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The Law Applicable to Military Strategic Use of Outer Space

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New Technologies and the Law of Armed Conflict

Abstract

Space power theories discussed in the previous chapter, as well as the realities of the strategic utility of weapons of space and the strategic importance of space itself are reflected in the legal framework for the use of space. These factors were present when the Cold War superpowers negotiated the Outer Space Treaty and several other constitutive legal instruments. But as Cold War relations thawed, the impetus for treaty-making diminished. Concurrently the space domain became more congested, competitive and contested with many more entrants. There were and still are efforts to address the current challenges to space security but the instruments resulting from, or proposed by, those efforts lack the same legal force as the original, constitutive legal instruments; they are somewhat vague and their approach to the unfortunate and controversial possibility of hostilities in space is tentative at best. The constitutive legal instruments for the space domain do not directly deal with the possibility of hostilities in space in detail, but they do indirectly contemplate the application of the law of armed conflict. Both the constitutive legal instruments and the subsequent efforts to address the current challenges to space security influence the way in which the law of armed conflict potentially applies to hostilities in outer space. However, there remains great uncertainty about the application of the law of armed conflict to hostilities in the space domain. Efforts to achieve greater clarity must be undertaken before such hostilities occur, in part because such efforts will help to address some of the current challenges in space security.

This chapter is largely taken from a thesis that the author has developed in partial satisfaction of the requirements of a Master of Laws degree at McGill University, Montreal. Unless otherwise noted, the conclusions expressed herein are solely those of the author, writing in his personal capacity. They are not intended and should not be thought to represent official ideas, attitudes, or policies of any agency of the Government of Australia. The author has used publicly available information in the research and presentation of this work.

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Notes

  1. 1.

    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 10 October 1967) (‘Outer Space Treaty’).

  2. 2.

    Charter of the United Nations, 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945) (‘UN Charter’).

  3. 3.

    Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, 22 April 1968, 672 UNTS 119 (entered into force 3 December 1968) (‘Rescue and Return Agreement’).

  4. 4.

    Convention on International Liability for Damage Caused by Space Objects, 29 November 1971, 961 UNTS 187 (entered into force 29 March 1972) (‘Liability Convention’).

  5. 5.

    Convention on Registration of Objects Launched into Outer Space, 14 January 1975, 1023 UNTS 15 (entered into force 15 September 1976) (‘Registration Convention’).

  6. 6.

    Agreement Governing the Activities of States on the Moon and other Celestial Bodies, 18 December 1979, 1363 UNTS 3 (entered into force 11 July 1984) (‘Moon Agreement’).

  7. 7.

    For ratification information on the space treaties, see, UN Office of Outer Space Affairs 2013a.

  8. 8.

    Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, GA Res 1962 (XVIII) (13 December 1963).

  9. 9.

    For a short history of COPUOS, see, UN Office of Outer Space Affairs 2013b.

  10. 10.

    For an authoritative account of ‘law-making’ within COPUOS, see, Marchisio 2005.

  11. 11.

    Outer Space Treaty, Article I.

  12. 12.

    Outer Space Treaty, Article III.

  13. 13.

    Outer Space Treaty, Article III.

  14. 14.

    For an excellent discussion of the issue, see, Cheng 2000.

  15. 15.

    Outer Space Treaty, Article IV.

  16. 16.

    Outer Space Treaty, Article IV.

  17. 17.

    Outer Space Treaty, Article IV.

  18. 18.

    Cheng 2000, pp. 98–99.

  19. 19.

    This interpretation is consistent with decisions of the International Court of Justice concerning the freedom and sovereignty of states specifically with respect to weapons in Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) (Merits), ICJ Reports 1986, 14 (‘Nicaragua’), p. 135; and Legality of the Threat or Use of Nuclear Weapons Case (Advisory Opinion), ICJ Reports 1996, 226 (‘Nuclear Weapons’), p. 247.

  20. 20.

    See, for example, Outer Space Treaty, preamble and Article I; Liability Convention, preamble and Article XII; Registration Convention, preamble and Article VI; Moon Agreement, preamble and Articles 4, 6 and 11.

  21. 21.

    Outer Space Treaty, Article I.

  22. 22.

    Moon Agreement, Articles I and VII.

  23. 23.

    See generally, Jakhu 2006, especially pp. 87–88.

  24. 24.

    Outer Space Treaty, Article II.

  25. 25.

    Lyall and Larsen 2009, p. 184.

  26. 26.

    See, for example, the scheme for allocation of orbital slots established by the member states of the International Telecommunications Union under the Radio Regulations Edition of 2012, 17 February 2012, WRC-12 (entered into force 1 January 2013) (‘Radio Regulations’).

  27. 27.

    Lyall and Larsen 2009, p. 188.

  28. 28.

    Outer Space Treaty, Article VIII; Registration Convention, Article II.

  29. 29.

    Outer Space Treaty, Article VI; Registration Convention, Article II(2); and generally, Rescue and Return Agreement.

  30. 30.

    Outer Space Treaty, Article V.

  31. 31.

    Outer Space Treaty, Article V.

  32. 32.

    See, for example, Outer Space Treaty, Article IX.

  33. 33.

    Outer Space Treaty, Article IX.

  34. 34.

    Constitution of the International Telecommunications Union, 22 December 1992, 1825 UNTS 331 (entered into force 1 July 1994) (‘ITU Constitution’), Articles 44 and 45.

  35. 35.

    Radio Regulations, Articles 1 (1.169), 4 and 15 (Section VI).

  36. 36.

    Radio Regulations, Article 22.

  37. 37.

    Liability Convention, Article I.

  38. 38.

    Liability Convention, Article XXII.

  39. 39.

    Outer Space Treaty, Article VI.

  40. 40.

    See, Crawford 2002.

  41. 41.

    For a good examination of the responsibility of states in the space treaties, see, Spencer 2008.

  42. 42.

    Outer Space Treaty, Article VIII.

  43. 43.

    Outer Space Treaty, Article VI.

  44. 44.

    These issues are particularly problematic in the context of space debris. See, Nyampong 2012, pp. 11–13.

  45. 45.

    This is consistent with International Law Commission 2011. This document identifies the modern view that armed conflict does not ipso facto terminate or suspend treaties.

  46. 46.

    This is consistent with the doctrine of sovereign immunity in response to claims against a state or its agents for acts done within the scope of the law of armed conflict in the context of an armed conflict. But see, Protocol Additional to the Geneva Conventions of 12 August 1949 Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (‘Additional Protocol I’), Article 91.

  47. 47.

    Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, GA Res 34/68 (5 December 1979).

  48. 48.

    For two accounts of controversies arising from the terms of the Moon Agreement, see, Jakhu 2005 and Davis and Lee 1999.

  49. 49.

    See, UN Office of Outer Space Affairs 2013c.

  50. 50.

    UN Committee on the Peaceful Uses of Outer Space 2013.

  51. 51.

    In 2007 the Scientific and Technical Subcommittee of the Committee on the Peaceful Uses of Outer Space adopted the ‘Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space’ after many years of consideration: UN Committee on the Peaceful Uses of Outer Space 2007. They are largely based on the work of the Inter-Agency Space Debris Coordination Committee in its ‘Space Debris Mitigation Guidelines’ and the COPUOS document actually refers back to the Coordination Committee. The guidelines were subsequently adopted by COPUOS itself and endorsed by the General Assembly. As the name suggests, the Guidelines are not legally-binding and are stated in relatively general terms. The work of the Legal Subcommittee focuses on national regulatory implementation of the Guidelines. The commitment of states to such implementation, and the approach they each take, has implications for the national security interests of all space-enabled states.

  52. 52.

    See, for example, UN Committee on the Peaceful Uses of Outer Space 2012, para 45.

  53. 53.

    UN Conference of Disarmament Secretariat 2013.

  54. 54.

    For example, Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, 10 April 1972, 1015 UNTS 163 (entered into force 26 March 1975); Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 13 September 1992, 1974 UNTS 317 (entered into force 29 April 1997).

  55. 55.

    Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, 18 May 1977, 1108 UNTS 151 (entered into force 5 October 1978) (‘ENMOD Convention’).

  56. 56.

    Article 1 of the ENMOD Convention prohibits military or hostile use of environmental modification techniques having widespread (encompassing an area of several hundred square kilometres), long lasting (lasting for a period of months or approximately a season), or severe effects (involving serious or significant disruption or harm to human life, natural and economic resources, or other assets) for purposes of destroying, damaging, or injuring another state. The parenthetical interpretation of the terms ‘widespread’, ‘long-lasting’ and ‘severe’ are provided in an understanding of the Consultative Committee of Experts, which is provided in the Annex to the Convention. Such widespread, long-term or severe effects in space are prohibited in peacetime and in armed conflict.

  57. 57.

    Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water, 5 August 1963, 480 UNTS 45 (entered into force 10 October 1963).

  58. 58.

    Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, 729 UNTS 169 (entered into force 5 March 1970) (‘NPT’). For an account of the negotiation of the NPT, see, Goldschmidt 1980.

  59. 59.

    There are currently only five non-parties to the NPT: India, Israel, North Korea, Pakistan and South Sudan. It is unlikely that South Sudan has any objection to the NPT, but the other four states certainly do. Those four states each possess ballistic missiles with a trajectory through space and the real or apparent capability to produce nuclear weapons. The NPT therefore cannot be said to have been effective in respect of those states.

  60. 60.

    Comprehensive Nuclear Test Ban Treaty, 26 August 1996, UN Doc A/50/1027 (not yet in force), adopted in GA Res 50/245 (10 September 1996).

  61. 61.

    For a comprehensive list and summary description of all the instruments, see, US Congressional Research Service 2013.

  62. 62.

    Limitation of Anti-Ballistic Missile Systems Treaty, 26 May 1972, 944 UNTS 14 (entered into force 3 October 1972, no longer in force due to US withdrawal, effective 13 June 2002) (‘ABMT’).

  63. 63.

    Signed on 25 November 2002. The full text is found at: http://www.hcoc.at/.

  64. 64.

    Hague Code of Conduct against Ballistic Missile Proliferation, Article 2(f).

  65. 65.

    SC Res 2087 (22 January 2013). The resolution was adopted as part of condemnation against North Korea’s ballistic missile launches.

  66. 66.

    UN Charter, Article 24.

  67. 67.

    UN Charter, Article 26.

  68. 68.

    For the latest General Assembly PAROS resolution, see, GA Res 67/30 (11 December 2012), paras 2 and 3.

  69. 69.

    GA Res 67/30 (11 December 2012), para 6.

  70. 70.

    Transparency and Confidence-Building Measures in Outer Space Activities, GA Res 65/68 (13 January 2011). This is the second time that a group of government experts has been established by the UN General Assembly to consider confidence-building measures—the first reported to UN General Assembly in 1993.

  71. 71.

    For an authoritative account of these initiatives, see, Meyer 2012, especially pp. 14–15.

  72. 72.

    Draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects, UN Doc CD/1839 (29 February 2008) (‘PPWT’).

  73. 73.

    EU Council of the European Union, Draft Code of Conduct for Outer Space Activities, European Union Doc No 17175/08 (9 December 2008). The draft was revised in 2010: Revised Draft Code of Conduct for Outer Space Activities, European Union Doc No 14455/10 (27 September 2010). The current draft was released coincidentally with the beginning of formal negotiations on the Code: Revised Draft International Code of Conduct for Outer Space Activities, European Union Doc No 1696642/12 (5 June 2012) (‘ICOC’). There has apparently been further negotiation of the Code, possibly leading to an international conference at which participating states will be asked to formally subscribe to the Code. Further details can be found at European External Action Service 2013.

  74. 74.

    PPWT, Article I(c).

  75. 75.

    PPWT, Article I(d).

  76. 76.

    PPWT, Article I(a).

  77. 77.

    PPWT, Article V.

  78. 78.

    See, for example, US 2008.

  79. 79.

    ICOC, clauses 4.1, 4.2 and 4.4.

  80. 80.

    ICOC, clauses 4.2 and 4.3.

  81. 81.

    ICOC, clauses 3 and 7.

  82. 82.

    ICOC, clauses 6, 8–13.

  83. 83.

    ICOC, clauses 2 and 4.2.

  84. 84.

    ICOC, clause 4.2.

  85. 85.

    For a good summary of critiques of the ICOC, see, Rajagopalan 2012.

  86. 86.

    Listner 2013.

  87. 87.

    UN Office of Outer Space Affairs 2013d.

  88. 88.

    Treaty between the United States of America and the Russian Federation on Measures for the Further Reduction and Limitation of Strategic Offensive Arms, 8 April 2010, 50 ILM 340 (entered into force 5 February 2011), Article X.

  89. 89.

    Convention on the Safety of United Nations and Associated Personnel, 15 December 1994, 2051 UNTS 363 (entered into force 15 January 1999), Article 7.

  90. 90.

    Most recently, see, Rose 2013.

  91. 91.

    Consider, for example, the suggestion in 2006 that the Chinese used satellite laser range-finders to dazzle US spy satellites: Union of Concerted Scientists 2007. The reaction of US Defense officials suggested that even deliberate actions by China to dazzle a spy satellite for the duration that it passes over China were not a significant concern.

  92. 92.

    It is a foundational principle of international law that all states are sovereign and that no restriction on their sovereignty can be presumed, but the corollary is that no state may interfere in the affairs of another state. See, Lotus (France v Turkey) (Judgment), PCIJ Reports 1927 (ser A) No. 10, p. 18.

  93. 93.

    International Law Commission 2001, p. 56, para 6 and p. 87, para 1.

  94. 94.

    Petras 2005, pp. 87–90.

  95. 95.

    It is doubtful, however, that this freedom could be read as extending to a right to ‘look’ in a certain direction for intelligence at another state’s sensitive sites—the sensing state could continue to freely use and explore outer space with its spy satellite by simply ‘looking’ away from the sensitive site.

  96. 96.

    International Law Commission 2001, Article 25.

  97. 97.

    International Law Commission 2001, Article 49.

  98. 98.

    ITU Constitution, Article 45. See also Radio Regulations, Article 15.1 (which prohibits signals that are superfluous) and Article 15.2 (which prohibits signals at a greater strength than necessary). The term ‘harmful interference’ is defined in the Radio Regulations, Article 1.169. See also, Eytalis 2012, generally on rights and freedoms associated with broadcasting and when jamming might be lawful, and see especially pp. 11–22 on ‘harmful interference’.

  99. 99.

    Radio Regulations, Article 15.

  100. 100.

    Case Concerning the Gabcikovo-Nagymaros Project (Hungary v Slovakia), ICJ Reports 1997, 7, pp. 55–57. See also, International Law Commission 2001, Articles 51 and 52.

  101. 101.

    UN Charter, Article 2(4). The exceptions are the threat or use of force consistent with the exercise of the inherent right of national self-defence, as recognised by Article 51 of the UN Charter, or in accordance with UN Security Council authorisation.

  102. 102.

    Schmitt (ed) 2013.

  103. 103.

    Schmitt (ed) 2013, r. 11, para 1 citing Nicaragua, para 195.

  104. 104.

    Schmitt (ed) 2013, r. 11, para 9.

  105. 105.

    UN Charter, Article 51. For a discussion on the scope of ‘anticipatory’ or ‘interceptive’ self-defence, see, Dinstein 2011, pp. 201–206.

  106. 106.

    Nicaragua, paras 191 and 195.

  107. 107.

    Oil Platforms (Islamic Republic of Iran v United States) (Merits), ICJ Reports 2003, 161, paras 57 and 61.

  108. 108.

    Schmitt (ed) 2013, r. 13, para 10.

  109. 109.

    Outer Space Treaty, Article VI.

  110. 110.

    See, Chap. 6 by Midson in this volume.

  111. 111.

    See, for example, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950), Article 2.

  112. 112.

    Sandoz et al. (eds) 1987, paras 1450–1456. For further discussion on this issue, see, Schmitt 2006.

  113. 113.

    Additional Protocol I, Article 42.

  114. 114.

    Sandoz et al. (eds) 1987, paras 2020–2022.

  115. 115.

    For example, the US Department of Defense and Central Intelligence Agency are required, by executive mandate, to source at least some imagery for national security purposes from commercial remote sensing entities. They are even required to coordinate with commercial remote sensing entities to determine, in advance, how commercial remote sensing infrastructure will be used to meet national security needs: see, US 2003. This appears to provide strong evidence that the ‘future intended use’ of the US commercial remote sensing satellites includes making an ‘effective contribution to military action’ of the US. The same orders are likely to apply even if the satellite is owned and registered by a neutral state: see, Waldrop 2003, pp. 94–96. For an interesting discussion of ‘use’ versus ‘purpose’ in the context of military use of commercial communications satellites, see, Morgan 1994, p. 318.

  116. 116.

    For a good indication of the multi-national and dual-use nature of many satellites, see, Union of Concerned Scientists 2013.

  117. 117.

    Outer Space Treaty, Article I. Also, of the ‘global public interest’ in outer space, see generally, Jakhu 2006.

  118. 118.

    Graves 1994, scene in Clerks.

  119. 119.

    Additional Protocol I, Article 48.

  120. 120.

    Additional Protocol I, Article 51(4).

  121. 121.

    See also, Additional Protocol I, Article 35(3); ENMOD Convention.

  122. 122.

    Registration Convention, Articles IV and V; Bourbonnière and Lee 2008, pp. 892–896.

  123. 123.

    Additional Protocol I, Article 48.

  124. 124.

    Waldrop 2003, pp. 20–22 (discussing the conflation of military and civilian use of remote-sensing satellites generally) and pp. 95–100 (discussing neutrality and implications for civilian operators as direct participation in hostilities).

  125. 125.

    Bourbonnière and Lee 2008, pp. 894–896 (discussing perfidy).

  126. 126.

    Additional Protocol I, Article 51(5)(b).

  127. 127.

    Additional Protocol I, Article 57(2)(a)(iii) refers to ‘loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof’.

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Blake, D. (2014). The Law Applicable to Military Strategic Use of Outer Space. In: Nasu, H., McLaughlin, R. (eds) New Technologies and the Law of Armed Conflict. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-933-7_8

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