The law of armed conflict: does it apply to space?


Judicial advice

When the White House announced earlier this year the creation of Space Force, a new branch of the military, many observers were puzzled. Space technology has undoubtedly come a long way since Neil Armstrong’s lunar escapades in 1969, but the idea of ​​interstellar infantry still seems to many of us a stretch of the imagination.

When the White House announced earlier this year the creation of Space Force, a new branch of the military, many observers were puzzled. Space technology has undoubtedly come a long way since Neil Armstrong’s lunar escapades in 1969, but the idea of ​​interstellar infantry still seems to many of us a stretch of the imagination. And yet, outer space and space technology now play a central role in almost every aspect of human life, in ways that were inconceivable even a few decades ago. Weather forecasts, communications technology, navigation systems – all depend on space. As we continue to integrate our thinking about space into the design of new technologies and new avenues of exploration, the possibility of future conflicts involving space rights and resources seems far from abstract.

So what happens when the national defense strategy begins to look to the stars? Does international law follow? As a starting point, the answer seems to be yes. International lawyers classify outer space as a territory comparable to the high seas – a “global common good”. Therefore, all international law on military conduct applies to outer space, meaning that any space conflict or use of military force in space would be subject to international humanitarian law (e.g. the Geneva Conventions) and the law of armed conflict. In practice, however, it is not clear exactly how these rules translate from one domain to another.

International law also restricts the use of certain weapons in outer space, notably in the 1967 Outer Space Treaty, widely regarded as the main agreement on international space law. Article IV of this treaty, for example, explicitly prohibits states parties from placing weapons of mass destruction in orbit around the earth, installing these weapons in space, or installing them on celestial bodies (such as the moon). The treaty also prohibits the establishment of military bases, installations and fortifications, as well as the conduct of military maneuvers, on celestial bodies.

But despite the obvious intention of the treaty to designate outer space as a place of peaceful exploration, the narrow scope of Article IV on weapons of mass destruction arguably leaves gaps in the legal regime governing military activities in the country. ‘space. It does not, for example, deal with the use of conventional weapons in outer space and whether conventional weapons would be subject to the same restrictions as those set out in Article IV.

Fortunately, the ambiguities in the application of international space law for military purposes have not gone unnoticed. In 2016, delegates to the United Nations Committee on the Peaceful Uses of Outer Space noted that stronger international legal instruments were needed to prevent the placement of weapons in outer space and ensure the use of space. space for peaceful purposes. In addition, international legal experts are working on a handbook on international law applicable to military uses of outer space, which will serve as a guide to fill legal gaps regarding how and to what extent States can conduct military activities. in outer space.

The day when human conflict transcends Earth’s borders may seem far away. But technology in many areas, including those applicable to a military environment, is already being used in space. It is therefore imperative to understand not only how international law applies to conflicts over space rights in general, but also to modern weapons technologies and their functions in space. The sooner we understand this, the better.

Erika Schneidereit is a lawyer at the Ministry of Justice. The author’s opinions are his own and do not represent the opinions or positions of the Department of Justice or the Government of Canada. The author’s opinions are his own.

Erika Schneidereit is a lawyer at the Ministry of Justice. The author’s opinions are his own and do not represent the opinions or positions of the Department of Justice or the Government of Canada. The author’s opinions are his own.