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Outer space in the military equation of nations - Part 2 : The militarization of outer space

rodolfozontini
Nov 16, 20204 min read

Updated: Nov 23, 2020

If the weaponization of outer space is perceived as a controversial question in the international community, its militarization has been a reality since the beginning of the space age. Weaponization distinguishes itself from militarization insofar as it concerns the placement of offensive weapons in space or on the ground with the aim of targeting objects in space (such as a direct ascent ASATs), whereas militarization concerns the use of outer space for military objectives such as reconnaissance, communication, navigation and intelligence gathering as well as the presence of military personnel in outer space and on celestial objects. This same logic is found in article IV of the 1967 Outer Space Treaty, which states that military installations and fortifications are prohibited but military personnel isn’t.


With this in mind, and considering that militarization of space and its related activities are not unlawful, what are some of the factors determining the response to an attack to one’s satellite? In particular, to what extent would it be possible to use force in order to respond to an attack in outer space if the traditional methods of diplomatic negotiation seemed to fail?


The question of the use of force in outer space is noteworthy markedly because of the particularities of the environment that distinguishes it from that on Earth. In fact, although there are no provisions contained in the space treaties that specifically prohibit States from responding to an attack on their satellite by exercising their right to self-defence as contained in article 51 of the UN Charter, there are various other regulations in international law that may limit that right, or at least serve as a framework for future agreements in this regard. In particular, we can mention :

  • The 1976 Convention on the prohibition of military or any other hostile use of environmental modification techniques (ENMOD Convention) prohibits “military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party”.

  • The Additional Protocol I of the 1949 Geneva Convention, which states that “Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage”.

  • The 1992 convention on Biodiversity recognizing the responsibility of States “to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”.

    • To this effect, the International Committee of the Red Cross (ICRC) also interprets the general principle of “due regard” in international humanitarian law as stating that due regard must be had within the framework of military operations in order to “avoid, and in any event minimize, incidental damage to the environment”. In accordance with this principle, States would additionally have to call for “appropriate international consultations” if they considered that the activities they will conduct may interfere harmfully with those conducted by other States. Interestingly, this is the only provision that was violated by China in their 2007 ASAT test (and Japan was the only country to have charged them).

What these three agreements have in common is their objective to prevent States from enacting attacks that would cause a long-lasting damage to the environment, in particular if the damage was to be caused beyond their territorial jurisdiction. Outer space qualifies under such definitions and the destruction of a satellite resulting in the dispersion of a high number of debris in orbit would also qualify as a long-lasting modification of the environment that impedes the use of orbits by other States (and therefore even those that would be third parties to the conflict).


Finally, the general customary rule of proportionality would also be an essential factor when considering the use of force in outer space for the same reasons. What type of attack would justify a response that has so many potential indirect and long-lasting effects? In fact, we could argue that the principle of proportionality might even play a role in the case of cyber-attacks (whose damages in most cases would not inherently fall under the scope of the other aforementioned provisions) given the importance of some satellites for the functioning of essential services.


Some proposed solutions against weaponization of space :

  • China and Russia's proposal in 2008 of a Draft Treaty on the Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects, also referred to as the Draft PPWT Treaty. The draft has had limited success as no State has signed nor even accepted it and it has not been revisited or revised by the two proposing nations. The reasoning behind its lack of success was the attempt to create a hard law text that did not sufficiently clear up the definition of the term “weapons”, thus failing to resolve the ASAT issues.

  • The European Union’s proposal of a Draft International Code of Conduct for Outer Space Activities in 2008 with a later revision in 2014. The code aimed for a soft law and universalistic approach. Although more successful than the Sino-Russian initiative, it still fell short of a universal acceptance. Even the US Administration refused to join, opting instead to create its own codes of conduct.


Sources :

Credit to Telespazio for the images of Sicra 2 and Athena Fidus satellites


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