Cross-posted from Intlawgrrls
In the first part of this blog post yesterday, I described the extent to which we are dependent on space technologies for our daily activities, and the role of international law. But what about military activities? Right from the beginning of the space race between the USSR and the USA in the 1960s military technology has been at the forefront, and until recently it was what drove most innovation in space. Indeed, GPS was a US military invention, and they decided to share it’s benefits for civilian use. Intelligence gathering by remote satellite imaging, as well as communications, GPS for aviation and marine operations, and many drone and weapons technologies are highly dependent on high-tech satellite networks. How does international law apply to this 21st century environment?
The notion of “space warfare” may not be something that belongs to a long time ago in a galaxy far, far away; in fact many people refer to the Iraq war in the 1990s and the US-led “Operation Desert Storm” as the first space-led war. There was a significant reliance on satellite imaging and telecommunications as an integral part of that operation. These days most Western naval, air and army units rely on multiple forms of space technology, as do Russia and China. In the last year the US has increased it’s “big data” reliance , making such satellites very precious assets. Recently, North Korea has been launching objects which many worry are not just rockets, but rather anti-satellite weapons. Where space used to be considered the ultimate military “high ground”, it is now accessed by many more States, and if these space assets can be targeted by adversaries, dependence can lead to vulnerability during a conflict.
Worryingly, a recent report on 60 Minutes titled “The Battle Above” painted a fairly dire picture of outer space as a “wild west” when it comes to military activities, asserting that there is essentially no law regulating this new potential battlefield and that it is every country for itself. And even when speaking to people who specialise in “space security”, I have heard many express the concern that military activities in outer space take place in a legal vacuum.
I would beg to differ, and thankfully I am not alone.
For a start, Art IV of the 1967 Outer Space Treaty (OST), which has near-universal participation, declares that “the Moon and other celestial bodies shall be used…exclusively for peaceful purposes”. There has been much debate as to whether “peaceful purposes” means exclusively non-military purposes, such as scientific investigation or commercial activity, or whether it only means “non-aggressive” purposes. The latter could include military activities such as intelligence gathering, or verification that a sanctioned State such as Iran is not building a nuclear programme. Given that the Russian Sputnik – the very first satellite launched in 1957 – was a military undertaking, and given that many imaging and communications satellites today are “dual use”, servicing both military and a civilian purposes, it would be near impossible to assert that Art IV prohibits all military activities in outer space. The traveaux of the Treaty also suggest that the negotiating States intended this narrower meaning.
However in the context of the space race that had begun between the USSR and the USA, many States were also concerned about the risk of an arms race in space. It was for this reason that Art IV also forbids forbids the placement of nuclear weapons or any other weapons of mass destruction (WMDs) in orbit around the Earth, and that under Art III the obligation exists to “carry on activities in the exploration and use of outer space, including the Moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.”
This article underlines the importance of the prohibition of the threat or use of force under art 2(4) of the UN Charter, but the words “in accordance with international law” also renders the entire body of jus ad bellum and jus in bello applicable. Just because we are dealing with new technology, does not mean there is a legal vacuum when it comes to military activities in space. Indeed, the ICJ stated in it’s opinion on the Legality of Nuclear Weapons, that international humanitarian law “applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future.”
It is true that there are some issues specific to the space environment. Even if it’s prohibited to place WMDs in orbit around the Earth, it may be possible to target a satellite from Earth with an anti-satellite weapon, and both China and the US have demonstrated their ability to do so by destroying their own defunct satellites. But the problems of creating more space debris might come under the prohibition of causing “widespread, long-term and severe damage to the natural environment” under Art 35(3) of Additional Protocol I to the Geneva Conventions.
It may also be possible to interfere with a satellite by jamming signals or using cyber attacks. And last year Russia launched an object which raised a lot of interest after it began to make a series of unusual manoeuvres, meeting up with other satellites. Because this happened amid tensions surrounding the situation in Ukraine, and because Russia did not declare or register this object, as all launching States are obliged to do according to the Registration Convention, many speculated that perhaps this was a test of a space-based weapon that could sidle up to an adversary’s satellite and interfere with it or disable it.
On the other hand, Russia and China have proposed a new Treaty on the Prevention of Placement of Weapons in Outer Space (PPWT), and the UN General Assembly passed a resolution in 2014 on “No First Placement of Weapons in Outer Space” urging States to make unilateral declarations to this effect, and to support the development of a PPWT. However some key space-faring States, such as Canada and the US, have criticised the PPWT for lacking any process of verification, and have stated they would prefer non-binding norms to guide States’ military activities.
To this end, the UN General Assembly’s First Committee (Disarmament and International Security) has taken note of the concern for weaponisation of outer space, and every year the General Assembly adopts a resolution on Prevention of an Arms Race in Outer Space (PAROS). Although these resolutions are not binding, together with the work of a UN-generated Group of Governmental Experts on Transparency and Confidence Building Measures, they demonstrate the wider concern for restraining military use of space. As a result of these resolutions, the EU took the lead in developing an International Code of Conduct in Outer Space Activities, which has not yet reached consensus, but which has received very broad support. It would ask signatory States to agree to abide by the principle of freedom in outer space, and to recognise the right to self defence, while at the same time refraining from the threat or use of force in outer space.
So although there is already plenty of international law that applies to military activities in space, these new technologies may require further clarifications, to ensure that alongside non-binding norms there are still clear rules that apply.
One solution would be to develop a “restatement” of the law as applied to new technologies, following in the footsteps of the San Remo Manual on International Law Applicable to Armed Conflict at Sea, the Harvard Manual on International Law Applicable to Air and Missile Warfare and the recent Tallin Manual on international Law and Cyber Warfare, all of which were developed by military, academic and ICRC experts, and which have been integrated into national military manuals on the law of armed conflict. In March this year, Secure World Foundation hosted a panel in Washington D.C. at which I was honoured to speak about the need for such a manual applied to space, and about the steps currently being taken by the McGill Institute of Air and Space Law to develop such a project.
So while the notion of a legal vacuum is inaccurate, there is definitely a need to clearly articulate the law that applies to military activities in outer space as a matter of urgency.
Here is a link to the recording of the Secure World Foundation Panel held at George Washington University on March 23, on international law and military activities in outer space: