(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, here, and continuing with the second 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.)

NATO foreign ministers in November officially declared outer space an “operational domain” for the alliance. Although they denied any intention to deploy weapons in space, the approach tracks President Donald Trump’s similar designation of outer space as a “war-fighting domain” earlier last year. The announcement followed NATO’s adoption of a space policy, as well as the United States and French governments’ moves to establish space commands. NATO’s position was reiterated at its London Summit in December, where alliance leaders recognized “[space’s] importance in keeping us safe and tackling security challenges, while upholding international law.”

These developments reflect a growing awareness of the rapid development of space technologies, which is enabling hostile uses of space assets to disrupt defence and deterrence capabilities. However, legal efforts to regulate inter-state competition and friction in space have not keep pace. Rather, the legal framework for governing space activities, which was developed in the 1960s and 70s, remains patchy and rudimentary. Planning and execution of NATO operations in space could be hobbled by the lack of a uniform understanding of how military operations are regulated in space.

Questions abound. Does jamming, dazzling, or damaging a satellite amount to a use of force prohibited under Article 2(4) of the United Nations Charter and customary international law? If so, when? Is it lawful to declare and operate “space exclusion zones,” despite the fact that States are prohibited from claiming sovereignty in space under Article II of the Outer Space Treaty? During an international armed conflict, does a belligerent State have right to capture and detain astronauts when they are also members of enemy armed forces, despite the fact that States are obliged to rescue and return them as “envoys of mankind” under Article V of the Outer Space Treaty?

A growing number of States are updating national legislation to promote and regulate their national space activities. For instance, the U.K. enacted the Space Industry Act in 2018 to strengthen national regulation of a wide range of space activities. In contrast, international efforts to regulate military space activities have reached an impasse.

The European Union has proposed a draft international code of conduct to enhance the safety, security and sustainability of space activities, but its effectiveness in reducing tensions would be limited. Indeed, the non-binding Declaration on the Conduct of Parties in the South China Sea, concluded in 2002 between China and Southeast Asian nations, has done little to prevent escalation of conflicts in the South China Sea.

Failed Efforts at the United Nations

In 2008, China and Russia introduced a draft treaty at the U.N. Conference on Disarmament to prevent the placement of weapons in outer space, but the attendant discussion on the feasibility of a legally binding instrument on the prevention of an arms race in outer space remains unresolved. In 2017, the U.N. General Assembly commissioned a group of governmental experts to consider and make recommendations on substantial elements of a possible international agreement on the subject. But last year, the group failed to reach any consensus.

The continued failure at U.N. fora to agree on new instruments to regulate military uses of outer space mirrors similar patterns of division witnessed in other contexts, such as attempts to create international regulations on cyberspace. As with cyberspace, the primary obstacle to progress is distrust among the key players. The United States and its allies are suspicious that states will engage in covert development of hostile space capabilities despite such initiatives. Indeed, China and Russia are known to have been experimenting with, and even developing, various anti-satellite capabilities, such as rendezvous and proximity operations against satellites.

The lack of progress in international space law does not bode well for the premise that international law must guide space activities in the interest of maintaining international peace and security and promoting international cooperation. However, the recognition of outer space as an “operational” or “war-fighting” domain must not be seen as a wholesale rejection of legal restrictions on military space activities. On the contrary, the effectiveness of military operations in space rely, as they do in the terrestrial domain, on the development of robust “rules of the game,” especially rules grounded in the international law of armed conflict. Moving towards the construction of shared understandings of applicable rules, with sensitivity to the unique nature of the space domain, will require collective efforts to clarify how the rules-based international legal order extends to outer space.

To that end, Article III of the Outer Space Treaty occupies a place of prominence. The article requires States Parties to carry out space activities “in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international cooperation and understanding.” This provision operates as a conduit to project various rules of international law into outer space.

The devil, of course, is in the details. For instance, to what extent do the existing principles and rules of international law find application in outer space, given the terrestrial context in which those principles and rules were developed? How should such rules and principles be reconciled with competing obligations under space law?

The Risks of Cherry Picking

To begin with, States must avoid “cherry-picking” the legal provisions they view as applying in outer space. Some States might wish to avoid discussion on the use of force and the law of armed conflict out of concern that the topics have negative connotations and might prejudice the peaceful use of outer space. Others could adopt legal positions that idealistically portray space as a domain reserved exclusively for peaceful exploration.

However, to achieve security and stability in space, pragmatism must prevail over idealism. The fact that international law governing the use of force and armed conflict applies to space hostilities does not make space war inevitable or even likely. Nor does it encourage the militarization or weaponization of outer space. Claiming it is inapplicable is to deny the current legal reality and hinder progress towards a more robust rules-based international order in space. We should not lose sight of the fact that many space technologies are already being used for military purposes.

Moreover, to foster the development of a rules-based international order for outer space, States should be ready to commit to their legal positions along actual fault lines in terms of the application of extant international law as it applies in the space context, considering the strategic and operational implications of the legal position they take.

For example, if a State adopts the position that satellite jamming does not amount to a use of force, it will eliminate said State’s forcible options to protect itself from military interference with satellite signals. On the other hand, if a State wishes to reserve the possibility of exercising the right of self-defense pursuant to Article 51 of the U.N. Charter against satellite jamming, the legal determination of when and if such operation qualifies as an armed attack must be considered. For NATO, a shared understanding of space incidents that would trigger Article 5 of the North Atlantic Treaty in collective self-defense is of critical significance.

With many States now acknowledging that outer space may serve as an “operational” or “war-fighting domain,” the need to settle the “rules of the game” for military operations in space has never been more acute. Efforts such as the Woomera Manual on the International Law of Military Space Operations Project to clarify where the law is settled and where conflicting positions may arise will be important in encouraging States to develop legal thinking behind their strategic choice. We cannot wait until space hostilities actually occur to make serious efforts towards the development of a rules-based international order in outer space.

(Part 1 of this series introduced key legal issues raised by space-based military operations. Part 3 will address international humanitarian law issues that might arise should military hostilities reach into space.)

Image – U.S. Air Force Space Command Gen. John “Jay” Raymond stands next to the flag of the newly established U.S. Space Command, the sixth national armed service, in the Rose Garden at the White House August 29, 2019 in Washington, DC. Citing potential threats from China and Russia and the nation’s reliance on satellites for defense operations, Trump said the U.S. needs to launch a ‘space force.’ Raymond will serve as the first head of Space Command, which will have 87 active units handling operations such as missile warning, satellite surveillance, space control and space support. (Photo by Chip Somodevilla/Getty Images)