International Law and Military Operations in Space

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International Law and Military Operations in Space

in Max Planck Yearbook of United Nations Law Online

References

1 President John F. Kennedy, Address at Rice University on the Space Effort, 12 September 1962, available at . 2 General L.W. Lord, "Space Superiority", High Frontier, Winter 2005, 4. 3 U.S. Strategic Command Snap Shot, March 2006, available at . 4 Air Force Space Command Fact Sheet, October 2005, available at . 5 M. Smith, "U.S. Space Programs: Civilian, Military and Commercial", Congressional Research Service Issue Brief 92011, April 2003, 9. 6 Based on 2004 figures. B. Schmitt, "Defence Expenditure", EU Institute for Security Studies, February 2005, figure 1.

7 On space in Operation Iraqi Freedom, see Statement of General L.W Lord before the Senate Armed Services Committee, Strategic Forces Subcommit- tee, 16 March 2005; Brigadier General L. James, "Bringing Space to the Fight: The Senior Space Officer in Operation Iraqi Freedom", High Fron- tier, Summer 2005, 14; USCENTAF, "Operation Iraqi Freedom: By the Numbers", 30 April 2003. 8 For a description, see Defense Advanced Research Agency, Bridging the Gap, February 2005, 23-24.

9 Joint Chiefs of Staff, The National Military Strategy of the United States of America, 2004, 5. 10 Ibid.,10. 11 1 10 United States Code 118, which legislatively mandates preparation of the Quadrennial Defense Review. 12 Department of Defense, Quadrennial Defense Review, 6 February 2006, 29. 13 Ibid., 55-56. 14 Center for Nonproliferation Studies, "Current and Future Space Capabil- ity : France, Military Programs", available at .

15 For a description, see Federation of American Scientists, "Russia and Mili- tary Space Projects", available at . 16 J.R. Labbe, "Let's Keep Advantage in Space", Miami Herald.com of 6 Au- gust 2005, available at . � US Air Force, Space Operations, Doctrine Document 2-2 of 27 November 2001,33-34. 18 Center for Nonproliferation Studies, "Countries with Advanced launch Capabilities", available at .

19 For a discussion of these characteristics, see Joint Chiefs of Staff, Joint Doc- trine for Space Operations, Joint Publication 3-14 of 9 August 2002, at I-3 - 1-4. 20 There are five types or orbits. Low earth orbit is the lowest and offers the best opportunity for high-resolution imagery, but has a smaller field of view and missions are typically shorter due to atmospheric drag. It is used for manned flight, reconnaissance, and communications. Medium earth or- bit, which is higher and has a longer dwell time, is used for navigation sys- tems such as GPS. Polar orbits fly over the poles, which can provide cover- age of the entire earth. They are useful for weather observation and recon- naissance, including that of troop movements. Highly elliptical orbits offer the largest field of view on the side of the earth from which the satellite travels farthest. They are used in communications and intelligence, surveil- lance, and reconnaissance (ISR) missions. Finally, geosynchronous earth orbits have orbital periods equal to that of the earth, thereby allowing a satellite to remain over a single point of interest. For this reason, they are

used for communications, weather, and ISR. Some satellites operate in con- stellations, i.e., in groups. This occurs when a single satellite is insufficient for coverage. An example is the GPS constellation, which ensures constant GPS coverage everywhere. 21 Joint Publication 3-14, see note 19, Chapter IV. 22 Department of Defense, Dictionary of Military Terms, as amended through 31 August 2005, available at . 23 United States Air Force, Counter space Operations, AF Doctrine Docu- ment 2-2.1 of 2 August 2004, 3.

24 US Air Force, Transformation Fligbt Plan, 2004, 59 & D-21. 25 Secretary of Defense, Memorandum, Space Policy of 9 July 1999, 3. 26 Intelligence is "the product resulting from the collection, processing, inte- gration, analysis, evaluation, and interpretation of available information concerning foreign countries or areas." Surveillance is the "systematic ob- servation of aerospace, surface, or subsurface areas, places, persons, or things, by visual, aural, electronic, photographic, or other means." Recon- naissance is "a mission undertaken to obtain, by visual observation or other detection methods, information about the activities and resources of an en- emy or potential enemy, or to secure data concerning the meteorological, hydrographic, or geographic characteristics of a particular area," DoD Dic- tionary, see note 22.

27 On network-centric warfare, see Office of the Secretary of Defense, Net- work-Centric Warfare: Creating a Decisive War fighting Advantage, Win- ter 2003. 28 Accuracy is the relative ability of a weapon to strike an aim point, i.e., the point the attacker wants the weapon to impact. Precision is the ability to create desired effects with minimal collateral damage. Restated, precision is the ability to correctly identify targets in a timely fashion and to strike those targets very accurately. 29 Air Force Space Command, Strategic Master Plan: FY 06 and Beyond of 1 October 2003, 27-29.

30 United States Air Force, Transformation Flight Plan, 2003, at foreword. 3i Ibid. at app. D. 32 On this subject and its legal implications, see E. Waldrop, "Integration of Military and Civilian Space Assets: Legal and National Security Implica- tions", Air Force Law Review 54 (2004), 157 et seq. (166-167). 33 Transformation 2003, see note 30, 61. 3a Department of Defense, Space Policy, DoD Directive 3100.10 of 9 July 1999, para 4.10.3.

35 For articles on military operations in space and international law, see, M. Bourbonniere, "Law of Armed Conflict (LOAC) and the Neutralisation of Satellites of Ius in Bello Satellites", Journal of Conflict Security Law 9 (2004), 43 et seq.; R. Ramey, "Armed Conflict on the Final Frontier: The Law of War in Space", Air Force Law Review 48 (2000),1 et seq. 36 On the nature and sources of customary international humanitarian law, see J. Henckaerts, "Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict", Into Rev. of the Red Cross 87 (2005), 175 et seq. 3� See, e.g., The United Nations Convention on the Law of the Sea, article 2.2, 10 December 1982, UNTS Vol. 1833 No. 31363 [hereinafter LOSC]. 38 One example is the right of transit passage through an international strait. LOSC, see note 37, article 38.

39 AFDD 2-2, see note 17, 1. 40 UK Ministry of Defence, The Manual of the Law of Armed Conflict, 2004, para. 12.13. 41 COPUOS was created in 1958 as an ad hoc committee pursuant to A/RES/1348 (XIII) of 13 December 1958 (Questions of the Peaceful Uses of Outer Space). It was extended in 1959 for two more years and estab- lished as a permanent body by A/RES/1472 (XIV) of 12 December 1959 (International Co-Operation in the Peaceful Uses of Outer Space). By A/RES/1721 (XVI) of 20 December 1961 (International Co-Operation in the Peaceful Uses of Outer Space) the General Assembly decided to con- tinue the membership of the committee. 42 This point is expressly made in AFDD 2-2, see note 17, 35. However, be- cause of the complexity of the issue, the comment is added that "the Judge Advocate General's Department should be consulted when considering counterspace and space force application operations to ensure compliance with domestic and international legal norms," ibid. 43 18 U.S.T. 2410, UNTS Vol. 610 No. 8843. The treaty was based on three General Assembly Resolutions: International Co-operation in the Peaceful

Uses of Outer Space, A/RES/1802 (XVII) of 14 December 1962; Declara- tion of Legal Principles Governing Activities of States in the Exploration and Use of Outer Space, A/RES/1962 (XVIII) of 13 December 1963; Inter- national Co-operation in the Peaceful Uses of Outer Space, A/RES/1963 (XVIII) of 13 December 1963. 44 OST, see above, article I. 45 Ibid., article II. 46 AFDD 2-2, see note 17, 35.

4� LOSC, see note 37, article 88. 48 Available at the UN Office for Outer Space Affairs website: . a9 "In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any

other international agreement, their obligations under the present Charter shall prevail," UN Charter, Article 103. The general principle that subse- quent treaties on the same subject matter prevail over their predecessors (except where provided to the contrary in the later treaty) is subject of the Vienna Convention on the Law of Treaties, article 30, UNTS Vol. 1155 No. 18232. 50 "The Members of the United Nations agree to accept and carry out the de- cisions of the Security Council in accordance with the present Charter." UN Charter, Article 25. 51 R. Wolfrum, "Article 1", in: B. Simma (ed.), The Charter of the United Na- tions, 2nd edition 2002, 39 et seq. (41). 52 UN Charter, Article 1(1).

53 Reviewing the negotiating record of the treaty, Christol indicates the omis- sion of "outer space" was intentional. C. Christol, The Modern Interna- tional Law of Outer Space, 1982, 24. 54 The US National Reconnaissance Office's CORONA photo reconnais- sance satellites began operation in 1960, three years later than the Soviets SPUTNIK I entered orbit. 55 During the negotiations, both the United States and Soviet Union empha- sized that omission of the term "outer space" from the second paragraph was an intentional rejection of an absolute ban on military activities in space; the limitations were restricted to celestial bodies. Treaty on Outer Space: Hearings before the Senate Committee on Foreign Relations, 90th Cong., 22, 59 (1967) (statement of the US Ambassador to the UN); Sum- mary Record of the UN Committee on the Peaceful Uses of Outer Space (COPUOS), 1966 Doc. A/AC.105/C.2/SR.66, page 6 (statement of the So- viet Permanent Representative to the UN).

56 R. Lee, "The Jus ad Bellum in Spatialis: The Exact Content and Practical Implications of the Law on the Use of Force in Outer Space", Journal of Space Law 29 (2003), 93 et seq. (94). 5� OST, see note 43, article IX. 5g Ibid.

59 International Law Commission, Articles of State Responsibility, article 4.1: "The conduct of any State organ shall be considered an act of that State un- der international law, whether the organ exercises legislative, executive, ju- dicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Govern- ment or of a territorial unit of the State." 60 Ibid. article 8: "The conduct of a person or group of persons shall be con- sidered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct." 61 On neutrality generally, see US Navy, Marine Corp, Coast Guard, Com- mander's Handbook on the Law of Naval Operations, NWP 1-14M, MCWP 5-2.1, COMDTPUB P5800.7, ch. 7, 1995, reprinted in its anno- tated version as Vol. 73 of the International Law Studies, US Naval War

College, 1999; D. Willson, "An Army View of Neutrality in Space: Legal Options for Space Negation", Air Force Law Review 50 (2001), 175 et seq. 62 G.W. Rinehart, "Toward Space War", High Frontier, Winter 2005, 47, 48. 63 Convention (V) , arts 8-9, 18 October 1907, 36 Stat. 2310, 1 Bevans 654.

64 See discussion in A. Roberts/ R. Guelff, Documents on the Laws of War, 2000, 85-87. 65 The article obligates Member States to accept and carry out the decision of the Council; this obligation certainly extends to a prohibition on providing target states of an enforcement action assistance. 66 UNTS Vol. 672 No. 9574, 19 U.S.T. 7570, T.I.A.S. No. 6599. 67 OST, see note 43, article V. 68 Rescue Agreement, see note 66, article 1. If the state cannot identify the as- tronaut or notify the launching state, it must make a public announcement. 69 Ibid., article 2. 70 Ibid., article 3. 71 LOSC, see note 37, article 98. �2 Rescue Agreement, see note 66, article 4.

3 Ibid., article 5. 74 Although one space law expert has suggested that perhaps its operation would only be suspended vis-a-vis military space activities. It might remain applicable to civil space activities. M. Bourbonniere, "National Security Law in Outer Space: The Interface of Exploration and Security", Journal of Air Law and Commerce 70 (2005), 3 et seq. (20). 5 Geneva Convention (III) Relative to the Treatment of Prisoners of War, 12 August 1949, article 118; 6 U.S.T. 3316, 3320, UNTS Vol. 75 No. 972. 76 24 U.S.T. 2389, UNTS Vol. 961 No. 13810. 77 OST, see note 43, arts VI and VII. 78 Liability Convention, see note 76, article II. However, controversy exists over the operation of the provisions in practice. For instance, there is dis- agreement whether a state would be liable for an aviation accident resulting from flawed satellite generated navigational signals. See discussion Bour- bonniere, see note 74, 23. 79 Liability Convention, see note 76, article VI. For an argument that this provision anticipated the conduct of hostilities in space, see Ramey, see note 35, 135. 80 Liability Convention, see note 76, article III. 81 Ibid., arts VIII, IX, XIV and XV

82 Canada-Union of Soviet Socialist Republics: Protocol on Settlement of Canada's Claim for Damages Caused by "Cosmos 954," ILM 20 (1981) 689 et seq. See also C. Christol, "International Liability for Damage Caused by Space Objects", AJIL 74 (1980), 346 et seq. 83 Informal working paper by allied judge advocate, on file with author. See also Ramey, see note 35, 90. 84 Supporting this position is an argument that the limits on liability expressly cited in the Liability Convention are merely illustrative. Other recognized international law bases for avoiding liability, such as consent, self-defense, counter-measures, force majeure, duress, and necessity, also apply. Bour- bonniere, see note 74, 22. 85 Convention (IV) respecting the Laws and Customs of War on Land, 18 October 1907, 36 Stat. 2295. 86 28 U.S.T. 695, UNTS Vol. 1023 No. 15020. 87 The practice of registration commenced in 1961 with the establishment of the United Nations Registry of Launching, established pursuant to A/RES/1721 (XVI) B of 20 December 1961. gg Registration Convention, see note 86, article IV.

89 A/RES/34/68 of 5 December 1979. 90 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Underwater, 5 August 1963, article 1, 1963, 14 U.S.T. 1313, UNTS Vol. 480 No. 6964. 91 No mention is made of use, ibid., preamble.

92 Comprehensive Nuclear Test Ban Treaty, 10 September 1996, article 1.1, ILM 35 (1996) 1439 et seq., draft text adopted by the UN General Assem- bly in A/RES/ 50/245 of 10 September 1996. 93 Treaty on the Reduction and Limitation of Strategic Offensive Arms, 31 July 1991, article V.18, US-USSR, Senate Treaty Doc. No. 102-20 (1991). 94 NTM are typically satellites, ibid. article IX.2. 95 Examples of others include the Agreement on Measures to Improve the US-USSR Direct Communications Link, 30 September 1971, UNTS Vol. 806 No. 6839 (updated the Hotline Agreement of 1963, which since 1973 is conducted through satellite communications); Memorandum of Agreement between the Government of the United States and Government of the Rus- sian Federation on the Establishment of a Joint Center for the Exchange of Data from Early Warning Systems and Notifications of Missile Launches, 4 June 2000; Agreement on Measures to Reduce the Risk of Outbreak of Nuclear War and the Agreement Between the United States of America and the Union of Soviet Socialist Republics on the Prevention of Nuclear War, 30 September 1971, UNTS Vol. 807 No. 11509, and 22 June 1973, U.S.T. 1478 respectively, which requires notification by missile warning systems of a launch of unidentified objects or indications of interference with such systems, as well as launch of missiles passing beyond national boundaries; Agreement Between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics on Notifica- tions of Launches of Intercontinental Ballistic Missile and Submarine- Launched Ballistic Missile, 31 May 1988, ILM 27 (1988), 1200.

96 See Statement of Press Secretary, Announcement of Withdrawal from ABM Treaty, 13 December 2001, available at . 97 Constitution and Convention of the International Telecommunication Un- ion, 22 December 1992, Senate Treaty Doc. No. 104-34 (1996). 98 Unlike the Outer Space Treaty, the ITU Constitution (in an annex) defines harmful interference as: "interference which endangers the functioning of a radionavigation service or of other safety services or seriously degrades, obstructs or repeatedly interrupts a radiocommunication service operating in accordance with the radio Regulations." Annex, Definition of Certain Terms Used in this Constitution, the Convention and the Administrative Regulations of the International Telecommunication Union. 99 For instance, the United States has adopted a "due regard" standard for its own. Department of Defense, Management and Use of the Radio Fre- quency Spectrum, DoD Directive 4650.1, 8 June 2004, para. 4.3.3. ITU Constitution, see note 97, article 34. 101 The INTELSAT Agreement provided it may be used for "specialized" tele- communications services, but excluded "military purposes" from this defi- nition, Agreement Relating to the International Telecommunications Satel- lite Organization (INTELSAT), 20 August 1971, article III, 23 U.S.T. 3813. The INMARSAT Agreement stated that the organization "shall act exclu-

sively for peaceful purposes," Convention on the International Maritime Satellite Organization (INMARSAT), 3 September 1976, article 3.3, 31 U.S.T. 1, UNTS Vol. 1143 No. 17948. Arguably, this does not exclude mili- tary use as long as that use is in accordance with international law, espe- cially the UN Charter. 102 Waldrop, see note 32, 209-210. 103 Regulations respecting the Laws and Customs of War on Land, Annex to Convention (IV) respecting the Laws and Customs of War on Land, 18 October 1907, 36 Stat. 2295; Protocol Additional to the Geneva Conven- tion of 12 August 1949, and relating to the Protection of Victims of Inter- national Armed Conflicts (Protocol I), 8 June 1977, UNTS Vol. 1125 No. 17512, ILM 16 (1977), 1391 et seq. zoo Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, para. 79. In its 2004 opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the Court re- iterated this view; Advisory Opinion on Legal Consequences of the Con- struction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, para. 89. In 1945, the International Military Tribunal had declared that norms set forth in the Regulations annexed to Hague Convention IV "were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war;" International Military Tribunal, Trial of

the Major War Criminals, 14 November 1945 - 1 October 1946, Nurem- berg, 1947, Vol. 1, 254. 105 Convention (VI) relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities; Convention (VII) relating to the Conversion of Merchant Ships into War-Ships; Convention (VIII) relative to the Laying of Automatic Submarine Contact Mines; Convention (IX) concerning Bom- bardment by Naval Forces in Time of War; Convention (X) for the Adap- tation to Maritime Warfare of the Principles of the Geneva Convention; Convention (XI) relative to Certain Restrictions with regard to the Exer- cise of the Right of Capture in Naval War; Convention (XII) relative to the Creation of an International Prize Court; Convention (XIII) concerning the Rights and Duties of Neutral Powers in Naval War, all are dated 18 Oc- tober 1907 and are available on the ICRC website at . 106 Y. Sandoz/ C. Swinarski/ B. Zimmerman (eds), Commentary on tbe Addi- tional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, paras 1892-1899.

107 Protocol I, see note 103, article 52.2. See also J. Henckaerts/ L. Doswald- Beck, Customary International Humanitarian Law Study, 2005, at Rule 8 [hereinafter CIHLS]. 108 Commentary, see note 106, para. 2022.

109 Ibid., para. 2021. 110 Protocol I, see note 103, article 49.1 111 For a discussion of this point, see M. Schmitt, "Wired Warfare: Computer Network Attack and International Law", Int'l Rev. of the Red Cross 84 (2002), 365 et seq. (375-378).

112 Information operations are "[a]ctions taken to affect adversary information and information systems while defending one's own information and in- formation systems." Information warfare consists of information opera- tions conducted during time of crisis or conflict. Computer network attack consists of "[o]perations to disrupt, deny, degrade, or destroy information resident in computers and computer networks, or the computers and net- works themselves;" DoD Dictionary, see note 22. On the subject, see M. Schmitt/ H. Harrison-Dinniss/ T. Winfield, "Computers and War: The Le- gal Battlespace", Harvard Program on Humanitarian Policy and Conf lict Research, International Humanitarian Law Research Initiative Briefing Pa- per June 2004, available at . tt3 Protocol I, see note 103, arts 51.5 (b), 57.2 (a)(iii), and 57.2 (b). See also CIHLS, see note 107, ch. 4.

114 Transformation Flight Plan 2004, see note 24, at D-22 - D-23. 115 Although operated by the Air Force, it is managed by the Interagency GPS Executive Board, which is chaired jointly by the Departments of Defense and Transportation. The system offers two levels of service, standard Posi- tioning Service (SPS) and Precise Positioning Service (PPS). In May 2000, the United States decided not to exercise its ability to degrade the quality of the SPS signal through "selective availability;" White House Press Re- lease, Statement by the President regarding the United States Decision to Stop Degrading Global Positioning System Accuracy, 1 May 2000, avail- able at -availabiliry.htm>. Measures such as encryption are taken to ensure the integrity of, and access to, the PPS signal. The Europeans are developing their own navigational satellite system, "Galileo."

116 There is, of course, a duty not to "attack, destroy, remove or render useless objects indispensable to the survival of the civilian populations," but this provision is generally interpreted as intentionally denying basic subsistence items such as food, water, clothing, and shelter to the civilian population generally; Commentary, see note 106, paras 2098-2107. 117 Protocol I, see note 103, article 57. See also CIHLS, see note 107, ch. 5. 118 Protocol I, see note 103, article 57.2 (a)(ii).

119 Ibid., article 57.2 (a)(i). izo Ibid., article 57.3. 121 See, e.g., CIHLS, see note 107, Rule 38A, and accompanying discussion; Rome Statute of the International Criminal Court, 17 July 1998, article 8(2)(B)(ix), ILM 37 (1998), 1002 et seq. 122 Protocol I, see note 103, article 35.3. See the related provision at article 55.1. For a discussion of these articles, see M. Schmitt, "Green War: An As- sessment of the Environmental Law of International Armed Conflict", Yale J. Int'l L. 22 (1997), 1 et seq. See also CIHLS, see note 107, ch. 14.

123 Protocol I, see note 103, article 37.1. See also CIHLS, see note 107, ch. 18. 124 An "Understanding Relating to Article II" sets forth a non-exhaustive list of phenomena that could be generated by environmental modification techniques. Included (in addition to earthquakes, tsunamis, changes in weather patterns, climate patterns, and ocean currents) are changes in the state of the ozone layer and changes in the state of the ionosphere; Report of the Conference of the Committee on Disarmament, Doc. A/31/27 (1976), GAOR, 31st Sess., Suppl. No. 27, 91, 92. 125 The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, 18 May 1977, article 1.1, 31 U.S.T. 333, UNTS Vol. 1108 No. 17119. Environmental modification tech- niques include "any technique for changing - through the deliberate ma- nipulation of natural processes - the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space," ibid., article II. t26 Protocol IV [to the Convention on Conventional Weapons] on Blinding Laser Weapons (Protocol IV), 13 October 1995, ILM 35 (1996),1206 et seq.

127 The few in the vicinity of the battlefield would likely have been properly authorized to "accompany the armed forces," thereby entitling them to prisoner of war status under Convention (III) relative to the Treatment of Prisoners of War, 12 August 1949, article 4A(4), 6 U.S.T. 3316, 3320, UNTS Vol. 75 No. 972. Moreover, in the unlikely event of capture, a civilian di- rectly participating in space hostilities could not be punished as a war criminal for his or her actions. Although a detailed analysis is beyond the scope of this article, suffice it to say that the mere fact that a civilian di- rectly participates in hostilities does not constitute a war crime. Absent commission of a separate war crime, a civilian directly participating may only be tried by a domestic tribunal enjoying personal and subject matter jurisdiction. On direct participation, see M.N. Schmitt, "Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Ci- vilian Employees", Chi. J. Int'1 L. 6 (2005), 511 et seq. On the topic, see also M. Schmitt, "Direct Participation in Hostilities and 21st Century Armed Conflict", in: H. Fischer et al (eds), Crisis Management and Hu- manitarian Protection, 2004, 505. 128 This provision is also customary in nature. See CIHLS, see note 107, Rule 6.

tz9 Commentary, see note 106, para. 1678. 130 Ibid., para. 1942. t3t Schmitt, Humanitarian Law, see note 127, 534.

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