MILITARY LAW Law and War in Outer Space PROF DALE STEPHENS CSM, ADELAIDE LAW SCHOOL In June, 2017 the U.S. Secretary of the Air Force, Heather Wilson, stated that outer space is a likely venue for future armed conflict 1 and that as a consequence, the U.S. is investing heavily in maintaining its military dominance in this theatre of operations. The realization of the possibility of “space war” has arisen quickly in recent history. While the 1991 Gulf War has been rightly acknowledged as the first space war, it wasn’t actually fought in outer space. Rather, in that conflict the U.S and coalition forces (including Australia) relied heavily on Global Positioning Satellites (GPS) to conduct that conflict and to that end it featured space-based assets to a significant degree. 2 In 1991, the U.S and her allies could confidently rely on such satellites knowing that they could operate with relative impunity. Since then space-based assets have enabled even greater capability for land, sea and air forces. What Secretary Wilson is acknowledging in her statement is that such reliance has created a strategic vulnerability as other nations advance their own space fighting capabilities. Hence, systems such as GPS become highly vulnerable to possible attack. In 2007 for example, China demonstrated that it could easily attack orbiting satellites by destroying one of its own ageing weather satellites. 3 It is well within the capacity of most developed countries to accurately launch such kinetic attacks and for those that do not have missile capability, it is equally clear that cyber-warfare offers an effective means of degrading satellite functionality. 4 Given the dual use (military and civilian) of many satellites and the free global service delivered by GPS (and the Russian equivalent GLONASS) to everyday life, an armed conflict in space could be catastrophic to modern life. We rely upon GPS signals for a myriad of uses, including navigation, communication, banking, agriculture, travel and even the Internet 32 THE BULLETIN March2018 itself. It is important to note though that GPS was developed principally for military use and modern weapons of warfare rely heavily upon GPS for their accuracy. Clearly however, a war in which these satellites were targeted would have wide ranging impact upon civilian life for everybody. While there do exist five major Treaties relating to the use of outer space (Australia has signed and ratified all five), there is very little mention of military use or restraint within these treaties. In fact, only one provision of the 1967 Outer Space Treaty (OST) 5 directly deals with military activity. Article IV of the OST prohibits the placement of weapons of mass destruction in full orbit, it also reserves the Moon and other celestial bodies for exclusively peaceful purposes and prohibits, inter alia, the establishment of permanent military bases or testing of weapons on celestial bodies. Hence any military activity outside these rather specific prohibitions is generally permitted and is not subject to specific treaty regulation. 6 Accordingly, the development of anti-satellite (ASAT) missiles, space based cyber warfare, directed energy weapons, and dual-use technology like rendezvous and proximity operations are not proscribed. 7 Given the vulnerability of satellites and the emerging recognition of the growing possibility of armed conflict in space, a number of international lawyers, scientists and policy experts came together in 2016 to start drafting a Manual of International Law Applicable to Military Uses of Outer Space. The Project is led by three Universities, namely The University of Adelaide, McGill University (Canada) and The University of Exeter (UK). The project is also supported by representatives of national Governments (acting in their personal capacities) and organizations such as the International Committee of the Red Cross. Remarkably, International Humanitarian Law (IHL) which in Treaty terms comprises the four 1949 Geneva Conventions and the two 1977 Additional Protocols, does not expressly apply any provision to armed conflict in outer space. There is considerable regulation of armed conflict on land, sea and air, but not in outer space. Despite this, Article III of the OST does provide that all activities conducted in outer space shall be undertaken in accordance with International Law, including the Charter of the United Nations. Hence, legal prohibitions on the use or threat of use of force contained within the UN Charter do apply to outer space via Article III as does the right of self-defence should a state be subject to an armed attack in space. Similarly, it would logically follow that IHL as customary international law would also apply to space warfare as would general principles of law. Indeed, the International Court of Justice has declared that whenever or wherever there is armed conflict, then IHL would apply to ensure that humanitarian priorities are preserved. 8 While this may be easily accepted, the difficulty is then discerning how such law applies, and in what manner, when both international law and physical laws have different application in outer space. IHL’s application to space operations presents a number of novel issues. How the law applies in the context of civilian activity in the midst of an armed conflict in space needs to be carefully mapped.
MILITARY LAW Questions relating to dual civilian and military use of satellites obviously need to be answered in terms of targeting. Similarly, questions regarding the creation of debris fields following a kinetic attack which could comprise hundreds or thousands of pieces of destroyed satellite orbiting the earth at tens of thousands of kilometres an hour equally present difficult legal and practical issues. The impact on civilian loss of life resulting from attacking satellite systems must be assessed as a matter of law before any attack is undertaken. Critically however, the law does not have anything to say about military operations that impose civilian social inconvenience or economic loss resulting from the loss of GPS signals for transportation, communication or any other civilian use. Equally significant is the impact of armed conflict on civilian operators in space. Private entrepreneurs such as Elon Musk from Space X and Jeff Bezos from Amazon have ambitious plans to explore and colonize space. 9 Companies are as equally invested in the use of space in modern times, as are States and the likelihood of armed conflict impacting large scale civilian activities in space is very real. How the law applies in the context of civilian activity in the midst of an armed conflict in space needs to be carefully mapped. While it may be presumed that the full array of IHL does apply to regulate armed conflict in space, a more difficult question is how to reconcile the IHL regime not only in its own terms (where physical laws are different in space) but also against the prevailing space law regime (which principally comprises the five foundational treaties). For example, the space law regime does not permit any claims of sovereignty in space and yet concepts of neutrality, which underpin significant aspects of IHL, depend on such sovereignty to ensure protections for non-belligerents are maintained. Similarly, the space regime under Article VI of the OST imposes a different threshold for State Responsibility than what applies on earth, one that is much more strict. Under this space law regime, which makes States very quickly responsible for the actions of non-governmental entities, it is arguable that private actors in space can unwittingly commit their States to armed conflict without even knowing it. While an unlikely reading of the interaction between regimes, it is certainty a plausible view that may yet be tested in a real time context. Unfortunately, recent attempts to draft treaties that limit the militarization of outer space have not progressed very far. 10 This creates a potential legal gap in the field that the University of Adelaide Law School, in conjunction with other Universities working on this Manual, is seeking to fill. The University of Adelaide Law school is fast establishing a national and also international reputation as a space law specialist and is confident that a resulting Manual addressing the international law applicable to military activities in outer space will have significant impact upon State behaviour. Similar Manuals in the areas of naval warfare, 11 air and missile warfare 12 and cyber warfare 13 that have been produced over the past few decades have had such a normative impact and hence the prospects for a space warfare manual having similar significance are favourable. A war in outer space sounds like it comes straight from the pages of science fiction. Unfortunately, as the U.S Secretary of the Air Force has noted, the prospect of armed conflict in outer space is very real. Should it happen, its impact upon everybody on earth and its implications for future human space exploration would be devastating. In this context, the development of a Manual that articulates a legal framework of restraint and protection of civilian persons and objects is critical. This project that Adelaide Law School leads will play its part in conditioning behaviour as well as ameliorating the effects of violence should the unthinkable occur. B Endnotes 1 http://www.defenseone.com/ideas/201 armed con7/06/why-im-directing-air-force-focusspace/138744/ 2 https://www.scientificamerican.com/article/ gps-and-the-world-s-first-space-war/ 3 Michael Mineiro, FY-1C and USA-193 ASAT Interceptions: An Assessment of Legal Obligations Under Article IX of the Outer Space Treaty, 34 Journal of Space Law 321 (2008). 4 See generally Chris Bowlby, ‘Could a War In Space Really Happen’ 19 Dec 2015, available online at: . 5 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 January 1967, 610 UNTS 205 (entered into force on 10 October 1967) (Hereinafter ‘Outer Space Treaty’ or ‘OST’). 6 U.S. Department of Defense, Law Of War Manual, Chap XIV ‘Air and Space Warfare’ (2015) found at: http://archive.defense.gov/ pubs/Law-of-War-Manual-June-2015.pdf - paragraph 188.8.131.52, p 916-7. 7 Note though that the 1963 Partial Test Ban Treaty does prohibit the use of outer space for nuclear testing. 8 Legality of the Threat or Use of Nuclear Weapons Advisory Opinion  ICJ reports 226 at 259, para 86. 9 ‘The New Space Race’ found at https://www.economist.com/news/ leaders/21735023-events-space-reflect-thoseback-home-new-space-race. 10 See generally, Paul Meyer, Dark Forces Awaken: The Prospects for Cooperative Space Security, Simons Papers in Security and Development, No 58/2017, School for International Studies, Simon Fraser University, Vancouver, March 2017. 11 Louise Doswald-Beck, San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1995) found at https://ihl-databases.icrc.org/ihl/ INTRO/560?OpenDocument 12 Program On Humanitarian Policy And Conflict Research, Manual On International Law Applicable To Air And Missile Warfare (2009) found at: https://www.researchgate.net/profile/ Claude_Bruderlein/publication/264036862_ Manual_on_International_Law_ Applicable_to_Air_and_Missile_Warfare/ links/59a911d50f7e9b27900e2f0e/Manual-on- International-Law-Applicable-to-Air-and-Missile- Warfare.pdf. 13 Michael Schmitt (Ed) Tallinn Manual 2.0 On The International Law Applicable To Cyber Operations (2 nd Edition, 2017). 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