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Space is increasingly important in monitoring and assessment potential threats to national security. NATO itself acknowledged during the 2021 Brussels Summit that the implementation of article 5 of the Washington Treaty would be carried out on a case-by-case basis by the North Atlantic committee . This paper examines to what extent the application of article 5 in outer space is feasible and under what circumstances this should occur; it also explores whether there are other international bodies that include outer space in their self and collective defense provisions.
Space has become a new operational domain that plays a role core topic for security. It is crucial not only for military operations, but also for other essential activities of modern life, such as economic transactions, communications, weather monitoring, banking and agriculture. More specifically, in the military sector, space enables intelligence, surveillance and reconnaissance (ISR) and contributes to early warning and secure communications capabilities. Overall, space is becoming increasingly important for monitoring and assessing potential threats to national security. For this reason, the space domain is being targeted development in national security strategies and an increasing issue number of countries are launching satellites to meet their economic, environmental, defense and communication needs. In total, in 2021, of the 8,261 satellites orbiting the Earth, 1,809 belonged to NATO allies. For this reason, in 2019, said organization determined that space would be an operational domain along with air, land, maritime and cyber, a fact that was complemented by the implementation of its Space Policy. Through this designation, NATO shows that it is aware of the growing role of space in its operations. In order to make it an operational domain, the Alliance is focused on maintaining an updated knowledge of the status and secure access to space services in order to integrate space into training and training exercises.
In the coming years, both the dependence of military operations on space assets and the role of space assets in future conflicts are expected to increase. Thus, in 2021, another major step was taken during the Brussels Summit, where NATO leaders agreed that article 5 of the Washington Treaty could be invoked if "attacks to, from or within space present a challenge to the security of the Alliance." However, at that same summit it was stressed that such application of article 5 would be adopted by the North Atlantic committee on a case-by-case basis.
Outer Space according to the Washington Treaty article 5
article 5 of the Washington Treaty states that if any of the NATO Allies suffers an armed attack, each and every member of the Alliance will regard it as an act of violence against all members, and, consequently, all necessary actions will be taken to assist the attacked Ally. These actions need not be military, but may consist of economic support, humanitarian attendance or other appropriate measures. This intervention should end when the UN Security committee applies the relevant provisions to restore peace and security. It is important to note that article 5 should be complemented by article 6, which emphasizes that, for the purposes of its application, the armed attack must take place against:
The territory of any of the Parties in Europe and North America
Departments Algerians from France
Territory of Turkey
The islands under the jurisdiction of any Party in the North Atlantic area north of the Tropic of Cancer.
Forces, ships or aircraft of either Party, when in or over these territories or any other area of Europe in which occupation forces of either Party were stationed on the date on which the Treaty entered into force, or which are in the Mediterranean Sea or in the North Atlantic area north of the Tropic of Cancer
However, article 6 does not determine whether outer space falls within the scope of article 5. In this sense, armed attacks occurring within the airspace of NATO members could be interpreted as occurring in Europe and North America, but article does not specify that attacks taking place over those territories are included. Some analysts believe that the interpretation of article 6 is clear and imposes geographical limits that preclude its application in outer space. It is true that, if satellites were to be included in this scope, many features would need to be determined, such as, for example, whether attacks on space objects belonging to allies anywhere in orbit could be considered a degradation of NATO capabilities.
Self-defense and collective defense in outer space under other bodies of law
When looking for a more concrete answer in other international organizations, it becomes clear that the European Union faces the same level of indeterminacy as NATO. The article 42 (7) of the Treaty on European Union states that "if a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation to aid and assist it by all the means in their power, in accordance with article 51 of the Charter of the United Nations". Once again, this article recalls that the aggression must take place on European territory, but does not determine the extent of these terms, allowing to assume that they cover land areas, airspace and territorial waters of EU Member States. According to maritime law, article 42 (7) does not extend to international waters, but is only applicable in internal and territorial waters. This means that Art. 42 (7) TEU could not be invoked if a European ship was attacked in international waters. Applying the same principle to outer space, it does not seem feasible that an attack on a European satellite that does not occur exactly when it is orbiting over the territory of the Union would fall within the scope of Art. 42 (7) TEU.
In the case of cyberspace, another area playing an increasingly important role in the field of security, the mutual attendance is also unclear. In the Vilnius statement , NATO stated that cyber activities could rise to the level of an armed attack, and could then give rise to the application of Art. 5 on a case-by-case basis. In the European Union, in 2021, the Dutch Parliament asked the government to advocate the applicability of Art. 42 (7) TEU to hybrid threats, but cyber attacks are in this sense as ambiguous as attacks on outer space. Analysts point out that, in order to trigger the application of Art. 42 (7) TEU, it is necessary for the cyber-operation to be considered an armed attack under Art. 51 of the UN Charter. In other words, it must result in death or significant injury to persons in order to trigger its application. At reference letter to this issue, the UN General Assembly affirmed in 2015 that international law is fully applicable to both cyberspace and traditional conflict zones on land, at sea and in the air.
article 51 of the UN Charter is the root of article 5 of the Washington Treaty and article 42 (7) of the TEU. According to it, States are recognized the right of self-defense or collective self-defense in the event of an armed attack against them. In this sense, an armed attack is to be understood as an international intervention against another state without its consent and without being legally justified. In order to respond legally to an attack, the ICJ established in Nicaragua v. United States 1986 and Iran v. United States 2003 that such a response must be based on the observance of the criteria of necessity and proportionality. For these criteria to be met, force in self-defense may only be used when necessary to put an end to an attack and when all peaceful means have been exhausted or are unavailable. In addition, the aggression must be imminent, which requires the belief that any further delay will result in the inability of the defending state to defend against the aggression. In the case of both cyberspace and outer space, there is a risk of international intervention against a state without legal justification whose delay may result in a status of defenselessness on the part of the aggressed state. In such a circumstance, the criteria of article 51 of the UN Charter for a possible application of Art. 5 of the Washington Treaty and Art. 42 (7) TEU would be met.
In relation to the State's inability to defend itself, the fact is that attacks on satellites can result in major damage. Satellites are a component core topic of global communications systems, which means that a disruption in these communications would cause widespread outages in telephone, Internet or television networks, affecting individuals, businesses and emergency services. Navigation systems depend on satellites to provide GPS functions, so an attack would disable these systems. Because of the critical role they play in monitoring and providing data weather forecasting, the ability to prevent hurricanes or typhoons would also be affected. In addition, in the event of armed conflict, the damage or destruction of a space object could generate the so-called space debris, with all that this implies.
Application of article 5 on a case-by-case basis
Going back to the 2021 Brussels Summit, where it was agreed that the implementation of article 5 would be considered on a case-by-case basis by the North Atlantic committee , it is important to note that all NATO decisions are taken by consensus. This means that any resolution is reached by common agreement, i.e. there is no voting. During this procedure, consultations are held until a ruling is reached that is acceptable to all members. In the case of an attack against an allied satellite, this would mean that a decision on the implementation of article 5 of the Washington Treaty would have to wait until a consensus is reached among the 31 NATO allies. Given its ambiguous nature, this could happen quickly or be spread out over time, affecting an imminent Allied response if needed.
Conclusion
It was not until 2019 that NATO implemented its space policy and recognized space as an operational domain on par with the air, land, maritime and cyber domains. It is therefore understandable that the Allies have not determined an appropriate extension of article 5 of the Washington Treaty as it applies to outer space. However, for the invocation of that article to be viable, it is necessary to specify the terms of its application. First, outer space should be included in article 6 as another territory where an armed attack may take place. Second, the requirements for a collective defense response should be specified according to international law. Last but not least, decisions on the operability of article 5 should not be taken on a case-by-case basis, but automatically if the status complies with the legal requirements . To this end, NATO must assume that today's world is facing challenges that are completely different from those that occurred when the Washington Treaty was drafted in the late 1940s.
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