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Position paper submitted by the International Committee of the Red Cross to the Secretary-General of the United Nations on the issues outlined in General Assembly Resolution 75/36, 8 April 2021
Published online by Cambridge University Press: 04 November 2021
1. The use of weapons in outer space – be it through kinetic or non-kinetic means, using space- and/or ground-based weapon systems – could have significant impacts on civilians on earth. This is because technology enabled by space systems permeates most aspects of civilian life, making the potential consequences of attacks on space systems a matter of humanitarian concern.
This position paper is available in the six United Nations languages at: https://www.icrc.org/en/document/potential-human-cost-outer-space-weaponization-ihl-protection.
1 UN General Assembly, UN Doc. A/RES/75/36, 7 December 2020, para. 5.
2 Ibid. para. 6.
3 It is acknowledged that military operations against ground-based components of such space systems would also have humanitarian consequences and raise issues under international humanitarian law (IHL). However, they are not discussed in this paper.
4 UN General Assembly, UN Doc. A/RES/75/36, 7 December 2020, preamble and para. 1.
5 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies (1967), adopted by UN General Assembly Resolution 2222 (XXI), 19 December 1966.
6 The applicability of IHL in outer space is confirmed by Article III of the Outer Space Treaty, which requires States to “carry on activities in the exploration and use of outer space … in accordance with international law”. International law includes IHL. See also International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, para. 86.
7 IHL rules on the conduct of hostilities are found primarily in the 1977 Protocols additional to the Geneva Conventions of 1949, as well as in customary law. The latter rules govern the choice of means and methods of warfare, however and wherever used; see Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, ICRC/Cambridge University Press, 2005, in particular Rules 1 to 24: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul. For the purposes of applying these rules, an “attack” is defined by IHL as an act of violence against the adversary, whether in offence or in defence; see Additional Protocol I (1977), Article 49(1). It is important to note that the notion of “attack” under IHL is distinct from that of “armed attack” under Article 51 of the UN Charter.
8 For a detailed explanation of how IHL rules on the conduct of hostilities apply to the use of weapons in outer space, see ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts, ICRC, Geneva, 2019, pp. 33–34Google Scholar.
9 UN General Assembly, UN Doc. A/RES/75/36, 7 December 2020, para. 3.
10 International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, para. 86.
11 Additional Protocol I (1977), Article 36.
12 ICRC, A Guide to the Legal Review of New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977, ICRC, Geneva, 2006, p. 1Google Scholar.
13 UN General Assembly, UN Doc. A/RES/75/36, 7 December 2020, para. 5.
14 Ibid. para. 3.
15 Ibid. para. 5.