By Tomas Marozas

[Tomas Marozas lectures international humanitarian law at the Institute of International and European Union Law of the Law School of Mykolas Romeris University (MRU). He is also a PhD candidate at MRU and his research interests involve legality of targeting satellites under jus in bello and directly related subfields such as environmental protection of outer space under legal regime of armed conflict.] Twitter   / LinkedIn

More than half of all Earth orbiting spacecraft serve military purposes (Maogoto, 2015, p. 31). The military significance and calculable trajectories of the orbiting satellites induce states to continuously develop anti-satellite (ASAT) technologies. The last three successful kinetic ASAT weapon tests conducted by China, USA and India raised concerns on the inevitable effects these weapons cause. The kinetic collision between China’s kinetic kill vehicle and the satellite generated an orbital ring of space debris spread from the altitude of 175 km to as high as 3 600 km. That was and still is the largest debris cloud ever generated by a single event in Earth’s orbit. This incident has happened in peacetime, but who knows when the armed conflict might move to space? The question of legality of targeting satellites during armed conflict has been raised multiple times, however, relatively little emphasis has been given to the substantive question whether ‘outer space’ actually forms part of ‘natural environment’ under the Law of Armed Conflict (LOAC). Only if it does, the whole legal
spectrum of LOAC environmental preservation requirements would be applied to outer space and, accordingly, legal tools be available to mitigate space debris formation during armed conflicts. The increasing number of space debris makes this brief analysis a relevant interdisciplinary topic.

The two main international legal instruments establishing rules of protection of natural environment during armed conflict are 1977 I Additional Protocol to Geneva Conventions (API) and 1977 Environmental Modification Convention (ENMOD Convention).

Article 35(3) of the API prohibits the employment of means and methods of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment. Article 55 similarly requires to care and protect the natural environment against widespread, long-term and severe damage, however, adds “This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.” This added sentence in Article 55 shaped a two-fold understanding of LOAC environmental preservation rules.

According to the first understanding (called anthropocentric), natural environment is not protected per se, since damage is only relevant to the extent that it negatively affects the health of civilians or cause harm to civilian objects. The proponents of this view would not consider an attack against natural environment a breach of LOAC if damage to the natural environment caused by the attack did not prejudice health or survival of civilian population. It must be clarified, that under the system of the LOAC, all objects during armed conflict are qualified as either military objectives or civilian objects. Civilian objects are all objects which are not military. Military objectives are those 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 offers a definite military advantage. According to the anthropocentric view, not all parts of natural environment are ‘objects’ (might have no status at all). Only when a part of natural environment is used or relied upon by civilians or when harm to it affects civilians, natural environment qualifies for civilian object (ICRC Guidelines, 1994, p. 18). In the context of outer space, according to the discussed view, any amount of generated space debris during armed conflict or any release of dangerous materials in outer space (even if they were widespread, caused long-term and severe damage) would not be limited under LOAC as long as it did not affect civilians. Having in mind the fact that the threshold for environmental damage under LOAC is high (widespread, long-term and severe) and the damage should affect the whole population and not merely individual civilians, probably any attack in outer space would hardly ever be limited under environmental preservation rules of LOAC if they were interpreted only anthropocentrically.

There is another, a more dominant view, that both of the mentioned API articles have intrinsic value and consider separate parts of natural environment as civilian objects. According to that view, the health and existence of civilian population after the attack on natural environment should not necessarily be taken into account, since the mere damage to civilian object (alongside determination of principles of proportionality and distinction) would suffice to conclude the breach of Article 35(3) and Article 55. According to this intrinsic view, outer space (or its separate elements, such as orbits) would have the status of civilian object and be protected against the attacks as long as they were not military objectives. As Dinstein proposed, “The injury to human beings should be regarded not as a condition for the application of the injunction against causing environmental damage, but as the paramount category included within the bounds of a larger injunction” (Dinstein, Y., 2004, p. 182). The intrinsic view would allow to qualify the breach of LOAC’s environmental preservation rules even though civilian population was not threatened at all. In context of outer space, an intentional creation of space debris or chemical pollution of outer space having widespread, long-term and severe effects would be prohibited under LOAC, because outer space (Earth orbit’s or other parts of outer space) would in general be considered as ‘natural environment’ and have protective status of civilian object.

The ENMOD Convention in Article 2 defines environmental modification techniques as referring to “any technique for changing — through the deliberate manipulation of natural processes — the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space.” That is the only multilateral international treaty where outer space is mentioned for the purposes of preservation of natural environment in context of the use of force. Despite the use of ‘outer
space’ in the definition, it needs to be stressed out the ENMOD Convention does not seek to define natural environment, but to prevent environmental modification techniques. Moreover, ENMOD Convention could not automatically be transposed to relevant articles in API, because these two documents have different purposes – ENDMOD Convention prevents the use of environmental modification techniques as a weapon (the so-called geophysical war), whereas API aims to prevent the natural environment from unlawful use of means and methods of warfare (the so-called ecological war). ENDMOD Convention prohibits environmental modification techniques only in so far as these techniques are used against another State, whereas API prohibits any widespread, long-term and severe damage to the natural environment irrespectively of the territory of the occurred damage. Therefore, the linguistically identical terms in two documents are not necessarily equal legally. The expert group of Tallinn Manual 2.0 adopted the definition of ‘natural environment’ accordingly to ENMOD Convention, however safely excluded ‘outer space’ from it. They argued that there was a ‘lack of conclusive State practice and opinio juris’ (Schmitt, 2017, p. 537). The expert group could not come up with a different general conclusion, since they had to crystalize lex lata of international law in cyber domain and international law is primarily created by states, not the scholars. Despite the lack of state practice, it yet may not be concluded that granting outer space the status of natural environment (or to be more precise – civilian object) is somewhat contrary to the requirements of LOAC.

The authors of the Commentary of the I Additional Protocol to Geneva Conventions (IAP) explained that he term ‘natural environment’ refers to the system of “inextricable interrelations between living organisms and their inanimate environment.” They further suggested natural environment to be understood “in the widest sense”. International Court of Justice (ICJ) in the Nuclear weapons opinion stated that “environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn”. This description is evidently broad, but does exclude out outer space from LOAC vested protection.

The challenge of protecting outer space under the general environmental protection rules of LOAC lies not in the definition of ‘natural environment’, but mostly because it is hard to perceive that space debris generated by kinetic ASAT weapons or even left out of any space vehicle launch is actually ‘damage’ to this natural but distant environment. The term ‘damage to the natural environment’ generally encompasses change of environment in negative way and accordingly space debris should fall under that notion.

In conclusion, despite the indefinite text of international treaties and lack of State practice, outer space may not be ruled out of the LOAC requirements relative to protection of natural environment. Under the dominant intrinsic view of protection of natural environment, outer space and its parts should be perceived as civilian objects as long as they do not legally qualify as military objectives.