I recently came across an article in Foreign Policy that paints an ominous picture of China's potential overseas spaceport in Djibouti. The piece presents this project as a legal nightmare. It is an entertaining read. But it is riddled with sweeping assumptions, speculative claims, and a healthy dollop of alarmism.
The article sets out a narrow view of China's potential development of an overseas spaceport in Djibouti, framing it as a gateway to a host of legal and international problems. It argues that China might exploit Djibouti's non-party status to major space treaties, enabling actions that could be perceived as rogue or irresponsible in the global space arena.
By insinuating that China could reshape global expectations of responsible behaviour in space, the article hints at potential evasion of space law regulations, risking satellite launches without adequate oversight, and creating tensions with other spacefaring nations. Additionally, the article expresses concerns over the possibility of China using the spaceport to test advanced technologies with military applications, all within an environment that the author deems insufficiently regulated.
The narrative culminates in a warning of catastrophic consequences, painting a doomsday scenario that emphasises fear over solid legal analysis.
Dissecting the Piece
With this complex and somewhat foreboding backdrop in mind, we must carefully analyse the core assertions that the article presents, rather than being swayed by the emotive language and dystopian imagery.
First, the claim that China may enable a 'potentially rogue actor' through its partnership with Djibouti. But simply creating the spectre of a rogue actor without specifying the substance does not constitute an argument. It is more of a sensational headline than a valid point.
The article then continues to present China's potential spaceport as a stage for alternative interpretations of international space law, and a haven for satellite operators looking to act outside the confines of the existing system. However, this notion is inherently flawed. Article VI of the Outer Space Treaty (“OST”) already binds private entities operating overseas by mandating that “[t]he activities of non-governmental entities in outer space, … require authorization and continuing supervision by the appropriate State Party to the Treaty.” The premise that China is not liable for the foreign acts of its private enterprises according to the OST is incorrect. A quick refresher on Article VI of the OST would easily clarify this misconception.
Moreover, it's essential to highlight another crucial aspect of the OST that the article seems to overlook. Even if China were to establish a spaceport in Djibouti or any other country's territory, China would still retain liability as a launching state under Article VII of the OST and under the Liability Convention. This means that any space object launched from this spaceport, regardless of its location, would make China internationally liable for any damage caused by it to another State Party or its space objects. The very foundation of international space law is built on the principle of State responsibility and accountability, ensuring that States cannot simply bypass their international obligations by operating from foreign territories.
Furthermore, the article's fear that China might sidestep or outright reject rules by using spaceports in places without strong space regulations seems misplaced. The specific example of the "due regard" provision of Article IX of the OST is given, yet in my view most, if not all, space-faring States already disregard this provision. To assume that China is going to such lengths to evade its obligations is, frankly, comical.
Sovereign State Labelling and Military Applications
Another concerning aspect of the piece is the casual labelling of Djibouti, a sovereign State, as a “potentially rogue actor.” No evidence is presented to back this assertion. Such a statement lacks any semblance of reasoned analysis. I note that this “potentially rogue actor” hosts military bases from the United States, France, Italy, and Japan, as well as China. In my view, the statement cannot be considered to be responsible journalism.
The article also frets about China potentially using the permissive regulatory environment in Djibouti to test advanced concepts and technologies with military applications. However, let's face reality: every State Party with space weapons has conducted, or is conducting, such tests from their own territories without checks. China is far from unique in this regard. Going offshore to do so makes little sense.
Finally, the entire argument presented in the article hinges on the flawed premise that operating from the territory of an OST non-party enables China to flout international space law. But the article offers little to convince knowledgeable readers of this viewpoint, and this viewpoint does not withstand legal scrutiny.
Responsible Journalism
One of the most critical takeaways from the scrutinised article is the paramount importance of responsible journalism and informed commentary. When discussing intricate topics like international space law, careful consideration, understanding, and impartiality are paramount. Sadly, I see this article as falling short on all counts.
Foreign Policy, like other publications, has a duty to exercise due diligence in publishing 'expert' pieces. Whether the flaw in this piece is a case of proper research not being conducted or other motives is unclear, but the outcome remains the same: an unbalanced and misinformed perspective that adds little clarity to complex issues of international space law.
Concluding Thoughts
The Foreign Policy article, in its attempt to portray China's space activities as ominous and dangerous, relied on shaky grounds, inchoate legal analysis, and a lack of evidence. It not only failed to appreciate the existing legal frameworks but also took liberties in predicting future actions and intentions.
But this critique is not merely about one flawed article. I am concerned about the broader issue of how we approach and discuss complex international matters, especially when they intersect with geopolitics and emerging technologies like space exploration. Alarmism, fear-mongering, and sensationalism only obscure the facts, breed mistrust, and hinder constructive dialogue. China, like other space-faring nations, operates within a network of legal instruments and international agreements. Painting the country as an outlier or a rogue actor without substantial evidence undermines the discourse and may even compromise efforts to foster international cooperation and shared understanding in the vast frontier of space.
We must strive for accuracy, fairness, and depth in our reporting and analysis. It is not just about getting the story right. We need to enhance our collective understanding of the world around us. In a time where space is becoming an increasingly significant part of our lives, a commitment to informed, balanced, and responsible discourse is more vital than ever.
This commentary represents the personal views of the author.
Kiran Mohan Vazhapully is an international lawyer based in New Delhi. He was Erin J.C. Arsenault Graduate Fellow at IASL, McGill University.
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