Is ground-based astronomy a space activity?

An article published on the European Southern Observatory blog on September 10 describes an effort to protect the night sky – a crucial resource for astronomy – by recasting astronomy as the dominant form of human space exploration and thus attempting to have its activities ‘protected’ by the Outer Space Treaty (OST) and other similar international instruments. An important part of this view is ground-based telescopes, together with astronomy’s self-determined right of access to the night sky. If astronomy becomes a form of the peaceful use of outer space and secures some kind of right to a clear view of the night sky, where would that leave astronomy’s conquest, and colonisation, of the ground? (See discussions here and here.)

Astronomy is a space activity in my view, and I would say it’s currently the main way we get to explore space, because you can’t go and visit every single planet and every single minor body in the solar system: the main way that this is done is through astronomical telescopes.

Astronomy supports many critical functions of space activities, from tracking spacecraft to providing critical scientific observations to support space missions. And in terms of capacity building, with data archives, it is an important way for developing countries to experience space, often acting as a gateway to develop a national space capability.

… with the International Asteroid Warning Network, astronomers can warn us about one of the few natural disasters that we can actually do something about. For example, we are using ESO’s Very Large Telescope in Chile for 30 hours a semester to track threatening asteroids and refine their orbits.

Andrew Williams, ESO blog

The Outer Space Treaty is kind of a constitution for space activities. It provides the fundamental principles that are regulating the use and exploration of outer space. In particular, that everyone should be able to explore and investigate it, and that this should happen for the benefit and interest of all countries. And astronomy, even when ground-based, is fundamental for the exploration and use of outer space and enables other space activities, and so it should fall under its scope and be protected by its principles.

Giuliana Rotola, ESO blog

My discomfort with the idea, of preventing satellite megaconstellations from blocking the view of ground-based observatories by taking recourse to the value-based protections afforded to outer-space activities, stems a little from the OST’s passive nature, some from its historical roots and largely from the astronomy community’s focus here on the injustice being visited upon astronomy, by orbital activities, while it pays little attention to the injustice astronomy itself has visited, and visits, upon terrestrial activities.

First, some history:

Developments in the outer space arena post the erstwhile USSR launching the first manmade satellite Sputnik in space on 4 October 1957 have transformed the world significantly. In order to ensure the exploration and use of outer space for peaceful purposes, the Committee on the Peaceful Uses of Outer Space (COPUOS) was set up by the United Nations General Assembly in 1959. Subsequently, this committee led to the foundation of the “Treaty on Principles Governing the Activities of States in the Exploration and use of Outer Space, including the Moon and Other Celestial Bodies”. This treaty is commonly known as the Outer Space Treaty (OST). This treaty was opened for signatures on January 27, 1967 as a binding legal instrument.

Ajay Lele, 50 Years of the Outer Space Treaty

The Outer Space Treaty of 1967 (OST) designates space as the “province of all mankind” and states that the exploration of space and its use should be “for the benefit … of all countries, irrespective of their degree of economic or scientific development”. However, it doesn’t provide any authoritative mechanism to decide which activities are inconsistent with these principles and fails to address issues like the growing weaponization of space. While Article IV prohibits deployment of weapons of mass destruction in space and “establishment of military bases, installations, and fortifications”, the lack of description of what qualifies as a ‘weapon’ creates confusion regarding modern-day technologies such as lasers for communication, while interpreting “the testing of any type of weapons, and the conduct of military manoeuvres on celestial bodies” to be “forbidden”.

Nitansha Bansal, ‘Why space governance now?’

Unless there are effective rules of the road governing outer space activities, sustainable use of space is in serious danger. Outer space activities today are governed by a few legal instruments including the foundational treaty mechanism, the Outer Space Treaty (OST) of 1967. But this treaty and other associated agreements — such as the Registration Convention, the Liability Convention and the Rescue Agreement — were introduced in the 1960s and 1970s when the threats and challenges were significantly different. Many of these treaties suffer from loopholes and are interpreted in particular ways by one state or another to accommodate their narrow interests.

Rajeswari Pillai Rajagopalan, ‘Rules-based order in outer space’

Second, the ESO’s idea to pitch astronomy as a peaceful activity through the narrow lens of the OST’s remit is unfair to its terrestrial impact. Here’s one analogy, as a gedankenexperiment: a rover that will explore a distant planetary body can be a peaceful use of outer space, but say it has been fit with a plutonium reactor for its power source and is being launched onboard a rocket that was not properly tested with the payload, and has a 50% risk of exploding en route to orbit and scattering radioactive material over occupied land. Would this mission still count as a peaceful use of outer space? It would, in a narrow, technical sense that overlooks the Earth-bound implications of the launch. Similarly, an astronomical observatory that deems itself to be using outer space in a peaceful manner – limited to the OST’s definition of ‘peaceful’ – may not actually be peaceful.

In fact, by not saying anything about it, the OST also tolerates the pollution of outer space – that is, ‘polluting’ outer space, by any definition, isn’t tantamount to a breach of peace under the OST, a fact that the treaty’s historical basis can account for. Even since the late 1960s, when the OST was opened for signatures, multiple probes and landers have crashed on the Moon, Venus and Mars; the Soviet-era Venera landers – or even just #4 to #16, which were launched after January 1967 – all melted on the Venusian surface. Russia has attempted to justify its ASAT tests under the OST. As one April 2020 analysis put it: “Article IV [of the OST] does not prohibit the stationing of conventional weapons – including conventional ASAT weapons – in space, nor does it explicitly prohibit the testing of weapons in Earth orbit. … There is nothing in the OST to prohibit ASAT weapon tests.”

This is to say that the OST is a security-oriented treaty concerned principally with nukes in orbit, and not even other weapons, as Rajeswari Pillai Rajagopalan has written. So bringing ground-based astronomy into the OST’s ambit will do just as much as the OST has done vis-à-vis ASAT weapons, orbital debris and plans for lunar occupation – i.e. nothing.

Second, I have little faith in two of the OST’s foundational principles and the aspiration to have ground-based astronomy inherit their merits. They are:

  1. “the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind;”
  2. “outer space shall be free for exploration and use by all States; …”

I don’t know any country in which communities that have found themselves dispossessed of their access to natural resources by science projects haven’t already been disenfranchised in different ways by the state itself. So “the interests of all countries” and “the province of all mankind” are already exclusive and frequently antonymous. Put another way, requiring outer space to be the domain of all countries doesn’t in any way ensure it will also be the domain of all people, and therefore peaceful.

Second, as we’ve seen, the OST’s peaceful use of outer space is limited to the non-rivalrous use of space-based resources and to placing atomic weapons in orbit – and doesn’t extend to imposing limitations on the physical, ground-based consequences of building/operating observatories. However, while outer space may be immeasurably vast, the vantage points from which we can observe it (with ground-based observatories) are quite finite.

Recently, researchers in China reported that they had found a suitable site from which to make astronomical observations, on the Tibetan Plateau; they wrote in their paper: “On Earth’s surface, there are only a handful of high-quality astronomical sites that meet the requirements for very large next-generation facilities.” So while the OST requires outer space to be “free for exploration and use by all states”, a radio telescope being installed at this place, say, will prevent another similar antenna, operated by any other actor, from accessing a point of interest in outer space with the same accuracy. This is a considerably simplified example, but I hope it illustrates the point that – to adapt a line from a Steven Erikson book – the world is vast yet observation sites are rare. (And let’s not pretend science is for everyone’s benefit.)

So if astronomy becomes an ‘outer space activity’ in the OST’s definition, the way it uses outer space won’t mean outer space will be equally free for exploration by all states, nor will the land from which it observes be equally available to all people. This conclusion also impinges on another of the OST’s principles – that “outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”.

When Elon Musk first publicly responded to the rising tide of complaints from astronomers that satellites of the SpaceX Starlink megaconstellation were getting in the way of astronomical observations, his then-trademark recklessness was on full, and frustrating, display: he said, among other things, that observatories will someday become space-based anyway. One reason Musk was wrong was, and is, that ground-based observatories are better by far than space-based ones at observing the universe in some wavelengths, especially radio. That’s because on ground, these observatories can be big and sophisticated for a much smaller price than if they had to be big and sophisticated in space.

However, the discussion around the ESO people’s idea to safeguard their claims to the night sky is currently framed as if to say “you’re not the only one using the skies” – but which often seems to assume “I’m the only one using the land”. I admit using the OST’s principles to oppose astronomy’s ground-based activities could be tenuous, but that the OST can help ground-based astronomy become a ‘peaceful use of outer space’ – within the domain of international-law and beyond – seems more in doubt.