In 1950, the development and launch of spacecraft such as satellites provided countries with a hitherto inaccessible space for exploring military domains. Ever since then there has been a race amongst the developed countries for exploration. In their quest to attain superiority in space, developed countries have already placed numerous satellites in space for military development; and at the same time have also developed anti-satellite capabilities (“ASAT”) to destroy satellites. In fact, some senior military leaders in the US consider space as the ultimate high military ground.
The Outer Space Treaty, 1967 (“OST”), is the only treaty that regulates the conduct of parties in outer space. Since the OST essentially regulates peacetime activity in space, it does not restrict states from resorting to military use of space. Given this, it is crucial to look beyond the OST so as to regulate military operations in outer space.
In this context, it is argued that in the absence of specific treaty provisions regulating potential military operations in outer space, it becomes imperative to apply a constructive interpretation of rules of International Humanitarian Law (“IHL”), to regulate specific conduct of parties during armed conflict. It is further argued that to safeguard the outer space from any form of a military operation it should be brought within the ambit of ‘natural environment’ of IHL
Application of IHL in Outer Space Military Operations
The lack of an express prohibition on the military use of space in the OST has led to the weaponization of space, where the developed countries have already built warfare technology that depends on space-borne assets such as GPS-guided weapons, satellite telecommunication, and remote sensing. This has been possible mainly due to the loopholes in the OST as it lacks specificity and does not condemn military use of outer space. However, as per Article III of the OST, state parties are bound “to carry on activities in the exploration and use of outer space in accordance with international law”. Accordingly, IHL being a part of International law should be applied to outer space to prevent any form of armed conflict in order space.
IHL essentially regulates the weapons, means and method of warfare and includes the four Geneva Convention signed in 1949 and two Additional Protocol (AP) drafted in 1977 to update IHL. Although not all states are signatory to the AP, many of its provisions are reflective of the customary international law. It is important to note that there is no provision in IHL where it specifically refers to outer space military operations however the tradition of International Court of Justice (ICJ) has been to interpret legal principles in a constructive manner, especially when it deals with armed force. In Nicaragua v United States of America [¶ 215], the ICJ stated that in any armed conflict at the centre of principles and rules are the overriding ‘considerations for humanity.’ It further held that IHL applies to all forms of warfare and to all kinds of warfare. Even if the OST is silent on outer space armed conflict, the general principles of the law of armed conflict can still be applied. Therefore, IHL becomes applicable to law related to armed conflict.
Military Objective in Outer Space
One of the important rules of IHL is that of distinction which requires the parties to distinguish between combatants and civilians in launching attacks, and similarly, between military objects and civilian objects at all times. Thus, the use of force in any military operation can only be directed towards a “legitimate military target”. The essential challenge in the application of IHL in outer space is that unlike traditional armed conflict, it is difficult to identify a legitimate military objective. Moreover, the definition of military objective as provided in Article 52(2) of Additional Protocol I (“AP”) is too broad in the context of outer space. As per Article 52(2), military objectives “are 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”.
The word ‘nature’ includes all military objects that are directly used by armed forces, such as weapons or even buildings occupied by the armed forces or their communication centres, which in the context of space would include all military satellites. Therefore, as Liang JIE explains, even if commercial satellites like remote sensing satellites, navigation satellites or meteorological satellites are used by armed forces, then such satellites can be a legitimate target and be attacked. However, this is subjected to ‘conclusive’ evidence that proves such use of commercial satellite.
Similarly, in the context of outer space, the word ‘location’ can be interpreted to include outer space. In land-warfare, if any piece of land provides a geographic advantage to the enemy, it is considered as a legitimate military target. By analogy, Liang argues that any orbit can be considered as a legitimate military target if it used for carrying out military operations. In addition to this, ‘location’ can also be interpreted to include a specific orbital coordinate within the geostationary orbit which could be attacked to prevent the belligerent forces from using that specific orbit. Accordingly, since such a ‘location’ can be attacked, it seems logical to infer that any orbit can become a legitimate military objective so as to preclude the use of said ‘location’ by the enemy. However, such an interpretation carries risks, as explained hereafter.
Proportionality Concerns In Using ASAT Weapons
The use of ASAT weapons to destroy satellites may result in excessive and long-term damage to space and violate the rule of proportionality, which requires parties to a conflict to avoid or minimize incidental damage while carrying out any military activities. This is because hard-kill weapons (ASAT) directly destroy the space satellite and cause excessive fragmentation damage due to space debris. Such space debris can severely impair orbital planes and can conceivably render them unusable. Space debris in outer space moves rapidly and can possibly collide and completely destroy any spacecraft irrespective of whether it is for military or civilian purpose or to whom it belongs.
In addition to this, many satellites have a dual purpose, which means they are used for civilian as well as military purposes. Although it would be permissible for states to attack such satellites, the destruction of such satellites largely would affect daily life that relies completely upon space technology. A lot of civilian infrastructures such as remote sensing data, mobile service, and data transfer service for civil and commercial users depend upon satellite communication and GPS and attack on such satellites could cause a great considerable amount of incidental damage. If, as discussed, orbits are considered military objectives, then it would allow the use of ASAT weapons to target even dual-purpose satellites in any orbit. Thus, the consequent damage may potentially violate the rule of proportionality owing to its impact on these infrastructures.
The Need To Consider Outer Space As ‘Natural Environment’
To resolve the issue of potentially excessive damage caused in space due to the use of ASAT weapons to attack a satellite, it is argued that orbits should be brought within the ambit of ‘natural environment’ so that they are provided greater protection than if perceived as ‘location’ or ‘area.’ Under Article 35 (3) of the AP I, it is “prohibited to employ methods or means of warfare which are intended or may be expected to cause widespread, long-term and severe damage to the natural environment”. The use of ‘long-term’ is generally understood as lasting for decades. As mentioned earlier, space debris that is caused due to hard kill weapons has been a significant cause of concern because the damage caused is temporal in dimension as the orbiting particles could remain in the orbit for a prolonged period; and could plausibly cause ‘long term damage.’ Considering the pace at which different countries are developing ASAT weapons to destroy satellites, in order to strengthen its military dominance at space and to build a strong defence framework in the context of outer space, it becomes very crucial that the use of ASAT weapons be restricted. If outer space is considered as a part of the ‘natural environment’, then the use of such hard-kill weapons to destroy satellites could be prohibited.
Similar obligations can also be located in the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (“ENMOD”). Article II of the ENMOD states that “environmental modification technology” includes within its scope any technique that can be used to deliberately manipulate the natural process of outer space. Therefore, the ENMOD can be interpreted to recognise outer space as a part of the ‘natural environment’. According to the annexe to the ENMOD, ‘severe’ damage refers to “serious or significant disruption or harm to human life, natural and economic resources or other assets”. As discussed, significant harm could be caused by the debris resulting from ASAT attacks in outer space, since they would place orbital planes at high risks of impairment to the extent of rendering them inoperative. Thus, it can be certainly argued that space debris caused by ASAT weapons would severely harm the natural environment of space for the purposes of the ENMOD. Since Article I of ENMOD prohibits any attack to such an environment causing “long term or severe damage”, attacks from ASAT weapons should not be allowed.
Lastly, Article 55 of the AP I deals with the protection of the environment and states that any means of warfare that “cause prejudice to the health or survival of the population” be used with adequate care. Theoretically, the lives of astronauts at the International Space Station (“ISS”) could be covered within the meaning of ‘survival of population’, as ‘population’ does not specifically presume a minimum human presence. Therefore, if broadly interpreted, then even under Article 55 of AP I, the orbit can be considered as part of the natural environment, and the use of ASAT weapons should be prohibited as it could put the life of inhabitants of ISS or similar spacecraft in danger and thereby affect the orbit within which ISS orbits.
It is quite possible to have armed conflicts in space and to avoid such conflicts, there needs to be strong international cooperation to reduce military activity in outer space. However, the political reality is that asymmetric powers continue to work on the military use of space for their own self-interest which has furthered the risk of armed conflict in space. The lack of specificity in OST and no specific development on the application of IHL in outer space has provided an easy leeway to the powerful countries to exploit the space environment.
Increasing consensus on reading outer space as part of the ‘natural environment’, not only in the ENMOD but also for IHL generally, is one such step which will at least help regulate the military use of outer space. While it is possible that most of the countries that have already developed means and method to target satellites in space may refuse to consider space as the ‘natural environment’, to save space from becoming a new battle-ground, it is essential to take this positive step towards extending the existing IHL protections regime that restricts the means and methods of in outer space at least until more extensive laws tailored to outer space crystallise.
Gunjan Shrivastav is a third year law student at the National Law School of India University, Bangalore.
Image: Mike McQuade/NY Times