The legal status of planetary defense and its revelation

Chzhan Chzhan' ORCID: 0000-0001-8366-9807 PhD in Politics Researcher of Russian-Chinese Center for Comparative Law, Shenzhen MSU-BIT university 518172, China, Shenzhen, Guojidaxueyuanlu str., 1, office 657 zhan.zhang@yandex.ru Other publications by this author

In' Yuikhai Doctor of Law Professor, Russian-Chinese Center for Comparative Law, Shenzhen MSU-BIT university 518172, China, Shenzhen, Guojidaxueyuanlu str., 1, office 1003 yinyh@szu.edu.cn Other publications by this author

Introduction

Planetary protection in the sense of space law research refers to space activities in which an actor displaces an asteroid from its original orbit or destroys it directly with the help of a nuclear explosion or other technical means in order to avoid a direct collision of an asteroid with the Earth in the event of a risk of an asteroid colliding with the Earth in near-Earth orbit. Technical planetary protection includes asteroid monitoring and early warning and asteroid collision protection. The object of research in this article relates only to the protection against asteroid collisions. Asteroids orbit the Sun, their sizes range from 1 meter to 800 kilometers and are widespread in the Solar System^[13]. As of March 4, 2023, more than 31,396 near-Earth asteroids have been discovered, the number of near-Earth asteroids that NASA defines as a potential threat to Earth (Potentially Hazardous Asteroid, PHA) is 2,324^[4]. Planetary defense has attracted the attention of the international community since the 1990s, but at that time it was not discussed as an urgent topic, due to the low probability of asteroids colliding with Earth, high technical complexity and high cost of planetary defense projects. Despite the low probability of asteroids colliding with Earth, this has happened many times in history, which has led to environmental disasters on Earth and the extinction of living beings. If the asteroid collides with Earth again, it can lead to human casualties and material damage in a certain range, and in the worst case, it will lead to catastrophic consequences at the level of destruction of civilization. In risk analysis, this is an event with low probability and high losses.^[16][2] After the fall of a meteorite in the Chelyabinsk region of Russia on February 15, 2013, asteroid impacts and planetary defense equipment have begun to attract more attention in recent years, especially from the leading space powers. Countries and regions such as the United States, Russia and the European Union also began to refocus on the development of planetary defense technologies in 2013. As for the technical completeness, on September 27, 2022, NASA completed the first test of planetary protection technology in the history of mankind, which changed the trajectory of an asteroid, namely the “Double Asteroid Redirection Test” (DART). Deflection of an asteroid from its original orbit by impact of a spacecraft^[5].

Technological types of planetary defense

From the point of view of legal research, referring to the classification of conventional weapons and weapons of mass destruction in international law and space law, existing planetary defense technologies can be divided into planetary defense by nuclear means and planetary defense by other non-nuclear means, depending on whether the planetary defense technologies used are related to nuclear explosions. Planetary defense by nuclear means can be further divided into two types: one is to force an asteroid to deviate from the orbit in which it originally crashed into the Earth, using the force created by a nuclear explosion to avoid an asteroid colliding with the Earth, and the other is to directly destroy the planet with with the help of a nuclear explosion, so that she could not crash into the Ground.^[13][16] Non-nuclear methods of planetary defense include the use of kinetic strikes to change the orbits of asteroids and the use of long-term forces to slowly change the orbits of asteroids.^[15] Nuclear and non-nuclear planetary defense methods have their own characteristics, advantages and disadvantages, but it is generally believed that a nuclear explosion is the only planetary defense technology that can effectively respond to extreme situations with a short early warning time and a large asteroid size.^[13][16] However, the technology of planetary defense with nuclear means can be classified in international law as a weapon of mass destruction, and its testing and use are limited by international law. While non-nuclear methods of planetary defense are subject to lesser legal restrictions, which will be discussed below.

International Planetary Defense Mechanism

Currently, an international mechanism has been established within the framework of the United Nations to conduct planetary defense missions. In February 2013, the Scientific and Technical Subcommittee of COPUOS decided to establish the International Asteroid Warning Network (ICOA) and the Advisory Group on Space Mission Planning (CGPCM) with the support of the United Nations General Assembly. The ISOA, which is an international mechanism for responding to the threat of near-Earth objects (NEOS), is designed to coordinate the activities of relevant organizations and institutions for monitoring, tracking and locating NEOS. It includes national space agencies and research institutes from Europe, Asia and the Americas.^[3] The National Space Agency of China, NASA, the European Space Agency and a number of Russian research institutes have joined the ISSOA. The objectives of the CGPCM also include coordination and promotion of cooperation between relevant institutions, as well as the creation of an international NEO collision response mechanism^[7], which includes national and regional space agencies such as the National Space Agency of China, NASA, the Russian Federal Space Agency and the European Space Agency.

Features of planetary defense

Planetary defense differs from most other types of space activities in two main specifics. Firstly, from a subjective point of view, planetary defense activities are inherently aimed at maintaining the survival and development of mankind and the continuation of human civilization. This is a peaceful space activity that corresponds to the principle of common interests; secondly, from an objective point of view, planetary defense technology is actually associated with the use of nuclear and other conventional space weapons, and its legal status remains uncertain. However, it is precisely this feature of maintaining peace with the help of space weapons that makes planetary defense legally controversial and requires further analysis based on sorting out existing legal norms.

From a subjective point of view, activities in the field of planetary defense pursue peaceful purposes and differ from other types of space activities for military and commercial purposes. Protection from major disasters that could destroy human civilization and damage minimization are the goals and characteristics of planetary defense. Compared with other types of space activities for peaceful purposes, the importance of planetary defense is more reflected in maintaining the survival and continuation of human civilization, which is of great importance. A successful planetary defense mission will bring tangible benefits to all of humanity, not only to countries with space capabilities, and not only to countries with planetary defense capabilities. In addition, planetary defense pursues peaceful goals, which is one of the key grounds for its legitimacy in space law. The exploration and use of outer space for peaceful Purposes is the central concept of the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereinafter referred to as the “Outer Space Treaty”), as well as the entire legal system of outer space. The preamble to the Outer Space Treaty states that the States parties recognize that the exploration and use of outer space for peaceful purposes is a common interest of all mankind, and are convinced that the exploration and use of outer space should be carried out for the benefit of all peoples, regardless of their level of economic or scientific development. The principle of common interests, enshrined in paragraph 1 of article I of the Outer Space Treaty, states: “The exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries”^[11]. From the point of view of the subjective purpose of planetary defense activities, these activities are peaceful and consistent with the principle of common interests.

However, from an objective point of view, the technical characteristics of planetary defense means determine that they are associated with the use of conventional weapons in space and even nuclear weapons, which means that planetary defense activities may contradict the norms of international law concerning the non-use of force, as well as the principle of limiting the militarization of outer space. There is no clear and specific legal provision on planetary defense activities in the existing space treaties, and there are a number of legal issues that urgently need to be discussed and resolved in this area. Therefore, it is necessary to first conduct a preliminary study of the legal status of planetary defense, that is, the question of whether it complies with the current norms of international law. On the other hand, if activities in the field of planetary defense are not prohibited by current legislation, can they be regulated by international law in order to prevent the misuse of planetary defense technology in an arms race in space and at the same time ensure that its use truly meets its goals of maintaining human civilization and complies with the principle of common interests? These issues are discussed below.

The legal status of planetary defense within the framework of the current legislation on the control of space forces

The subjective purpose of planetary defense activities aimed at maintaining the survival of mankind meets the needs of peaceful exploration and use of outer space, however, the achievement of this goal is associated with the use of space weapons, and therefore its legality must be carefully analyzed in the light of relevant norms of international law controlled by space forces.

Paragraph 1 of article IV of the Outer Space Treaty provides that States parties should not “put into orbit around the Earth any objects with nuclear weapons or any other types of weapons of mass destruction, not install such weapons on celestial bodies and not stir such weapons in outer space in any other way.” Paragraph 2 of this article also provides that States parties should use the Moon and other celestial bodies exclusively for peaceful purposes. “It is prohibited to create military bases, structures and fortifications on celestial bodies, test any types of weapons and conduct military maneuvers... The use of any equipment or facilities necessary for the peaceful exploration of the Moon and other celestial bodies is not prohibited.”^[11]

Article IV of the Outer Space Treaty actually restricts the militarization of outer space partially, rather than completely prohibits it. The limitation of militarization provided for in article IV of the Outer Space Treaty can be divided into two cases: first, the limitation of militarization in outer space and celestial bodies in paragraph 1 and, secondly, the limitation of militarization in celestial bodies in paragraph 2. Compared to the first paragraph, the Outer Space Treaty sets stricter restrictions on the demilitarization of the second paragraph, that is, celestial bodies. It follows from this article that, on the one hand, article IV of the Outer Space Treaty prohibits the deployment of weapons of mass destruction in outer space and on celestial bodies, as well as the creation of military facilities, weapons tests and military exercises on celestial bodies, but does not explicitly prohibit the deployment, testing and exercises of conventional weapons in outer space beyond the celestial bodies. On the other hand, paragraph 2 of article IV of the Outer Space Treaty does not prohibit the use of any equipment necessary for the exploration of the Moon and other celestial bodies for peaceful purposes. The need for peaceful exploration of the Moon and other celestial bodies can be embodied in the following: 1) compared with other types of equipment, this type of equipment is more favorable for achieving the mission goal or has other advantages such as cost-effectiveness and environmental protection; 2) this type of equipment is unique for the task and cannot be replaced by other types of equipment, if there is no such equipment, the mission goal cannot be achieved. Paragraph 1 of article IV contains a clear definition of prohibited military activities in outer space and on celestial bodies by enumeration, while paragraph 2 of article IV distinguishes between military and peaceful purposes of activity, which can be understood as prohibiting activities for military purposes on the Moon and other celestial bodies.^[1] Thus, the use of conventional space weapons in outer space, except for celestial bodies, and the use of means necessary for the peaceful exploration of outer space on the Moon and other celestial bodies is not expressly prohibited by the Outer Space Treaty. This requires special attention when analyzing the legal status of planetary defense activities.

According to the above analysis, non-nuclear planetary defense technologies, such as kinetic collision protection technologies, are not subject to the prohibition of the Outer Space Treaty, however, in accordance with paragraph 2 of article IV, such technologies should be used “for peaceful purposes for the exploration of the Moon and other celestial bodies”, i.e. for peaceful purposes. It should be emphasized that, although article IV of the Outer Space Treaty does not explicitly prohibit the use of space weapons other than weapons of mass destruction in outer space, the main purpose and basic spirit of the Treaty continue to be the prevention and suppression of intensified military activities in outer space,^[16] the promotion of peaceful exploration and use of outer space and the promotion of space activities for the benefit of all mankind. In article IV of the Outer Space Treaty, a path was chosen to partially limit militarization, which is related to political and historical factors, such as military needs that arose during the cold War, and its connotation is to balance the military needs of the contracting States, promote peace and security in space activities and maintain order in space activities. Thus, non-nuclear planetary defense technologies must comply with the provisions of paragraph 2 of article IV and must be used for peaceful purposes.

The question of whether nuclear means of planetary defense are prohibited under the Outer Space Treaty remains controversial. First, if article IV of the Outer Space Treaty prohibits the “installation and stirring” of weapons of mass destruction in outer space and on celestial bodies, but does not prohibit their “launch”, then can we assume that planetary defense activities using nuclear means are not completely prohibited by the Outer Space Treaty? It is logical that a direct launch, like the installation and deployment of space nuclear devices, also poses a threat to global peace and security. In accordance with the fundamental spirit of the Treaty, the launch of space nuclear devices may also be contrary to the exploration and use of outer space for peaceful purposes. Therefore, it cannot be assumed that the launch is not prohibited only on the basis that the contract prohibits only the installation and placement. Secondly, paragraph 2 of article IV of the Outer Space Treaty provides that "the use of any equipment or facilities necessary for the peaceful exploration of the Moon and other celestial bodies is not prohibited", can nuclear equipment involved in planetary defense technology by nuclear means be considered "any equipment necessary for the peaceful exploration of the Moon and other celestial bodies bodies", thereby obtaining a legal basis for their legality? Currently, this seems to be a more reasonable explanation for the legitimacy of planetary defense nuclear technology, but the question of how to control and ensure that planetary defense nuclear technology is used for peaceful purposes requires further discussion. Thirdly, testing of planetary protection technologies using nuclear means in outer space may be an activity prohibited by the Treaty Banning Nuclear Weapons Tests in the Atmosphere, Outer Space and Under Water (the Moscow Treaty). In accordance with article I of the Moscow Treaty, the participating States undertake to prohibit, prevent and not produce any nuclear weapon test explosions or any other nuclear explosions in outer space^[9]. However, at present, China, France and North Korea have not joined the treaty among the countries possessing nuclear weapons. Thus, nuclear planetary defense facilities can be interpreted as “necessary for the peaceful exploration of the Moon and other celestial bodies” in order to gain their legitimacy, but how to control and ensure that nuclear planetary defense facilities are effectively used for peaceful purposes requires further study.

To sum up, we can say that non-nuclear methods of planetary defense are not subject to the Outer Space Treaty, but their use should be for peaceful purposes, while nuclear methods of planetary defense can be interpreted as “necessary for the peaceful exploration of the Moon and other celestial bodies” in order to gain their legitimacy. However, even if non-nuclear and nuclear means of planetary defense are considered not prohibited by current space law, it is necessary to study the legal mechanisms for their regulation and control in order to ensure the use of planetary defense technologies for peaceful purposes.

The principle of non-use of force in planetary defense

The Charter of the United Nations enshrines the principle of the non-use of force in international law and its two exceptions. In accordance with Paragraph 4 of Article 2 of the Charter of the United Nations, “all Members of the United Nations shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations”^[12]. Articles 41 and 42 provide for the first exception to the principle of non-use of force when the Security Council authorizes the use of force: “The Security Council is authorized to decide which measures not related to the use of armed forces should be used to implement its decisions, and it may require Members of the Organization to use these measures.” “If the Security Council considers that the measures provided for in Article 41 may prove insufficient or have already proved insufficient, it is authorized to take such actions by air, sea or land forces as may be necessary to maintain or restore international peace and security”^[12]. Thus, the Security Council has the right, in accordance with the provisions of the Charter of the United Nations, to determine whether force should be used in certain circumstances for the sole purpose of maintaining and restoring peace and security of the international community. Article 51 provides for a second exception to the principle of the non-use of force, namely, the exercise of the right of a State to self-defense: “This Charter in no way affects the inalienable right to individual or collective self-defense if an armed attack occurs on a Member of the Organization, until the Security Council takes measures necessary to maintain international peace and security...”^[12]

The application of the principle of non-use of force to activities in the field of planetary defense should begin with determining whether activities in the field of planetary defense fall under the use of force in accordance with paragraph 4 of Article 2 of the Charter of the United Nations. The use of appropriate technologies to prevent asteroid collisions with Earth in order to protect and preserve civil society does not constitute a “threat or use of force in international relations” or an encroachment on the “territorial integrity or political independence of any State.” In addition, activities in the field of planetary defense, from the point of view of its subjective purpose, may correspond to the objectives of article 1 “Maintenance of international peace and security” and “Taking effective collective measures to prevent and eliminate threats to peace.”^[8]

Planetary defense does not currently fall under these two exceptions, even if it is considered as the use of force and is discussed in the context of the use of force authorized by the Security Council and the exercise of the right of States to self-defense. First, there is no clear international legal basis for the Security Council to authorize cooperation between one or more States in the field of planetary defense, unless in the future there is a clear rule of international law in the international planetary defense mechanism providing that the Security Council is the authorized subject of such activities. Secondly, the exercise of the right to national self-defense usually occurs when a State is under armed attack from another State, while the threat in planetary defense activities comes from a natural disaster caused by an asteroid collision with the Earth, and not from an armed attack by another State.

Thus, activities in the field of planetary defense are not subject to the prohibition on the use of force in accordance with paragraph 4 of Article 2 of the Charter of the United Nations and logically do not fall under the exceptions to the use of force and the exercise of the right of States to self-defense authorized by the Security Council. However, as noted above, since planetary defense technologies used for peaceful purposes also carry the risk of militarization, legal restrictions should be imposed on them to ensure that they are not used inappropriately as a force.

Planetary Defense and the DPROK project

The draft treaty on the prevention of the placement of weapons in Outer Space, the use of force or the threat of force against Space objects (PPWT) is a joint proposal by China and Russia on the control of space forces at the United Nations Conference on Disarmament. The draft treaty represents the position of China and Russia in the field of control over space air forces and is an important document of soft law in the field of control over space air forces. The draft PPWT was presented in 2008 and updated in 2014. Article II of the 2014 draft PPWT provides that participating States undertake “not to place weapons in outer space” and “not to resort to the use of force or the threat of force against space objects.” In her first article, she defines “weapons in outer space” as “any device placed in outer space, based on any physical principle, specially designed or re-equipped to destroy, damage or disrupt the normal functioning of objects in outer space, on Earth or in its airspace, as well as to destroy populations, components biospheres that are important for human existence, or for causing damage to them.” In addition, article I of the draft PPWT clearly defines the “use of force” or “threat of force” as “any hostile actions against space objects, including those aimed, in particular, at their destruction, damage, temporary or permanent disruption of normal functioning, deliberate modification of orbit parameters, or the threat of such actions”^[10].

According to the draft PPWT, activities to protect planets from asteroid collisions with the Earth do not fall under the definition of “weapons in outer space” contained in its text, and do not fall under the definition of “use of force” or “threat of force”. The draft PPWT is currently in the nature of soft law and is not legally binding. Its text is analyzed in the context of planetary defense activities in order to understand China's possible position on planetary defense activities when promoting the draft PPWT within the framework of the ongoing soft law process controlled by space forces.

After the above analysis of space force control treaties and soft law norms, a preliminary conclusion can be drawn that planetary defense is not the use of force prohibited by the Charter of the United Nations, planetary defense by non-nuclear means is not prohibited by the Outer Space Treaty, and planetary defense by nuclear means may be limited by international law in the field of control over weapons. Regardless of whether planetary defense nuclear technology will receive a clear legal basis in the future, it can now be confirmed that both nuclear and non-nuclear planetary defense technology need further regulation in legislation to ensure the effective use of planetary defense technology for peaceful purposes and not for military purposes.

Oversight of planetary defense based on international cooperation

Given that planetary defense activities are carried out for the survival and development of all mankind, some scientists believe that decision-making and the fulfillment of tasks of planetary defense should be carried out through multilateral mechanisms.^[16] Based on this point of view and the analysis of the legal status of planetary defense, this article concludes that international cooperation in outer space is an effective way to limit and supervise planetary defense. Multilateral cooperation mechanisms can be used to ensure that the use of planetary defense technologies meets the requirements of the exploration and use of outer space for peaceful purposes. Error! No bookmark name given.

Conducting planetary defense activities based on multilateral cooperation is not only a necessity for international cooperation in space, but also a necessity for deterrence and oversight of planetary defense. On the one hand, the success or failure of planetary defense is linked to the survival of all mankind, and therefore joint decision-making through multilateral cooperation mechanisms is reasonable and encouraged by space law. The principle of common interests, enshrined in paragraph 1 of article I of the Outer Space Treaty, provides that “the exploration and use of outer space, including the Moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries”^[11]. A successful planetary defense mission can effectively counter serious threats to all countries and all mankind for the benefit and in the interests of all countries. And as soon as an asteroid hits the Earth, both countries with planetary protection and countries without planetary protection will face the same serious crisis. Article IX of the Outer Space Treaty provides that “In the exploration and use of outer space, including the Moon and other celestial bodies, the States parties to the Treaty should be guided by the principle of cooperation and mutual assistance and should carry out all their activities in outer space, including the Moon and other celestial bodies, with due regard to the relevant interests of all other Member States the parties to the Agreement”^[11]. Article X of the Outer Space Treaty encourages international cooperation in the exploration and use of outer space, including the Moon and other celestial bodies^[11]. In addition to using planetary defense technologies in outer space, it can be expected that ground-based contingency plans such as monitoring, shelter and rescue are also needed to respond to asteroid impact crises. Multilateral cooperation facilitates the coordination of the resources of countries, organizations and institutions in planetary defense activities and contributes to the effective conduct of planetary defense operations.

On the other hand, planetary defense technology is linked to the use of space weapons, and international cooperation mechanisms contribute to its monitoring and deterrence, as well as ensuring that it is used for peaceful purposes. As noted above, the legal status of planetary defense activities with nuclear means is currently unclear, and judging by the current trend in the development of legal norms for the control of space forces, unilateral planetary defense with nuclear means will cause great controversy. Given that nuclear means are the only option for planetary defense in extreme situations, a complete ban on nuclear means of planetary defense may be impractical from the point of view of arms control. If planetary defense in extreme situations is considered an exception to the use of nuclear weapons, then it should be effectively limited by international law in order to prevent its misuse. A multilateral mechanism for international cooperation in the field of planetary defense can coordinate the resources of countries and facilitate discussion of issues, thereby ensuring the use of planetary defense technologies for peaceful purposes.

There are two main ways of international cooperation in the field of planetary defense: multilateral cooperation within the framework of existing international cooperation and the creation of new mechanisms for international cooperation. By comparing these two approaches, it might be more effective to use the existing international cooperation framework and related resources to discuss planetary defense issues on mature multilateral cooperation platforms such as COPUOS, ISOA and CGPCM. In addition, new cooperation mechanisms can be created based on existing platforms in combination with needs. With regard to the establishment of a multilateral decision-making mechanism, although countries with planetary defense capabilities are temporarily limited, as many countries as possible can participate in discussions and decision-making within the framework of the international cooperation mechanism. At the same time, countries that make greater technical contributions may have a stronger influence on decision-making.^[6] It should be noted that the mechanism of cooperation in the field of planetary defense should have a high efficiency of decision-making and their implementation due to the urgency of the crisis and the severity of its consequences.

Conclusion

Thus, the purpose of planetary defense is to support the survival and development of human civilization. Planetary defense is an activity for the peaceful use of outer space for the benefit of all mankind, which corresponds to the principle of common interests of space law. However, since the means of planetary defense are associated with the use of nuclear and other conventional space weapons, there are certain risks to space security and the maintenance of the space environment. Therefore, it is necessary to ensure proper supervision and regulation of activities in the field of planetary defense through multilateral cooperation mechanisms, as well as to promote the use of planetary defense technologies for peaceful purposes. In the current legal framework of space law and arms control, planetary defense is not the use of force prohibited by the Charter of the United Nations, non-nuclear planetary defense is not prohibited by the Outer Space Treaty, and nuclear planetary defense may be limited by international arms control law. Regardless of whether planetary defense nuclear technology will receive a clear legal status in the future, nuclear and non-nuclear planetary defense technology should be controlled and limited by a multilateral cooperation mechanism to ensure that planetary defense technology is used for peaceful purposes.

Humanity has officially entered the era of planetary defense after the successful completion of the joint DART mission by NASA and the Johns Hopkins Applied Physics Laboratory in 2022. Currently, China is also promoting the creation of a planetary defense capability to maintain global security and protect the common home of all mankind. Research on the legal issues of planetary defense is developing with the development of technology, and the study of the legal status of planetary defense can also clarify the legal basis for the development and use of kinetic energy asteroid collision technology at this stage and contribute to the smooth development of planetary defense potential in China. Since existing space law still has uncertainties regarding planetary defense, and planetary defense technology is associated with more complex arms control issues, the discussion of legal issues of planetary defense will be one of the main directions in the field of space law in the future. The discussion of the legal status of planetary defense is only the beginning of a number of legal issues related to this activity, and subsequent specific monitoring mechanisms, international cooperation mechanisms and related liability issues require further discussion in academic circles.