The legal status of a missile

In this new Space Law article, we will for Space Legal Issues analyse the legal status of a missile. What is a missile? Is it an aircraft? A space object when it is oriented towards outer space? What if a missile passes through outer space, above the Kármán line, like suborbital flights: does it become a space object? Let’s remember that the first rockets were developed as missiles, those space objects, like the V-2, were missiles. That is what we will study.

Different types of missiles

The Oxford English Dictionary defines a missile as “a weapon that is sent through the air and that explodes when it hits the thing that it is aimed at”, “an object that is thrown at somebody to hurt them”, “an object which is forcibly propelled at a target, either by hand or from a mechanical weapon”, or “a weapon that is self-propelled or directed by remote control, carrying conventional or nuclear explosive”.

When studying the legal status of a missile, in military language, a missile, also known as a guided missile, is a guided self-propelled flying weapon usually propelled by a jet engine or rocket motor. This is in contrast to an unguided self-propelled flying munition, referred to as a rocket (although these too can also be guided).

Missiles have four system components: targeting or missile guidance, flight system, engine, and warhead. Missiles come in types adapted for different purposes: surface-to-surface and air-to-surface missiles (ballistic, cruise, anti-ship, anti-tank, etc.), surface-to-air missiles (and anti-ballistic), air-to-air missiles, and anti-satellite weapons (ASAT).

Non-self-propelled airborne explosive devices are generally referred to as shells and usually have a shorter range than missiles. In ordinary language the word means an object which can be thrown, shot, or propelled toward a target.

The first missiles to be used operationally were a series of missiles developed by Nazi Germany in World War II. Most famous of these are the German V-2 rocket, which used a simple mechanical autopilot to keep the missile flying along a pre-chosen route. Less well known were a series of anti-shipping and anti-aircraft missiles, typically based on a simple radio control (command guidance) system directed by the operator.

Anti-satellite weapons (ASAT)

Continuing on the legal status of a missile, anti-satellite weapons (ASAT) are space weapons designed to incapacitate or destroy satellites for strategic military purposes. Several nations possess operational ASAT systems. Although no ASAT system has yet been utilised in warfare, a few nations have shot down their own satellites to demonstrate their ASAT capabilities in a show of force. Only the United States of America, Russia, China, and India have demonstrated this capability successfully.

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, travelling 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, considering the legal status of a missile, 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, 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”.

The legal status of a space object

The term Object in reference to outer space was first used in 1961 in General Assembly Resolution 1721 (XVI) titled International cooperation in the peaceful uses of outer space to describe any object launched by States into outer space. Professor Bin Cheng, a world authority on International Air and Space Law, has noted that members of the COPUOS during negotiations over the space treaties treated spacecraft and space vehicles as synonymous terms. The Space Object can be considered as the “conventional launcher (ELV)”, the “reusable launcher (RLV)”, the “satellite”, the “orbital station”, the “probe”, the “impactor”, the “space telescope”, the “International Space Station (ISS)”… As Professors Diederiks-Verschoor and Kopal wrote in An Introduction to Space Law, the term space object “is indeed the commonly used expression, but it must always be borne in mind that its exact meaning is still not quite clear”.

An object is defined by the Oxford English Dictionary as “A material thing that can be seen and touched”. The five Onusian treaties don’t use the term satellite, instead opting for “object launched into outer space” in the 1967 Outer Space Treaty or “space object” in the 1972 Liability Convention and the 1976 Registration Convention. The 1967 Outer Space Treaty doesn’t really provide a definition for “object launched into outer space” other than an indication in Article VIII that it includes the “component parts” of the “object launched into outer space”. To add to the mix, Article V of the 1967 Outer Space Treaty uses the term “space vehicle” and the 1968 Rescue Agreement (which is essentially an elaboration of Article V of the OST) uses the term “spacecraft”. A good definition is given by Professor Hobe who write that a “space object is a human made object launched into outer space intended to be used in (as opposed to merely transit through) outer space”.

Let’s remember that “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”, Article 31 of the Vienna Convention on the Law of Treaties of 1969. In addition, “Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable”, Article 32 of the Vienna Convention on the Law of Treaties of 1969.

Let’s recall that a space object causing damage triggers international third-party liability under the Convention on International Liability for Damage Caused by Space Objects (entered into force in September 1972). Article I (d) of which enounces that “the term space object includes component parts of a space object as well as its launch vehicle and parts thereof”. Its Article II adds that “A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight”.

A space object requires, thanks to the Convention on Registration of Objects Launched into Outer Space (entered into force in September 1976), registration. Article II of which states that “When a space object is launched into Earth orbit or beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall inform the Secretary-General of the United Nations of the establishment of such a registry”.

Finally, the term space object effectively triggers application of much of both 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 in October 1967) and the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (entered into force in December 1968). Article VII of the first declares that “Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies”.

Article 5 of the latter states that “1. Each Contracting Party which receives information or discovers that a space object or its component parts has returned to Earth in territory under its jurisdiction or on the high seas or in any other place not under the jurisdiction of any State, shall notify the launching authority and the Secretary-General of the United Nations. 2. Each Contracting Party having jurisdiction over the territory on which a space object or its component parts has been discovered shall, upon the request of the launching authority and with assistance from that authority if requested, take such steps as it finds practicable to recover the object or component parts. 3. Upon request of the launching authority, objects launched into outer space or their component parts found beyond the territorial limits of the launching authority shall be returned to or held at the disposal of representatives of the launching authority, which shall, upon request, furnish identifying data prior to their return”.

The 1967 Outer Space Treaty doesn’t really provide a definition for “object launched into outer space” other than an indication in Article VIII that it includes the “component parts” of the “object launched into outer space”. It states that “A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return”. We’ll conclude with the definition given by Professor Hobe who wrote that a “space object is a human made object launched into outer space intended to be used in (as opposed to merely transit through) outer space”.

The legal status of a missile

An aircraft is a machine that is able to fly by gaining support from the air. It counters the force of gravity by using either static lift or by using the dynamic lift of an aerofoil, or in a few cases the downward thrust from jet engines. Common examples of aircraft include airplanes, helicopters, airships (including blimps), gliders, and hot air balloons.

The Chicago Convention does not define the term “aircraft”. Annex 7 defines aircraft as “Any machine that can derive support in the atmosphere from the reactions of the air other than the reactions of the air against the Earth’s surface”. Under this definition, an aerospace vehicle launched by rocket would not be considered an aircraft on the ascent phase of its flight, but might well on the descent phase.

As a conclusion on the legal status of a missile, we will say that the status of the object depends on its mission/possible trajectory. If the missile is an anti-satellite missile, it will be considered a space object; otherwise, it will not. That is what can be said on the legal status of a missile.