War In Space: What Laws Are Applicable? (2024) PDF

War in Space What Laws Are Applicable? Frans G. von der Dunk Harvey & Susan Perlman Alumni / Othmer Professor of Space Law University of Nebraska-Lincoln Director, Black Holes B.V. space law & policy consultancy Law & Governance of Outer Space Technologies...

War in Space What Laws Are Applicable? Frans G. von der Dunk Harvey & Susan Perlman Alumni / Othmer Professor of Space Law University of Nebraska-Lincoln Director, Black Holes B.V. space law & policy consultancy Law & Governance of Outer Space Technologies Vrije Universiteit, Amsterdam, 2 December 2024 What are we talking about? ‘War in Space’? ‘War’? → ‘Use of armed force’ → ‘Outer space’? (1) ◆ Realm above/beyond the Earth’s atmosphere  ‘Outer space’? (2) ± 150 km / 93.75 miles 100 km 62.5 miles ± 50 km / 31.25 miles International law! (1) ◆ ‘Armed conflicts’ traditionally/still largely focus on inter-State conflicts (& threats thereof) ◆ ‘Outer space’ logically considered an international are(n)a by nature → Applicable law also (at least in first instance) international International law! (2) International Public lawlaw international Outer Ratione geographiae – space Law on activities in outer space law International law! (2) Public international law Ratione materiae Law of armed – conflict Law on the use of armed force (LOAC) International law! (2) Public international law Outer Law of armed space conflict law (LOAC) Space & terrestrial conflicts…! International law! (3) Public international law Outer Law of armed space conflict law (LOAC) Armed conflicts in outer space? ◆ Close-proximity operations ◆ Hijacking satellites? ◆ Lunar natural resource competition? International law! (4) International Public lawlaw international Outer Law of armed space law ? conflict (LOAC) ‘Outer space law’ (1) ‘All law of major & direct relevance to space activities & major space applications’ ‘Outer space law’ (2) ◆ 1967 Outer Space Treaty ▪ 114 States parties & 22 signatories ▪ Including all major spacefaring nations ▪ Generally considered customary international law ▪ Three major implementing treaties 1968 Rescue Agreement 1972 Liability Convention 1975 Registration Convention General principles (1) ◆ Art. II, OST: “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.” Since UN Charter that’s all history now on Earth & now prohibited in space too A small step for a man, a giant leap for [hu]mankind… [not just for the United States] General principles (2) ◆ Art. I, OST: freedom of activity for States = baseline → limits to freedom can in principle only be imposed at an international level – read: as by treaties & customary international law duly accepted by sovereign States General principles (3) ◆ Art. V, OST & Rescue Agreement: astronauts = ‘envoys of [hu]mankind’, entitled to maximum support when in distress & immediate repatriation without further ado upon landing General principles (4) ◆ Art. VI, OST: responsibility of States also for private activities in outer space, if ‘national’, requiring authorization & continuing supervision → national legislation General principles (5) ◆ Art. VII, OST & Liability Convention: liability of States for damage caused by space objects launched into outer space, also if private (→ national legislation) General principles (6) ◆ Art. VIII, OST & Registration Convention: require registration of space objects & allow for retention jurisdiction over space objects registered – as if quasi-territory of a flag State – and “any personnel thereof” General principles (7) ◆ Art. IX, OST: due regard for interests other States → international guidelines on space debris mitigation, but no prohibition to produce space debris as such or obligation to clean up one’s own space debris as such Principles on military use (1) ◆ Art. III, OST: international law in general applies to outer space ▪ But Art. 48(1), ITU Constitution, allows military use to operate without coordination satellite frequencies & orbits per ITU-regime … ◆ Art. III, OST: space activities to promote international peace & security Principles on military use (2) ◆ Art. IV, OST: prohibition orbiting/stationing weapons of mass-destruction in outer space ◆ Art. IV, OST: prohibition military activities on celestial bodies ◆ Art. X, OST: limited right to observe launches ◆ Art. XII, OST: limited right to visit stations on celestial bodies Principles on armed conflict (1) ◆ Art. III, OST: UN Charter applies (in principle) to outer space ▪ Art. 2(4): baseline prohibition use of force against territorial integrity / political independence of a State ▪ Art. 51: right of self-defence ▪ Arts. 42 & 53: UN-sanctioned/ -mandated use of force Principles on armed conflict (2) ◆ Art. III, OST: as applicable, other treaties/customary international on armed conflict also apply to outer space ▪ 1963 Partial Test Ban Treaty: no nuclear explosions of any kind in outer space ▪ 1977 ENMOD Convention: no environmental modification as part of armed conflict-operations Summing up… Outer space law premised on peaceful uses of outer space & hope such uses will remain peaceful: major effort to minimize chances of armed conflicts in outer space Possible future reality of armed conflicts in outer space & their devastating effects… ‘Law of armed conflict’ (1) ◆ Reality of armed conflicts → Desire to limit them & their disastrous effects ‘Law of armed conflict’ (2) ‘All law of major & direct relevance to armed conflicts, when & how they may be fought’ ‘Law of armed conflict’ (3) ◆ Many elements ▪ Jus ad bellum (limiting the legitimate context use of force) / jus in bello (limiting legitimate use of force itself) / international humanitarian law ▪ More targeted regimes such as ‘law of neutrality’, ‘law of prizes’ & ‘law of targeting’ ▪ Exclusion use of certain categories of weapons (→ exclusion/limitation of possession thereof) ‘Law of armed conflict’ (4) ◆ Many sources ▪ 1899/1907 series of Hague Conventions ▪ 1945 UN Charter ▪ 1949/1977 Geneva Conventions & Protocols ▪ Many more treaties, often with special focus ▪ Much State practice & opinio juris → much customary international law General principles (1) ◆ Limitation justifications for use of armed force in ‘international’ context 1. In self-defense (Art. 51, UN Charter & ‘beyond’) 2. As UN-sanctioned/-mandated (Arts. 42 & 53, UN Charter) ▪ That is, for States & their armed forces… General principles (2) ◆ Limitation use of specific arms & methods of armed force ▪ 1972 Biological Weapons Convention ▪ 1977 ENMOD Convention ▪ 1992 Chemical Weapons Convention ▪ 1997 Anti-Personnel Landmines Convention General principles (3) ◆ Distinction belligerents & neutral States → Rights of belligerents vis-à-vis c c neutral States & vice versa General principles (4) ◆ Protection various categories of persons involved in conflicts ▪ Combatants ▪ …incl. POWs ▪ Citizens, of both belligerents & neutrals General principles (5) ◆ Protection various categories of assets involved in conflicts ▪ Hospitals ▪ Other non-military targets ▪ Other assets, of both belligerents & neutrals  Absence of armed conflicts in outer space → focus on three traditional domains → no straightforward application law of armed conflict to outer space Principles for outer space…? (1) 1. Land Ruled by territorial sovereignty → focus on distinction territory belligerent resp. neutral State E.g. 1907 Hague V Convention Principles for outer space…? (2) 2. Maritime Largely ruled by absence territorial sovereignty → addresses e.g. sovereign immunity warships E.g. 1907 Hague XIII Convention Principles for outer space…? (3) 3. Airspace Ruled by mix territorial sovereignty & absence of such sovereignty E.g. 1944 Chicago Convention → UN Charter Principles for outer space…? (4) 4. Outer space? No domain-specific law of armed conflict yet! & outer space neither subject to national sovereignty, nor to airspace law Principles for outer space? (5) → Some law of armed conflict = non-domain- specific ▪ UN Charter obligations on armed attacks & right of self-defense / UN-sanctioned use of force ▪ General principles of international law: pacta sunt servanda, good faith, prohibitions on genocide ▪ General LOAC principles: discrimination/military necessity, proportionality, responsibility …but how would these apply? Public international International lawlaw Outer Law of armed space law ? conflict (LOAC) The core problem ◆ Two distinct legal regimes interact for first time 1. ‘Space law’: lex specialis with regard to general public international law for the specific domain of outer space 2. ‘Law of armed conflict’: also lex specialis with regard to general public international law for specific armed conflict scenarios → Two conflicting leges speciales… Belligerent Neutral/Third State Belligerent Neutral/ Third State → Two conflicting leges speciales… Belligerent Neutral/Third State Belligerent Generally, law of armed conflict supersedes space law in case of incompatible application (within space law structural parameters) Neutral/ Third State → Two conflicting leges speciales… Belligerent Neutral/Third State Belligerent Generally, law of armed conflict supersedes space law in case of incompatible application (within space law structural parameters) Neutral/ Space law rules; law of Third State armed conflict mainly relevant to the extent of neutrality law parameters → Two conflicting leges speciales… Belligerent Neutral/Third State Belligerent Generally, law of armed Law of armed conflict conflict supersedes space supersedes space law if law in case of incompatible clearly applicable to space application (within space – except for space law law structural parameters) erga omnes obligations Neutral/ Law of armed conflict Space law rules; law of Third State supersedes space law if armed conflict mainly clearly applicable to space relevant to the extent of – except for space law neutrality law parameters erga omnes obligations → Woomera Manual International research project spearheaded by U of Adelaide, U of Exeter, U of Nebraska & U of New South Wales, aided by individual experts & State consultations “to develop a Manual that objectively articulates and clarifies existing international law applicable to military space operations” Manual – general approach ◆ Addressing main concepts, issues & rules coming from existing international law & their applicability to armed conflicts in the context of outer space & space activities ◆ 48 Rules with attendant notes explaining analyses, especially of treaty law, State practice & opinio juris, & conclusions – while allowing for possibility of absence of proper law Manual – substance (1) ◆ Four introductory sections ▪ Introduction (especially on methodology: focus on treaty law, State practice & opinio juris) ▪ Overview space law ▪ Legal connections between States and space objects – registration, responsibility, liability & ownership concepts ▪ Delimitation outer space versus airspace Manual – substance (2) 1. Military space activities during peacetime 1. Freedoms and restrictions related to the use of outer space 2. Responsibility and liability 3. Other obligations Manual – substance (3) 2. Military space activities during times of tension and crisis 1. Legal obligations and prohibitions of particular relevance during times of tension and crisis 2. Response actions Manual – substance (4) 3. Military space operations during armed conflict 1. Characterization of armed conflict 2. Conduct in or related to attack 3. Precautions in attack 4. Means and methods of warfare 5. Other obligations → Manual & jus in bello (1) ◆ Rule 31 – Attack ‘Attack’, in the context of a military operation including a military space operation in the course of an armed conflict, is an act of violence against the adversary ▪ ‘Means-based’ approach: accomplished by armed force & associated weapons, including non-kinetic weapons ▪ Cyber: included if pursuant to ‘effects-based’ approach death, injury, destruction or damage is caused → Manual & jus in bello (2) ◆ Rule 32 – Distinction Party to armed conflict shall at all times distinguish between civilian population and combatants and between civilian objects and military objectives and accordingly shall direct its military operations, including its military space operations, only against military objectives ▪ As for humans: so far essentially future-oriented ▪ As for objects → … → Manual & jus in bello (3) ◆ Rule 34 – Military objectives Military objectives are lawful targets in a military operation in a time of armed conflict, including a military space operation if by their nature, location, purpose, or use they make effective contribution to military action and their total or partial destruction, capture or neutralisation, offers definite military advantage ▪ Includes in principle satellites & ground stations ▪ Includes dual-use space objects (…!) → Manual & jus in bello (4) ◆ Rule 38 – Proportionality in Attack Party to armed conflict may not attack, including by way of military space operations, when expected incidental loss of civilian life, injury to civilians, damage to civilian objects would be excessive in relation to the concrete and direct military advantage anticipated ▪ Calculation much harder to make in space – cf. space debris! ▪ Likewise with multi-purpose satellites Concluding remarks ◆ Woomera Manual clearly first step in articulating wherever international law regarding armed conflicts in outer space may be concluded to exist → Many gaps & uncertainties, as (luckily!) State practice is still (largely…) wanting Note: State practice in terms of outer space also includes ‘paper practice’: official declarations of legal positions – or absence thereof