Questions related to the fear of a weaponization of outer space have gained unprecedented relevance in the public debate in the last decade, reminiscent perhaps of the fears caused by the uncertain consequences of the launch of Sputnik 1 in 1957 or the speculations over President Reagan’s “Star Wars” project in 1983. This brief will present a succinct but comprehensive view of the international law framework governing the weaponization and militarization of outer space.
The weaponization of outer space
The weaponization of space relates to the placement of weapons in space or on the ground with the capacity to destroy or incapacitate the enemy satellites with anti-satellite weapons (such as a direct ascent ASATs) or the deployment in orbit of weapons targeting terrestrial objectives. Although it has been a principle point of discussion in the regulation of space activities going back to the 1950s, today the debate has gained importance not only because of the increased offensive capacities of States due to modern technologies but also because of our heightened dependence on space-based services for everyday civilian and military purposes.
In this section, we will attempt to answer two questions :
(I) Should States and private companies fear a possible attack on their satellites?
(II) Should civilians be worried about possible attacks enacted from outer space?
(I) Should States and private companies fear a possible attack on their satellites?
Although there haven’t been any direct attacks enacted by States towards a foreign satellite at the time of writing, this is one of the most relevant matters today with the expanding arsenal of ways to incapacitate a satellite (Direct Ascent anti-satellites; Super-EMPs; Cyber-attacks etc). Most of the possible ambiguity in the subject matter derives from the “dual-capacity” nature of objects such as satellites and rockets, meaning that they can be used both for civilian and military purposes. For instance, the same geo-localization satellite used for GPS applications can be used as ground support in military applications and the launchers used to place satellites into orbit have the same components as international ballistic missiles.
If attacks on foreign satellites are in principle considered unlawful, their ambiguous nature as well as the lack of a clearly defined law for “warfare” in outer space makes it altogether more difficult to determine what would happen in practice. In the unfortunate event that outer space was to become a battlefield and in the absence of a specific jus in bello governing hostilities, it is of note that customary international law would likely be applied as a “fall back”. According to customary international law, the use of force can only be used against “legitimate military objectives”, defined in article 52 of the Additional Protocol I of the Geneva Conventions.
Following this definition, which limits legitimate military objectives to “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”, it is clear that the dual nature of satellites - for instance - might pose real problems when determining the lawfulness of a potential attack.
(II) Should civilians be worried about possible attacks enacted from outer space?
In other words, what is the status of legal framework for weapons in outer space ?
- Article IV of the 1967 Outer Space Treaty (OST) remains the gold standard in many ways stating that : “States parties to the Treaty undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in Outer Space in any other manner”. Deconstructing the article, we can conclude that :
Nuclear weapons are not allowed in outer space, whether they be placed in orbit or installed on celestial bodies including the moon, regardless of the intent behind such placement.
Weapons of mass destruction are not allowed in space and on celestial bodies to the same extent as nuclear weapons as we described in our first point.
There are no explicit provisions against such use or placement in orbit for all other types of weapons, namely weapons that do not use nuclear military technology and weapons that cannot cause mass destruction.
“Military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden” but “the use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited”.
- As article IV of the OST does not define the term “weapon”, a possible solution would be to use Article 31 of the 1969 Vienna Convention on the law of Treaties; the convention proposes that in the absence of a clear definition, the terms of the Treaty should be “interpreted in good faith in accordance with their ordinary meaning” and taking into account the context of the Treaty in the light of its object and purpose.
- The question of “intent” : some scholars have argued that nuclear weapons and weapons of mass destruction can be placed in orbit or on celestial bodies if their intent is not offensive, for instance if they were placed for the purpose of defending the Earth against the collision with a NEO (such as an asteroid). This theory has been rejected as there is no mention of intent in the Treaties.
However, this does not mean that the UN Security Council cannot order a nuclear strike against an asteroid. This is supported by Article 103 and Chapter VII of the United Nations Charter. Article 103 in fact essentially provides that commitments contracted through the Charter are to prevail over other international agreements and the provisions contained in Chapter VII give the Security Council the prerogative to use force in order to protect international peace and security.
In our next brief, we will look at the difference between weaponization of outer space and its militarisation, present some of the main proposals to limit weaponization, and analyse the main questions pertaining to the use of force in outer space.
Sources :
Charter of the United Nations and Statute of the International Court of Justice, https://treaties.un.org/doc/publication/ctc/uncharter.pdf
International Committee of the Red Cross, International Humanitarian Law, Chapter 14, Rule 44 https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule44
Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/4e473c7bc8854f2ec12563f60039c738/f08a9bc78ae360b3c12563cd0051dcd4
SU, J. (2017), Space Arms Control : Lex Lata and Currently Active Proposals, Asian Journal of International Law, 7, pp.61-93
Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967 Outer Space Treaty) https://www.unoosa.org/pdf/gares/ARES_21_2222E.pdf
Tronchetti, F. (2015), Legal aspects of the military uses of Outer Space, Handbook of Space Law, Edward Elgar Publishing,
Vienna Convention on the law of treaties (Concluded at Vienna on 23 May 1969) https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf
Credits to the Indian Ministry of Defense and US Air Force for the images
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