(Editor’s Note: The absence of a comprehensive analysis of the legal framework for military operations in outer space represents a troubling deficiency in the understanding of the applicable law. Such uncertainty increases the chance of a strategic error in the conduct of military operations in space. This three-part Just Security forum, beginning with the first installment below, introduces and analyzes key emerging legal issues raised by space-based military operations, which are the focus of the ongoing Woomera Manual Project, an international research project that is spearheaded by The University of Adelaide, The University of Exeter, the University of Nebraska and the University of New South Wales – Canberra. The mission of the project collaborators is to develop a Manual that objectively articulates and clarifies existing international law applicable to military space operations. More information on the project is available here.)
Outer Space is an active theater of military operations. Military activities across the globe rely heavily on space for services including satellite communications, position navigation and timing (PNT), meteorology, environmental monitoring, space situational awareness as well as intelligence, surveillance and reconnaissance (ISR). In addition, significant civilian commercial use of space will soon be a reality, especially related to resource extraction.
The scope, nature, and frequency of both military and civilian activities in space continues to intensify. The current space law regime regulating these military and civilian activities is principally contained in five treaties: the 1967 Outer Space Treaty, 1968 astronaut Rescue Agreement, 1971 Liability Convention, 1975 Registration Convention and the 1979 Moon Convention.
The Woomera Manual Project
Understanding how the space treaty regime and general international law applies to establish boundaries, freedoms, and constraints for an ever-expanding range of actual and potential military space operations has become a critical imperative. A research project launched in 2018, The Woomera Manual on the International Law of Military Space Operations (OUP 2021), seeks to articulate the full spectrum of legal regimes that may apply to various military space activities. These activities range from those undertaken in peacetime, to those in circumstances short of armed conflict or limited uses of force, to full-scale armed conflict. The project is spearheaded by this author’s University of Adelaide (Australia), and the Universities of Exeter (U.K.), Nebraska–Lincoln (U.S.) and New South Wales–Canberra (Australia). It follows in the footsteps of other International Operational Law Manuals such as the San Remo Manual on Naval Warfare, Harvard’s Humanitarian Policy and Conflict Research (HPCR) Manual on Air and Missile Warfare and the Tallinn Manual 2.0 on Cyber Operations, that have all informed critical decision making by States in their respective fields.
The drafting team of the Woomera Manual comprises academic, government (acting in their personal capacity), and non-governmental organization (NGO) lawyers, as well as technical experts. The main methodological focus is State practice in this field. While there are volumes of commentary on space law written by very important academic writers that can assist this project, the fact remains that States make international law. Hence locating and analyzing State practice is the primary guiding principle in Woomera project research. The State practices examined include the negotiating history of relevant treaties, official statements and, more importantly, actions taken by States in the context of military space operations, military manuals and information gleaned from actual international military space exercises.
The manual’s editors also will carry out a dedicated State engagement process towards the end of 2020, with the assistance of the Dutch Government. This process will allow interested States the direct opportunity to provide their input concerning the research process and conclusions reached prior to the manual’s final submission for publication.
Building on Existing Law
In relation to the general framework of the space law treaty regime, there do already exist some specific military prohibitions that must be observed. These prohibitions relate to the non-deployment of weapons of mass destruction as well as a broad prohibition on a range of military activities on the Moon and other celestial bodies.
Fortunately, the vast majority of space-faring nations (including the United States, China, Russia, and India) are party to the 1967 Outer Space Treaty, allowing for a consistency of approach. This treaty is the most prominent of current space treaties and sets forth the guiding principles for the conduct of human activities in outer space. Concepts such as non-appropriation of outer space and celestial bodies, issues of liability, and the rescue and return of astronauts are key elements of the current treaty regime, which first emerged more than 50 years ago with the 1967 treaty.
Despite providing a firm foundation for the conduct of human activity in outer space, the Outer Space Treaty is not a particularly comprehensive document (comprising only 17 Articles), and its capacity to deal with the increasing military activity in space is not as complete as one might expect. Fortunately, Article III of the Outer Space Treaty also applies general international law to outer space, including specifically the United Nations (U.N.) Charter.
The Need for Clarification
Despite the comprehensive regulation that the joint application of space law and general international law to military activities in outer space may theoretically bring, there is no meta-rule of interpretation that enables complete precision in determining how the differing legal regimes will be reconciled in any given instance. However, the International Law Commission (ILC) has provided some general guidance, in recognizing the priority of the right of self defence as reflected in Article 51 of the U.N. Charter vis-a-vis other treaty provisions, which can be applied to the outer space context. Additionally, the ILC has also concluded that the Law of Armed Conflict (LOAC) is the controlling lex specialis during any period of armed conflict, irrespective of the potential applicability of any other legal regime. Despite these general conclusions, international law continues to generally require that the provisions of competing international legal regimes, especially space law in this instance, be interpreted as harmoniously as possible.
Answers to questions arising from the Outer Space Treaty, concerning rights of military operational freedom, resource extraction, obligations of “due regard” and avoidance of “harmful interference” are becoming all the more critical as commercial and military activities continue to expand in outer space. Certain questions are becoming key real-time operational issues that demand clear answers, including those related to:
- possible safety zones between military space objects;
- what military activity is actually permitted on the Moon (and celestial bodies);
- international responsibility for the actions of non-state actors;
- where the thresholds for interference, intervention, use of force, and armed attack (and responses of retorsion, countermeasures, necessity, and self-defense) all lie.
The fact is that a number of countries are developing their military space programs, including their counter-space capabilities, and these apparently theoretical questions will become very real, very soon.
Additionally, many government and non-government lawyers are starting to turn their minds to the legal issues arising from potential armed conflicts in space. While there is general agreement that the LOAC applies to space, only the 1977 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques states this expressly. Moreover, the unique space environment itself and the application of the space treaty regime does potentially introduce new legal elements of analysis that must be undertaken in the context of armed conflicts occurring in space.
The principle of distinction in targeting, for example, immediately raises key strategic issues, given the heavy reliance of worldwide civilian infrastructure on the Global Navigation Satellite System (GNSS) for many civilian activities. Destruction of the GNSS system because it provides support for belligerent actions (which is the primary function of these satellites) would have enormous civilian repercussions. The modern digital world would be plunged back into the analogue era, creating a host of negative impacts for everybody. Hence the legal requirement of constant care likely becomes more prominent in any targeting assessment, as do the warnings and precautions obligations.
Debris issues bedevil normal peacetime space activity. This would only be intensified in an armed conflict where the thousands of pieces of debris that would be created following a kinetic attack on a space object travelling at great speed in orbit, could jeopardize all space activity for all nations. Similarly, in the near future, if humanity does establish settlements on the Moon and/or Mars, prohibitions on attacking objects indispensable to the survival of the civilian population would take on a new context, as oxygen- and water-generating facilities as well as return rockets would gain special legal significance.
Military Space Operations are the next “big thing” in military circles. The more familiar international lawyers become with the real problems and the real threats that occur in the full spectrum of military operations in outer space, the more likely it will be that legal solutions and limits can be found. It is imperative that law play an integral role in reducing the chance of strategic miscalculation during outer space military operations. Law must also be used to head off, or at the very least mitigate, the impacts of military conflicts that may arise as more and more military activities are carried out in this new arena.
(Part 2 of this series focuses on some of the implications of NATO’s recognition of space as an operational domain, and Part 3 will address international humanitarian law issues that might arise should military hostilities reach into space.)