Bertamini, Maximilian

Schultz, Stephan

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Keeping it clean (part I)On the prohibition on the use of force in an ASATcontextVölkerrechtsblog 2019-04-11T15:39:23On March 27th India successfully tested an anti-satellite (ASAT) missile againstone of its own test satellites, creating a cloud of space debris which might collidewith the International Space Station (read our post of last week here). Since ASATweapons are ultimately designed to be used against satellites of other states,scenarios in which space debris is caused through international hostilities becomemore realistic. As the conflict in the Indo-Pakistani Kashmir region recently reignitedwith new military force, a scenario in which India targets a Pakistani satellite is nolonger a matter of pure fiction. This Bofax is part one of a two-part series dealingwith selected issues revolving around the use of ASAT missiles against satellitesof other states. The first Bofax assesses if the prohibition on the use of force couldbe violated in such scenarios. The second Bofax will reflect on the protection ofouter space as part of the environment under outer space law and internationalhumanitarian law (IHL).Given the rising risk of ASAT missiles targeting satellites of other states, it shouldbe clarified if the prohibition on the use of force applies in that context. Until nowit has mostly been discussed how international law deals with force from spaceagainst earth-based targets. The question of how to assess force directed againstobjects in space is rarely considered (read more here). Article 2(4) UNCH whichcodifies customary international law and is generally considered to constitute iuscogens states that “all Members shall refrain in their international relations fromthe threat or use of force against the territorial integrity or political independenceof any state, or in any other manner inconsistent with the Purposes of the UnitedNations“. The prohibition was included in the UNCH to protect the sovereignty ofstates, which is often considered to be limited to the state’s own territory. Today amore modern understanding of the prohibition on the use of force going beyond stateterritory is derived from the last part of Article 2(4) UNCH, which focusses on thequestion whether or not a use of force can be reconciled with the “Purposes of theUnited Nations”. These are defined in i.a. Article 1(1) UNCH as the maintenance ofinternational peace and security as well as prevention and removal of any threatsto this peace. Attacks against objects of another state are threats to internationalpeace and thus attacks against another state’s satellites in a forceful manner wouldfall within the scope of prohibited force under the UNCH.The fact that the notion of prohibited force limited to a state’s territory does not fullyreflect a modern understanding of the term is also evident in the handling of theprohibition regarding ships. Although ships are not state territory, attacks againstthem in international waters can still constitute a violation of state sovereignty, as- 1 -international law subjects ships to the sovereignty of the flag state. Applying thisfiction to satellites would thus require a nexus similar to the one between ships andtheir flag state. This nexus could arguably be provided by the registration of spaceobjects by the launching state, as called for by Article II (1) of the Convention onRegistration of Objects Launched into Outer Space (Registration Agreement). Thelaunching state is defined in Article I a) as the state which launches or procuresthe launching of a space object or the state from whose territory or facility a spaceobject is launched. While it could be argued that ships are only subjected to statesovereignty due to a state’s jurisdiction over the crew, unmanned objects such asdrones are also considered suitable targets for unlawful force in order to protect statesovereignty and to guarantee the right of self-defence (read more here). The sameinterests exist with regard to satellites.Further, Article III of the Outer Space Treaty requires states parties to use outerspace in accordance with the UNCH in the interest of maintaining internationalpeace and security. This corresponds to the United Nations purposes as reflected inArticle 2(4) UNCH. In conclusion, the use of ASAT missiles against satellites of otherstates can violate the prohibition on the use of force. Maximilian Bertamini (research associate) and Stephan Schultz (student assistant)work at Ruhr University Bochum’s Institute for International Law of Peace and ArmedConflict. This post appears as part of a collaboration between the IFHV and theVölkerrechtsblog. Cite as: Maximilian Bertamini & Stephan Schultz, “Keeping itclean (part I): On the prohibition on the use of force in an ASATcontext”, Völkerrechtsblog, 11 April 2019.- 2 -

Keeping it clean (part I): On the prohibition on the use of force in an ASAT context

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Keeping it clean (part I): On the prohibition on the use of force in an ASAT context

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