The legality of military activities in outer space

The space sector has emerged for reasons related to the military sector. Are we today heading towards a militarization of international spaces (Antarctica, outer space or the high seas)? To be interested in outer space is to understand that this environment is free but framed (some will say limited). Space law is based on liberty and this freedom cannot be shared at best for the greatest number unless it has certain limits. The first limitation, and one of the most important when space activities appeared, was for the two superpowers of the Cold War and the United Nations, to establish the peaceful uses of outer space, the demilitarization or denuclearization of outer space. Let’s study the legality of military activities in outer space.

All States without discrimination have an inalienable right to develop the uses of nuclear energy for civilian purposes, provided that they do not divert these peaceful uses to nuclear weapons. However, five countries have the right to possess these weapons, namely the United States of America, France, Russia, China and the United Kingdom of Great Britain and Northern Ireland. Around this position, a lively debate both legal and ethical has been raised. For its opponents, nuclear energy represents a long-term risk that cannot be controlled by science. Major nuclear accidents, radioactive waste and the diversion of nuclear energy for military purposes are unmanageable and exceptionally serious risks. On the other hand, the defenders of this energy present it as safe, even as a stakeholder in sustainable development. According to them, nuclear power is a reliable way to fight against global warming and also a solution to the energy shortage that the world is facing. By examining and analysing the reliability and credibility of all the arguments against and in favour of this industry, we find that the lawfulness and legitimacy of the use of nuclear energy are ill-founded. What about the use of weapons in outer space? The nuclearization of outer space?

If the Soviet Union was able on October 4, 1957 to orbit Sputnik 1, the first space object, it meant that it would also be able to use intercontinental ballistic missiles (an intercontinental ballistic missile or ICBM, is a guided ballistic missile with a minimum range of five thousand five hundred kilometres primarily designed for nuclear weapons delivery – delivering one or more thermonuclear warheads) against its adversaries, in particular the United States of America. The question of the militarization of outer space is a very delicate issue, the subject being highly strategic, and States not easily agreeing on it, often leaving room for further misunderstandings. Since a resolution of the United Nations General Assembly of December 13, 1958, it was desired to see outer space used exclusively for peaceful purposes. The General Assembly stated that it wished to avoid the extension of present national rivalries into the field of outer space, that the exploration and exploitation of outer space shall be done for the benefit of mankind, considered that such co-operation will promote mutual understanding and the strengthening of friendly relations among people. The Partial Test Ban Treaty, signed on August 5, 1963, also prohibits nuclear weapons testing in the atmosphere, beyond its limits, including outer space, or underwater, including territorial waters or high seas. This text has the merit of enacting prohibitions that extend as much to areas under the jurisdiction of States as to spaces removed from the sovereignty of States. It is also important to mention that resolution 1884 (XVIII), calling upon States to refrain from placing in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction or from installing such weapons on celestial bodies, was adopted unanimously by the United Nations General Assembly on October 17, 1963.

The Partial Test Ban Treaty (PTBT)

The Partial Test Ban Treaty (PTBT) is the abbreviated name of the 1963 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, which prohibited all test detonations of nuclear weapons except for those conducted underground. The PTBT was signed by the governments of the Soviet Union, United Kingdom, and United States of America in Moscow on August 5, 1963 before being opened for signature by other countries. The treaty formally went into effect on October 10, 1963. Since then, one hundred and twenty other states have become party to the treaty. Ten states have signed but not ratified the treaty. Article I states that “Each of the Parties to this Treaty undertakes to prohibit, to prevent, and not to carry out any nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control: (b) in any other environment if such explosion causes radioactive debris to be present outside the territorial limits of the State under whose jurisdiction or control such explosion is conducted. It is understood in this connection that the provisions of this subparagraph are without prejudice to the conclusion of a Treaty resulting in the permanent banning of all nuclear test explosions, including all such explosions underground, the conclusion of which, as the Parties have stated in the Preamble to this Treaty, they seek to achieve; (a) in the atmosphere; beyond its limits, including outer space; or under water, including territorial waters or high seas”.

The legality of military activities in outer space

When speaking about the legality of military activities in space, Article IV of the 1967 Treaty distinguishes the legal regime for the whole of outer space and special limits concerning the Moon and other celestial bodies. It states 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. The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies shall also not be prohibited”. It refers to a total demilitarization of outer space and prohibits weapons of mass destruction, that is to say, atomic, bacteriological, chemical or equivalent effect. We can also think of environmental modification techniques for military or hostile purposes, as envisaged since the Convention of May 18, 1977, which prohibits the use of such weapons. The Environmental Modification Convention (ENMOD), formally the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, is an international treaty prohibiting the military or other hostile use of environmental modification techniques having widespread, long-lasting or severe effects. It opened for signature on May 18, 1977 in Geneva and entered into force on October 5, 1978. The Convention bans weather warfare, which is the use of weather modification techniques, such as cloud seeding, for the purposes of inducing damage or destruction. The Convention on Biological Diversity of 2010 would also ban some forms of weather modification or geoengineering.

This ban on certain armaments, particularly on Earth orbits, is obviously one of the most important for security on Earth. Recall that the Treaty of Outer Space (1967) was adopted at a time when arms limitation agreements were at the heart of diplomatic concerns, especially those of the two superpowers (The Treaty of Tlatelolco, signed on February 14, 1967, is the conventional name given to the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean; the Treaty on the Non-Proliferation of Nuclear Weapons, commonly known as the Non-Proliferation Treaty or NPT, signed on July 1, 1968, is an international treaty whose objective is to prevent the spread of nuclear weapons and weapons technology, to promote cooperation in the peaceful uses of nuclear energy, and to further the goal of achieving nuclear disarmament and general and complete disarmament; the Strategic Arms Limitation Talks (SALT) were two rounds of bilateral conferences and corresponding international treaties involving the United States of America and the Soviet Union, the Cold War superpowers, on the issue of arms control. The two rounds of talks and agreements were SALT I and SALT II and negotiations commenced in Helsinki, Finland, in November 1969). The total demilitarization of the Moon and celestial bodies is also provided for in the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (entered into force on July 11, 1984).

Article 3 of the Moon Agreement of 1979 states that “States Parties shall not place in orbit around or other trajectory to or around the Moon objects carrying nuclear weapons or any other kinds of weapons of mass destruction or place or use such weapons on or in the Moon. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on the Moon shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration and use of the Moon shall also not be prohibited”.

There are questions about the interpretation of the term peaceful: either non-military (broad interpretation) or non-aggressive (narrow interpretation). The United States of America prefers the narrow interpretation and constructs its argument by explaining that it is necessary to retain the right of self-defence, as expressed both in customary law and in Article 51 of the Charter of the United Nations. Chapter VII, Article 51 of the Charter of the United Nations concerning “Action with respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression” states that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.

The National Aeronautics and Space Administration (NASA) Act of 1958 also refers to the peaceful purposes of research and outer space, stating that “The Congress hereby declares that it is the policy of the United States that activities in space should be devoted to peaceful purposes for the benefit of all mankind”. The United States of America has always considered the action of reconnaissance satellites (a reconnaissance satellite or intelligence satellite, commonly, although unofficially, referred to as a spy satellite, is an Earth observation satellite or communications satellite deployed for military or intelligence applications) to be both military and peaceful. The Soviet Union, for its part, quickly defended the idea that certain activities are prohibited, even for the State acting under conditions of self-defence, based for example on the Geneva Protocol of 1925 on the use of biological weapons (the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, usually called the Geneva Protocol, is a treaty prohibiting the use of chemical and biological weapons in international armed conflicts. It was signed at Geneva on June 17, 1925 and entered into force on February 8, 1928. It was registered in League of Nations Treaty Series on September 7, 1929), the 1972 Convention on the Prohibition of the Manufacture, Stockpiling and Use of Bacteriological and Toxin Weapons (the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and on their Destruction, usually referred to as the Biological Weapons Convention, was the first multilateral disarmament treaty banning the production of an entire category of weapons. The Convention was the result of prolonged efforts by the international community to establish a new instrument that would supplement the 1925 Geneva Protocol. The Geneva Protocol prohibits use but not possession or development of chemical and biological weapons) or the Environmental Modification Convention of May 18, 1977 on Environmental Changes for hostile purposes. The Soviet Union has also come to recognize the peacebuilding function of reconnaissance satellites.

To summarize, all areas of outer space are devoid of certain weapons, in this case weapons of mass destruction, whether for storage, experimentation or even more use; on the other hand, certain areas, in this case the Moon and the celestial bodies, generally exclude all military activity: all weapons are prohibited in certain areas and certain weapons are prohibited in all zones. This conclusion makes it possible to develop or envisage certain military activities in outer space without the right being able to give an unambiguous answer to the question of the lawfulness of these activities.

The question of anti-satellite weapons – The legality of military activities in space

For various reasons, States may wish to consider damaging, destroying or temporarily rendering satellites useless for their operators. On January 11, 2007, China conducted an anti-satellite missile test. A Chinese weather satellite, the FY-1C polar orbit satellite of the Fēngyún series, at an altitude of eight hundred and sixty-five kilometres, with a mass of seven hundred fifty kilograms, was destroyed by a kinetic kill vehicle, launched with a multistage solid-fuel missile from Xichang Satellite Launch Center (XSLC) or nearby, traveling with a speed of height kilometres a second in the opposite direction. Although the subject is often mentioned, we know that the first systems were set up in the sixties, first by the United States of America, then by the Soviet Union.

From a legal point of view, when analysing the legality of military activities in space, these weapons do not fall under the prohibition of Article IV of the Outer Space Treaty since they are in no way weapons of mass destruction. The Outer Space Treaty of 1967 allows certain military activities to continue as long as there is no total prohibition of weapons in outer space. Certain defensive military activities remain permissible. Article 2 of the Charter of the United Nations states that “The Organization and its Members, shall act in accordance with the following Principles. The Organization is based on the principle of the sovereign equality of all its Members. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII”.

In any case, when speaking about the legality of military activities in space, the manufacture and deployment of anti-satellite remains lawful: it is their possible use that should be subject to review (for this case, one should perhaps rely more surely on General International Law). It might be envisaged that a State party to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force on 10 October 1967), which would multiply anti-satellite systems, should be regarded as depriving the Treaty of its object and purpose. Other States parties to the Treaty could then withdraw in accordance with the one-year notice provided for in Article XVI which states that “Any State Party to the Treaty may give notice of its withdrawal from the Treaty one year after its entry into force by written notification to the Depositary Governments. Such withdrawal shall take effect one year from the date of receipt of this notification”. That is what we can say about the legality of military activities in space.