies impacted parts of Maharashtra. Thus, when any re-entering object threatens India’s security, it becomes important for India to clarify its posture on the treatment of such re-entered “Space Objects,” considering India is a party to the Chicago Convention, the Outer Space Treaty and the Return and Rescue Agreement, and bound by them while responding to such threats.
In February 2023, the U.S. released “Tenets for responsible behavior in Outer Space” guiding its defense establishments to notify and inform affected parties about anomalous re-entry of space objects and risks of re-entry respectively. However, there is no clarity on how the U.S. will respond to the re-entry of adversarial space objects.
Considering the threats, India’s Department of Space and the Defense Space Agency (DSA) can release a statement/doctrine that defines a “space object.” This may provide clarity on whether to treat an adversarial object re-entering from outer space under the governance of territorial air space or under space law. This will further ensure that India can clearly counter such objects and will not be obliged to return them to the adversary under Outer Space Treaty and Return and Rescue Agreement.
Lastly, at the U.N. Open Ended Working Group on Reducing Space Threats in January 2023, India’s Ambassador Anupam Ray reiterated India’s concerns on the current subjectivity that prevails internationally regarding the perceptions of space threats. To redress this, it is important to have clarity and uniformity on the legal definitions of space exploration and to have countries agree on uniform interpretations of the terminologies in the space treaties.
Uniform interpretations of definitions are important, considering domestic laws vary. For example, U.K’s Space Law defines “Space Activities” to include balloons carrying crew to the stratosphere (Near-Space), whereas Australia includes no references to the stratosphere or balloons in its definition of a space object.
Variations in state practices create ambiguities over interpretations of international laws.
Thus, India and other like-minded countries must look to reduce the subjectivity of such space-based threats by clarifying the terminologies of space treaties, including the definition of “Space Objects and component parts” in the Return and Rescue Agreement. This plurilateral effort could be coupled with India releasing a statement, as mentioned above. Further forging consensus on definitions through soft law instruments can be an initial step that India could undertake. This can form a part of India’s “Strategic Objectivity” in norms governing space threats.
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