The Law of War in Space
Printed in the Air Force Law Review;
Obtained March 13 2001
II THE MILITARY ASCENT TO SPACE
A. Origins and Evolution of Space Militarization
- Missiles and Rockets
- Nuclear Devices
B. Present and Potential Technologies Available for Space Combat
- Electromagnetic and Radiation Weapons
- Kinetic Energy and Hypervelocity Weapons
- Laser Weapons
- Particle Beam Weapons
- Explosive Proximity Weapons
- 'Soft Kill' Weapons
III. THE LAW OF WAR
A. Jus in Bello vs. Jus ad Bellum
B. Customary Principles within the Law of War
- Military Necessity
C. Treaty Law
- Hague Conventions of 1899 (I-IV) and 1907 (I-XIV)
- Geneva Conventions of 1949 (I-IV) and Protocols of 1977 (I-II)
- Additional Conventions Adopted Since 1972 Affecting the Jus in Bello
- Jus Ad Bellum Under the United Nations Charter
IV. Space Warfare Under the Corpus Juris Spatialis
A. Customary Law
B. Treaty Law
- Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Outer Space Treaty)--1967
- Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (Rescue and Return Agreement)--1968
- Convention on the International Liability for Damage Caused by Space Objects (Liability Convention)--1972
- Convention on Registration of Objects Launched into Outer Space (Registration Convention)--1975
- Agreement Governing the Activities of States on the Moon and other Celestial Bodies (Moon Agreement)--1979
V. SPACE WARFARE UNDER RELATED TREATIES AND OTHER AUTHORITATIVE SOURCES
VI. THE LAW OF WAR IN OUTER SPACE
- Treaty Banning Nuclear Weapons in the Atmosphere, In Outer Space and Under Water (Limited Test Ban Treaty)--1963
- Anti-Ballistic Missile (ABM) Treaty-1972
- Antarctic Treaty-1959, and the United Nations Convention on the Law of the Sea-1982
B. United Nations General Assembly Resolutions
- Declaration of Legal Principles Governing State Activity in the Exploration and Use of Outer Space-1963
- Principles Relating to Remote Sensing of the Earth from Outer Space-1986
- Principles Relevant to the Use of Nuclear Power Sources in Outer Space--1992
C. International Telecommunication Union
A. Bases on Which the Law of War Applies to Outer Space
a. Parallels to Sea Warfare
b. Previous Application of the Law of War to Aerial Warfare
Outer Space Treaty
B. Problems of Legal Definition and the Use of Force in Space
- Militarization of Space
- Weaponization of Space
- Use of Force in Space
C. National Policy, Military Space Doctrine, and Law of War Manuals
D. Information Warfare
E. Other Selected Issues
- Military Interaction With Intergovernmental Agencies and "Dual Use" Assets
- The Status of Astronauts as Both "Envoys of Mankind" and Combatants
- Return of Astronauts Engaged in Combatant Activities
- Innocent Passage through Airspace for Destinations to and Return from Space
LEVEL 1 - 1 OF 295 ITEMS
Air Force Judge Advocate General School
The Air Force Law Review
48 A.F.L. Rev. 1
LENGTH: 62360 words
ARTICLE: Armed Conflict on the Final Frontier: The Law of War in Space
Major Robert A. Ramey*
* Major Ramey (B.A., Wheaton College; J.D., Seattle University; LL.M., McGill
University) is an instructor, International and Operations Law Division, The Air
Force Judge Advocate General School, Maxwell AFB, Alabama. He is a member of the
Bar in the state of Washington.
... ... Because these customary principles are codified in the Outer Space
Treaty, and the treaty has been ratified by all States currently active in
space, customary international law seems less important in ascertaining
principles applicable to future space warfare. ... For example, should
Colombia, Iran, Indonesia, or Yugoslavia acquire the means of space launch in
the coming years, all four being non-parties to the Outer Space Treaty, any
restrictions on such States' space activity that do not come from obligations
imposed by other space treaties will occur largely by operation of customary
international law. ... Further, as with the Outer Spon
Agreement requires that all activities on the moon be carried out in accord with
"international law," and that States bear "international responsibility for
national activity" on the moon. ...
The lawful bearing of arms-under a strict code of military justice and within
a corpus of humanitarian law-has been accepted as a practical necessity. [n1]
John Keegan (1993)
Some may reasonably wonder, for purposes of analysis under the international
law of war, whether there is any meaningful distinction between warfare
prosecuted within airspace and warfare prosecuted within outer space. In boh
cases, the military assets above the earth's surface may support the combat
occurring below, or may engage targets in the same combat environment. Given
this, some may view armed conflict from and within outer space as simply a
subset of air warfare. Others may see armed conflict in outer space as superior
to air warfare-that is, air warfare as a subset of space warfare. Still others
may view space conflict as a new category of combat that is sui generis. We can
state the question more simply as follows: is the "aerospace" environment
fundamentally one field of combat operations or two?
This article suggests that for purposes of analysis under the law of war,
space combat will be sui generis-fundamentally different from combat in
terrestrial airspace. [n2] This approach raises at least three
implications for the analysis undertaken herein. First, space combat
will not be analyzed as simply an extension of air combat; the two are
fundamentally different types of combat suggesting different doctrinal tenets of
power. While the military use of space has traditionally been viewed as a medium
from which to support terrestrial warfare, including air warfare, space as a
medium of warfare itself raises entirely different legal and operational
issues. [n3] Thus, freed from a strict air warfare paradigm, the effort
to establish limits on space combat in its own right can draw principles of
armed conflict from those applicable to land and sea warfare, as well as from
those governing air warfare.
Second, one of the key differences of space warfare, at least for the near
future, will be the spatial separation of human combatants from their weaponry.
Whether kinetic energy or space-based laser weapons in low-earth orbit, or
jamming satellites used to corrupt telecommunications signals in geosynchronous
orbit, the warrior is distant from his instruments of war by between 100 and
22,500 miles. When seeking to apply the current laws of war, it appears
this phenomenon will require new ways of thinking about a legal regime that has
as its purpose the amelioration of human suffering. Beyond simply targeting
other combatants, terrestrial infrastructure, or weapons systems, space warfare
as it is now most widely conceived contemplates the destruction of unmanned
military assets in the air or space environment. [n4] Given these
factors, it seems that the minimization of human suffering, the chief goal of
the laws of war, is already achieved to some extent for space as compared with
the other combat environments. From this observation follows the conclusion that
with respect to space warfare as it is currently conceived, the law of war will
be more applicable to regulation of means and methods of war, than to the
protection of human life. [n5]
Third, the first implication notwithstanding, the legal analysis of issues
unique to space combat, such as the legality of new means and methods of space
warfare, cannot rely solely on analogy with legal relationships governing other
combat environments. This is due in part to the relative infancy of space
warfare and to the recency of its technology. To a certain extent, the
international regulation of space combat will evolve only subsequent to State
action making such combat an imminent possibility. [n6] Because the law
governs actual social relations and not theoretical abstractions, and because
there have been no reported or anticipated cases of actual space combat,
conclusions about legal restrictions on such combat must begin tentatively. This
is not to abandon hope of outlining contours of the legal regulation of space
combat under existing international norms; certain points do clearly emerge from
the analysis. It is simply to acknowledge realistically the limitations of such
an inquiry at this time. States faced a similar dilemma in the days
leading up to World War I with aerial combat. At that time, one could hardly
establish firm legal principles in the absence of State practice. [n7] As
was the case in the 1910s with respect to air warfare, a great deal of original
reflection on the implications of space combat is needed today.
This article will examine the intersection of two subsets of public
international law as they bear on space warfare: the law of war and the law of
outer space. The analysis will focus on the relevant legal issues from the
perspective of the United States, currently the most active spacefaring nation
on Earth. Because the American vision for space war is the most "developmentally
mature," [n8] it is a virtual certainty that U.S. practice will dominate
the development of international law limiting the means, methods, and extent of
the use of force in space.
Part II presents a historical review of the development of military activity
in space. It discusses reactions by the international community to new weapons
such as V-2 rockets, cruise missiles, intercontinental ballistic missiles, and
nuclear devices. It also examines the history of U.S. military satellite
development. This part also presents aspects of existing and foreseeable
technology for armed conflict within and from outer space.
Parts III-V consider international law applicable to space warfare. Part III
analyzes international law pertaining to armed conflict and distinguishes
between the jus in bello and the jus ad bellum. Further, Part III outlines the
key principles derived from treaties and customary international law and
clarifies that "law of war," "law of armed conflict," and "humanitarian law" are
phrases that have come to be largely synonymous with each other. Part IV
examines the five multilateral space treaties comprising the corpus juris
spatialis, and highlights key passages of relevance to space warfare. Part V
considers related authorities such as the Limited Nuclear Test Ban Treaty,
Anti-Ballistic Missile Treaty, Antarctic Treaty, and the United Nations
Convention on the Law of the Sea, as well as three United Nations General
Assembly (U.N.G.A.) Resolutions. Though not regulating outer space activity per
se, the treaties are relevant either because of inherent parallels they have to
the regulation of outer space, or because they contain specific provisions
limiting space activities.
Part VI applies the legal regime governing international armed conflicts to
space warfare. Here, the article examines the bases on which the law of war
applies to outer space. In doing so, the article suggests that the process by
which the law of war was applied to the last new combat medium, air, serves as a
model for the likely development of the international regulation of space
warfare. Part VI discusses problems of definition within the corpus juris
spatialis that challenge any effort to apply the law of war to space combat. It
further outlines U.S. national and military space policy and highlights the role
that State law of war manuals might play in the future development of
restrictions on space warfare. Part VI then briefly considers information
warfare, a phenomenon heavily reliant on space assets and one of growing concern
to the U.S. military.
Part VI also addresses special problems arising from, among other things, the
prospect of applying the law of war to space warfare. This Part will analyze the
significant problem posed by space assets dedicated to uses of both a civilian
and military nature. It will also examine the status of assets owned both by
belligerent and neutral States, as well as assets owned by opposing
belligerents. It will further consider legal problems raised by the military
status of astronaut combatants in light of the status conferred on all
astronauts under current space law, as well as the question of whether
astronauts found in foreign territory must be returned to opposing belligerents
in time of war. [n9] Part VI concludes by examining whether
proposed rights of innocent passage through foreign airspace for the purpose of
accessing outer space will factor in the future regulation of means and methods
of space warfare.
II. THE MILITARY ASCENT TO SPACE
We will engage terrestrial targets someday-ships, airplanes, land
targets-from space. We will engage targets in space, from space. . . . [The]
missions are already assigned, and we've written the concepts of operations. [n3]
General Joseph W. Ashy, USAF (1996)
In most respects, the history of mankind's ascent to space is a history of
the militarization [n11] of outer space. A review of this history, along
with a basic familiarization of current and potential implements of
space warfare, provides the requisite context from which the analysis herein can
proceed to legal considerations related to the weaponization of space. Among
other things, an understanding of technical space developments provides insight
into the way international legal norms have developed. As discussed more fully
in Part III, while the means by which States may lawfully attack each other's
assets and personnel within space remains partially proscribed, the law has
condoned the non-aggressive military use of space for decades.
A. Origins and Evolution of Space Militarization
1. Missiles and Rockets
Space warfare, as any other use of outer space, requires access to the
space environment. That access requires the use of missiles and rockets, later
termed "boosters" in view of their utility as launch vehicles for spacecraft. As
for most other segments of space technology, rockets [n12] were first
developed for use by military forces. Matte notes the likelihood that "as early
as 3000 B.C. the Chinese had developed rockets for, among other things, use in
warfare." [n13] It would be almost 5000 years however before rockets
became a major instrument of warfare.
It was German ingenuity that first applied rocket technology to
largescale military combat use. [n14] At the Peenemunde experimental
site on the Baltic coast, Germany constructed the famous V-2 ("Vergeltungswaffe
Zwei") rocket. [n15] Making its first flight in October of 1942,
[n16] the rocket stood over 13 1/2 meters high, weighed 15,300 kg, had a
range of 322 km, [n17] and was propelled by an engine producing more
than 800,000 horsepower. [n18] The rocket used a turbo fuel pump
generating pressure at 300 pounds per square inch while pumping 50 gallons
(189.5 liters) of fuel per second. [n19] For guidance and control, the
most difficult technical feat, the rocket relied on gyros that only partially
compensated for wind and other destabilizing factors in flight. Nonetheless, the
V-2 represented a fearsome weapon to which there was no known defense. It also
ushered in one of the most significant revolutions in military weaponry. [n20]
Following the war, under "Operation Paperclip" the leading German rocket
scientists were captured for further work in the U.S. With their expertise, the
U.S. began reconstructing the essence of V-2 technology for the development of
more advanced rockets. This work, together with experience gained from the 1930s
and 1940s studies and experiments at the California Institute of Technology
under Dr. Theodore Von Karman, contributed to Project MX-774-later to become the
Atlas missile, a research and development effort aimed at creating a
5,000 mile range intercontinental ballistic missile. [n21] General Henry
Arnold, chief of the U.S. Army Air Corps just prior to its establishment as the
U.S. Air Force in 1947, predicted that such a weapon "is ideally suited to
deliver atomic explosives, because effective defense against it would prove
extremely difficult." [n22] Little did General Arnold know that such
defenses would continue to prove extremely difficult through 2000 and beyond. [n23]
In the U.S., missile research and development competed directly for precious
funding with long range bombers. "As with satellite proposals, initial postwar
interest in long-range guided missiles soon succumbed to an Air Force policy
that relied on strategic bombers carrying air-breathing missiles." [n24]
Nonetheless, missile advocates kept sufficient interest engaged to fund
development of the Redstone, Jupiter, and Juno missile programs at the U.S.
Army's Redstone Arsenal. [n25] In addition to various sounding rocket
[n26] and cruise missile programs, [n27] and the Thor
Intermediate Range Ballistic Missile (IRBM), improvements to the
original V-2 design soon led to the first operational U.S. Intercontinental
Ballistic Missile (ICBM)-the Atlas. [n28] Within a few years, the U.S.
fielded the even larger and more sophisticated Titan missile, [n29]
evolved versions of which are still widely in use today both as ICBMs and
commercial space boosters. [n30]
Following World War II, the Soviet Union captured its share of German
scientists as well. Using the V-2 as its point of departure, the U.S.S.R. did
more than simply build copies of the weapon, it put the rocket back into
production within the Soviet zone of occupation in Germany. [n31]
Unlike the U.S., the Soviet Union did not have a huge fleet of long-range
bombers, thus the prospect of ICBM development did not have the same
bureaucratic obstacles from a competing weapons platform. What it did have were
relatively primitive atomic weapons that were bulky and required tremendous lift
to propel them across an intercontinental range. They proceeded to create just
such heavy-lift launch vehicles. [n32] The first Soviet ICBM, bearing
the designation "SS-6," was launched in August 1957, a full fifteen months
before the first Atlas launch. It was an SS-6 that carried the world's first
artificial satellite, Sputnik I, into orbit on October 4, 1957. [n33]
2. Nuclear Devices
Following the advent of rocketry, creating a weapon of ultimate destructive
capability was just a matter of time for the leading scientific minds. The
conventional explosives used by the V-2 rockets simply mimicked the effects
attainable by means of air-dropped bombs. These contained the equivalent of one
ton of TNT. By contrast, the earliest nuclear weapons contained the equivalent
of 20,000 tons (20 kilotons). [n34] Later versions would deliver the
equivalent of 15,000,000 tons (15 megatons) of TNT and more. [n35]
Putting the matter plainly, U.S. President Truman would write in his
personal diary, "we 'think' we have found a way to cause a disintegration of the
These early devices weighed five tons and required a rocket of several
hundred tons to carry one weapon to Moscow-too heavy to be practically
effective. [n37] However, with the advance of the ICBM came the advance
of the nuclear device. It soon became small enough to launch inside the
nose-cone of a rocket. [n38] Thus, the lightening speed of the rocket
was mated to the overwhelming power of the nuclear weapon. And given its
desirability for military advantage, it also proliferated.
Between 1945 and 1992, the United States went on to manufacture a total of
70,000 nuclear weapons, some 10,500 of which are still in service. The Soviet
Union produced 55,000, of which 15,000 are currently active. Britain reportedly
made 834 nuclear warheads, France 1,110 and China 600. According to various
reports of unknown reliability, Israel may have made 200, India twenty, Pakistan
between four and seven. South Africa admitted it had produced six devices before
giving up its programme; North Korea may have one or two. [n39]
It was not until 1957 that the first nuclear detonations occurred in space.
[n40] Not only did this development become a catalyst for passage of a
treaty limiting nuclear weapons testing (Limited Nuclear Test Ban
Treaty), [n41] but it brought a plea from the Soviet Union that such
tests not endanger the safety of Soviet cosmonauts. The U.S. responded to the
Soviet concern with the assurance "that no activities were contemplated which
could have harmful effects upon the Soviet spacemen." [n42] Following
passage of the Limited Nuclear Test Ban Treaty in 1963, such detonations in
space were no longer lawful and simple verification measures made them easily
In many ways, the evolution of satellite technology follows the evolution of
missile technology. Without the latter, the former had no way of reaching outer
space. Thus, the early battles for funding of satellite technology in the DOD
and in Congress often pitted satellite and missile research against conventional
weaponry. [n44] Once funding for ICBMs came through however, it was soon
realized that rockets more powerful than an ICBM might succeed in launching
Though early scientists speculated on the possibility of artificial
satellites in earth orbit, Project Rand, under the Douglas aircraft company,
[n46] demonstrated the feasibility of such a feat in its report of May
2, 1946. Report number SM-11827, "Preliminary Design of an Experimental
World-Circling Spaceship," not only provided 236 pages and eight appendices of
detailed technical theory, but it spawned numerous subsequent reports on the
feasibility of satellite design, launch, and reentry. In simple terms, the
report declared that "if a vehicle can be accelerated to a speed of about 17,000
m.p.h. and aimed properly, it will revolve on a great circle path above the
Earth's atmosphere as a new satellite. The centrifugal force will just
balance the pull of gravity." [n47] The report subsequently predicted
that "the achievement of a satellite craft by the United States would inflame
the imagination of mankind, and would probably produce repercussions in the
world comparable to the explosion of the atomic bomb." [n48]
The earliest military satellite program focused on a reconnaissance mission.
In time, the mission for reconnaissance satellites in the U.S. would be shared
between the military and the intelligence establishment. Systems such as the
venerable Corona series were launched in early 1959 amid great secrecy and were
controlled by the U.S. Central Intelligence Agency. [n49] Though the
focus of public U.S. military space activity remained in the Department of
Defense, it was determined that reconnaissance missions from space could not be
Indeed, the Corona program was so sensitive that it was given the code-name
"Discoverer" to establish a cover. The launches were said to contain "a
scientific project that conducted biomedical research and other experiments in
space." [n50] As Corona began collecting Soviet imagery during the
Eisenhower administration, the DOD established the Office of Missile and
Satellite Systems with oversight for all national reconnaissance activities,
later to become the National Reconnaissance Office (NRO). President Eisenhower's
successor, perpetuated these basic organizational changes, including
safeguarding the very existence of the NRO as a State secret. [n51]
Indeed, under the Kennedy administration "the U.S. government no
longer acknowledged that satellites were used for reconnaissance-a policy that
remained in effect until 1978." [n52]
Despite its continuing protection of national security matters, the NRO has
recently revealed some of its methods and assets, including a $ 1.5 billion
state-of-the-art Lacrosse imaging satellite. [n53] The fifteen ton,
school bus-sized satellite was developed in 1986 to track the movement of Warsaw
Pact weaponry. Producing images to resolutions of 1 meter, the system uses radar
technology to obtain images through clouds, foliage, or darkness. [n54]
As of 1997, the NRO maintained two Lacrosse satellites on-orbit with two more
planned. In addition to these, the NRO maintains the HK-11 ("Keyhole")
satellite system which, using optical sensors, is reported to produce
resolutions of six to twelve inches (15 to 30 cm). [n55]
Reconnaissance was not the only military mission for early satellites. Almost
simultaneously with WS-117L, and indeed as an outgrowth of it, the U.S. military
was developing a missile warning system to monitor the launch of Soviet ICBMs.
The first such program, MIDAS ("missile detection and alarm system"), was
troubled with false alarms and overall system unreliability virtually from its
operational beginning in 1960. [n56] Despite some successful test
detections, the system was replaced in the early 1970s by geosynchronous
satellites of the Defense Support Program (DSP) which proved to be
"highly successful," offering the President notice of a missile attack within
moments of launch. [n57] Using an advanced infrared telescope mounted to
the spacecraft's front end, the DSP telescope remained focused on earth ready to
generate an electronic signal upon detection of a missile launch. Its use
continues today. [n58]
Beyond these, other significant satellite systems were developed to carry
military communications, [n59] to provide weather intelligence,
[n60] and to aid navigation. Though assets supporting all
three missions are indispensable to combat operations, the U.S. space-based
navigation system has now become perhaps the best-known of all military space
assets outside military circles. Developed in the 1970s, and declared fully
operational on July 17, 1995, [n61] the Global Positioning System (GPS)
relies on twenty-four operational satellites (with an additional three spares in
orbit) in medium-earth orbits in six orbital planes. [n62] The basic
concept is simple though ingenious:
[The constellation of satellites flies] in twelve-hour orbits at an altitude of
12,543 miles. Each of them carries an atomic clock for precise determination of
time, while ground-based tracking permits each one to know its position with
similar accuracy. A ground receiver then accepts signals from the spacecraft in
view, learning their positions as well as the exact times when the signals were
transmitted. The receiver has its own internal clock, which is not very
accurate, but the data from space allows it to synchronize this clock with those
of the satellites. The receiver then calculates the length of time each signal
has been in transit, traveling at the speed of light. This translates into an
accurate determination of distance to each satellite. Through triangulation, the
receiver then determines its own location. [n63]
The system showed its great value during the 1991 Persian Gulf War by
providing for combatants answers to the age-old questions "where am I" and
"where am I going," to an accuracy of less than thirty feet. [n64] It
was also used to guide munitions launched from air, sea, and
land-based weapons to their targets providing three-dimensional position and
velocity data. This constantly-improving targeting capability will likely be a
significant law of war contribution made by GPS. As discussed more fully in the
next chapter, the ability to target accurately implies the legal duty to do so.
The better GPS accuracy becomes, the higher the burden it will place on its
users to distinguish legitimate from illegitimate targets, and to minimize
collateral damage. Thus, it will no doubt "change the face of future warfare."
[n65] Operating on only sixteen satellites in the 1991 war, [n66]
the system nonetheless proved itself highly useful and will be indispensable
to space missions for future conflicts well into the twenty-first century. [n67]
B. Present and Potential Technologies Available for Space Combat
To date, there has not been a single reported case of force used in outer
space by one nation against another. [n68] Nonetheless, given the
increasing global reliance on space systems, and increasing militarization of
space, its weaponization and evolution into a distinct theater of military
operations seems likely. Though technologies applicable for space combat will
include a wide variety of military instrumentalities, the development
of space weapons is the most obvious choice. Such weapons can be grouped
according to a variety of criteria. [n69] They can be grouped by
missions intended such as "anti-satellite" and "missile defense," or by method
of pursuit such as "boost phase intercept" and "direct ascent." [n70]
Depending on its characteristics, a space weapon could fit within several
different categories at once. One of the most logical means of identification
focuses on the weapon's means of destruction as its distinguishing feature. Most
probable future space weaponry can be described using this method of
identification, including those representative samples discussed in the six
1. Electromagnetic and Radiation Weapons
Perhaps the quintessential electromagnetic and radiation weapon is the
nuclear bomb. Recognizing this, the first anti-satellite (ASAT) weapon system
made operational by the U.S. involved a nuclear detonation in space. [n71]
Though the history and basic functioning of nuclear weapons have been noted
previously, it is appropriate to consider briefly their effect as a weapon when
detonated in outer space. Given the near-vacuum conditions of space, the range
of a nuclear blast in terms of spreading radiation and heat is greatly
diminished. In the absence of atmosphere, radioactive fallout cannot occur.
[n72] Further, the shock waves, violent winds, and intense heat
generated by a nuclear blast within the atmosphere do not occur in
space. [n73] As a result, the collateral damage from the effects of heat
and blast is fairly easy to confine. [n74] Though the local effects in
space from such a detonation can be very destructive, the most significant
military effect of nuclear blasts in space relates to the creation of an
electromagnetic pulse (EMP) in near-earth space where the outer space vacuum
contacts the atmosphere. [n75]
An EMP is created when "a cascade of gamma rays from any nuclear explosion in
space collides with the upper atmosphere." [n76] As these gamma rays
race nearly instantaneously downward toward the top of earth's atmosphere,
resultant charge imbalances create an electrical current that peaks 100 times
faster than lightning, and is largely unrelated to the size of the detonation
for any yield over a few hundred kilotons. [n77] Similar to a lightning
strike, the EMP lasts only for a millionth of a second but holds potential for
devastation of sensitive circuitry. Unshielded electronics within several
hundred miles of the epicenter may be disabled as every unshielded element in
its path acts as a conductor. The higher the burst, the larger the area affected
in the air and land beneath. A burst at a height of 300 miles (483 km) would
affect the entire continental U.S. [n78] "Poorly protected satellites
and solar power systems in orbit are particularly vulnerable, because risk radii
extend hundreds (sometimes thousands) of miles farther in space than in
absorbent air." [n79]
In addition to the effects of an EMP, "beta particles and gamma rays
respectively cause intensive and extensive alterations in the ionosphere."
[n80] These weaken both radio and radar waves. This can result in high
frequency blackouts over broad areas, followed by periods of impaired radio and
radar performance. [n81] Thus, the disruptive capabilities of a nuclear
blast in space hold distinct military advantages. [n82] Nonetheless, in
addition to legal hurdles, Peebles notes that when first considered for its
strategic value, the stationing of a nuclear weapon in space "made no
technical or military sense" for at least four reasons, at least some of which
are applicable today:
First, an orbiting weapon required elaborate spacecraft systems, such as
retro-rockets to deorbit it, others to guide it, and still others to arm it.
Second, all of these integrated systems would have to perform reliably while on
orbit for many months if not years, or the bomb became useless. . . . Third, if
used in retaliation, such weapons could not be delivered at a moments [sic]
notice, but would have to wait at least an orbit or two until the Earth turned
beneath it and the intended target [came] into view. Finally, and perhaps most
tellingly, if such a weapon were used for a first strike and a partial
malfunction occurred as the nuclear bomb moved along its orbit, it might just as
easily fall on Buenos Aires as on Washington D.C., or, worse yet, on Moscow. [n83]
For these and other reasons, and despite the unquestioned devastating effects
for any nation relying on sophisticated electronic infrastructure, a
nuclear-triggered EMP attack on the U.S. is deemed unlikely. The Chairman of
President Clinton's recent Commission on Critical Infrastructure labeled it "the
most remote part of the threat spectrum." [n84]
Non-nuclear electromagnetic weapons have also been proposed. A study for the
U.S. Air Force analyzing the future of air and space power recently reported
that "the technology of high RF [radio frequency] power and large antennas is
about to greatly expand." [n85] The report concludes that when combined,
these innovations will allow for the projection of extremely high power
densities, including electromagnetic radiation, over extremely long distances to
land, air, and space-based targets. [n86] As an example, the report
suggests that such a weapon in the geosynchronous orbit could create a six mile
footprint on a battlefield which would "blank out" all radar receivers and would
damage all unprotected communication sets within that area. The tremendous power
envisioned would also allow injection of signals into even heavily shielded
communications networks, allowing for "information warfare to be waged at
2. Kinetic Energy and Hypervelocity Weapons
Kinetic energy weapons, of which hypervelocity weapons are a subtype, are
historically the most common forms of space weaponry. As suggested above, given
the tremendous speeds at which objects travel in orbit, on the order of 4.7
miles per second in low-earth orbit, just about anything properly aimed could
become a weapon even without the use of an explosive warhead. This is true
because such an object's speed, including those of very small masses, gives it
tremendous kinetic energy for impact. [n88] One U.S. kinetic energy
weapon, originally tested as a missile interceptor, could equally serve as an
ASAT. Known as the Homing Overlay Experiment (HOE), the weapon, once boosted
into space, unfurls a 4.5 meter radial "net" that is wrapped tightly behind the
nose sensor. The net increases the lethal radius of the homing and kill vehicle.
Successful testing in 1983 and 1984 showed the weapon capable of homing in and
destroying a dummy warhead in space using a long-wavelength infrared sensor. [n89]
A program currently under development in the U.S. is simply called the "KE
ASAT" (kinetic energy ASAT). The system envisions using a large Mylar "shroud"
to impact the target object. [n90] Though it will disable its target
object by force of impact as will many other kinetic energy ASATs, this system
is unique in that the shroud is intended to minimize the creation of a large
quantity of resulting space debris normally associated with kinetic energy
weapon impacts. [n91]
The railgun is another type of kinetic energy weapon that accelerates a
projectile toward selected targets at hypervelocity speeds. Because the railgun
will use electromagnetic forces to accelerate its projectiles, it is an
"electromagnetic" weapon of sorts. However, it is distinct from the
electromagnetic weaponry discussed above in that the final method of destruction
is a kinetic impact rather than an electromagnetic force itself. Testing in the
U.S. has resulted in the electromagnetic acceleration of tantalum discs to
speeds of eleven kilometers per second. [n92] Though not yet developed
as a weapon, such railguns could be stationed in outer space.
An additional space-based kinetic energy weapon has been proposed but
not yet developed. Though not an ASAT, the weapon has been conceived for use
against terrestrial targets. It would capitalize on the tremendous speed of long
rods made of depleted uranium orbiting in space. Remotely commanded to reenter
the atmosphere at hypersonic speeds, the rods could be precision-guided to
targets in the air or on the surface of the earth. Their special shape and
materials would allow for survival on reentry into the atmosphere with little
prospect for collateral damage on impact. The ability to call down such objects
from space at hypervelocity speeds would allow them to penetrate hundreds of
feet into the earth. Strategically, it would also offer the attacker the
"ultimate stealth" and maximum surprise. [n93]
A final example in the kinetic energy category is the Gun Launch to Space
(GLTS) project. The project envisions a large artillery-type structure capable
of launching projectiles hundreds of miles. The most notable example of
rudimentary technology on which the GLTS might be based is the Iraqi "supergun,"
employing a barrel 172 feet long and capable of propelling 114 pound projectiles
to distances of 465 miles. [n94] Although principally conceived as a
system for boosting operational payloads to orbit, the GLTS project has numerous
potential applications, including service as an ASAT. [n95]
3. Laser Weapons
"Laser" is an acronym for Light Amplification by Stimulated Emission of
Radiation and is a device that produces a narrow beam of radiation by means of a
physical emission. The light constituting the laser beam can be produced by a
variety of chemical means. Key components of such a weapon include both the
laser itself and the beam control subsystems which aim the beam. Once created,
the beam used in the proposed weapon's laser is so concentrated that it can be
projected for extremely long distances with very little loss of energy. Study on
laser weapons, including those capable of disabling satellites, began in the
early 1960s, [n96] and received increased attention as part of the
Strategic Defense Initiative. Despite tremendous technical problems, mostly
still unresolved, lasers could radically change warfare if ever fielded. [n97]
At present, the U.S. is developing space, air, and ground-based
lasers for possible use as weapons against enemy missiles and satellites. One of
the two principal U.S. ground-based lasers is the Mid-Infrared Advanced Chemical
Laser (MIRACL). [n98] As the name suggests, the laser beam is generated
by chemical reactions, produced by deuterium fluoride, resulting in a focused
beam that is fourteen cm square. [n99] It is the largest laser
developed in the U.S., undergoing numerous tests since 1985 when it destroyed a
stationary ICBM on the ground. In the late 1980s, the Congress prohibited DOD
from using the laser against space objects. [n100] The prohibition
expired in 1995, however, and Congress failed to renew the ban. On Oct. 17,
1997, the MIRACL "illuminated" a satellite in orbit constituting the first-ever
U.S. use of a laser against a satellite. [n101] Though it did not
destroy the object, the move was widely seen as a potential first step toward
development of a laser ASAT capability. [n102] No further tests against
space objects are scheduled.
The airborne laser (ABL) program under development calls for a much
smaller laser system housed within a modified 747 aircraft. The weapon was
conceived as a defense against missile threats but if the program continues to
prove as successful as its latest tests (tracking ballistic missiles, overcoming
atmospheric distortion), U.S. Air Force officials are weighing expanding its
role to reconnaissance, cruise missile defense, and suppression of enemy air
defenses. [n103] The laser, still under development, will use an
oxygen-iodine combustion process to produce the intense light. The first
airborne test firing of the laser against a missile is scheduled for 2002. [n104]
Although the ABL has not been envisioned for an ASAT role, its
anticipated 250 mile range would make it capable of reaching missiles and
satellites in low orbits.
Space-based laser systems (SBLs) that target other space objects have the
dual advantage of being less vulnerable to attack and avoiding the distorting
effects of earth's atmosphere. The laser currently envisioned for the SBL system
uses a hydrogen fluoride chemical reaction to create its light beam. Unlike the
MIRACL and ABL systems, it must be developed to operate in the low pressure
environment of space. The prototype Alpha laser was successfully tested in 1991
under conditions simulating the space environment. Results from the test showed
that megawatt power levels similar to the MIRACL but optimized for space can be
built and operated. [n105] However, as with all three laser weapons
programs several technical challenge remain for SBLs, including keeping the
satellites loaded with a sufficient quantity of chemicals necessary to fuel the
laser. [n106] Current estimates call for space-based laser testing to
begin sometime between 2005 and 2008. [n107]
4. Particle Beam Weapons
The first proposed use of particle beam weapons for satellite defense
occurred in 1965. [n108] Even more technically challenging than lasers,
both particle beam and laser weapons constitute "directed energy" weapons-that
is, weapons which destroy their targets by delivering energy at or
near the speed of light (approximately Mach 1,000,000). This would be a
considerable advantage during time-urgent military engagements. [n109]
In theory, a particle beam weapon could mimic the effects achieved by an
electron accelerator by transferring energy to its target at nearly the speed of
light. In so doing, it would transfer thermal energy similar to the action of a
lightning bolt. [n110] Unlike the short attack of a nuclear (or other)
blast-triggered EMP, a particle beam weapon could keep its destructive beam
focused on the target for longer periods of time.
Particle beam weapons differ from lasers in several respects. The former do
not heat the surface of their targets as lasers do. Thus, the particle beam
weapon does not weaken the structure of its target, but eats through the skin
and damages its internal mechanisms. [n111] Because it does not rely on
light energy, the particle beam weapon would not be affected by cloud cover or a
reflective coating as would a laser. However, despite their theoretical
advantages, such weapons are exceedingly difficult to produce because of the
high-energy current and repetition rates required. [n112]
5. Explosive Proximity Weapons
The category of space weapons characterized by an explosion in proximity to
its target is perhaps the most self-evident form of space weaponry. This type of
weapon simply steers close to its target and blows it up by detonation in the
target's vicinity. The best example is the Soviet ASAT system, first tested in
the late 1960s and fielded in the 1970s. [n113] The explosive kill
vehicle is rocket launched to coincide with the period during which the earth's
rotation will put the weapon into the same orbital plane as the target
satellite. Once the ASAT achieves orbit, ground controllers maneuver the object
for one to two revolutions of the earth until it is close enough to the
target for its own guidance system to activate. "When in range an
explosive charge aboard the interceptor is detonated, sending a cloud of
shrapnel at high speed to destroy the target." [n114] Repeated testing
has shown the system to be marginally effective. [n115] Recent reports
of Russian work on an EMP ASAT may prove more effective. [n116]
Though not yet developed, "space mines" are another type of proximity weapon
that tracks down its target and detonates on impact or other trigger event.
Commentators suggest that the detonators for such mines could be activated by
command from earth, which could be triggered by, for example, reaction to heat
or mechanical action. [n117] Although similar to kinetic energy
weapons, the space mine's method of destruction is not the force of impact but
6. 'Soft Kill' Weapons
A final category includes those weapons designed to disable their space-based
targets, usually satellites, rather than destroy them. Though never fielded, at
least three types of systems in this category have been considered, all of which
rely on rendezvous with the target satellite. [n118] First, weapons
that spray paint onto the optics, solar arrays, or radiators of the target would
disrupt power supplies or mission execution. Second, a target satellite could be
nudged or tipped out of its current orbit in order to exhaust its control fuel.
Third, electronic jamming could disrupt a satellite's proper functioning or shut
it down altogether. In each case, unless detected before the "attack," disabling
missions such as these could be undertaken covertly and the true source never be
detected or proven. Because the results of these "soft kills" often mimic
routine failures, detection would prove difficult. [n119]
III. THE LAW OF WAR [n120]
[The law of armed conflict] is no longer a body of law designed to ensure a
fair fight between two opponents; . . . Today, the law of armed conflict is
designed primarily to minimize suffering and prevent unnecessary destruction.
This being so, belligerents are held to the standards to which they are capable
of rising. [n121]
The law of armed conflict has been shaped with a recognition of the concept of
"military necessity." Hence "necessity" cannot be claimed as a defense to
violations of absolute prohibitions included in the law of armed conflict, for
example, killing of prisoners of war. More importantly, various military
doctrines, such as accuracy of targeting, concentration of effort, maximization
of military advantage, conservation of resources, avoidance of excessive
collateral damage, and economy of force are not only fully consistent with
compliance with the law of armed conflict but reinforce its observance. [n149]
Discrimination, [n150] as the term suggests, stresses diligence in
"the selection of methods, of weaponry and of targets . . . it includes the idea
of the immunity of non-combatants and those hors de combat, that is, the sick,
wounded, and shipwrecked, but it is not only about that: it can also refer to
geographical and other limitations." [n151] This description
incorporates several concepts, one of the most significant being the
distinction between combatants and non-combatants. In general, the law of war
prohibits attack of any person deemed a "non-combatant." This means that the
lawfulness of the use of force against individuals under the jus in bello
presupposes attack of those qualifying as combatants. Recognized at least since
the nineteenth century, [n152] the law of war establishes the category
"combatants" in order to specify those who may be attacked, but also to create a
measure of protection for those so categorized. [n153] The 1907
Regulations annexed to the Hague Convention (IV) Respecting the Laws and Customs
of War on Land stated the general criteria for recognizing combatants: (a)
commanded by a person responsible for his subordinates; (b) have a fixed
distinctive emblem recognizable at a distance; (c) carry arms openly; and (d)
conduct operations in accord with the laws and customs of war. [n154]
The care required by the principle of discrimination to distinguish between
combatants and non-combatants rests on an even more fundamental principle:
military objective. [n155] This principle requires that a belligerent's
armed attacks be limited to targets that are military in nature and the
destruction of which advances the attacker's tactical, operational, or strategic
position. Such targets would certainly include combatants in action, as well as
inanimate objects deemed necessary for the opponent's prosecution of the
conflict. Thus, Article 48 of the 1977 Protocol I to the 1949 Geneva Conventions
provides the clearest statement of the customary principle, and assumes in its
"basic rule" concerning the general protection of civilians populations that
belligerents will recognize military objectives. "In order to ensure respect for
and protection of the civilian population and civilian objects, the Parties to
the conflict shall at all times distinguish between the civilian
population and combatants and between civilian objects and military objectives
and accordingly shall direct their operations only against military
objectives." [n156] Subsequently, Protocol I defines "military
objective" (relating to objects versus noncombatants) as being "limited to those
objects which by their nature, location, purpose or use make an effective
contribution to military action and whose total or partial destruction, capture
or neutralization, in the circumstances ruling at the time, offers a definite
military advantage." [n157]
The obligation created by the principle of distinction attends both the
attacker and the defender. [n158] Further, because the principle
requires attackers to exercise due care in the selection, engagement, and
destruction of targets, it imposes a duty commensurate with the belligerent's
ability to discriminate. Given the lack of precision afforded by gravity-driven
projectiles dropped from hot air balloons, the outright prohibitions on such
methods of war in 1899 and 1907 make sense in light of the principle of
discrimination. [n159] However, the increasing capability of modern
weaponry not only provides increased tactical options, but potentially increased
obligation as well. To the extent that a laser-guided bomb can be used to
effectuate an attack that properly distinguishes legitimate from illegitimate
targets, but a conventional gravity bomb cannot, the attacker may be obligated
to either forego the attack or use the less common, more costly precision
munition. [n160] Of course, relevant to this targeting and weaponeering
analysis would be the attacker's overall campaign plan. The possibility
certainly exists that use of precision munitions early in a campaign
might produce less overall value under the proportionality analysis than had the
use been reserved for a later target in the campaign.
The customary rule of proportionality, more difficult to articulate than
necessity or discrimination, requires that the use of military force be
proportional to the legitimate military objective in view. This represents more
than simply the principle of war advocating only such force as is necessary to
attain the objective; it actually requires a balancing of anticipated military
advantage against anticipated damage caused. [n161] It essentially
prohibits the use of military force that creates collateral damage to civilians
or property, not otherwise legitimate targets, that is disproportionate to the
military value of the objective. [n162] As Roberts and Guelff point
out, this doctrine can refer to two different situations: first, the
proportionality of a belligerent response to a grievance (in this sense
proportionality provides a link between the jus ad bellum and jus in bello); and
second, "proportionality in relation to the adversary's military actions or to
the anticipated military value of one's own actions, including proportionality
in reprisals." [n163]
In the former sense of proportionality posed by Roberts and Guelff,
the massive coalition military operation in the 1991 Persian Gulf War would have
been disproportionate to an unlawful border incursion and then an immediate
retreat by the Iraqis. Though unlawful, such incursion could be remedied with
far less force. In the latter sense of proportionality, in response to the
opponent's military actions, the destruction of a hydroelectric dam in order to
eliminate a sniper perched on top would constitute an attack disproportionate to
the legitimate objective of eliminating the threat posed by the sniper. Though
the dam may be its own legitimate objective under certain circumstances, it is
not made legitimate simply as a means of achieving the destruction of a far less
Because of the difficulty of applying the principle of proportionality to
specific contexts in modern warfare, scholars and practitioners have devised
tests to assist those engaging in target selection and military operations
planning. One useful formulation for aerial combat has been advanced by Colonel
Gomez of the Spanish Air Force: "an aerial attack expected to cause civilian
casualties would be acceptable should it have the same degree of approval as a
similar action taking place over a part of the country's own territory under
enemy occupation, in which case the civilian casualties would be compatriots."
[n164] This formulation essentially asks the military planner to put
himself in the position of the enemy. Such an approach could be modified to
apply the principle of proportionality to space warfare. Gomez aptly attributes
the difficulty in applying the principle of proportionality to the subjectivity
involved in the application, and thus terms the principle the "Achilles heel of
the law of war." [n165]
Finally, the concept of humanity incorporates several concepts, including
that which is still called "chivalry." [n166] In practice, this
principle may not pose the urgency it once did in limiting armed
conflict because of the way the other principles have matured taking it into
account. This is particularly true of necessity and proportionality, as Colonel
Schmitt observes: "to the extent suffering is useless it is militarily
unnecessary and, because it offers no direct and concrete military advantage,
Nonetheless, the principle of humanity accounts for several efforts at
outlawing means and methods of warfare deemed to cause unnecessary suffering.
International law does not restrict belligerents from wounding or killing
opposing forces so that they will not fight back. It follows from this that once
a combatant is rendered hors de combat ("out of combat"), he is no longer a
legitimate target for further attack. Thus, while it is legitimate to wound a
combatant so as to render him hors de combat, means and methods of warfare
having the effect of exacerbating wounds that would render a combatant hors de
combat, are deemed "unnecessary." The principle has been applied over the
centuries to weapons from antiquity, and those developed more recently that have
been addressed through treaty instruments. These include poisoned weapons, [n168]
barbed weapons, small-caliber incendiary or explosive bullets, [n169]
expanding bullets, [n170] glass and other nondetectable
fragments, [n171] and most recently, blinding lasers. [n172]
In theory, prohibition of all of these weapons limits space war to the
extent that any of them might be delivered against human beings from or within
As the principle of military necessity must be balanced by humanitarian
concerns, some legal commentators note that humanitarian concerns must be
balanced against legitimate military needs as well. The jus in bello principles
presuppose that their application occurs in the midst of armed conflict-that is
"in bello"-and that in some cases States will accurately assert a legal right to
militarily subdue the other. [n173] This forces the law to assume a
pragmatic posture with respect to the goal that warfare remain humane. Thus,
Professor Green rightly observes,
since the law of armed conflict rests upon a judicious balance between military
operational needs and humanitarianism, and since the purpose of the
Geneva Law is the preservation of humanitarianism accompanied by respect for
civilians and the long-term interests of the parties to the conflict by reducing
the possibility of sentiments of revanchisme, application of humanitarian
principles does not override the needs of practical realism. Idealism and a
belief in humanitarianism must not result in an automatic rejection of military
needs or careless accusations of war crimes or crimes against humanity.
However, the assessment of military needs must always be made in good faith. [n174]
This is not to say that military necessity ever provides an authorization to
act (as the following example might incorrectly suggest: "the employment of
military force was authorized because doing so was militarily necessary"), but
simply to say that each of the customary law of war principles represent an
important limitation on means and methods of warfare while simultaneously
recognizing that warfare nonetheless persists in human experience. This fact
affects the content that the law invests into the term "humanity." This fact
further pragmatically presupposes that unless the law somehow accommodates
itself to such realities as the continued existence of war, States will ignore
it. One can recognize the existence of such accommodation by observing the
simple fact that unfettered humanitarianism does not characterize the law of
war. If it did, then not only would such "law" never have achieved the force of
law in the first place, [n175] but the jus in bello would prohibit all
means and methods of war for the simple reason that any one of them are apt to
produce suffering to some extent. Pure humanitarianism would prohibit all
suffering of any kind, as the law of war plainly does not. [n176] The
principles therefore require constant balancing and readjustment. Each
acts as a limit on permissible military activity so that no one principle
obliterates the other. [n177]
C. TREATY LAW
Without doubt, the easiest means of determining international law is by
reference to the explicit will of States as expressed in treaties. Though of
minimal value for ascertaining specific principles applicable to space warfare,
the relevant treaties do provide the general foundation from which a space law
of war will emerge. And, the four general principles of the law of war outlined
above, reinforced within this treaty law, will apply to armed conflict in any
combat environment. [n178]
A discussion of relevant treaty law restraining armed conflict would not be
complete without reference to several historical antecedents. The diplomatic
conferences producing the Hague and Geneva Conventions, and their progeny,
followed several modest attempts to codify the jus in bello. One such attempt,
reflected in the Lieber Code of 1863, so called for its author, Columbia
University professor Francis Lieber, governed the prosecution of war for the
Union Army during the American Civil War. Promulgated by President Lincoln as
General Order Number 100, the Lieber Code's 157 articles set forth standards for
the prosecution of the war and treatment of Confederate troops. [n179]
Though developed in the United States, the Lieber Code became widely
read as expressing an emerging international law relating to restrictions
imposed on combatants in armed conflict, [n180] and it "strongly
influenced the further codification of the laws of war and the adoption of
similar regulations by other States." [n181] Thus, in addition to
influencing the codification of subsequent treaty law, it became the model for
other countries, including Prussia in 1870, [n182] the Netherlands in
1871, France in 1877, Serbia in 1879, Spain in 1882, Portugal in 1890, and Italy
in 1896. [n183]
Eventually, the Geneva Convention of 1864, [n184] the Petersburg
Declaration of 1868, [n185] Protocol and Declaration of the Brussels
Conference of 1874, [n186] and the 1880 Oxford Manual of the Laws and
Customs of War [n187] took modest steps toward limiting the means and
methods of warfare as well as ameliorating the suffering they cause. In each
case, the restrictions on means and methods of war, as well as on treatment of
combatants and noncombatants, provided the foundation for the international
treaty norms still in force today.
1. Hague Conventions of 1899 (I-IV) and 1907 (I-XIV)
The conventions adopted in 1899 and 1907 at the Hague provide, to this day,
the backbone of international regulation governing the means and methods of
warfare. These eighteen treaties attempted to fulfil four main purposes: first,
they sought to identify those who may lawfully participate in war, and define
the duties and rights of those individuals; second, they sought to regulate
means and methods by which States could lawfully conduct warfare; third, they
sought to describe the conditions and manner under which belligerents could
bombard or besiege; and fourth, they sought to regulate truces,
capitulations and armistices, and the military government of occupied
Because the laws of war were among the earliest parts of international law to
be codified, [n189] it may seem that the original principles would
contribute little to the regulation of space combat. This is true only in part.
Though the Hague Conventions had nothing explicit to say about aerial warfare,
for example, several specific restrictions have been applied by extension. It is
no surprise that the Conventions contemplate the means and methods of warfare
then in existence. However, although nothing in the 1907 texts is directed
toward space operations, articulation of the jus in bello for space warfare will
require examination of the Hague Conventions-an examination analogous to that
undertaken for aerial warfare. Just as principles from the Conventions have been
stretched to limit means and methods of air war, a slightly broader reading of
the primary texts could establish the emergence of a generalized jus in bello
Significant provisions for airpower, and thus possibly for spacepower, are
the restrictions on bombardment contained within the fourth Convention
regulating land warfare, [n190] and the ninth Convention regulating
bombardment by naval forces. [n191] As with most of the documents
adopted by the 1907 conference, the Convention on land warfare was drafted using
terms and concepts from its 1899 predecessor. [n192] Both conferences
sought to limit the permissible scope of artillery fire and the "bombardment"
resulting therefrom. Although the ninth Convention only limited bombardment by
"naval forces," [n193] its second Article provided a list of authorized
targets, including "military works, military or naval establishments, depots of
arms or war materiel, workshops or plant which could be utilized for the needs
of the hostile fleet or army, and the ships of war in the harbor . . . ." [n194]
Because these targets were specifically excluded from the
Convention's prohibitions on bombardment, including its application to
"naval forces," it appears that the Convention recognizes that these targets
could be attacked by any forces-naval, terrestrial, aerial, or even space.
A second feature of significance, from the ninth Convention, relates to its
Article 2 and the concept of unavoidable collateral damage. After requisite
precautions have been taken by the attacker, including ascertaining the status
of the target, issuance of a summons followed by a reasonable time of waiting,
and failure by the local authorities to destroy the targets themselves, the
attacker is absolved of responsibility for "unavoidable damage." [n195]
Significantly, this places a burden to minimize collateral damage not only on
the attacker, but on the defender as well. Although reflected in subsequent
international instruments, this aspect of the law of war is increasingly
forgotten. In 1907 it was simply "realized that collateral civilian casualties
were regarded as the cost of war to a nation rather than the responsibility of
the attacker." [n196] This general principle will apply equally to
space warfare. Thus, belligerents employing military space assets that
constitute legitimate targets will be obliged to separate them from other
space objects not supporting the armed conflict.
In contrast to the ninth Convention on naval forces, the prohibition on
bombardment in the regulations annexed to the fourth Convention did not limit
itself to land forces. Reflecting the principle previously articulated in the
second 1899 convention, the fourth convention's general prohibition reads: "The
attack or bombardment, by whatever means, of towns, villages, dwellings, or
buildings which are undefended is prohibited." [n197] Although the
drafters of the Convention did not likely envision space warfare, this provision
raises three potential issues related to limitations on space warfare. First,
the specified targets require at a minimum that they be "defended" before making
them subject to attack. This was an early way of restating the principle of
military necessity. That is, unless a potential target was considered
significant enough to defend, it was not deemed significant enough to attack as
a legitimate objective.
A second issue raised by the bombardment prohibition relates to its scope.
Applicable to bombardment "by whatever means," the prohibition against attack of
undefended land targets restricts all bombardment of such targets, however or
wherever originated. Unless properly defended, the enumerated targets
were not to be engaged by land or sea forces. Given the expansive terms used by
the drafters, the prohibition could be interpreted to apply by extension to air
and space forces. [n198]
Finally, the prohibition implicitly recognizes that under proper conditions
certain targets are lawful. Thus, under the terms of the convention, one could
not state that towns, villages, dwellings, or buildings may never be lawful
targets. There were cases envisioned in which even towns filled with civilians
could be bombarded. Significantly however, the Convention did not state that a
potential target was legitimate simply because it was defended, only that
undefended targets were off limits. As a result, even a defended target may
still have been protected if it did not otherwise qualify as a legitimate
military objective. Just because a town full of civilians possessed armed
protection, it was not thereby rendered a legitimate target unless it sustained
an industrial or other function contributing to the prosecution of the conflict.
Chapter One of the regulations to the fourth Convention raises further
distinctions that would prove important to all subsequent law of war rules.
[n199] It defined the conditions under which one qualified as a
"belligerent" and thus protection as a "prisoner of war" if taken during the
course of hostilities. As listed previously, the regulations establish four
criteria defining a belligerent [n200] which designation could apply
not only to those in armies, but to militia members and those of volunteer corps
as well. Chapter One further specifies that the category "belligerents" may
include either combatants or non-combatants. [n201] As the term
suggests, combatants refer to those participating directly in the hostilities.
As a rule, members of a State's armed forces are combatants, with the two basic
exceptions being religious and medical personnel. These two categories of
military members, though members of the armed forces and otherwise entitled to
protection as "belligerents" or "prisoners of war," are non-combatants because
they may not participate directly in the use of force.
Even more basic than the distinction between "combatants" and
"non-combatants" was that between "combatants" and "civilians." [n202]
Civilians were viewed as a special class of "non-combatants" (unable to take
part in the hostilities), who were not "belligerents" (susceptible to
capture and incarceration as prisoners of war) either. Neither they nor their
property could be targeted directly as long as they retained their status as
"civilians." However, a final important category, "unlawful combatants" applies
to those non-combatants and civilians who are unauthorized to engage in
hostilities, but do so nonetheless. These individuals lose the protection they
would otherwise enjoy under the laws of war. As the 1977 Protocol (I) to the
Geneva Convention recognizes, unlawful combatants do not lose all humanitarian
protections, [n203] but they are not accorded "prisoner of war" status
if captured, and they face lawful penal consequences by the foreign belligerent
State for their unlawful participation in the conflict. [n204]
One additional category recognized by the Hague regulations merits
attention-spies. This class of participants to the conflict would include one
who, "acting clandestinely or on false pretenses, . . . obtains or endeavors to
obtain information in the zone of operations of a belligerent, with the
intention of communicating it to the hostile party." [n205] This does
not include soldiers who have penetrated the hostile force's zone of operations
for the purpose of obtaining information. [n206] As applied to space
warfare, this might mean that a combatant who enters an opposing spacecraft
cannot be considered a spy as long as his vessel bears its prescribed
distinctive markings, and the astronaut wears his military uniform. Because of
potentially damaging, serious effects that spies can have on a belligerent,
spies enjoy the least protection under international law and are the
most vulnerable if captured. Spies are not deemed prisoners of war and, subject
to various minimal due process protections, may be tried by hostile belligerents
for espionage. [n207] In the near future however, spying is unlikely to
become a significant issue for space warfare unless current trends toward
unmanned missions change course. For ground operations in support of space
warfare however, the traditional norms governing spying will apply. Thus, the
lawful disposition of a spy having infiltrated a satellite control center will
be no different than that for a spy operating elsewhere.
2. Geneva Conventions of 1949 (I-IV) and Protocols of 1977 (I-II)
The 1949 Geneva Conventions serve primarily as protection for individuals
suffering as a result of armed conflict. Those employing the term "humanitarian
law" as the preferred reference for the law of war, often seem to have the
Geneva Conventions principally in view. This follows from the simple observation
that the 1949 Conventions highlight the international interest in ensuring that
warfare respects the human person to the maximum possible extent. [n208]
During World War II, following numerous violations of the laws of war,
[n209] the world expressed great doubt that the laws of war would
ever truly protect either combatants or civilians. [n210] This sense
was expressed by Winston Churchill after the war: "The only direct measure of
defence on a great scale was to possess the power to inflict simultaneously upon
the enemy as much damage as he himself could inflict." [n211] This is
to say that the laws of war were no "defense" against the indiscriminate use of
force. Thus, to the extent that Churchill spoke for the general temper of his
time, compliance with the laws of war was simply viewed as incidental to the
prosecution of the war. If an international rule were adhered to, it was not for
respect of the "law," but because doing so afforded some military advantage.
Out of this pessimistic environment emerged the diplomatic conference in
Geneva, charged with limiting the harsh effects of war. Primarily concerned
as they are with amelioration of the suffering of war victims, the four
Geneva Conventions are only tangentially related to regulating the means and
methods of war. They represent, as has been said, "Geneva Law" related to
victims, and not "Hague Law" related to means and methods of warfare.
Nonetheless, several provisions do limit means and methods, specifically
Article 19 of the Geneva Convention (I) for the Amelioration of the Condition
of the Wounded and Sick in Armed Forces in the Field specifies that "Fixed
establishments and mobile medical units of the Medical Service may in no
circumstances be attacked, but shall at all times be respected and protected by
the Parties to the conflict." [n212] Under Article 22, this protection
for medical facilities applies even if the unit's personnel are armed, the unit
is protected by a fence or armed sentries, small arms and ammunition taken from
the wounded and sick remain in the unit, the unit's services include veterinary
care, or the unit extends care to civilian wounded or sick. [n213]
These provisions clearly remove medical facilities from the list of permissible
targets that belligerents may lawfully destroy. The fact that the prohibition
contemplates "no circumstances" under which such targets may be attacked,
signifies the comprehensive nature of the protection and forbids attack from any
combat environment, including space.
A similar provision can be found in Article 18 of the Geneva Convention (IV)
Relative to the Protection of Civilian Persons in Time of War: "Civilian
hospitals organized to give care to the wounded and sick, the infirm and
maternity cases, may in no circumstances be the object of attack, but shall at
all times be respected and protected by the Parties to the conflict." [n214]
Though this provision would also apply to space attacks, using the same
absolute ("no circumstances") language of convention (I), Article 18 goes a step
further by requiring belligerents to clearly mark civilian hospitals so that
they are "clearly visible to the enemy land, air, and naval forces in order to
obviate the possibility of any hostile action." [n215]
In addition to protection of medical facilities on the ground, Geneva Law
protects medical ships under the Geneva Convention (II) for the Amelioration of
the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces
at Sea. Thus, Article 22 provides that such ships, "built or equipped by the
Powers specially and solely with a view to assisting the wounded, sick and
shipwrecked, to treating them and to transporting them, may in no circumstances
be attacked. . . ." [n216] Article 23 clarifies that such protection
extends to such support establishments ashore that may be protected under
Convention (I), [n217] and Article 28 protects the sick-bays aboard a
warship, even where fighting occurs on board the ship. [n218] These
provisions further restrict the potential methods of space warfare as all
protected facilities could in theory be attacked from space. [n219]
Motivated by continuing international conflicts, and particularly the
revitalized interest in the law of war following the Vietnam War,
nongovernmental organizations began arguing for a diplomatic conference to
update the law of war. This followed moves immediately after WWII by the
International Committee of the Red Cross (ICRC) attempting to restrict aerial
bombardment. This emphasis on the need to update the law of war continued
through the 1950s and 1960s. Following two significant U.N.G.A. Resolutions,
[n220] a diplomatic conference was convened in 1974 to draft new
The first of the two Protocols adopted by the conference pertained to
international armed conflicts and is, to the extent that any law of war treaties
will be relevant, more important for regulation of means and methods of space
warfare. Protocol II limits itself to the regulation of armed force in
"non-international armed conflicts," relates to the protection of victims of
"internal" or "civil" wars, and governs the protection of the victims of such
conflicts. [n221] Substantively, the provisions of Protocol II, which
are significantly fewer and "far less restrictive" [n222] than those of
Protocol I, supplement the provisions of common Article 3 of the Geneva
Conventions-the latter requiring that minimal protections be accorded the
victims of armed conflicts "not of an international character." [n223]
Traditionally, the customary law of war applied to non-international conflicts
only if the government of a country in which the insurrection occurred, or some
third State, chose to recognize the legal status of the insurgent
group. [n224] Because Protocol II, Article 1(2), excludes application
of its terms for "situations of internal disturbances and tensions, such as
riots, isolated and sporadic acts of violence and other acts of a similar
nature. . ." [n225] and such exclusions in the Geneva Conventions have
been the basis for governments routinely denying the application of common
Article 3, [n226] it is doubtful that Protocol II will have much impact
on the amelioration of human suffering caused by non-international armed
Potentially more important for the regulation of means and method of space
warfare are the provisions of Protocol I. Though formally a protocol to the
Geneva Conventions, Protocol I includes regulation of military activity
previously governed by "Hague Law." Despite the innovations worked by Protocol
I's positions on insurgents and reprisals, [n227] the United States
found its greatest difficulty with the general thrust of provisions
relating directly the conduct of military operations--Articles 48 to 58. [n228]
Those articles define, among other things, the basic rule of
distinction, [n229] the meaning of "attack," [n230] the
meaning of "civilians" and "civilian population," [n231] the rule
protecting civilian populations, [n232] the rule protecting civilian
objects, [n233] the rule protecting cultural objects and places of
worship, [n234] the rule protecting objects indispensable to the
survival of the civilian population, [n235] the rule protecting the
natural environment, [n236] the rule protecting works and installations
containing dangerous forces, [n237] the rule establishing necessary
precautions to be taken in the event of attack, [n238] and the rule
establishing precautions to be taken against the effects of attack. [n239]
As may now be obvious, all of these provisions affect the conduct of
space warfare insofar as each limits potential targets and restricts options
otherwise available to military space forces.
Perhaps the biggest concern raised by these provisions was the attempt to
return warfare to restricted means and methods of warfare "that [have] not been
seen in this century." [n240] Specifically, the cumulative effect of
these provisions worked to "shift the responsibility for the protection of the
civilian population away from the host nation (which has custody over its
civilian population, and which traditionally has borne the principal
responsibility for the safety of the civilian population) almost exclusively
onto the attacker." [n241] Two problems with this attempt at
burden-shifting arise. The first concerns the threat to State sovereignty in
cases amounting to self-defense. As the statement of France indicated in the
ICRC commentary to Article 48, had there been a separate vote on Article 48,
"France would have abstained inasmuch as it considered the article to have
'direct implications as regards a State's organization and conduct of defense
against an invader." [n242]
A second concern raised by the formulations of Protocol I is its apparent
failure to acknowledge that attacks are often taken as a reply to previous
aggression. [n243] In this regard, Allied strategic air operations over
Nazi Germany and the multinational march into North Korea in 1950 would have
been rendered militarily impotent had the restrictions of Protocol I applied.
The conduct of military operations against Iraq during the 1991 Gulf War
provides an additional example.
For these and other reasons as well, the Protocol attempts to restrict means
and methods of warfare, including aerial warfare, to an extent not acceptable to
a number of nations, without whose support the law of war can not properly
function. [n244] Given the denunciations by France and the United
States, the Protocol did not serve to limit warfare in either the 1991 Gulf War,
or the 1999 NATO air war against Yugoslavia, except to the extent it was viewed
as declaratory, in part, of customary law. Given the strongly-held conviction of
these two major airpower States, it is difficult to see Protocol I serving as a
meaningful formal limitation on aerial warfare, and thus space warfare, for the
foreseeable future. It will however, continue to raise political issues for the
U.S. as it engages in coalition warfare with allies having ratified the
3. Additional Conventions Adopted Since 1972 Affecting the Jus in Bello
Since the close of the diplomatic conference which adopted the Protocols to
the Geneva Conventions, additional conferences have adopted six principal
treaties (in some cases designated protocols to other treaties) affecting the
jus in bello. These include, in chronological order, treaties on Biological
Weapons, [n245] Environmental Modification, [n246]
Conventional Weapons, [n247] Chemical Weapons, [n248] Blinding
Lasers, [n249] and Anti-Personnel Mines. [n250] Of these, the
most likely to effect potential means and methods of space warfare is the
Environmental Modification Treaty.
This Treaty does not restrict the use of environmental modification
techniques for "peaceful purposes," [n251] but does proscribe the
"military or any other hostile use of environmental modification techniques
having widespread, long-lasting or severe effects as the means of destruction,
damage or injury to any other State Party." [n252] The Treaty is of
particular importance to space warfare in that "environmental modification
techniques" are defined to include "any technique for changing -- through the
deliberate manipulation of natural processes -- the dynamics, composition or
structure of the earth, including its biota, lithosphere, hydrosphere and
atmosphere, or of outer space." [n253]
The Treaty's provisions make clear that its purpose is not so much
environmental protection, as a restriction against States making or attempting
changes to environmental processes as an instrument of warfare. The means of
warfare prohibited by the Treaty need not adversely affect the
environment itself because the prohibitions of Article I apply only to the use
of the environment as a weapon. [n254] Further, though not incorporated
into the convention itself, the Parties attached a series of "Understandings" to
the Treaty, which, as part of the negotiating record, clarify terms used in the
text. The "Understanding Relating to Article II" includes a non-exhaustive list
of illustrative phenomena that could be caused by environmental modification
techniques. In addition to earthquakes, tsunamis, changes in weather patterns,
climate patterns, and ocean currents, these include changes in the state of the
ozone layer and changes in the state of the ionosphere. [n255] Although
all of these effects could be attempted from space, the latter two seem the most
likely possibilities. However, the restrictions established by this Treaty do
not seem applicable to any major weapons programs publicly reported to be now in
development. So long as space weapons do not change the outer space environment
"through the deliberate manipulation of natural processes," the treaty is not
likely to serve as a bar to the deployment or use of space weapons. [n256]
In addition to the Environmental Modification Treaty, the four protocols to
the Conventional Weapons Treaty limit the combat use of non-detectable
fragments; mines, booby-traps, and other devices; incendiary weapons; and
anti-optic lasers. The restriction on "mines, booby-traps, and other devices"
will not apply to space warfare as its terms apply only to those devices "on
land." [n257] Though of possible significance, the protocol restricting
use of incendiary devices seems unlikely to affect the development of means and
methods of space warfare unless States Parties develop such weapons to be
delivered from space. The protocol limiting use of blinding lasers will possibly
become relevant as the U.S. could employ such devices in space. [n258]
There is increasing interest in the use of lasers in combat, even those which
[*59] may cause incidental eye injury. [n259] However, rather than
applying these four rather specific provisions to space warfare, the more likely
course will entail development of further protocols to this Convention effecting
specific limits on conventional space weaponry.
4. Jus Ad Bellum Under the United Nations Charter
The Charter of the United Nations governs the very legitimacy of States' use
of force in the first place. As such, it is not formally part of the law of war
but rather forms part of the jus ad bellum. Nonetheless, because the Charter
governs the lawful use of force, its provisions are necessarily related to
considerations of how that force is used under the jus in bello. [n260]
The Charter is "two-faced," serving both as the constitutional document for
the United Nations organization itself, as well as providing substantive
principles of international law. [n261] The substantive provisions are
intended to advance the goals articulated in the Preamble of the Charter,
including among others, the creation of conditions for the maintenance of
international peace and security. [n262] This objective rests on the
proscription of the aggressive use of force, which finds expression in two
portions of the Charter, paragraph 2(4) and Chapter 7. [n263]
In this respect, the principal contribution of the U.N. Charter to the use of
military force is its authoritative articulation of the jus ad bellum. [n264]
The oft-cited provision of paragraph 2(4) enunciates the well-established
international legal principle [n265] prohibiting the use of force: "All
Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state,
or in any other manner inconsistent with the Purposes of the United Nations."
[n266] Balancing this general proscription is the exception for
"self-defense" found in Article 51: "Nothing in the present Charter shall impair
the inherent right of individual or collective self-defense if an armed attack
occurs against a Member of the United Nations, until the Security Council has
taken measures necessary to maintain international peace and security. . . ."
[n267] Article 51 goes on to require member States to notify the
Security Council of any actions taken pursuant to this right of self-defense.
Of the many legal issues these two provisions raise, two of the most obvious
affect the use of force in outer space. First, what is the meaning of "threat or
use of force" in relation to outer space as contained in Article 2(4)? And
second, what is the meaning of "if an armed attack occurs" in Article 51? These
issues have been widely discussed in the scholarly literature and will be only
briefly addressed here.
Under Article 2(4), States may neither use force in the course of
their international relations, nor threaten it. Though widely ignored in State
practice, the Charter makes no distinction between the illegality of using force
and of threatening it. Ordinarily, the use of force follows a threat of it. In
such cases, the use of force gets all the legal analysis, and the threat, if
noticed at all, does not attract separate consideration as an independent
violation. [n268] In cases where the use of force does not accompany a
threat, the threat is not generally considered sufficient reason to take action.
Indeed, not only has the mere threat of force seldom led a State to protest the
matter under Article 2(4), but "state practice reveals a relatively high degree
of tolerance towards mere threats of force." [n269] Nonetheless, the
Charter's proscription remains. Given the fact that space warfare will require
new application of existing legal regimes, if not new regimes altogether, new
means and methods of using force will also give rise to new means of making
threats, including those from space.
Significantly, the Charter's focus on force rather than war reflects a
contemplated decision to outlaw all manner of armed conflict. Force is a broader
category than war. Thus the Charter prohibits all cases of armed force whether
or not the parties recognize a formal state of war between them. How States make
this formal recognition also varies from situation to situation and can be
difficult to ascertain. It ultimately depends upon either the issuance of a
declaration or ultimatum, or the occurrence of an "act of war." And yet even
what might constitute an act of war does not always initiate war. As professor
Green puts it, "whether the armed conflict amounts to a war in the
international legal sense of the term depends upon the reactions of the victim
of the attack and also, to some extent, upon the attitude of non-parties to the
Even more difficult historically than defining a state of war, has been the
attempt to determine what "force" the Charter prohibits given the many sources
of pressure nations may use in their relations with each other. It is now widely
agreed that such force does not include political or economic force, as well as
most forms of non-military physical force. [n271] Included in the
prohibition however, not only are cases of direct military force but indirect
force as well. Thus, the use of irregular forces, mercenaries, or the arming or
training of indigenous rebel forces against their own government would
constitute cases of indirect aggression prohibited by the Charter. [n272]
Regarding the latter however, the International Court of Justice clarified
in the Nicaragua v. United States judgment that not all forms of aid violate the
rule of Article 2(4), noting for example that the supply of funds to a rebel
force does not constitute "force." [n273] The potential implications of
this distinction for space support are far reaching as it will allow spacefaring
States to argue that the provision of information to insurgents, a principal
benefit of space assets, [n274] is more akin to the provision of money
than of arms.
Perhaps the biggest question with respect to the self-defense principle
embodied in Article 51 relates to the meaning of the phrase "if an armed attack
occurs." This seems to preclude the right to defend with arms, until an actual
armed attack has triggered the right. Thus, the phrase appears to rule out
"anticipatory" self-defense. [n275] As with the application of Article
2(4), nothing in Article 51 restricts the inherent right of self-defense,
[n276] to the use of force within earth's atmosphere. Although the
delegates to the diplomatic conference adopting the Charter in 1945 did not
likely have in mind the application of force from outer space, we have
subsequently learned that its rudimentary possibility was then under review by
the United States and Soviet Union. Nonetheless, as with the application of
numerous international instruments to new situations and technological
realities, there is no reason to exclude the terms of Articles 2(4) and 51 from
application in outer space. As discussed in the next chapter, the most
significant treaty on outer space specifically references the U.N. Charter.
One consequence of the right of self-defense is that the law does not
absolutely prohibit war; defensive wars that are undertaken pursuant to Article
51 are not illegal. [n277] However, recognizing the abstract rule is
relatively simple, applying it to a specific conflict is not.
Nonetheless, international law must assess the relative legal positions of
competing belligerents in order to sort out what relations exists between the
parties to the conflict, and to third party States. For example, although
parties to a conflict increasingly ignore the distinction between "war" and
other forms of armed conflict, [n278] the law does recognize that a
formal state of war [n279] will entail certain consequences that mere
armed conflict will not. [n280]
Lieutenant Colonel Michael N. Schmitt, USAF (1998)
Scholars have advanced numerous reasons for maintaining an international law
of armed conflict. [n122] At first glance, the creation of rules for
war-apparently the ultimate breakdown in order-seems ironic at best. [n123]
And [*29] yet although war is a breakdown with respect to peaceful
dispute resolution, it becomes the ultimate breakdown only if allowed by its
participants. War need not lead to anarchy or violent chaos, even though it
necessarily entails injury, killing, and death. [n124] Numerous
historical examples of military discipline displayed in combat show that the
participants in war can recognize order or, at the very least, a chain of
It is tautological to assert that effective warfare requires application of
efficient, ordered methods. Indeed when that form of order represented by the
law of war breaks down, the military effects can be disastrous. Colonel Charles
Dunlap quotes Richard Overy on the effects of Germany's disregard for the laws
of war in its conflict against the Soviets on the Eastern front.
[Such] criminalization of warfare produced a growing indiscipline and
demoralization among German forces themselves. The German army shot fifteen
thousand of their own number, the equivalence [sic] of a whole division . . . .
Desertion or refusal to obey orders increased as the war went on, and the law of
the jungle seeped into the military structure itself. [n125]
Many factors contributed to the Nazi defeat, but the German way of war
on the Eastern front failed at least in part because it became "disorderly."
Thus, advocacy for an efficient, effective military force can itself become an
argument for the laws of war, which will have the effect of reinforcing military
Whatever the reasons, warfare has attended the human race since the beginning
of recorded history. In reflecting on the phenomenon, theorists and scholars
have described the nature of warfare in a variety of ways. Some see it as the
logical and brutal extension of politics; [n127] others view warfare as
principally about deception and avoidance of the enemy's physical strengths. [n128]
However one conceives warfare, all agree that armed combat is an
event in which the battlefield reality is much worse that its mere description
might suggest. [n129] Because of this, the principled warrior
is the last to desire war; when given the discretion, he reserves it as a last
resort. Nonetheless, warfare has been a permanent fixture of the human race. As
one source puts it, "according to estimates based on the period from 3600 B.C.
until 1960, mankind has known only 292 years of universal peace, and in the
remaining 5268 years has faced 14,513 armed conflicts taking 1240 million human
lives." [n130] These statistics highlight the fact that for the sake of
preserving human life and international public order, one must accept,
however cynically, [n131] both the importance and relevance of the laws
A. Jus in Bello vs. Jus ad Bellum
When speaking of the various international norms limiting the prosecution of
war, scholars have historically distinguished between the jus in bello, or, the
laws regulating the conduct of States once armed conflict between them has
begun, [n132] and the jus ad bellum consisting of the law governing
resort to armed conflict. The former law applies to conflicts that the
belligerents themselves may not regard as "wars." [n133] The latter law
is of relatively recent origin and is expressed most authoritatively
in Article 2(4), and Chapter VII of the United Nations Charter. [n134]
Based on this distinction, Michael Walzer points out that the truly lawful war
must satisfy requirements under both legal regimes: "War is always judged twice,
first with reference to the reasons states have for fighting, secondly with
reference to the means they adopt." [n135] This two-part analysis leads
another publicist to distinguish between a war's "just cause and [its] just
Some authors conceive a conceptual framework in which the law of war concerns
itself principally with the jus in bello. Thus, Kalshoven writes "the laws of
war, or jus in bello, are those rules and principles of international law which
. . . govern the conduct of war." [n137] This is both the majority view
and the better view. By contrast, others prefer to speak of the law of war as
comprising both aspects. "The term 'laws of war' can have different meanings and
refers to both the rules governing resort to armed conflict (ius ad bellum) and
the rules governing the actual conduct of armed conflict (ius in bello)." [n138]
Because the term jus ad bellum more properly coincides with
phrases such as "the right of self-defense" and "resort to the use of force," it
should therefore be distinguished from "laws of war." Equating the jus in bello
with the phrase "laws of war" is not only a matter of historical convention, [n139]
but of logical application of law to war. Simply put, the jus
ad bellum is to be regarded as separate from the law of war because of the
"cardinal principle that jus in bello applies in cases of armed conflict
whether the conflict is lawful or unlawful in its inception under jus ad
B. Customary Principles within the Law of War
Given the misery left by warfare through the centuries, warring nations have
developed customary practices seeking to ameliorate its devastating effects. As
the customs of war have evolved into the customs and laws of war, the dominant
objective underlying the law as it relates to military force has remained
constant and can be summed up in one word: restraint. [n141] This was
perhaps best summarized for the fist time in an international instrument by
Article 22 of the Second Convention adopted by the 1899 Hague Peace Conference:
"The right of belligerents to adopt means of injuring the enemy is not
unlimited." [n142] As discussed below, the dominant concepts distilled
from the vast body of customary international law amount to very few; military
necessity, discrimination, proportionality, and humanity. [n143]
These principles, recognized in subsequent treaty law, limit the means and
methods available to belligerents for conducting armed conflicts, and thus each
demands restraint of the belligerent State. [n144] Because there are no
treaties establishing specific jus in bello principles for space combat, these
customary principles provide the most authoritative source, subject to the
specific principles of space law discussed in Chapters Four and Five, on which
the analysis of a jus in bello for space must proceed.
1. Military Necessity
Military necessity expresses the idea that for an attack to be lawful
belligerents must be able to show the connection between the attack, and the
suppression of the enemy's military capability. De Mulinen points out that
military necessity pertains to those measures: "(a) not forbidden by the law of
war; and (b) required to secure the overpowering of the enemy." [n145]
Implied in the restriction this principle imposes is the requirement that
attackers have identified the prospective target in advance of attack as one
that is militarily legitimate. Put otherwise, the attacker must be convinced
that attacking the target will contribute to the victory of his military
undertaking. As the quote at the head of this chapter suggests, the more capable
a belligerent is in properly identifying these militarily necessary targets, the
more responsibility it has in doing so.
Taken to its logical extreme, the principle of necessity could be used to
justify the very sorts of activity the laws of war prohibit. [n146] Any
argument taking the principle to this extreme commits two legal
errors. First, it fundamentally misinterprets the principle by failing to
recognize the sovereign freedom States have in the absence of legal
prohibition. [n147] Legally speaking, a State does not need concepts
like military necessity to justify its behavior in war provided such behavior is
otherwise compliant with applicable jus in bello restrictions. As Schmitt
emphasizes, "military necessity operates within this paradigm to prohibit acts
that are not militarily necessary; it is a principle of limitation, not
authorization. In its legal sense, military necessity justifies nothing." [n148]
Second, as with all of the customary principles underlying the
law of war, but especially military necessity, the concept must be balanced
against the others. The U.S. Air Force stresses this point in its manual on
the law of war:
IV. Space Warfare Under the Corpus Juris Spatialis
Even in the vast expanse of space it can be expected, further, that the host
of participants who will in the future seek to enjoy the many different
potential uses of this great resource will in countless ways, whether
deliberately or inadvertently, interfere with each other. [n281]
States Parties to the Treaty shall be guided by the principle of co-operation
and mutual assistance and shall conduct all their activities in outer space,
including the moon and other celestial bodies, with due regard to the
corresponding interests of all other States Parties to the Treaty. States
Parties to the Treaty shall pursue studies of outer space, including the moon
and other celestial bodies, and conduct exploration of them so as to avoid their
harmful contamination and also adverse changes in the environment of the Earth
resulting from the introduction of extraterrestrial matter and, where necessary,
shall adopt appropriate measures for this purpose. If a State party to the
Treaty has reason to believe that an activity or experiment planned by it or its
nationals in outer space, including the moon and other celestial bodies, would
cause potentially harmful interference with activities of other States Parties
in the peaceful exploration and use of outer space, including the moon and other
celestial bodies, it shall undertake appropriate international consultations
before proceeding with any such activity or experiment. [n327]
At the outset, one observes that Article IX, like most space law provisions,
makes no distinction between military and civilian activities. Thus, ordinarily
the requirements of Article IX apply fully to military operations in space. [n328]
One possible limitation for space warfare is suggested by the language
prohibiting "harmful contamination" of outer space, the moon, and celestial
bodies. Significantly, the provision applies only to "studies of outer space,
including the moon and other celestial bodies" and to the "exploration of
them." [n329] Thus, while "studies" and "exploration" would likely
apply to the testing and development of space weaponry, the restriction does not
seem logically applicable to the actual conduct of warfare. Unless by some
tenuous definition "warfare" could be brought within the modifying terms
"studies" and "exploration," it appears that State activities in
support of warfare, whether within space or in support of earth-based
hostilities, are not prohibited from causing "harmful contamination" under
Article IX. [n330] It also bears noting that activities triggering the
prohibition on harmful contamination, namely "studies" and "exploration," would
also have to avoid "adverse changes in the environment of the Earth resulting
from the introduction of extraterrestrial matter." [n331]
A potentially more significant point from Article IX relates to a State's
duty to engage in "international consultations" prior to engaging in activities
which the State "has reason to believe . . . would cause potentially harmful
interference with activities of other States Parties in the peaceful exploration
and use of outer space, . . ." It is not difficult to conceive scenarios in
which the use of armed force in space would potentially cause "harmful
interference" with other States Parties in their peaceful exploration and use of
space. Assuming the hostile act were lawfully directed at an asset in conformity
with the jus ad bellum, this requirement would not require consultation with the
opposing belligerent State as it would not be engaged in the "peaceful
exploration and use of outer space." However, it would require consultations
with any third party (neutral) State owning space assets that might foreseeably
be interfered with "harmfully." To the extent that a hostile act in space,
whether lawful or not, could harmfully interfere with a third party State's
asset, Article IX appears to require that the State must be consulted. Further,
unlike other space treaties and U.N. resolutions that leave the timing of such
consultations unclear, Article IX specifies that it must occur "before
proceeding with any such activity or experiment." This could create a
disincentive to carrying out an act of armed conflict as prior consultations
with a third party State could, by public dissemination or otherwise, constitute
a de facto notification to the opposing belligerent State of the anticipated
attack. Nonetheless, the Article IX does not stand in the way of carrying
through with such hostile acts once "consultations" have occurred, even if the
third-party State objects to the anticipated activity or experiment. As a
practical matter, though the Treaty requires it, one wonders whether
the international community even takes this consultation provision seriously
given that so far as is publicly known, no such consultation has ever been
undertaken since the adoption of the Outer Space Treaty in 1967. [n330]
With respect to military forces in space, the most significant provision from
the Outer Space Treaty appears in Article IV, which directly addresses the
militarization of outer space:
States Parties to the Treaty undertake not to place in orbit around the earth
any objects carrying nuclear weapons or any other kinds of weapons of mass
destruction, install such weapons on celestial bodies, or station such weapons
in outer space in any other manner.
The moon and other celestial bodies shall be used by all States Parties to the
Treaty exclusively for peaceful purposes. The establishment of military bases,
installations and fortifications, the testing of any type of weapons and the
conduct of military maneuvers on celestial bodies shall be forbidden. The use of
military personnel for scientific research or for any other peaceful purposes
shall not be prohibited. The use of any equipment or facility necessary for
peaceful exploration of the moon and other celestial bodies shall also not be
Among the myriad issues raised by this section, a perennial debate has
centered on the meaning of "peaceful purposes," the ambiguous term operating as
one of several limitations on State uses of outer space. Because of the
centrality of the phrase to questions of military uses of space, a historical
sense of its use in international parlance is necessary. When first used by the
U.S. in 1957, the "peaceful and scientific purposes" of outer space activities
soon became the official goal of the United Nations. By vote of 56 to 9 (15
abstentions), the U.N. adopted Resolution 1148 (XII) on November 14, 1957, which
advocated an inspection system to ensure the peaceful uses of space. "This was a
landmark document not only because it represented the first General Assembly
resolution on outer space but also because it introduced the phrase 'exclusively
for peaceful purposes' in an authoritative U.N. text." [n334]
Of course, simply using the term without definition does not fix its meaning.
Professor Vlasic reports that although the first wide-ranging debate on the
peaceful uses of outer space at the 13th session of the U.N.G.A. in 1958 saw
virtually all participants using the term "peaceful" as an antonym for
"military," the resolutions this session produced did not attempt "to interpret
or clarify the term 'peaceful' so commonly used in the context of
contemporary space activities." [n335] Significantly, although U.S.
President Eisenhower proposed by letter to Soviet Premier Bulganin in 1958 that
the U.S. and U.S.S.R. use outer space "only for peaceful purposes" and not for
"testing of missiles designed for military purposes," [n336] the
proposal was never consummated by agreement.
As discussed above, while the world community was debating the meaning of
terms such as "peaceful purposes," the U.S. and U.S.S.R. were secretly
developing satellite systems with clear military capabilities. Thus in the
period from late 1958 to 1959, the U.S. adopted the view that "'peaceful' in
relation to outer space activities was interpreted . . . to mean
'non-aggressive' rather than non-military. . . . By contrast, the Soviet Union
publicly took the view, despite its own military uses of space, that 'peaceful'
meant 'non-military' and that in consequence all military activities in outer
space were 'non-peaceful' and possibly illegal." [n337] This background
forms the context for use of the phrase in the Outer Space Treaty. Though the
Soviet Union and a number of other States consistently maintained the view that
"peaceful" means "non-military," the majority of the international community has
failed to agree. Consequently, the view "which today has gained general
acceptance, is that non-aggressive military uses are peaceful. Thus, 'peaceful'
has come to mean general space activity that is beneficial to and in the
interests of all countries." [n338] This is essentially the view
maintained by the U.S., which stresses that all States possess the inherent
right to defend against foreign aggression in outer space, as well as within
earth's atmosphere. [n339] Despite the long debate over the term
"peaceful" as used in the Outer Space Treaty, its meaning has been well-settled
through the practice of States and certainly includes military activities. [n340]
When assessing the meaning of a term in one treaty, it is instructive
to examine its meaning as used in other treaties as well. Other than the
"peaceful purposes" language contained in the Antarctic Treaty, discussed
below, [n341] the phrase appears more recently in the treaty governing
the International Space Station (ISS). Consistent with the Outer Space Treaty,
Article 1(1) of the ISS Agreement requires that uses of the ISS be reserved for
peaceful purposes. [n342] Interestingly, the ISS Agreement
seems to recognize the divergent interpretations of the phrase "peaceful
purposes." Article 9, paragraph 3(b) provides that "the Partner providing an
element shall determine whether a contemplated use of that element is for
peaceful purposes." [n343] In so agreeing, the Partners reasonably
concede that the likelihood of disagreement over the meaning of the term
justifies a provision stipulating who should determine its meaning. In this
case, each Partner decides for itself whether its proposed use constitutes a
This comes as no surprise. Absent cases referred to the International Court
of Justice, international obligations have often been subject to unilateral
interpretation. Using the ISS Agreement as a reference, it appears safe to
assert that unless an interpretation is so tenuous as to amount to bad faith,
the decision regarding a proper interpretation of "peaceful purposes" under the
Outer Space Treaty continues to rest with the party proposing the action.
Legally speaking, because "peaceful purposes" in the Outer Space Treaty is not
specifically defined it therefore may not mean the same thing as the identical
phrase in the ISS Agreement. Further, the self-interpretation provision of the
ISS Agreement applies only to the handful of States Parties to the ISS
Agreement, which are but a fraction of those States who are parties to the Outer
Space Treaty. Nonetheless, the meaning of a phrase in an international
instrument becomes most clear in light of action by its States Parties. With the
exception of China, the States most active in space are all members of the ISS
Agreement. How these States behave under their "peaceful purposes" obligations
in the ISS agreement will continue to illuminate the meaning of the phrase
A further point from Article IV regards the location to which the "peaceful
purposes" restriction applies. The second paragraph limits use of "celestial
bodies," including the moon, to peaceful purposes. This raises the question
whether the "peaceful purposes" limitation, whatever its meaning, applies away
from celestial bodies. Christol points out that though the Treaty uses "outer
space," "moon," and "celestial bodies" at numerous points and in various
combinations throughout the substantive articles, the omission of "outer
space" in Article IV, paragraph 2 was "clearly intentional." [n344]
While the term "outer space" as used in the Outer Space Treaty includes the moon
and "celestial bodies," [n345] the latter terms do not include within
them the meaning conveyed by "outer space." Christol articulates the negotiating
history of the Treaty and points out that though several States within COPUOS
objected to the omission of "outer space" from Article IV, paragraph 2,
given the clear implication that this would permit non-peaceful purposes for
outer space, the view of the U.S. and U.S.S.R. that the term "peaceful purposes"
should apply only to the moon and celestial bodies won the day. [n346]
As such, the restriction does not formally apply to space activities away from
celestial bodies. [n347]
Nonetheless, though Article IV, paragraph 2 does not prohibit the
non-peaceful use of outer space away from celestial bodies, such uses are
nonetheless implicitly prohibited by other provisions. For example, at least to
the extent that "non-peaceful" means the aggressive use of force, such uses are
prohibited by the U.N. Charter's provision to the contrary. [n348]
Because the Outer Space Treaty restricts State activities in space to those "in
accordance with international law, including the Charter of the United
Nations," [n349] an aggressive use of force forbidden on earth is
equally forbidden in space. Further, some States such as the U.S. have made the
"peaceful" uses of outer space a tenet of national policy. Thus, the 1958
National Aeronautics and Space Act maintains that "activities in space should be
devoted to peaceful purposes for the benefit of all mankind." [n350]
This was reiterated recently in the President's National Space Policy wherein
the White House declared "The United States is committed to the exploration and
use of outer space by all nations for peaceful purposes and for the benefit of
all humanity." [n351]
A further point under Article IV relates to the legal permissibility
of satellite interceptors or anti-satellite (ASATs) satellites. ASATs deviate
from the non-aggressive character of virtually all other satellites, and in so
doing may appear to violate the non-aggressive mandate required of all space
activities under the "peaceful purposes" restriction. However, regardless of
their putative "destabilizing" character for international peace and security,
[n352] the Outer Space Treaty does not prohibit the
transiting, or even the orbiting, of conventional weaponry in space, including
ASATs. The prohibition on orbiting of weapons of mass destruction, including
nuclear weapons, [n353] strongly suggests the distinction between those
weapons, and conventional weapons of lesser destructive power, including those
directed at satellites. Though Article IV(1) could easily be modified to effect
the de-weaponization of space, [n354] conventional weapons are not
A final point from the Outer Space Treaty relates to the prohibition on the
establishment of "military bases, installations and fortifications, the testing
of any type of weapons and the conduct of military maneuvers on celestial
bodies." Though this clause does not include the "moon" as does the one
immediately preceding it, it is clear that the Outer Space Treaty uses
"celestial bodies" as a phrase which includes the moon. Thus the first sentence
of Article IV(2) speaks of the moon "and other celestial bodies." (emphasis
added) As a result, Article IV can reasonably be read to prohibit both the
creation of permanent military structures on the moon or other celestial bodies,
as well as the testing of weapons there. Though non-nuclear weapons testing is
not prohibited in outer space, [n356] it cannot occur on celestial
bodies. Such prohibition could well have been in response to published reports
of the U.S. moon base program. In a January 21, 1958 speech about a planned
military outpost on the far side of the moon, Brigadier General Homer A. Boushey
The moon provides a retaliation base of unequaled advantage. If we had a base on
the moon, the Soviets must launch an overwhelming nuclear attack toward the
moon from Russia two to two-and-one-half days prior to attacking the continental
U.S.--and such launchings could not escape detection--or Russia could attack the
continental U.S. first, only and inevitably to receive, from the moon--some 48
hours later--sure and massive destruction. [n357]
Whatever its strategic value, such a proposal today would be clearly prohibited
by the Outer Space Treaty.
2. Agreement on the Rescue of Astronauts, the Return of Astronauts and the
Return of Objects Launched into Outer Space (Rescue and Return Agreement)--1968
Adopted in time for the imminent manned moon launchings of the United States,
the so-called "Rescue and Return Agreement" [n358] sought to clarify
the duties of States relating to astronauts and objects launched into
space. [n359] Though it appears that space warfare in the foreseeable
future will rely primarily on unmanned space activities, the Agreement's
provisions on objects as well as those on astronauts will be relevant as a
limitation on means and methods of space warfare. The Agreement is essentially
an expansion of Article V of the Outer Space Treaty which required States
Parties to regard astronauts as "envoys of mankind" entitled to "all possible
assistance." Divided into provisions dealing with the return of Astronauts
(Articles 1-4) and the return of space objects (Article 5), the treaty had been
adopted by ratification, accession, or succession by eighty-four States as of
1997, including the U.S. and U.S.S.R. [n360]
Regarding astronauts, the Agreement requires a State Party to make two
notifications. It must either notify the launching authority or make a public
announcement, and notify the U.N. Secretary General [n361] under three
conditions: when it receives information or discovers that the personnel of a
spacecraft have (1) suffered accident; (2) experienced conditions of distress;
or (3) made an emergency or intended landing on territory under its
jurisdiction, on the high seas, or on any other place not under any State's
jurisdiction. [n362] Further, the Agreement requires the provision of
"rescue" and "all necessary assistance" by States Parties in cases where
astronauts land in their territory by reason of "accident, distress, emergency,
or unintended landing." [n363] This assistance is equally
mandatory for landings on the high seas or other places not under the
jurisdiction of any States, but only for those Contracting States "in a position
to do so . . . if necessary." [n364]
With respect to "space objects," a term undefined by this or any other
space treaty, [n365] the Agreement requires that notification be made
to the launching authority following discovery of any space object within the
territory of a contracting party, on the high seas, or any other place not under
the jurisdiction of any State. [n366] The treaty further requires that
upon furnishing "identifying data," States Parties "shall" return space objects
found beyond the territorial limits of the launching state. [n367]
However, while this provision would certainly require the return of space
weaponry or satellites having landed back on earth, it does not specify when
such return must take place or in exactly what condition. Presumably, the treaty
requires return within a reasonable time, though that could perhaps occur after
a thorough inspection and analysis of the space object by the State possessing
it. Because the treaty makes no distinction between civil and military
astronauts or launchings, its terms apply equally to astronauts and space
objects used for both purposes.
A significant issue arose in 1978 pertaining to the reentry of a
nuclear-powered ocean reconnaissance satellite owned and operated by the Soviet
Union--Cosmos 954. [n368] On January 24, 1978 the satellite crashed in
Canada's Northwest Territories. According to the diplomatic exchanges following
the incident, the U.S. offered assistance "within 15 minutes." [n369]
After some delay, Canada accepted the U.S. offer of assistance but
declined the Soviet offer. [n370] Instrumental in the exchanges was the
language of Article 5(2). Though it required Canada to "take such steps as it
finds practicable to recover the object or component parts," the treaty allowed
for Soviet assistance only "if requested." [n371] Because Canada never
made the request, the Soviet Union had no right to search for its property on
Canadian soil (and thus protect it from discovery by the West).
Though intended as a clarification of the Outer Space Treaty, the Rescue and
Return Agreement raises as many questions as it answers. One commonly raised
question pertains the possibility that an astronaut landing in the territory of
another State Party may wish to request political asylum. Though Article 4 does
not seem to allow for this possibility, ("shall be safely and promptly
returned"), [n372] other principles of international law contained in
the U.N. Charter and Universal Declaration of Human Rights do. Though a few
States took the position that the treaty did not extinguish the right to request
asylum in connection with an unintended landing from space, [n373] most
States, including the U.S., rejected this position and maintained that the
treaty created a specific exception to the asylum rules. [n374]
Other questions raised by ambiguities in the Agreement include the following:
"How should rescue expenses be treated? Is the launching state obligated to
reimburse the rescuing state? What if a rescue attempt is bungled--will the
rescuing state be liable, or does some sort of Good Samaritan principle apply?
Should there be such a principle, since rescue is mandatory?" [n375]
Though the treaty requires rescues for astronauts, it does not specify who pays
for the rescue operation or in what proportion, unlike the case respecting
searches for space objects under Article 5, and the subsequent Liability
Convention. [n376] The answers to each of these questions could affect
the evolution of space warfare as States make wartime decisions in
light of possible liability. The potentially significant issue of whether the
Rescue and Return Agreement mandates return of astronauts in time of war is
discussed in Part VI. [n377]
3. Convention on the International Liability for Damage Caused by Space
Objects (Liability Convention)--1972
The longest of the space treaties at 28 articles, the Liability Convention
takes as its goal an elaboration of "effective international rules and
procedures concerning liability for damage caused by space objects and to
ensure, in particular, the prompt payment under the terms of this Convention of
a full and equitable measure of compensation to victims of such damage."
[n378] As with the Rescue and Return Agreement, the Liability
Convention undertook an expansion of the Outer Space Treaty, in this case
Article VII, which made a launching State "internationally liable for damage to
another State Party to the Treaty or to its natural or juridical persons" for
damage caused by its space objects. [n379] With a few exceptions, the
Liability Convention is likely to have only a tangential relationship to the
regulation of space warfare.
The Convention sets up a two-tiered structure of liability. For damage caused
by a space object on the surface of the earth or to an aircraft in flight, the
launching State [n380] is "absolutely liable." [n381]
Otherwise, the Convention provides fault-based liability "in the event
of damage being caused elsewhere than on the surface of the earth to a space
object of one launching State or to persons or property on board such a space
object by a space object of another launching State . . ." [n382] As
with all other space treaties, the Liability Convention makes no distinction
between civilian and military space objects which could form the basis of a
claim. Thus, not only military operations short of armed conflict, but space
operations during war itself could form the basis of monetary claims under the
Convention, provided the space object [n383] of the launching State
caused "damage." Because the Convention defines the term broadly, to include
"loss of life, personal injury or other impairment of health; or loss of or
damage to property of States or of persons, natural or juridical, or property of
international intergovernmental organizations," [n384] just about any
damage directly caused by the space object will be compensable.
Other provisions establish the principle of joint and several liability;
[n385] apportionment of liability for joint launchings; [n386]
conditions under which a launching State may be exonerated from absolute
liability; [n387] exclusions of liability; [n388] priority of
presenting claims between a State on behalf of itself or national, territorial
States on behalf of non-nationals, and State of residency of victims; [n389]
a one-year statute of limitations from the date of occurrence,
identification of the launching state, or acquisition of facts by the injured
State putting it on notice of the damage; [n390] and the availability
of domestic remedies. [n391] Following this, the Convention provides
seven articles on the establishment, compositions, and procedure of a "claims
commission" for the adjudication of claims made under the convention. [n392]
Though widely hailed as creating an equitable procedure for the resolution
of liability claims, one of the Convention's "most publicized" defects was the
failure to require that Claims Commission decisions would automatically bind
Whether the Liability Convention has succeeded in achieving its goals remains
to be seen. Though the Convention has specified a liability regime, it has never
been used and thus cannot be judged "effective." The Cosmos 954 incident would
have provided the first case study. However though it paid $ 3,000,000 of the
Canadian $ 6,000,000 claim, the Soviet Union refused to engage in legal
argumentation over the Convention's terms. Though the Convention does establish
the international standard for compensation, and fixes the level of liability
based on the spatial area in which the damage occurred, it is unlikely to affect
a State's decision to use of force in space, or the selection of means and
4. Convention on Registration of Objects Launched into Outer Space
The Registration Convention establishes a mandatory system of registration
for space objects launched into orbit and beyond. [n394] With reference
to the Convention's preamble, one commentator cites two essential functions
served by an international registration requirement: "(1) a well-ordered,
complete and informative register would minimize the likelihood and even the
suspicion of weapons of mass destruction being furtively put into orbit; (2)
it is not possible to identify a spacecraft that has caused damage without an
international system of registration." [n395] Though the conclusion
stated in the first point above seems overly optimistic, especially given the
late reporting allowed under the Registration Convention, the second appears to
be beyond question.
As with the previous two treaties discussed, the Registration Convention also
clarifies a provision from the Outer Space Treaty. When establishing the
principle that a launching State maintains jurisdiction and control in
space over its launched objects, the Outer Space Treaty makes reference to the
"registry" of States Parties. [n396] Only in the 1975 Registration
Convention did space law formally specify the requirement that States maintain a
registry, [n397] and the nature of its contents.
After defining "launching state," "space object," and "State of registry,"
[n398] the Convention provides that each State will maintain an
"appropriate registry" that contains an entry for all space objects "launched
into earth orbit or beyond." [n399] The Convention allows each State to
determine the specific contents of its registry and the conditions under which
it is maintained, [n400] however certain information must be provided
for the registry kept by the United Nations Secretary General. Thus, the "heart"
of the Convention, Article IV, specifies that launching States must provide the
(a) name of launching State or States;
(b) an appropriate designator of the space object or its registration number; [n401]
(c) date and territory or location of launch;
(d) basic orbital parameters, including:
(i) nodal period, [n402]
(ii) inclination, [n403]
(iii) apogee, [n404]
(iv) perigee; [n405]
(e) general function of the space object. [n406]
With respect to military launches, the Convention allows registry
notifications to be sufficiently ambiguous so as to mask the true nature of the
mission. The following two provisions of Article IV make this especially so:
First, the fact that the information need only be provided "as soon as
practicable," which launching States may and do interpret as weeks or months
following the launch; [n407] and second, the fact that only the
"general function" of the space object need be disclosed -- a phrase
interpreted, again, by the launching State. The room for ambiguity afforded by
the Convention allows States to protect the identity of their military
satellites, which perform an entirely legitimate function under the law. [n408]
Writing euphemistically, Professor Diederiks-Verschoor observes
that "the underlying reason for the reluctance [to provide specific information
on reconnaissance satellites] is that States do not trust each
other." [n409] She opines that a State's disclosure of spy satellite
data to "the fullest possible" extent, with due regard to its national security
interests, will perhaps allow registration to "overcome the suspicion barrier."
[n410] The problem with this understandably hopeful analysis, is that
it overlooks the central point of a spy satellite--acquisition of information
without the subject State's knowledge. Once its existence and characteristics
are published, its effectiveness as a instrument for spying diminishes. What
Diederiks-Verschoor and other authors seem to be suggesting with this type of
analysis is that space reconnaissance activities should simply be outlawed.
Though that is a question beyond the scope of this review, it suffices to say
that such activities have been recognized as lawful for decades and likely will
for the foreseeable future. [n411]
5. Agreement Governing the Activities of States on the Moon and other
Celestial Bodies (Moon Agreement)--1979
Of the five multilateral treaties devoted entirely to space, the Moon
Agreement [n412] is the most recent and enjoys the least support.
[n413] Additionally, the Agreement sheds little light on the
international legal regime restricting space warfare beyond that contained in
previous treaties. As a result, the Agreement is marginally relevant for
international space law in general, and the military uses of space in
particular. Nonetheless, the Agreement does contain provisions that could impact
space warfare as persuasive authority for the creation of future international
legal obligations on non-parties.
The Agreement reiterates for the moon many of the principles found in the
Outer Space Treaty including the notions of "province of all mankind," [n414]
exploration and use carried out for the "benefit and interests
of all countries," [n415] the fact that the moon is "not subject to
national appropriation by any claim of sovereignty, by means of use or
occupation, or by any other means," [n416] and retention by
States Parties of "jurisdiction and control" over their personnel and space
vehicles. [n417] Further, as with the Outer Space Treaty, the Moon
Agreement requires that all activities on the moon be carried out in accord with
"international law," [n418] and that States bear "international
responsibility for national activity" on the moon. [n419] Finally, both
treaties specify that all stations, installations, equipment, and space vehicles
"shall be open" to the other States Parties. [n420]
The Agreement applies not only to the moon, but to "other celestial bodies
within the solar system, other than the earth." [n421] Though
"celestial bodies" is nowhere defined in any of the space conventions, it would
presumably include all planets, asteroids, and comets found within earth's solar
system. This is suggested by the Agreement's exclusion from its scope of any
"extraterrestrial materials which reach the surface of the earth by natural
means." [n422] Significantly, the Agreement authorizes removal from the
moon of "samples" of "mineral and other substances." [n423] Though
debate continues on the permissibility and propriety of harvesting lunar
resources, there is no moratorium on doing so given the lack of support for the
Moon Agreement. [n424]
Regarding military activity, the Agreement forbids the placement of
weapons of mass destruction, including nuclear weapons, on the moon itself, in
orbit around the moon, or on trajectories to and around the moon, and on other
celestial bodies. [n425] Further, the Agreement's military provisions
do not prohibit the placement of weapons in outer space in general, only weapons
of mass destruction. The Agreement's language pertaining to military usage does
however largely mirror Article IV of the Outer Space Treaty. Requiring that the
use of the moon be "exclusively for peaceful purposes," the Moon Agreement
continues "any threat or use of force or any other hostile act or threat of
hostile act on the moon is prohibited." [n426] Given the fact that
the Agreement already specified that activity on the moon must occur pursuant to
international law, and the provision on the "threat or use of force" simply
parrots the language of Article 2(4) under the U.N. Charter, one wonders why
this language was necessary. The reference to "any other hostile act or threat
of hostile act" was new in 1979, suggesting that under the Moon Agreement a
"peaceful" use will be a non-hostile use.
Perhaps the most significant feature of the Agreement of an enduring
character is its articulation of the "common heritage of mankind" concept.
Article 11 begins: "The moon and its natural resources are the common heritage
of mankind." [n427] Though articulated within the U.N. in the 1960s,
[n428] the common heritage of mankind (hereinafter CHM) principle found
its first expression of a legally binding character in the Moon Agreement.
Though not equivalent to the "province of mankind" language found in the Outer
Space Treaty, [n429] the CHM principle bears some
similarities. According to Jasentuliyana, the CHM theory has a specific meaning
when applied to the Moon Agreement and identifies five characteristics for
territory designated as such: (1) it is not subject to State appropriation; (2)
it is jointly managed by all States; (3) all States should equitably share in
the benefits reaped from the exploitation of the resources of the areas; (4) the
areas must be dedicated exclusively to peaceful purposes; and (5) the CHM should
be conserved for future generations. [n430]
Throughout its history, the CHM principle in international law has
proven controversial. For the developing States, the concept as applied to
space is an important protection against the "first-come-first-served" approach
taken by the spacefaring States. For those States active in space, particularly
Western States desirous of stimulating private investment, the concept is a
threat to the economical exploitation of space resources. The attempt to
institute a legal regime based on an (undefined) "equitable sharing" of the
moon's natural resources creates uncertainty, which, in turn, stifles commercial
interest. This problem is particularly acute given the Agreement's specification
that the proposed international regime to govern exploitation of the moon's
resources [n431] is to be established "as such exploitation is about to
become feasible." [n432] Uncertainty over the terms of an international
regime was largely responsible for the U.S. decision not to sign the Moon
Agreement. [n433] Ultimately, the conclusion reaches by Reynolds &
Merges appears plausible: "absent adoption by the major space powers,
the Moon treaty is unlikely to play a major role in the future." [n434]
M.S. McDougal, H.D. Laswell & I.A. Vlasic (1963)
With the exception of environmental protection, no major category of
international law is of more recent origin than that devoted to outer space.
[n282] Given its recent origin, and the fact that it is predominantly
driven by technological advances in the exploration and use of space, space law
is a discipline in transition--additional norms continue to emerge as space
technology advances. 'Space law' is defined as that comprising "all
international and national legal rules and principles which govern the
exploration and use of outer space by States, international organizations,
private persons and companies." [n283] Significantly, this broad
definition reflects the rise of national legislation governing outer space
activity, as well as of non-State actors in the increasingly commercialized and
privatized space industry.
Despite its relative recency, literally "thousands of articles, studies, and
books have been published on the subject of space law." [n284] Indeed,
several of these appeared before 1957, the year human activity within outer
space began. [n285] Thus, while it is a recent phenomenon,
space law today is a firmly established discipline resting essentially on five
multilateral treaties. As used here, these five treaties comprise the "corpus
juris spatialis" while "space law" includes prescriptive norms from other
treaties as well, including those discussed in Chapter Five. Before analyzing
the textual bases of space law it is important to note its several distinctive
features. These are important to the application of existing space law to armed
conflict in space.
One notable feature in the continuing development of international space law
is its use, by analogy, of norms drawn from other branches of international law.
Because this feature of space law is explained more fully below, only a brief
reference to it will be made here. [n286] The progressive development
of space law has not emerged in a legal vacuum. "There is, in certain respects,
a catena of notions which justifies a comparison between the concepts applicable
to outer space with those of other environments." [n287] Specifically,
in establishing an early framework for space activities, "lawmakers were able to
borrow from existing principles of international law, including analogies from
international maritime law, the Antarctic Treaty, and the Partial Test Ban
Treaty." [n288] From use of these analogies space law is able to draw
specific conclusions. For example, one commentator cites the legal propriety of
spying from space as having emerged by reference to the law of the sea. "Since
outer space is beyond State sovereignty, as are the high seas, and as espionage
from (or over) the latter is generally accepted as being a legal activity, it
has been concluded that espionage from outer space is also legal." [n289]
Others have accurately speculated on this basis that military spacecraft
will be allowed to enter the territory of other States only upon special
authorization, just as is the case with military aircraft. [n290] As it
has for over forty years, the principle of analogy will continue to play an
important role in the evolution of space law.
Another important feature of space law derives from the permissive nature of
public international law in general. [n291] A specific example
illustrates the point. Because space law prohibits only the stationing of
weapons of mass destruction in orbit around the earth, States may orbit
weapons of lesser destructive capability for the simple reason that no
specific prohibition exists. [n292] In addition, States are free to
make full use of military reconnaissance satellites given the absence of
international prohibitions on such activity.
A third feature of international space law also flows from the general nature
of public international law as well. International space law regulates the
conduct of States. As distinguished from "Astrolaw," [n293] space law
is limited to "the regulation of those activities by States in outer space which
are, by nature, essentially international." [n294] This remains true
despite the rise of both public and private efforts at commercialization of
space. While international agreements will increasingly recognize the presence
of private interests in space, the dominant actors, with respect to
international legal rights and obligations, will continue to be States.
A. Customary Law
To the extent customary law exists for space law at all, it binds all States
whether their consent be express or implied by silence in the face of emerging
legal norms. [n296] Yet what little customary law for space there is
has been derived from the activity of very few States. [n297]
Because of this, and because of the increasing role of treaties both in
international law in general and space law in particular, "customary law is of
far lesser importance and its significance for outer space activities has, in
many respects, not been secured." [n298] This is perhaps yet another
function of the youth of space law relative to more established branches of
international law--there simply has not been sufficient time and widespread
uniformity for customary law to crystallize.
This consideration of customary space law raises two issues regarding the
necessary preconditions for its creation. These merit some discussion here
because the formation of limits to means and methods of space warfare will
likely emerge via customary international law. [n299] First, the time
needed for a custom to evolve into law may be very short, leading some to
minimize the importance of widespread State practice. Although space research
and development had gone on for over a decade, it was not until the launch of
Sputnik I in 1957 that international agreement emerged on basic principles that
should govern outer space activity. With respect to the principle of freedom of
use and exploration of space, that agreement came almost immediately following
the launch of Sputnik I. Because the agreement was largely based on
the practice of only two States, [n300] Professor Cheng went so far as
to suggest the emergence of "instant" customary law. [n301]
However, while it is no longer true that a rule of customary law may be
established only after decades of uniform practice by States, at a minimum
customary law requires the existence of a custom if only to retain a semantic
integrity for the term "customary law." More substantively, international law
still requires that customary law involve the passage of some time. Thus,
writing after the appearance of Professor Cheng's 1965 article, the
International Court of Justice enunciated in a 1969 case that, though the time
element may be short, it is nonetheless "indispensable" to the formation of
customary law. [n302] Later still, in the 1986 Nicaragua (Merits) case,
the Court implicitly rejected the notion of instant customary law by employing
the following reasoning:
The mere fact States declare their recognition of certain rules is not
sufficient for the court to consider these as being part of customary
international law. . . . Bound as it is by Article 38 of the Statute . . . the
Court must satisfy itself that the existence of the rule in the opinio iuris of
States is confirmed by practice. [n303]
By extension, this means there can be no customary law without confirmation of
the rule in State practice. As the Court observed, such confirmation cannot come
simply by means of declaration, devoid of State practice in space and time. The
fact that customary law cannot crystallize without the passage of time
underscores the preeminent place that treaties will play, at least for the
foreseeable future, in the articulation of space law.
A second issue related to customary space law pertains to the status of
States "specially affected" by an emerging norm under consideration.
International law requires that for the norm to crystallize into customary law,
its status as law must enjoy, at minimum, the acquiescence, if not the outright
consent, of States specially affected by the norm in question. Again, the
International Court of Justice addressed this requirement in its North Sea
Continental Shelf judgments,
with respect to the other elements usually regarded as necessary before a
conventional rule can be considered to have become a general rule of
international law, it might be that, even without the passage of any
considerable period of time, a very widespread and representative participation
in the convention might suffice of itself, provided it included that of States
whose interests were specially affected. [n304] (emphasis added)
Although not adopted universally as a condition sine qua non for the
crystallization of customary norms, the idea was emerging even before the 1969
North Sea Continental Shelf judgments that specially affected States
must act consistent with an emerging custom for it to become law. Thus
assuming here that we are confronted with the creation of new international law
by custom, what matters is not so much the number of states participating in its
creation and the length of the period within which that change takes place, as
the relative importance, in any particular sphere, of states inaugurating the
Today, although a mere paper protest would not appear to obstruct the formation
of customary law, an interested State's continuous and resolute actual practice
to the contrary would. In this way, a persistent objector, if "specially
affected" by the norm under development, could frustrate the crystallization of
such norm. [n306] And, difficult as it may be to ascertain State
practice for such analyses, the North Sea cases showed that this process of
discovery requires examination of factual circumstances in great detail.
The number of States actively engaged in space activities is steadily
growing. However, for now the total number likely to be deemed "specially
affected" remains small, perhaps six to ten. [n307] This
interest makes these spacefaring States important bellwethers for the
development of customary law related to space warfare. To the extent these
States persistently object to a would-be space norm, it cannot become
customary law. [n308]
Though custom does not appear to be of great importance presently, the
consensus has developed that a few principles of customary international law
apply to space activities. These include the "essential principles of the Outer
Space Treaty which have been accepted by all States active in outer space by
practice and with opinio juris after ratification, and where no evidence of
dissenting practice on the part of non-ratifying States is available."
[n309] Specifically, these principles include the freedom of
exploration and use of outer space by all States, and the prohibition on
national appropriation of outer space. [n310]
Because these customary principles are codified in the Outer Space Treaty, [n311]
and the treaty has been ratified by all States currently active
in space, customary international law seems less important in ascertaining
principles applicable to future space warfare. Customary law pertaining to outer
space activities is for the most part a subset of treaty law. [n312]
However, the body of customary law pertaining to space will assume
much greater importance as non-parties to the relevant space treaties become
active in space activities. For example, should Colombia, Iran, Indonesia, or
Yugoslavia acquire the means of space launch in the coming years, all four being
non-parties to the Outer Space Treaty, any restrictions on such States' space
activity that do not come from obligations imposed by other space treaties
[n313] will occur largely by operation of customary
international law. Should any of these States later ratify the Treaty, the
binding effect of that customary law reflected in the Treaty would become far
B. Treaty Law
In terms of certainty and specificity, treaties form the core of modern
international law. This is especially true of space law in general and the
corpus juris spatialis in particular, neither of which, as discussed above, has
existed long enough to provide consensus on any but the most basic principles of
customary law. Though in some cases restatements of customary international
law, [n314] outer space treaties have largely created new law. Of the
treaties discussed below, agreement came as a direct result of the United
Nations Committee on the Peaceful Uses of Outer Space (hereinafter COPUOS).
[n315] Comprising the corpus juris spatialis, these treaties deal
specifically and directly with the legal regime governing outer space.
1. Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, Including the Moon and Other Celestial
Bodies (Outer Space Treaty)--1967
It is difficult to overstate the preeminent place in space law enjoyed by the
first international treaty governing outer space, commonly known as the Outer
Space Treaty. [n316] Drawn principally from three previous United
Nations General Assembly (U.N.G.A.) Resolutions, [n317] the Outer
Space Treaty is termed everything from "an ideological charter for the space
age" [n318] to the "Magna Carta of outer space law." [n319] Of
the five multilateral treaties dealing specifically with outer space activities,
it is the most important "by far." [n320] As a result, it is the legal
source of first resort for the analysis of any space law topic.
Other than establishing what can only be called the "constitution" of outer
space, [n321] the Outer Space Treaty specifies that "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." [n322] Of the many activities this provision clearly
prohibits, it has generated some debate relating to its scope. For example,
commentators are divided over its application to private, non-governmental
claims of ownership over celestial bodies. [n323] Increasing
private investment in space makes this a live issue that military users of
space must understand.
In addition to its "no sovereignty" provision, the Treaty established a few
innovations in international law. One significant innovation pertains to the
provision of Article VI requiring that States bear "international responsibility
for national activities in outer space . . . whether such activities are carried
on by governmental agencies or by non-governmental entities." [n324]
This departure from the general rule of international law, namely, that States
bear responsibility only for State activity, makes the contracting State liable
for the offenses (or any other activity) of its citizens or private
organizations with respect to space activity. [n325] This provision
marks the first time that such an extension of State liability had occurred in a
legally binding document. [n326] Although this provision appears
unlikely to affect significantly the ability of States to wage space warfare
given the State-controlled nature of military forces, it could impact the
research and development of weapons systems. For example, to the extent that a
military space contractor pursues testing of space weaponry in outer space, the
host State will bear "international responsibility" for the activity.
Further, the novel principle of State responsibility for "national
activities in outer space" could render the home State liable for the
unauthorized hostile space activities of its citizens, even if carried out from
a foreign country. Despite the great difficulty in regulating such activity,
this could mean that the U.S., for example, would bear responsibility to the
Chinese, should a U.S. citizen manage to destroy a Chinese satellite in space,
even if construction, launch, and control of the attacking object or method of
destruction occurred entirely outside the U.S., and without its authorization.
An additional provision could be applied to space combat in a variety of
respects. Article IX of the Outer Space Treaty provides in part:
V. SPACE WARFARE UNDER RELATED TREATIES AND OTHER AUTHORITATIVE SOURCES
No one can predict with certainty what the ultimate meaning will be of the
mastery of space. [n435]
each Party shall, in exercising its national sovereignty, have the right to
withdraw from this Treaty if it decides that extraordinary events related to the
subject matter of this Treaty have jeopardized its supreme interests. It shall
give notice of its decision to the other Party six months prior to withdrawal
from the Treaty. Such notice shall include a statement of the extraordinary
events the notifying Party regards as having jeopardized its supreme interests.
Certainly, in case of war with the other Party or any other State, the Parties'
"supreme interests" would be jeopardized, allowing for withdrawal. Whether
the proliferation of ICBMs to States hostile to the U.S. jeopardizes
its supreme interests is now under intense debate. [n461]
Last year, both houses of Congress overwhelmingly passed a bill that
enshrined into U.S. national security policy the fielding of a national missile
defense system. [n462] On July 23, 1999, President Clinton signed the
National Missile Defense Act of 1999 which commits the United States to fielding
a national missile defense system "as soon as is technically feasible."
[n463] The move represents a dramatic move in the U.S. quest for
missile defense - a quest formally begun by President Reagan in 1983 with the
announcement of preliminary research into a "peace shield" to guard against
foreign missile threats. [n464] Despite criticism, after decades of
failures missile defense technology has reached "an historic phase in its
favor." [n465] Pressure to renegotiate or withdraw from the
Treaty will continue to mount, in part because such renegotiation or withdrawal
will be absolutely necessary if the U.S. is to field a national missile defense
system, while remaining compliant with its international legal obligations.
3. Antarctic Treaty-1959, and the United Nations Convention on the Law of the
Those looking for analogous legal regimes to that contemplated for outer
space, often cite the regimes established for the continent of Antarctica and
for the high seas. Of the two, the high seas receive particular attention. Not
too long ago, the high seas seemed as vast to explorers as outer space does
today. But in addition to their vastness, the freedom of movement thereon
mirrors the freedom of movement reserved in law for outer space. Thus, one
commentator notes the "maritime antecedents" of the freedoms of outer space. [n466]
With respect to the status of the high seas, the United Nations Convention on
the Law of the Sea (LOS Convention), the most comprehensive treaty ever created,
largely mirrors customary international law. [n467] Among its other
numerous categories, it establishes the legal status for the high seas-the vast
majority of the world's oceans which are free of any territorial claims or
superior rights or interests by any one State. As with the legal status for
outer space, the LOS Convention articulated the "freedom" of all States to
traverse the high seas unimpeded. [n468] Thus, under international law
the high seas constitute an area that is res communis omnium-territory free for
equal use by all States.
By contrast, Antarctica constitutes territory that could be likened
to terra nullius. [n469] Previous to the 1959 Antarctic Treaty, several
States laid claim to portions of Antarctica. [n470] This meant that for
a period of time, those portions were no longer terra nullius. However, the
Treaty's Parties, including all States that previously made territorial claims,
froze all of those claims. The Parties also contracted that no new claims to
sovereignty over any portion of Antarctica would be permitted-a situation
strikingly similar to that established for the whole of outer space by Article 2
of the Outer Space Treaty.
Especially significant is the dissimilarity between the terms "peaceful
purposes" as used in the Outer Space Treaty and that in the Antarctic Treaty. As
used in the latter treaty, the phrase "peaceful purposes" specifically operates
to create a demilitarized zone. Thus, Article 1 specifies that "Antarctica shall
be used for peaceful purposes. There shall be prohibited, inter alia, any
measures of a military nature, such as the establishment of military bases and
fortifications, the carrying out of military maneuvers as well as the testing of
any type of weapons." [n471] (emphasis added) Not only does this
sweeping language rule out the possibility of "any" activity of a "military
nature," but it clarifies the meaning of peaceful purposes as used in the
Treaty. [n472] For the Antarctic Treaty, peaceful purposes functionally
excludes virtually any military activity. Thus, by law, Antarctica has become
not only demilitarized, but weapons-free. Not so for outer space. Though the
Outer Space Treaty does specifically restrict military activity in Article IV,
it conspicuously omits the broad language modifying the phrase "peaceful
purposes" as contained in the Antarctic Treaty. This use of the phrase in the
Antarctic Treaty was undoubtedly evident to the drafters of the Outer Space
Treaty, and provides further, albeit indirect, evidence that "peaceful purposes"
under the Outer Space Treaty cannot simply mean non-military. [n473]
Whether these two treaty regimes provide helpful analogies to outer space
depends on the space activity contemplated. When applying the issue to military
space combat, the high seas, though perhaps not necessarily the legal
regime governing the high seas, appears a much better analogy than the territory
of Antarctica. For example, while space affords tremendous tactical and
strategic military advantage, Antarctica does not. [n474] Further,
although Article 2 of the Outer Space Treaty prohibits claims of national
appropriation and sovereignty in space, the Outer Space Treaty also implies the
legitimacy of weapons in space, [n475] a possibility the Antarctic
Treaty forecloses [n476] for Antarctica, but the LOS Convention for the
high seas does not. [n477]
B. United Nations General Assembly Resolutions
The U.N. Charter invites the General Assembly to make "recommendations" on
issues within its competence. [n478] Further, the seminal Article 38(1)
of the Statute of the International Court of Justice articulates the three
formal sources of international law, none of which include U.N. resolutions: (1)
treaties; (2) international custom; and (3) general principles of law
recognized by civilized nations. [n479] From this basis, the consensus
has emerged that U.N.G.A. resolutions do not in and of themselves bind States.
[n480] Nonetheless, the space resolutions have proven significant to
the formation of space law. Indeed, as becomes evident below, such resolutions
not only predated the subsequent space treaties, but have for a variety of
reasons become the vehicle of choice for expressing international
opinion on various space-related topics. [n481]
1. Declaration of Legal Principles Governing State Activity in the
Exploration and Use of Outer Space-1963
The space resolution adopted in late 1963 by the United Nations General
Assembly is of interest today largely for tracing the negotiating history of the
Outer Space Treaty. Certainly a diplomatic breakthrough when it emerged from the
bilateral U.S./Soviet negotiations, the "Declaration of Legal Principles"
[n482] found itself incorporated almost entirely into the 1967 Outer
Space Treaty. [n483] In many regards, it was the "first significant
step in the development of space law." [n484]
The importance of the Resolution can be seen by the use of two terms in its
title, "Declaration" and "Legal Principles." Because of the lengthy negotiating
and drafting history predating the resolution, and its unanimous support, it
practically amounted to a treaty when adopted. Though not binding on any State,
[n485] the Resolution does not read like a traditional resolution.
Rather, it declares and announces legal principles instead of merely
recommending a course of action. The considerable authority of its
pronouncements were cemented in law just four years later with adoption of the
Outer Space Treaty.
2. Principles Relating to Remote Sensing of the Earth from Outer Space-1986
In contrast to the "Declaration of Legal Principles" of 1963, the 1986
Resolution on remote sensing activities addresses a specific form of outer
space activity. The Resolution defines remote sensing as follows in Principle I:
"the sensing of the Earth's surface from space by making use of the properties
of electromagnetic waves emitted, reflected or diffracted by the sensed objects,
for the purpose of improving natural resources management, land use and
protection of the environment." [n486] Given the absence of any
governing treaty, [n487] the Remote Sensing Resolution is the most
authoritative international document to provide not only a general
definition, but also the basic parameters of permissible State activity. Passed
unanimously by the General Assembly, the Resolution was the culmination of
previous efforts from 1968 through 1985. [n488] Although related to the
activity of military reconnaissance satellites, the Remote Sensing Resolution
aims rather at formulating norms for civilian and commercial users. [n490]
Nonetheless, the biggest users of civil and commercial remote sensing data
are the military and intelligence agencies. [n490] Thus, the Resolution
could become relevant to space warfare to the extent that a belligerent uses
commercially available data in support of its military operations. [n491]
Of the fifteen principles contained in the Resolution, the most
important include the fourth, twelfth, and thirteenth. Principle IV specifically
links remote sensing activities to Article I of the Outer Space Treaty, and
encourages that remote sensing activities occur "on the basis of respect for the
principle of full and permanent sovereignty of all States and peoples over their
own wealth and natural resources." [n492] Widely viewed as a provision
in favor of developing nations, this Principle further protects the "legitimate
rights and interests of the sensed State." [n493] The practical effect
of these protections are unclear as the Resolution does not define several key
terms, such as "legitimate."
Central to the Resolution's system of principles is the distinction between
"primary data," [n494] "processed data," [n495] and "analysed
[sic] information." [n496] While the first two categories should be
made available to a "sensed State," the latter need not. Thus, Principle XII
specifies that as soon as primary and processed data are produced, the sensed
State will have access to such data on "a non-discriminatory basis and on
reasonable cost terms." [n497] While perhaps appearing to be a victory
for the interests of sensed States, many of which are in the process of
development and have no indigenous remote sensing capability, this "access"
provision amounts to a victory for the liberty of the few States most active in
space. [n498] Principle XII does not call on sensing States to offer
prior notification to sensed States of its activities, and it certainly does not
require prior permission for remote sensing from space-two issues
creating lively debate as the State delegations negotiated the Resolution's
Finally, Principle XIII exhorts sensing States, upon request, to "enter into
consultations with a State whose territory is sensed in order to make available
opportunities for participation and enhance the mutual benefits to be derived
therefrom." [n499] Here the Principle assumes that the sensing is
already occurring ("is sensed") before the consultations are to begin. Further,
consultations is an unspecified term that appears not to bind States to much of
anything in actual practice. [n500] Still, the provision is of some
value as it encourages sensing States to reveal their activity to the sensed
State. In cases where the sensed State would not otherwise know of the remote
sensing activity over its territory, this appears to be a logical prerequisite
for the sensed State to take advantage of access to the data encouraged under
As Professor Christol notes, though unanimity on the resolution was in some
cases grudging, there have been no formal departures from the terms of the
Resolution. [n501] As is generally true for U.N. resolutions, the
longer they are used as the international standard, the stronger their authority
3. Principles Relevant to the Use of Nuclear Power Sources in Outer Space--1992
Beginning around the time of the 1978 crash of the Soviet Cosmos 954
satellite in Canada's Northwest Territories, [n502] COPUOS began
working on an international technical framework for the regulation of nuclear
power sources in space. Despite earlier resolutions touching on nuclear power,
[n503] the project came to full fruition on December 14, 1992 with
adoption by the U.N.G.A. of the "Principles Relating to the Use of Nuclear Power
Sources in Outer Space." [n504] Because the NPS Resolution deals with
the politically sensitive subject of nuclear power, its adoption is significant;
this is particularly so given the specificity of its terms. To the extent that
State practice consistent with the Resolution creates customary international
law, the framework set forth could significantly affect space warfare-at least
as to those nuclear power sources used in space warfare fitting within the scope
of the Resolution. [n505]
The NPS Resolution provides in the Preamble that its terms apply to
"nuclear power sources in outer space devoted to the generation of electric
power on board space objects for non-propulsive purposes." [n506]
Thus, any application to space weaponry that the Resolution may have relates
only to those means of warfare using a nuclear power source to sustain
electrical systems for the object. [n507] Following this initial
qualification, the Resolution's eleven Principles contain guidelines and
criteria for safe use (Principle 3), safety assessments (Principle 4), and
notification of re-entry (Principle 5). The Resolution also makes reference to
the Outer Space Treaty in its assertions regarding State responsibility
(Principle 8), and to the Liability Convention regarding State liability and
compensation (Principle 9).
The heart of the Resolution is to be found in Principle 3. In establishing
conditions for the safe use of nuclear power in space, it exhorts States to use
an NPS only for missions "which cannot be operated by non-nuclear energy sources
in a reasonable way." [n508] Thus, without defining "reasonable," the
Resolution attempts to limit State use of an NPS while recognizing that for
certain missions, such power sources are appropriate. Indeed the Resolution
continues by establishing the three cases in which nuclear reactors may be used:
(1) on interplanetary missions; (2) in "sufficiently high orbits"; [n509]
and (3) in low-earth orbits if they are stored in sufficiently high orbits
after the operational part of their mission. [n510] Further,
Principle 3 specifies that nuclear reactors for space missions must only use
enriched uranium 235 as fuel, [n511] and that design and construction
of the nuclear reactor "shall ensure that it cannot become critical before
reaching the operating orbit during all possible events." [n512]
Significantly, Principle 5 states what may well be a rule of customary
international law: "Any State launching a space object with nuclear power
sources on board shall in a timely fashion inform States concerned in the event
this space object is malfunctioning with a risk of re-entry of radioactive
materials to the earth." [n513] This general statement would certainly
affect space combat as to cases in which malfunctioning weapons, containing
nuclear power sources, appear likely to reenter earth's atmosphere and impact on
foreign soil. The existence of an ongoing state of hostilities would render the
duty to warn less certain as between the belligerents, though it would probably
apply to dangerous, radioactive space objects likely to impact neutral States,
even if pursuant to accidents occurring in military operations.
According to an unofficial report, States appear to be following the
recommendations contained in the NPS Resolution. [n514] As an example,
the Russian report to the U.N. Secretary General of its anticipated
launch of the Mars 96 satellite powered by plutonium-238 is cited. [n515]
When the satellite malfunctioned and reentered the atmosphere, the Russians
made notification of that event as well, in accord with Principle 5. Similarly,
the U.S. notified the Secretary General of its launch of the Cassini space
probe, containing about 35 kg of plutonium-238 dioxide. [n516] These
instances of "compliance" are important. To the extent that spacefaring States
behave in accord with the U.N. Resolution as though doing so represents a legal
norm, the behavior will slowly come to be a legal norm in the form of customary
international law-if it isn't already.
C. International Telecommunication Union
The growth of the telecommunications industry predates the space age.
Nonetheless, since the advent of satellite telecommunications the industry's
rate of growth has increased tremendously. The International Telecommunication
Union (ITU), through its Radio Regulations Board (RRB) coordinates the
international use of the radio spectrum. [n517] As a limited natural
resource, the spectrum will support only a finite number of users among the
radio frequencies before signal interference begins to occur. As a result, a
coordinated global effort to deconflict use of the spectrum becomes the sine qua
non of the world-wide telecommunications capability. The RRB is the forum for
such coordination and its radio regulations specify with great detail the
international standards for coordinating use of radio frequencies.
As suggested above, the U.S. military maintains its own military satellite
telecommunications network. [n518] However, because of the potential
for interference, it must pay careful attention to the regulations issued by the
ITU in order to avoid harmful signal interference. Although not applicable to
the military or other national security functions, [n519] the ITU
regulations govern the majority of telecommunications systems in
space. During military operations, and especially during armed conflict, the
military must operate its telecommunication networks, or lease the capability
from civilian providers, so as to avoid radio interference. This obligation
comes not as the result of legal mandate, but military necessity. Because armed
forces heavily rely on telecommunications for efficient command and control,
[n520] including commercially operated telecommunications systems,
[n521] their use of the radio spectrum must be done taking into account
other users with the potential for harmful interference. Failing to do so risks
losing the critical ability to communicate. Armed conflict creates numerous
unforeseen challenges for military forces; these have been termed the "friction"
of war. [n522] Interference-free communications provides one of the
best lubricants against that friction, and therefore becomes an indispensable
component in the successful prosecution of war.
President John F. Kennedy (1961)
In addition to the treaties and customary law dealing specifically with outer
space, a few other treaties not previously discussed contain provisions relevant
to the prospect of warfare in space. Also, several U.N.G.A. resolutions have, in
some cases quite specifically, revealed the opinion of States on permissible
activities in space. These sources are the focus of this chapter, which, though
not formally part of the corpus juris spatialis, play a significant role in
explicating the full range of international norms relevant to space warfare.
1. Treaty Banning Nuclear Weapons in the Atmosphere, In Outer Space and Under
Water (Limited Test Ban Treaty)--1963
Adopted before any of the "space" treaties, the "Limited Test Ban Treaty"
[n436] nonetheless provided the first treaty provision governing the
use of outer space. Despite being the subject of numerous U.N.G.A. resolutions
renouncing the use or testing of nuclear weapons, until the Treaty entered force
in late 1963 any of the nuclear weapons-capable States were legally free to
detonate their warheads anywhere they wished. [n437] The Treaty forbids
nuclear weapon test explosion[s], or any other nuclear explosion[s] . . .
(a) in the atmosphere; beyond its limits, including outer space; or
underwater, including territorial waters or high seas; or (b) in any other
environment if such explosion causes radioactive debris to be present outside
the territorial limits of the State under whose jurisdiction or control such
explosion is conducted. [n438]
The Treaty went on to express hope that the parties would conclude a
comprehensive treaty permanently banning all nuclear test explosions, "including
all such explosions underground." [n439]
While of great military significance the Treaty was essentially aimed at the
prevention of global nuclear contamination. [n440] Thus, although
having the effect of an arms control agreement, the Limited Test Ban Treaty can
"be viewed primarily as an environmental agreement rather than a military one."
[n441] This primary aim of the drafters comes into perspective when one
considers the scope of nuclear testing that had gone on previously. [n442]
Between them, the United States and Soviet Union conducted 212 nuclear
explosions from 1945 to 1958. With the exception of eighteen detonations, all
occurred in the atmosphere. [n443]
The Treaty establishes three significant implications for space warfare.
First, while the treaty prohibits all nuclear detonations in space, even those
that may have value for peaceful military or scientific purposes, it does not
regulate detonations of a non-nuclear nature such as those pertaining
to conventional, biological, chemical, or high energy laser weapons. [n444]
Second, because the treaty outlaws "any nuclear weapon test explosion, or
any other nuclear explosion" (emphasis added), it may prohibit the use of
nuclear fission as a means of space propulsion. [n445] To the extent
nuclear power sources operate by means other than "explosion," the Treaty does
not prohibit their use. Finally, the Treaty also prohibits the use of nuclear
explosions for non-testing purposes as well. Thus, although, for example, the
creation of an electromagnetic pulse in space by means of a nuclear detonation
may present strategic military advantage, particularly in an anti-satellite
role, such activity is forbidden by the treaty. [n446]
2. Anti-Ballistic Missile (ABM) Treaty-1972
The ABM Treaty severely limits the deployment, testing, and use of missile
systems designed to intercept incoming strategic ballistic missiles. [n447]
At the time of its adoption in 1972, the U.S.S.R. and the U.S. believed
that the best way to avert the possibility of a nuclear exchange, as well as to
curb the urge to continue a nuclear arms buildup, was to render each side
defenseless to a nuclear attack. The two States agreed that just as the actual
ability to defend with an ABM system would create strategic instability, even
the perception that the other has the ability would be destabilizing. [n448]
Thus, with one exception, the two sides agreed to outlaw the testing,
development, deployment, and use of ABM systems. [n449] The exception
allows each side to maintain one ABM system either around its
national capital, or at an ICBM site. [n450] Although the Preamble to
the treaty cites a desire to decrease "the risk of outbreak of war involving
nuclear weapons," [n451] the Treaty applies to defenses guarding
against conventional weaponry carried by ballistic missiles as well.
The two primary provisions impacting space activity come from Articles V and
XII. Article V(1) provides that "each party undertakes not to develop, test, or
deploy ABM systems or components which are sea-based, air-based, space-based, or
mobile land-based." [n452] Though there were no space-based ABM systems
in existence in 1972 when the Treaty was adopted, the space program of each
Party was highly advanced and each could foresee the use of space-based ABM
systems. [n453] Article XII is perhaps even more significant to the
long-term use of space by military systems beyond the more narrow question of
1. For the purpose of providing assurance of compliance with the provisions of
this Treaty, each Party shall use national technical means of verification at
its disposal in a manner consistent with generally recognized principles of
2. Each Party undertakes not to interfere with the national technical means of
verification of the other Party operating in accordance with paragraph 1 of this
3. Each Party undertakes not to use deliberate concealment measures which impede
verification by national technical means of compliance with the provisions of
this Treaty. This obligation shall not require changes in current construction,
assembly, conversion or overhaul practices. [n454]
Paragraph 1 is significant in numerous respects, not least of which is the
codification of the "open skies" principle. With this provision, not only was
the legality of space-based surveillance via satellite formally acknowledged,
but such satellites "became an essential component of the international
arms-control regime." [n455] The legality of military
surveillance activity from space was established in international law previous
to the ABM Treaty, however the Treaty certainly gave formal sanction to the
practice by the two leading spacefaring States.
The requirement under Article XII(2) that the Parties not interfere with the
"national technical means" of the other Party can be viewed in part as a
specification of the "peaceful purposes" limitation of the Outer Space Treaty.
That is, any proposed destruction of a Party's national technical means,
including surveillance satellites, [n456] by the other, except pursuant
to self-defense or U.N. Security Council resolution on the use of force,
[n457] would certainly constitute an "interference" with that system as
well as a violation of the "peaceful purposes" mandate. In this way, the ABM
Treaty acts as a partial limitation on the uses of anti-satellite capability
maintained either by the U.S. or Russia.
Those following debates on missile defense in the United States will
immediately recognize that the ABM Treaty has been widely criticized.
[n458] The Secretary of Defense recently announced that if
Russia [n459] fails to agree to modifications to the Treaty to allow
for a minimal missile defense system, the U.S. reserves the right to withdraw
from the Treaty altogether. Significantly, the treaty provides that
VI. THE LAW OF WAR IN OUTER SPACE
[The humanitarian law of armed conflict] applies to all forms of warfare and
to all kinds of weapons, those of the past, those of the present and those of
the future. [n523]
DOD is moving into the information age and toward a totally integrated
battlespace, where communications and intelligence space systems are no longer
viewed as solely supporting capabilities to the warfighter, but as instruments
of combat. The space force structure represents a major component of the
information infrastructure and will become increasingly important in deterring
conflict and conducting future military operations. Space forces provide the
sole means to access otherwise denied areas of foreign countries without
violating their sovereignty. [n611] (emphasis added)
A second reason for examining information warfare relates to the
scholarly commentary suggesting means of applying established legal categories
to this new way of waging war. As with information warfare, space warfare will
require legal analyses that either convincingly demonstrate how current
international law will regulate anticipated space operations, or conclude that
international law is currently insufficient to the task. The increasing
appearance of innovative analyses applying traditional legal categories to
developing information warfare tactics could contribute greatly to the
clarification of the jus in bello for space. [n612]
E. Other Selected Issues
After considering the general application of the law of war to military
space activities, several problems related to space warfare remain. The
following are simply representative of many others that have been raised (and
will be raised) as the prospect of space warfare moves from theory into the
fielding of forces.
1. Military Interaction With Intergovernmental Agencies and "Dual Use" Assets
Because space warfare will be very hardware-intensive, [n613] the
status of the assets used in combat will become all-important. In isolating the
legal status of a space system to be used in combat, the answers to two
preliminary questions can assist in clarifying an otherwise complicated
analysis. First, who owns the asset? And second, is the asset used solely for
military purposes, or both civilian and military purposes? [n614]
When ownership of a space asset is shared among several States, the
use of the asset becomes subject to the international agreement creating the
joint ownership. The complexity of the analysis increases in part because there
are more decision-makers with a voice in the decision as to how the asset will
be used. When it comes to the use of a space asset in an armed conflict, the
status of the owner largely determines the status of the asset. For example, the
telecommunication network known as INTELSAT [n615] is jointly owned by
over one hundred sovereign States. Each of these States has a weighted vote in
determining the future of the organization and the uses to which its assets are
Similarly, the former International Mobile Satellite Organization (INMARSAT,
previously the International Maritime Satellite Organization) was an
intergovernmental body owning a network of satellites supporting mobile
telecommunications. Now privatized, INMARSAT had been used in support of several
previous armed conflicts though its use among coalition forces during Operation
Desert Storm in 1991 was the most widely publicized. This might not have been
significant but for the "peaceful purposes" objective mandated by the INMARSAT
Convention. [n616] Unlike the term in the Outer Space Treaty, Moon
Agreement, and other selected international instruments, the term in the
INMARSAT convention has been widely interpreted outside the U.S. to mean those
purposes unrelated to armed conflict. [n617] Attempting a position that
was "overly careful and conservative," States making up the former INMARSAT
organization, which included NATO, former Warsaw Pact, and developing nations,
took the view that while "peaceful purposes" as used in the Convention did not
exclude "military uses" per se, it did exclude uses in armed conflict even if
conducted in self-defense. [n618] As reported by INMARSAT's
General Counsel during the 1991 Persian Gulf War, when INMARSAT notified the
U.S. of its concerns related to use of the Organization's assets in furtherance
of armed conflict, the State Department responded by assuring INMARSAT "that
appropriate steps have been taken to avoid recurrence of such publicity."
[n619] Without so stating, the distinct impression left by this and
other commentators [n620] is that uses of the network during armed
conflicts were inconsistent with the Convention's terms.
Because privately-owned global mobile personal telecommunications systems
(such as the former Iridium system, as well as ICO, Teledesic, Odyssey, and
SkyBridge networks) are rapidly proliferating, it is doubtful military forces
will need to rely heavily on intergovernmental organizations such as INTELSAT
for communication support in future conflicts. Despite numerous new legal issues
they are creating, commercial satellite systems are increasingly servicing
military communications needs. [n621] However, to the extent military
forces continue to use intergovernmental assets, an equally difficult question
relates to the status of those owner States that are not party to the armed
conflict. As occurred with "neutral" [n622] INMARSAT States in
Operation Desert Storm, use of the system by belligerent States meant
that neutral (co-owner) States risked loss of their rights as neutral States
under the law of war, at least as to their investment in the INMARSAT system if
it had been lawfully targeted by enemy forces.
Reference to a specific law of war analogy may prove helpful in the analysis
of the use and targeting of assets jointly owned by belligerents and neutrals
alike. Under the law of war, an otherwise inviolable object or person, such as a
church or non-combatant, may become a legitimate target for attack if used for
military ends. Thus, the storage of weapons or the housing of soldiers in a
church, or engagement in active combat by a non-combatant, renders both subject
to attack. Similarly, an object owned by a neutral, which would be otherwise
inviolable as neutral property, becomes properly subject to attack if used by a
co-owner for belligerent purposes. With one exception, this analogy would seem
to apply to the vast majority of space assets co-owned by intergovernmental
organizations, particularly telecommunications satellites.
A possible limitation of this analogy arises with reference to Hague
Conventions V and XIII respecting the rights and duties of neutral powers and
persons in case of war on land and sea, respectively. [n623] Although
the titles suggest that each Treaty's scope is specifically limited to warfare
on land or sea, such apparent limitations have not hindered application of jus
in bello principles from the Hague Conventions to aerial warfare. [n624]
Similarly, the provisions of both Treaties could logically be applied to
space warfare. Article 8 of Convention V allows that neutral States need not
"forbid or restrict the use on behalf of the belligerents of telegraph or
telephone cables or of wireless telegraphy apparatus belonging to it or to
companies or private individuals." [n625] Nonetheless, while the
neutral State need not restrict the use of its assets to only non-belligerent
States for "telegraph or telephone cables," Article 9 requires that any
allowance by the neutral State for belligerent use be "impartially applied by it
to both belligerents." [n626] Thus, in keeping with customary
principles of State neutrality, the Treaty forbids a neutral to give
preferential treatment to one belligerent if it allows access to any. By clear
inference, this means that to the extent the neutral State does give preference,
the preferential access to the asset for one belligerent renders the
"neutral's" property non-neutral, and thus subject to attack.
An additional issue arises under Hague Convention V's "general participation
clause." Article 20 provides that "the provisions of the present Convention do
not apply except between contracting Powers, and then only if all the
belligerents are parties to the Convention." [n627] Because, for
example, the United Kingdom is not a party to the Convention, Article 20
operated to render its specific provisions inapplicable to the Persian Gulf War
conflict. [n628] Nonetheless, when drafted, Hague Convention V, as well
as Hague Convention XIII, were viewed as declaratory of customary international
law. Thus, without asserting that the Hague conventions on neutrality do in fact
amount to restatements of customary law, Roberts and Guelff accurately point out
that "to the extent that [ ] Convention [V] may be considered customary
international law, it would be binding on all States and its 'general
participation clause' . . . would cease to be relevant. In hostilities since
1907, including both world wars, the Convention was frequently referred to by
both neutrals and belligerents." [n629] Among other things, this simply
illustrates that the law is unspecific on this point. How the Hague Conventions
on neutrality or the principles of customary international law would restrict
targeting of jointly-owned satellites in space warfare is as yet unclear. While
this problem of "neutral" ownership of implements of war is not unique to
space assets, it is an issue widely applicable to space assets given widespread
intergovernmental cooperation in space, and is thus likely to become a concern
in space warfare.
A second major problem related to the status of space assets in combat is the
use to which they are put. In many cases, implements of space warfare can be
converted fairly easily to valuable non-military uses. [n630] For
example, remote sensing satellites are functionally equivalent to military
reconnaissance satellites. While the former do not require the same precision,
the process of acquiring earth-based data is roughly the same.
[n631] Even more closely related are the uses put to weather and
telecommunications satellites. The military may use such a satellite to support
the prosecution of its wartime objectives while the same satellite is being used
simultaneously for non-military purposes. [n632] This raises the
question whether such an asset may be lawfully targeted by an opposing
The general rule provided by the law of war allows destruction of targets
that are military objectives when doing so is not disproportionate to the
military objective sought by the destruction. On this basis, major
infrastructure targets were lawfully destroyed during the 1991 Persian Gulf War
that provided, for example, electricity both to the civilian populations and to
the command and control functions of the Iraqi military. [n634] A
similar rationale applies equally to dual-use satellites. To the
extent a satellite is used for the support of a military purpose, be it
communications, weather, early warning of missile launch, or reconnaissance, it
becomes a military objective and is lawfully subject to attack. This of course
assumes that the space asset is actually used for such military purpose and is
not merely targeted for having the potential to be so used. [n635]
2. The Status of Astronauts as Both "Envoys of Mankind" and Combatants
The trend for the past few decades suggests that military manned space
missions will not carry the significance of unmanned missions in the near term.
Nonetheless, there will undoubtedly be some role for military astronauts in
space combat. This raises a few obvious questions in light of language used by
the Outer Space Treaty and the Rescue and Return Agreement. In his account of
the reception he received following the Apollo 11 manned mission to the surface
of the moon, command module pilot Michael Collins made the following
Travelling around the world several months after the flight, I was continually
impressed by the fact that no matter where we were, the reaction was the same
and, to me, unexpected. Never did I hear, 'Well, you Americans finally did it.'
Always it was 'we,' we human beings drawn together for one fleeting moment
watching two of us walk that alien surface. [n636]
This reception correlates with the status astronauts bear under international
law: "envoys of mankind." [n637] The lofty phrase reserved for
astronauts appears to suggest that they are given the legal status of
diplomats. [n638] However, a significant tension will arise as military
astronauts move from activities that are scientific in nature, to those that are
warlike. Interestingly, the language immediately preceding the "envoys" phrase
from the Outer Space Treaty states the permissibility of military personnel in
space for scientific or other peaceful purposes. [n639] This
juxtaposition suggests, along with the fact that the term "astronaut" applies to
all humans in space [n640] and that the term envoy makes no distinction
between military and civilian astronauts, that the term envoy as used in the
Outer Space Treaty certainly applies to military personnel in space. However,
the Outer Space Treaty does not countenance armed conflict in space.
Under the law of war there is no reason the term combatant could not apply to
military personnel in space just as it does to individuals on land, sea, and air
if authorized to engage in armed conflict. [n641] Formally speaking, in
order to be accorded all legal protections under the jus in bello as
belligerents, it seems that such combatant astronauts would be required to
adhere to the requirements set forth under Article 1 of the annexed regulations
to Hague Convention (IV), namely, (a) commanded by a person responsible for his
subordinates; (b) have a fixed distinctive emblem recognizable at a distance;
(c) carry arms openly; and (d) conduct operations in accord with the laws and
customs of war. [n642] Under such conditions, the legal tension between
a person being accorded a quasi-diplomatic status, as well as being
given the right to use force might appear to be acute. Because the term
"combatant" is fairly well established under the law of war, full resolution of
this potential tension requires placement of the term envoy in its proper
context within the Outer Space Treaty.
The term as used requires an interpretation that is consistent with relevant
assumptions made elsewhere in the Treaty and with its object and purpose.
Indeed, this is a requirement imposed on the interpretation of any treaty.
[n643] The same treaty that designates astronauts as envoys also
presupposes that States will abide by their obligation to limit national
activity to peaceful purposes. A necessary precondition for any astronaut
claiming combatant status will be some violation of the "peaceful purposes"
injunction. That being the case, it is implausible to assert that any astronaut
qualifying as a combatant, whether acting in an aggressive, non-peaceful role,
or a defensive, peaceful role, will be accorded the diplomatic status due an
envoy. This conclusion is further supported by the fact that those accorded
diplomatic immunity may not engage in armed hostilities. [n644] From
this, two commentators have helpfully pointed out that "[a] military astronaut
[who] participates in hostile acts does not exercise diplomatic functions."
[n645] It would simply be incongruous for one person to simultaneously
constitute a combatant and an "envoy of mankind." [n646] The practical
interpretation of the Outer Space Treaty then becomes this: States Parties
"shall regard astronauts as envoys of mankind" only when engaged in
"peaceful" activities, as the Outer Space Treaty assumes them to. When such
conditions do not exist, it makes no logical or textual sense for astronauts to
be regarded as "envoys" by opposing belligerent States.
3. Return of Astronauts Engaged in Combatant Activities
At least two treaties within the corpus juris spatialis require the prompt
return of astronauts. In the event of accident, distress, or emergency landing
on the territory of another State Party or on the high seas, the Outer Space
Treaty requires that astronauts be "safely and promptly returned to the State
of registry of their space vehicle." [n647] The Rescue and Return
Agreement makes the duty even more expansive, applying even to cases of
unintended landing. Article 4 uses language suggesting that the duty to return
If, owing to accident, distress, emergency or unintended landing, the personnel
of a spacecraft land in territory under the jurisdiction of a Contracting Party
or have been found on the high seas or in any other place not under the
jurisdiction of any State, they shall be safely and promptly returned to
representatives of the launching authority. [n648]
These provisions precipitate the question: "must combatant astronauts be
returned in time of war?"
The answer is plainly "no" for reasons similar to those justifying the
conclusion that astronauts engaged in armed conflict will not be accorded
diplomatic immunity. In both cases, the terms of the Rescue and Return Agreement
assume that the space activities of astronauts, even if military in nature, will
be scientific and non-aggressive--that is, peaceful. Once the outbreak of armed
hostilities occurs in space, at least one of the States involved will have
violated the peaceful purposes limitation. Whatever else the
astronaut-combatants may be at that point, they most certainly will be prisoners
of war if captured by virtue of accident, distress, emergency or unintended
landing. The opposing belligerent will owe no greater duty to return the
prisoner of war from space than it would the prisoner of war from the land, sea,
4. Innocent Passage through Airspace for Destinations to and Return from
Beyond the question of where airspace ends and outer space begins, lies a
problem many States face related to space access. States such as the U.S.,
with great land masses bounded by vast expanses of the oceans, have a
certain degree of independence in the launch and recovery of their space
objects. Because many States are entirely landlocked, or possess territory too
small to launch objects into space using only their own airspace or that over
the high seas, a question arises as to the possibility of incorporating into
space law another feature from the law of the sea--innocent passage. In this
case, several commentators have been proposing that for some States to truly
enjoy the free exploration and use of outer space guaranteed by the Outer
Space Treaty, they must be accorded a right of innocent passage through the
national airspace of other States. Some have gone even further to suggest that
such a right exists in customary international law. [n649]
As suggested previously, such a right does not exist in the law and is not
likely to emerge in the near future given traditional State interests in
territorial sovereignty. [n650] However, even if it did, it would not
serve the ends of belligerent States in the midst of armed conflict during which
passage would not be innocent. For passage to be "innocent" under the Law of the
Sea Convention, it cannot be "prejudicial to the peace, good order or security
of the coastal State." [n651] It is self-evident that foreign military
activity in support of armed conflict in the territory of the host State
(whether territorial seas or superjacent national airspace), absent explicit
permission, will be prejudicial to the peace of that State. States may always
attempt to secure prior permission before entering the national airspace of
another State. This could certainly occur during an armed conflict. However, as
long as the law of the sea remains the controlling analogy, any future
recognition of rights to innocent passage into foreign national
airspace for space objects, will not apply to belligerents during armed
International Court of Justice (1996)
A review of current scholarship analyzing the application of the law of war
to outer space warfare yields little information. While many authors have
written on space militarization and weaponization, and some on space warfare,
almost none have undertaken an analysis of space warfare in the context of the
law of war. [n524] Indeed, it would seem that popular culture in the
form of science fiction movies has taken a greater interest in the subject than
have legal scholars and practitioners. [n525] For at least two reasons,
this must change. First, use of the space environment in warfare is
not just a matter of speculative planning for future conflicts, it has already
occurred. As the conflicts in the Persian Gulf and Kosovo made clear, space
assets were decisive in battle planning and execution. Second, failure to
analyze one's legal obligations raises the very real specter of violating
obligations that do in fact exist. Given that the U.S. contemplates armed
conflict within the space environment, it must not proceed oblivious to norms
establishing permissible and impermissible means and methods of warfare. For
example, the increasing use of high-technology wargames using space combat
scenarios is uncovering knotty legal issues. [n526] It is also giving
added urgency to questions that become increasingly "real world" such as the
following: "does intentional interference with a U.S.-owned satellite orbiting
600 mi. above the Earth constitute an act of war?" [n527]
Given the numerous previous uses of space assets for combat support,
the evolution from passive, defensive support systems to active, offensive,
weaponized systems seems only a matter of time. Professor Spires provides the
following instructive review of space assets used in combat:
As early as the Vietnam conflict, weather and communications satellites
furnished useful data and imagery to commanders in Southeast Asia and linked
them with Washington, D.C. More recently, satellite communications had proven
important in the British Falkland Islands campaign and in Urgent Fury, the
Grenada invasion of 1983. In 1986, during Operation Eldorado Canyon, space
systems provided a vital communications link and supplied important mission
planning data to aircrews that bombed targets in Libya. In 1988, Operation
Earnest Will witnessed the first use of GPS test satellites to support ships and
helicopters during mine sweeping operations in the Persian Gulf. During
Operation Just Cause in Panama in 1989, DSCS satellites provided long-haul
communications links and DMSP supplied important weather data.
These operations, however, involved only portions of the military space
community for a relatively brief period of time, and the contribution of space
systems was not widely understood or appreciated. Desert Storm, by contrast,
involved the full arsenal of military space systems. Nearly sixty military and
civilian satellites influenced the course of the war. [n528]
To these military uses can be added the extensive use of space assets in the
1999 Operation Allied Force campaign in Yugoslavia. [n529] What this
review demonstrates is that the military use of space for combat
continues toward more robust, integrated systems. The increasing reliance on
space assets strongly suggests that the space environment will eventually become
a distinct theater of military operations. [n530]
A. Bases on Which the Law of War Applies to Outer Space
To those familiar with international law, it may seem strange to undertake a
separate discussion of the bases on which the law of war applies to outer
space conflicts. As a general proposition of international law, a State's legal
obligations are not conditioned geographically unless otherwise specifically
noted or unless the circumstances of the obligation make such conditions
obvious. As a result, it may appear self-evident that the law of war will apply,
to the extent it has relevance, to future space conflicts. [n531] But
this is not necessarily accurate for the simple reason that the
specific legal norms governing space warfare, with very few exceptions,
[n532] have yet to emerge. Thus, to provide the basis for further
development, the conclusion that the principles of the law of war apply to outer
space should prevail only on the basis of reasoned legal argumentation. At least
three methods of argument, discussed below, appear to sustain the conclusion
that the existing law of war does apply to space warfare: argumentation by
analogy, argumentation based on specific reference to the terms of the Outer
Space Treaty, and argumentation based on the Martens' clause.
As discussed earlier, development of the corpus juris spatialis has occurred
in part by use of legal analogies. [n533] Analogy has been used in two
senses. First, the environment to be regulated-outer space-is compared to other
environments, such as the high seas and Antarctica. On this basis, the
international community has developed the legal regime governing outer space
after drawing from legal norms governing these other environments. Second, the
use of analogy occurs after a legal norm within the corpus juris spatialis has
already been established. In this sense a principle of law is interpreted by
means of analogy with a specific principle from another legal regime. This could
be termed argumentation by micro-analogy, while the other constitutes
argumentation by macro-analogy.
Both types of argumentation will be useful with respect to developing a jus
in bello for space. On the macro-level, the jus in bello governing means and
methods of combat on land, sea, or air, provides potential similarities to means
and methods of space combat made possible by the existing and proposed
technologies discussed in Chapter Two. The closer the factual similarity, the
more likely it is that the existing norm will undergird the developing legal
regime for space. Similarly, given the relative youth of space law,
argumentation by micro-analogy is just about the only means of interpreting the
general corpus juris spatialis to fit specific legal issues relating to the
military use of outer space. Though use of analogies in any sense can be
misleading if it amounts to misrepresentation of the existing norm used as the
analogy, it will undoubtedly guide the quest for articulating the current jus in
[*125] bello for space, as well as the development of the many further norms
likely to emerge in the context of State practice. [n534]
a. Parallels to Sea Warfare
Given the general jurisdictional parallels and legal analogies drawn between
outer space and the high seas, [n535] a similar comparative approach is
natural in attempting to establish the status of outer space in conditions of
armed conflict. The sovereign rights of all States on the high seas are equal.
So too in outer space. Once armed conflict has begun however, with the exception
of avoiding the territory and property of neutral States, [n536] the
legal status of the place in which combat occurs becomes less important. Thus,
if State A launches an "armed attack" against State B, the latter may respond in
self-defense either in State A's territory, State B's territory, the high seas,
international airspace, or outer space. As a result, though space law has made
significant use of analogies from the law of the sea, a unique analogy between
warfare in space and warfare on the high seas appears inapposite, at least as
distinguished from analogies with international airspace and the territory of
b. Previous Application of the Law of War to Aerial Warfare
In addition to the use of analogies drawn by the corpus juris spatialis from
the law of the sea, it is likely that the jus in bello for space will draw on
the developmental patterns characterizing evolution of the jus in bello for
aerial warfare. [n537] When the Hague conferences met in 1907, aviation
was a fledgling industry. There were profound uncertainties about how
or even if aviation could be effectively used in war. Thus, the 1907 Conventions
do not specifically address limits on aerial warfare. [n538] As
aeronautical technology developed, the international community never adopted a
binding legal regime restricting means and methods of aerial warfare. Though
the 1923 Hague Rules of Aerial Warfare are thought to reflect customary law in
some respects, not a single nation ever ratified this agreement. What does exist
by way of restriction, exists in piecemeal form through an array of instruments
comprising the laws of war. This evolutionary, piecemeal approach to
restrictions on aerial warfare is likely to characterize the evolutionary growth
of international restrictions on space warfare as well.
Military roles and missions for space assets in the U.S. have developed along
lines similar to those of airpower during the beginning of this century.
[n539] In both cases, intelligence-gathering and support operations
came first, followed by each respective medium used as a means of
transportation. Finally, offensive and defensive combat roles followed. As
USSPACECOM plans for offensive and defensive combat capabilities in space, the
comparison with airpower appears complete. Of course, the possibility always
exists that space combat will be outlawed by international agreement. However,
"the odds are poor. . . . Deep-seated [human] traits create tremendous
temptations for aggressors to take all, unless probable costs of such action
exceed anticipated gains." [n540]
As a result of the parallel development of air and space military missions,
and of the piecemeal recognition of international limits on means and methods
for prosecuting aerial war, it is reasonable to predict that the jus in bello
for outer space will evolve as did the jus in bello for airspace: incrementally,
by analogy to former means and methods of warfare, and in the absence of a
comprehensive treaty-based system of prohibitions.
2. Outer Space Treaty
Article III of the Outer Space Treaty provides perhaps the clearest
indication that the international law of war will apply to space warfare:
States Parties to the Treaty shall carry on activities in the exploration and
use of outer space, including the moon and other celestial bodies, in accordance
with international law, including the Charter of the United Nations, in the
interest of maintaining international peace and security and promoting
international co-operation and understanding. [n541]
Two significant observations arise from this provision. First, Article III
applies the restrictions of all international law to outer space activities ("in
accordance with"). As products of "international law," this surely includes both
the jus ad bellum, made obvious by Article III's specific reference to the U.N.
Charter, and the jus in bello. This observation provides the strongest evidence
that as far as its principles will apply to future technologies, the law of war
has been incorporated into military space operations by virtue of the Outer
A second observation relates to the requirement that a State's exploration
and use of outer space be "in the interest of maintaining international peace
and security." This well-worn phrase in international law comes directly from,
among others, the U.N. Charter. [n542] As historically used, the phrase
assumes that military force will be available to the international community to
ensure international order. [n543] As international law has limited the
means and methods States may use in employing military force in combat, those
limits form a part of the context in which the maintenance of international
peace and security, including the use of force in space, must occur.
3. Martens' Clause
A final observation regarding the application of the laws of war to military
space operations relates to what became known at the Hague diplomatic
conferences as the "Martens' Clause." This clause, so named for the Russian
delegate proposing its inclusion, was inserted into the preamble of the 1899
Second Convention and the 1907 Fourth Convention. The clause was intended to
supplement the prohibitory rules adopted at both conferences. The clause appears
in several law of war documents, and reads as follows in its 1907 iteration:
Until a more complete code of the laws of war has been issued, the high
contracting parties deem it expedient to declare that, in cases not included in
the Regulations adopted by them, the inhabitants and the belligerents remain
under the protection and the rule of the principles of the law of nations, as
they result from the usages established among civilized peoples, from the laws
of humanity, and the dictates of the public conscience. [n544]
The clause reminds States Parties that explicit prohibitions within the
Treaty do not supercede general, implicit prohibitions operating in the
background by way of "principles of the law of nations." [n545] In this
way, the clause covers not only customary international law but also
incorporates all rules and principles of the general law of nations. [n546]
As a result, it does more than simply claim that customary international
law fills in the gaps left by conventional law.
The further influence of the clause can be seen by its inclusion into
successive law of war documents throughout the twentieth century. Thus, versions
of the principle quoted above have appeared in each of the four 1949 Geneva
Conventions, [n547] the 1977 Protocol (I) to the Geneva Conventions
governing international armed conflicts, [n548] and the 1980 Convention
on Conventional Weapons. [n549] This widespread incorporation of the
principle, adopted by the vast majority of States, strongly suggests that the
Martens' Clause itself may have become a principle of customary international
The continuing vitality of the doctrine expressed in the Martens' Clause will
be particularly important for space warfare, often thought to be the most
technologically innovative form of warfare. Because the doctrine is
phrased "dynamically," [n551] implicitly anticipating the need to
regulate means and methods of warfare developed through technological advances,
it will always operate to limit the lawful prosecution of space warfare. No
matter what new means or methods are developed, they will remain subject to "the
principles of international law derived from established custom, from the
principles of humanity and from the dictates of public conscience." [n552]
B. Problems of Legal Definition and the Use of Force in Space
As is the case with domestic law, international law depends for its coherence
and consistency on clear definitions of key terms. The quest to further develop
a jus in bello for space will be plagued with the conspicuous absence of
authoritative definitions of several significant terms and concepts. In addition
to the difficulty of applying existing law, this situation holds important
lessons for the future drafting of space treaties, including the importance of
avoiding terms and phrases open to more than one reasonable interpretation.
[n553] Though the lack of definition or use of ambiguous terms often
reflects the presence of irreconcilable difference among the drafters, such
devices can work to utterly frustrate the aims of the treaties in which they
appear. It certainly will complicate the emergence of a distinct jus in bello
1. Militarization of Space
The militarization of outer space does not necessarily entail its
weaponization. [n554] Many of the legal issues arising from the
militarization of space do so in part because of the absence of clear
definitions for terms used in the relevant space treaties. For example, aside
from peaceful purposes [n555] and outer space, [n556]
the law lacks basic authoritative definitions of other terms including
space object, and space debris. As noted previously, the Liability Convention
defines "space object," but its general circularity leaves the definition
unhelpful. [n557] Functionally, the "space object" as used in
international parlance includes "space debris." As it is generally conceived, a
space object includes any artifact, manned or unmanned, that is launched into
orbit. This includes objects that have ceased to function and have become
debris. The lack of legal definition for these basic terms makes the already
difficult task of applying two distinct branches of international law to space
combat that much more difficult.
2. Weaponization of Space
Beyond terms relevant to the militarization of space are those related to the
more controversial prospect of space weaponization. Not only has the U.S.
historically eschewed the prospect of fielding space weapons, but even as their
use has recently attracted renewed attention, some officers within the military
publicly advocate a space sanctuary policy -- that is, no weapons in space.
[n558] Many others, including the current Chief of Staff of the U.S.
Air Force, view the ultimate weaponization of space as "inevitable."
[n559] Whatever policy the U.S. adopts, one must immediately confront
the question "what constitutes a weapon?" As one example, the meaning of nuclear
weapon as used in the Outer Space Treaty may become less and less evident in
future decades witnessing an evolution of space weaponry. [n560] While
some hearing the term nuclear weapon may immediately equate it with
thermonuclear devices designed for detonation under controlled circumstances, it
is certainly correct to observe that "nuclear energy may be used in different
ways and may be a potential weapon even if not so designed." [n561] As
a result, in the absence of clear definition, one could argue that following its
malfunction, the Chernobyl nuclear reactor, for example, became a "nuclear
Further complicating any legal analysis of the permissible scope of the
weaponization of space one confronts a further definitional vacuum. Despite the
heavy militarization of space, the basic term "space weapon" lacks definition in
international law. As a result, the concept it represents, which broadly
speaking includes any implements of warfare in space, is difficult to isolate
for purposes of analysis. And, without this foundational definition, one cannot
define phrases on which it logically relies, such as nuclear weapon and weapon
of mass destruction. The difficulty arises in that any comprehensive definition
of space weapon will include space systems equally used for non-military,
non-destructive, and non-aggressive purposes. Though space weapons may seem to
include only a discrete class of armaments with easily definable
characteristics, a closer examination "reveals a less obvious and more inclusive
set of systems." [n562]
One proposed definition illustrates this challenge:
A space weapon is a device stationed in outer space (including the moon and
other celestial bodies) or in the earth environment designed to destroy, damage,
or otherwise interfere with the normal functioning of an object or being in
outer space, or a device stationed in outer space designed to destroy, damage,
or otherwise interfere with the normal functioning of an object or
being in the earth environment. Any other device with the inherent capability to
be used as defined above will be considered as a space weapon. [n563]
Of particular interest is the second sentence. While it acknowledges that
space objects not designed as weapons may become weapons if they can "be used"
as such, it arguably leaves the definition so broad as to include just about any
object at all.
Objects in orbit travel at roughly 17,000 miles per hour. This fact alone
gives them the "inherent capability" to destroy or interfere with an object or
being in space or in the earth environment. This is equally true of functioning
satellites, dead satellites, and space debris. Similarly, under this definition
commercial telecommunications satellites are space weapons as they have the
inherent capability to interfere with the normal functioning of other
telecommunications satellites. Indeed a rifle, a hunting knife, or even any
sharp object on earth possesses the capability to destroy and/or interfere with
a ground station, making impossible the normal functioning of the satellite it
supports. These observations are not intended to suggest "space weaponry" should
not be defined. They are simply intended to illustrate the difficulty of
creating a definition that will distinguish space weapons from the larger
categories weapons, space objects, or even objects.
Put another way, should the developing law of war ever proceed to restrict
the use of existing or potential space weapons, the definition of space weapons
will have to confront the difficult problem of what to do about "non-dedicated
systems"--that is, those space systems not designed as weapons. [n564]
It will also have to elucidate whether the restriction applies to the
weapon's subcomponents as well. [n565] A consensus among States on such
a definition will facilitate application of the law of war to armed conflict in
In the meantime, consideration of technologies useful for space combat will
proceed under the principle that State action is permitted in the absence of
clear legal prohibition. [n566] Though regularly denounced by a large
segment of the international community as destabilizing for the use and
exploration of outer space, [n567] in principle none of the potential
means and methods of space warfare discussed previously in Chapter Two, with the
exception of nuclear weapons, violate international law. [n568] Of
course, the use to which these weapons are put could render them
unlawful for a specific objective if, for example, their use rendered them
disproportionate (or indiscriminate or inhumane) under the law of war as judged
against the military objective in view. But this is an inherent possibility for
any weapon, which, by itself, does not render the weapon unlawful.
3. Use of Force in Space
Beyond definitional limitations, a thorough articulation of legal standards
applicable to space warfare should account for the ways most likely to trigger
jus ad bellum restrictions on the resort to the use of armed force. One
commentator has observed that space law, including the Limited Test Ban Treaty,
Outer Space Treaty, Anti-Ballistic Missile Treaty, and the Moon Agreement, was
developed to "permit, indeed to endorse, the arms race, including the
militarization of space." [n569] Though speaking with a sense of irony
and regret, this scholar's comments raise the twin questions of the law's
tolerance of one State's infliction of intentional damage on another's assets,
and of the capture of foreign space assets. Though the U.N. Charter forbids the
"threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent with the Purposes
of the United Nations," [n570] the meaning of this prohibition remains
hotly contested. The prevailing view is that this provision is an absolute bar
to the use of force with the sole exceptions being self-defense and
authorization by the Security Council. The other view, greatly bolstered by the
recent NATO air war in Kosovo, asserts that the prohibition pertains only to the
use of force for purposes inconsistent with the Charter such as the subjugation
of another State, or annexation of its territory. [n571] A State's
interpretation of the general prohibition on the use of force will obviously
greatly impact its decision whether or not to use it. For example, if
a State finds in the Charter no prohibition on individual or collective
"humanitarian intervention," it will expand to the uses of force it deems lawful
in any of the combat environments, including space. [n572]
Beyond general principles under the jus ad bellum, one can find reference to
the intentional use of force within space law itself. A careful reading of the
Liability Convention discloses that the corpus juris spatialis implicitly
recognizes that under certain circumstances the intentional destruction of
space objects might occur. [n573] As previously discussed, the
Liability Convention subjects States Parties to absolute liability for damage
caused by its space objects on the earth's surface, or to aircraft in flight,
[n574] and to liability based on fault for damage by its space object
to the space object of another State "being caused elsewhere than on the surface
of the earth." [n575] However, Article VI provides exoneration from
absolute liability in cases where either the claimant State, or the natural or
juridical persons it represents, caused the damage wholly or partially by gross
negligence, or an act or omission done with intent to cause damage. [n576]
A proper understanding of the phrase "intent to cause damage" provides
insight into the Convention's foresight as to the possibility of uses of force
against space objects.
Under Article VI, the scope of the exoneration applies only as to "absolute
liability" under Article II, and therefore exoneration from liability for damage
by space objects done on the surface of the earth or to aircraft in flight.
Given the purpose of space objects, that is, launch into space, this provision
for exoneration would certainly include intentional acts taken against space
objects while in space that later cause damage on the earth or in the air.
Obviously, the exoneration for intentional damage caused by a claimant State
presupposes the possibility that such intentional damage will occur. Thus,
despite the provisions of the Outer Space Treaty prescribing the "peaceful" use
and exploration of space, the Liability Convention recognizes the distinct
possibility that States may engage in intentional damage to space objects.
While this does not imply the Convention's sanction for such events, [n577]
it does suggest that the international community realistically
expected that a claimant State might take action amounting to the intentional
damaging of a space object. [n578]
Legally speaking, the capture of a foreign space object is related to the
question of intentional uses of force. Under the Outer Space Treaty a State
Party to the Treaty "on whose registry an object launched into outer space is
carried shall retain jurisdiction and control over such object." [n579]
At face value, this means that a satellite, for example, registered by State X
belongs to State X for purposes of jurisdiction and control. Nonetheless, when
State X uses its satellite to intentionally and wrongfully disable State Y's
satellite, assuming that doing so amounts to an "armed attack" under the U.N.
Charter, State Y may in self defense disable State X's satellite. [n580]
In such circumstances, State X has violated one of the conditions assumed
to exist by the Outer Space Treaty--the peaceful use of outer space. Having
properly acted in self-defense, may State Y capture State X's aggressor
satellite for intelligence or other purposes? It certainly seems that the law of
war authorizes belligerents not only to kill opposing belligerents but to
destroy their weaponry. If State Y can lawfully destroy State X's satellite, it
can certainly capture it, Article VIII of the Outer Space Treaty
notwithstanding. Put otherwise, the only way a State may be assured the
protection of its space assets, is to ensure that its activities remain
compliant with international law, including space law and the jus ad bellum.
C. National Policy, Military Space Doctrine, and Law of War Manuals
A review of the U.S. space policies at the Presidential and DOD levels
reveals that the leadership invariably reserves a place for national security
and military activity within its space policy statements. In fact, current U.S.
national space policy directs the DOD to assume certain space missions that,
when implemented, will have the effect of preparing the U.S. for armed conflict
in space. As a result, U.S. space policy precipitates the need for an
examination of the laws of war. Increasingly, prominent observers are calling
for full implementation of U.S. military space policy which would result in a
robust combat capability. [n581] Taking the argument a step further,
others argue for a fourth military department devoted to space. [n582]
Nonetheless, as one military commentator observes, "although the idea
of space warfare is becoming prominent in Air Force thinking, little effort has
been made to flesh out what it means." [n583] It also appears that
little thought has been given to the question "how will the law of war limit a
State's ability to prosecute warfare in space?"
In establishing the current national space policy in 1996, President Clinton
reiterated the requirement to use space for "peaceful purposes." [n584]
Consistent with the forty-year U.S. interpretation of the term, it does not
exclude military activity such as intelligence-gathering or even armed defense:
"'Peaceful purposes' allow defense and intelligence-related activities in
pursuit of national security and other goals." [n585] More recently,
the President's National Security Strategy states that "our policy is to promote
development of the full range of space-based capabilities in a manner that
protects our vital national security interests." [n586]
The U.S. National Space Policy directs U.S. space activity under several
substantive areas comprising "Civil Space Guidelines," "National Security
Space Guidelines," "Commercial Space Guidelines," and "Intersector Guidelines."
The DOD is directed, inter alia, to "maintain the capability to execute the
mission areas of space support, force enhancement, space control, and force
application." [n587] These four mission areas form the backbone of the
DOD's military space activity, as executed by its unified command for space,
With respect to the law of war, the DOD explicitly states that it is U.S.
defense policy to ensure that "the law of war obligations of the United States
are observed and enforced by the DOD Components." [n588] Further, the
heads of DOD Components are directed to ensure that "the members of their
Components comply with the law of war during all armed conflicts, however such
conflicts are characterized, and with the principles and spirit of the law of
war during all other operations." [n589] At a minimum, these provisions
mean that to the extent the law of war applies to space combat at all, and the
U.S. develops the means for conducting space combat, the law of war
will apply to U.S. forces in such combat.
As the titles to USSPACECOM's four major mission areas suggest, the first
two, "space support" and "force enhancement," ensure that space assets
facilitate the operations of combat forces on land, sea, and air. These missions
are evolving rapidly and are leading to the "operationalization" of U.S. space
forces. [n590] The latter two missions, "space control," and "force
application," are more controversial as they suggest the weaponization of
space, and are most closely related to combat in a future theater of military
The notion of military "space control" strikes many observers as antithetical
to the fundamental tenet of the Outer Space Treaty: that outer space is an
environment free for use and exploration by all States. However, the current
U.S. policy does not purport to establish areas of exclusive control by U.S.
forces, but simply attempts to negate threats to U.S. assets. U.S. Deputy
Secretary of Defense, John J. Hamre, recently explained that the space control
mission is defensive in nature: "We fully believe that 'negation' in
space--preventing the bad guys from using space against us--is fully authorized
under international law, but we do want to take steps and actions that don't
create instability in the world." [n591]
The U.S. space control policy is based on a five-pronged approach which
includes: "(1) assured access to space and operation once there; (2)
surveillance of the space environment and space-based objects; (3) protection of
spacecraft, ground stations and data links; (4) prevention of damage and
interference to U.S. space infrastructure; and (5) negation of hostile space
systems that place U.S. and allied assets at risk." [n592] This
translates to the following definition of space control, as articulated in
USSPACECOM's long-range plan: "Control of Space is the ability to ensure
un-interrupted access to space for U.S. forces and our allies, freedom of
operations within the space medium and an ability to deny others the use of
space, if required." [n593] Translated into legal terms,
attempts to "ensure un-interrupted access to space" and to maintain "an ability
to deny others the use of space," [n594] are simply expressions in the
military space context of the right to self-defense in response to hostile
action. As these policy goals are gradually implemented through practice they
will require clarification as to the means and methods used.
Space force application contemplates the use of armed force originating from
outer space. While the U.S. maintains limited space control options, it has no
acknowledged space force application capabilities--this is to say it has no
operational space-based weaponry. [n595] The USSPACECOM Long Range Plan
does not elaborate on this mission in nearly the detail it does for space
control. According to General Richard B. Meyers, then-Commander, USSPACECOM,
this is due in part to the fact that there is no national policy to weaponize
space. While the President has assigned USSPACECOM the space force application
mission, "there's been no national action on this. . . . Our focus now is
looking at the concepts [of operation] and some of the basic technologies that
would enable us to do that someday--if we're tasked by the national command
authority to go do that. . . . Today there is relative harmony in space."
[n596] If the U.S. ever does proceed to the fielding of space force
application options, it will most likely focus on missile defense.
Given the evolution of its national military doctrine, the U.S. may soon be
positioned to begin a preliminary incorporation of combat space operations into
its law of war manuals. The obvious starting point would be its manual on air
warfare. [n597] Not only would this course of action reflect the
military's institutional acceptance of the law of war for space warfare, but it
would allow the U.S. to encourage the progressive development of that law.
Military manuals serve not only as evidence of State opinio juris, but can also
serve a limited lawmaking role as well.
Because international law notoriously lacks its own enforcement system, national
implementation is often a critical factor in successful international lawmaking.
. . . Certainly, both the absence of a manual or the use of manuals whose
content does not include the relevant norms would strongly suggest that those
norms have not been adopted. [n598]
In addition, given sufficient uniformity, principles of law articulated in
law of war manuals could be viewed as "general principles of law recognized
by civilized nations," and thus a formal source of international law as
articulated by the Statute of the International Court of Justice. [n599]
The role of law of war manuals in making international law could be
especially helpful for space warfare at its advent. A consensus among the
leading States regarding acceptable limits on space warfare, as reflected in
their law of war manuals, could prove as authoritative as a treaty. Meanwhile,
incorporating existing norms for space warfare into a law of war manual, as well
as defining the U.S. understanding of means and methods of space combat that are
compliant with the law, would likely influence other States to adopt and act on
them as well.
D. Information Warfare
As the technological information revolution that has characterized late
twentieth and early twenty-first century life finds increasing military
applications, military strategists are recognizing in new ways the age-old
importance of information as a component of warfare. [n600] Though it
is a subject raising difficult legal questions well beyond the scope of this
article, information warfare merits attention given its natural connection with
space telecommunications systems. Because of heavy U.S. reliance on technology
for its military effectiveness, potential threats to the information
infrastructure will significantly affect combat readiness. [n601] This
fact led a recent Air Force study examining future concepts, capabilities, and
technologies to conclude that "influence increasingly will be exerted by
information more than by bombs." [n602]
In conceptualizing its categories of activity, the U.S. military
distinguishes between information operations, those actions taken to affect an
adversary's information and information systems while defending one's own
information and information systems, [n603] and information warfare,
which are information operations conducted during time of crises or
conflict to achieve or promote specific objectives over a specific adversary or
adversaries. [n604] Because the narrower concept of information warfare
applies during time of armed conflicts, it will be the more relevant of the two
concepts as analyzed in the context of space warfare.
Examination of emerging principles of information warfare will benefit the
analysis of space warfare under the law of war in two respects. First, because
the tactics of information warfare rely heavily on space assets, information
warfare can be loosely conceived as being a component of space warfare.
[n605] Whether classified as an active or passive manipulation of
information, a State's information operations in war certainly qualify as a
"means" or "method" of warfare. In this respect, information warfare is subject
to regulation under the jus in bello. To the extent information operations
involve the use of force in an armed conflict, such operations must be
necessary, [n606] proportional, [n607] discriminate,
[n608] and humane. [n609] They must also comply with
applicable conventional restrictions imposed under the Hague and Geneva
In his 1998 Annual Report to the President and Congress, U.S. Secretary of
Defense William S. Cohen highlighted this relationship between military space
assets, and the acquisition and manipulation of information for strategic
If there was ever a threat to our national security [in space], the best--the
only--way to solve the problem is to take weapons into space. [n652]
Suppose an observer of the Wright brothers' [sic] memorable first flight at
Kitty Hawk had been given the assignment of foretelling what aviation would be
like seventy or so years later. Had he envisaged the wide-bodied jet or the
supersonic transport he would have been absolutely correct. He would also have
been laughed to scorn by his contemporaries at the time. Had he merely enlarged
the Wright brothers' [sic] frail biplane into some bigger, stronger thing with
umpteen engines and several sets of wings, chances are he would have been
considered a true visionary even though his projected creation might be more
akin to a flying bird-cage.
J.W. MACVEY, SPACE WEAPONS SPACE WAR 80 (1979). See also D. LANGFORD, WAR IN
2080: THE FUTURE OF MILITARY TECHNOLOGY (1979) [hereinafter LANGFORD].
n10 W.B. Scott, USSC Prepares for Future Combat Missions in Space, 145:5 AV.
WK. & SPACE TECH., Aug. 5, 1996, at 51. General Ashy served as the Commander,
United States Space Command [hereinafter USSPACECOM], Air Force Space Command,
and the North American Aerospace Defense Command from September 1994 to August
Providing another in a series of observations on the military
"operationalization" of outer space, General Ashy later predicted that "the
relatively high percentage of space force capabilities devoted to a supporting
role will change to a 'supported' role. In other words, future military
operations will be supported not only from space (as in the first stages of
airplane use), but also within and to space." J.W. Ashy, Space Operations and
Organization: Some Thoughts About the Future, 146:16 AV. WK. & SPACE TECH., Apr.
16, 1997, at 56.
n11 The term "militarization," as applied to outer space, should not be
confused with "weaponization." Though there are no authoritative international
definitions of either term, the former refers to "the use of outer space by a
significant number of military spacecraft." I.A. Vlasic, Space Law and the
Military Applications of Space Technology, in PERSPECTIVES ON INTERNATIONAL LAW
386 n.6 (N. Jasentuliyana, ed., 1995) [hereinafter Vlasic, Space Law and
Military Applications]. Such activity may be non-aggressive and scientific in
nature, or aggressive and hostile. It may or may not involve the use of weapons,
though the contrasting term weaponization is meant to suggest that by itself,
the term militarization as applied to space does not necessarily include the
presence of weapons. The term weaponization "refers to the placing in outer
space for any length of time any device designed to attack man-made targets in
outer space and/or in the terrestrial environment." Id. Though not necessarily
so, the term implies the maintenance and use of such weapons by military forces.
Thus, though conceptually distinct, weaponization should generally be conceived
as a form of militarization.
n12 Rockets can be distinguished from missiles essentially in that the latter
possess superior navigational technology, making them more accurate for striking
targets. Otherwise, the following definition of rocket could apply to both: "A
vehicle that can operate outside Earth's atmosphere, because it carries its own
oxidizer, as well as fuel." JOHN M. COLLINS, MILITARY SPACE FORCES: THE NEXT 50
YEARS 159-60 (1989) [hereinafter COLLINS, MILITARY SPACE FORCES].
n13 N.M. MATTE, SPACE ACTIVITIES AND EMERGING INTERNATIONAL LAW 13 (1984)
[hereinafter MATTE, SPACE ACTIVITIES]. Matte further observes that "military use
has given the greatest impetus to modern rocket technology." Id. Durch and
Wilkening trace the rocket's history as follows:
The military rocket is a device whose pedigree is obscure. Though many credit
the Chinese with their first use in the thirteenth century, there is some
indication that the formulae for the propellants used in those rockets may have
come to China from Europe. On the other hand, the Mongol expansion of the middle
thirteenth century may have transported Chinese technology westward. That same
expansion brought rocketry to India, where it was encountered by the British as
early as 1750. Indian war rockets were used primarily to spook cavalry (in
effect, as early jamming devices), and at that they were apparently effective.
W.J. Durch & D.A. Wilkening, Steps Into Space, in NATIONAL INTERESTS AND THE
MILITARY USE OF SPACE 17 (W.J. Durch, ed., 1984) [hereinafter Durch &
n14 David Spires points out that following World War I, Germany was
interested in bombardment rockets for its army that was "sorely constrained by
the Versailles Treaty." SPIRES, supra note 3, at 5. Although the Treaty of
Versailles effectively disarmed Germany by forbidding the development of heavy
artillery and poison gas, it did not constrain all potential weapons such as the
rocket. In 1919, few thought of it as practical weapon of war. Durch &
Wilkening, supra note 13 at 17. Following the Nazi rise to power in the early
1930s the Treaty was repudiated outright. However, the research into military
rocketry continued as the merits of the potential weaponry became clearer.
n15 In popular parlance, the "V" stood for "vengeance" and the "2"
represented the second rocket-type fielded by the German army. The first model,
the much smaller V-1, was produced by the German Luftwaffe as an aerodynamic
pulse-jet "cruise" missile. Although the big rocket was known to technical
specialists as the A-4, V-2 is the more common designation that is familiar to
most observers of the German rocket program (the "Wehrmacht" program). The V-2's
three predecessor models began in 1933 with the A-1 and ended in 1936 with the
A-3. German scientist von Braun would later describe the A-1 as taking 1 1/2
years to build and 1/2 second to blow up. T.A. HEPPENHEIMER, COUNTDOWN: A
HISTORY OF SPACE FLIGHT 15 (1997) [hereinafter HEPPENHEIMER].
n16 Id. at 4
n17 SPIRES, supra note 3, at 5.
n18 HEPPENHEIMER, supra note 15, at 22.
n19 Id. at 23. For this purpose, the German scientists used modified
firefighter's pumps which also required simple construction, fast action, very
high flow rate, and constant delivery pressure.
n20 Indeed, Wernher von Braun termed its capture by the U.S. "one of the
greatest technical prizes in history." W. VON BRAUN & F. ORDWAY III, HISTORY OF
ROCKETRY AND SPACE TRAVEL 117 (3rd ed., 1975) [hereinafter VON BRAUN & ORDWAY].
n21 I M.J. MUOLO, SPACE HANDBOOK: A WAR FIGHTER'S GUIDE TO SPACE 3 (1993) at
3 [hereinafter MUOLO]. Although the U.S. cancelled the project in 1947, it was
reinstated in 1951 and has "changed little in over 40 years. . . . Significant
advances in its capability and adaptability are reasons the Atlas has become the
'DC-3' of space launch vehicles." Id. at 126-27.
n22 Quoted in SPIRES, supra note 3, at 10.
n23 For a discussion of missile defense and the legal regime regulating it,
see infra notes 447-463 and accompanying text.
n24 SPIRES, supra note 3, at 17. Until the early 1950s, the early missile
advocates were forced into a form of circular reasoning:
missiles seemed too challenging technologically, but no funds could be spent on
solving the technological dilemmas; so the problems would go unresolved and the
missile would remain 'impossible.' To questions about the logic of budgeting for
missile programs, the answer always seemed to be the dogmatic response: 'the
time is not right' for an expanded program.
Id. at 21.
n25 At least four factors account for the change in attitude by the U.S.:
first, news that the Soviets had successfully detonated an atomic bomb in August
1949; second, communism's triumph in China; third, reports of Soviet advances in
missile technology; and fourth, the outbreak of the Korean war in June 1950. Id.
at 22, 23.
n26 Examples include the WAC Corporal, Aerobee, and Viking. Of these, the WAC
Corporal became "the first man-made object to enter extra-terrestrial space"
having been launched as a second stage from a V-2 to a height of 250 miles. Id.
(quoting F. Malina's paper "Origins and First Decade of the Jet Propulsion
Laboratory" at 60).
n27 Early cruise missiles included the Snark, the first intercontinental
cruise missile, and the Navaho. The latter traveled to its target under "ramjet"
power, achieving speeds in excess of Mach 3. Ramjet technology utilizes a
process of "ram" compression at supersonic speeds in order to avoid the need for
jet turbines. The U.S. has used ramjet technology since the 1940s for its Navaho
missiles. SPIRES, supra note 3, at 21. In addition, the U.S. has used the
technology since 1959 for its A-11 and A-12 (later SR-71) reconnaissance
aircraft. W.E. Burrows, The Oxcart Cometh, And Goeth at Mach 3.2, 13:6 AIR &
SPACE, Feb./Mar. 1999, at 68.
In the years following WWII, the threat of nuclear exchange made the small,
slow cruise missiles ineffective as an intercontinental delivery system as
compared to ballistic missiles.
The ICBM's can travel thousands of miles along arcs that take them hundreds of
miles out into space; their trajectories, once determined during the interval
that the motors are in operation, are thence affected only by gravitational
forces and by air resistance during their exit from and re-entry into the
VON BRAUN & ORDWAY, supra note 20, at 121. Cruise missiles could not compete
with this capability for intercontinental application.
n28 The Atlas contained significant performance enhancements that allowed for
it to leave earth's atmosphere and then send an independent warhead back to
earth. These included housing its liquid fuel within the rocket's skin, and
making the warhead separable from the rocket so the latter could avoid the
design features requiring survivability upon reentry.
n29 The Titan was originally conceived as a backup program to the Atlas. The
two programs were developed simultaneously in order to save time in countering
the increasing perception of Soviet missile superiority. In 1953, Assistant
Secretary of the Air Force for Research and Development, Trevor Gardner, became
the champion of ICBM development in the U.S. having "made it his mission in
public life to convince the government that the nation must pursue a crash
program to develop an operational Air Force ICBM or face nuclear disaster."
SPIRES, supra note 3, at 31. Gardner's technological evangelism proved so
successful, that by the fall of 1955, President Eisenhower designated the Atlas
ICBM the "highest national priority" weapons system. Id. at 35. Management for
the crash missile program fell to Gardner protege Brigadier General Bernard
Schriever, a man who "used his intelligence, patience, and superb negotiating
skills with military, government and private industry leaders to become an
effective advocate for missile and space systems causes." Id. at 33.
n30 The complete family of Titan missiles includes several versions: I
(1959); II (1962); Gemini (1965); IIIA (1964); IIIB (1966); IIIC (1965); IIID
(1971); IIIE (1974); 34B (1975); 34D (1982); IISLV (1988); III (1989); IV
(1989). P. CLARK, JANE'S SPACE DIRECTORY, 1997-1998 277 (13th ed., 1997)
[hereinafter JANE'S]. In addition to the Atlas and Titan missiles, the
Department of Defense uses a variety of other missile systems, principally as
spacelifters rather than weapons systems, including the SCOUT, Pegasus, Delta,
and Space Transportation System ("Space Shuttle"). MUOLO, supra note 21, at
121-34. Additional missiles developed since World War II for weapons use include
the Polaris and Poseidon (both sea-launched), Pershing, and the Minuteman.
n31 HEPPENHEIMER, supra note 15, at 60. Though the U.S. got to Germany first,
the Soviets were first to Peenemunde. By the time the Soviets got there, most of
the documents and personnel had been removed by the Germans. Nonetheless, there
was enough left for the Soviets to use productively, including middle and
lower-level staffers familiar with the V-2 rocket research and development.
Though the codename "Operation Paperclip" for the U.S. roundup of German
scientists, documents, and hardware was revealed after the war, as was the
British "Operation Backtrack," the Soviet codename was never made public. M.
STOIKO, SOVIET ROCKETRY: PAST, PRESENT, AND FUTURE 71 (Holt, Rinehart & Winston,
n32 The implications from this early Soviet resolve were enormous. As von
Braun later observed, "the decision [to proceed with the ICBM before the U.S.]
not only gave [the Soviets] a significant edge in ballistic missile technology
for years, but was also a great factor in their leadership in space
exploration." VON BRAUN & ORDWAY, supra note 27, at 140.
n33 The first U.S. satellite, Explorer 1, was launched atop a Juno 1 on Jan.
31, 1958. See id. at 160.
n34 LANGFORD, supra note 9, at 45. The first large-production nuclear weapon
utilized a chain-reaction process known as fission, by which the mass of a
uranium or plutonium atom is converted to energy. Langford notes that as between
uranium and plutonium, the latter is easier to use for fission weaponry. Id. at
47. The nuclear weapon dropped on Hiroshima on Aug. 6, 1945 ("Little Boy") was a
uranium bomb that was remotely detonated at a height of 570 meters over the
city. "Detonation height determined how large an area would be damaged. . . . A
bomb detonated too high would expend its energy blasting thin air; a bomb
detonated too low would expend its energy excavating a crater. It was better to
be low than high." R. RHODES, THE MAKING OF THE ATOMIC BOMB 631 (1986)
[hereinafter RHODES]. On Aug. 9, 1945, a plutonium bomb ("Fat Man") was dropped
on Nagasaki with an estimated 22 kiloton yield.
n35 LANGFORD, supra note 34, at 49. It bears noting that nuclear weapons are
those characterized by the unique interaction of particles within an element's
nucleus. Whereas the fission chain-reaction begins with the acquisition of a
stray neutron particle which then spreads from nucleus to nucleus, the fusion
reaction requires the fusing of two nuclei. Because of the natural magnetic
repulsion of hydrogen nuclei, the two must be forcibly fused to begin the fusion
reaction. This is accomplished by heating the nuclei to such a degree that their
resulting speed yields collisions of sufficient force to achieve the fusion.
Thus the term "thermonuclear" weapons. The triggering element used to generate
the tremendous heat needed for fusion is a fission reaction. Once the fusion
begins, it creates its own chain-reaction. By surrounding the entire explosive
core with U-238, scientists discovered that the neutrons lost in the fusion
reaction could be used to fuel a second fission reaction. Thus, the nuclear
weapons most widely stockpiled make use of a fission-fusion-fission process. Id.
at 49. The first thermonuclear device, carrying an explosive force of 10
megatons of TNT was detonated at the Eniwetok atoll in 1952 (also spelled
Enewetak). In 1954, a 15 megaton device was detonated at the Bikini atoll. Id.
n36 RHODES, supra note 34, at 690
n37 HEPPENHEIMER, supra note 15, at 47. By contrast, the V-2 weighed a mere
n38 One Minuteman III ICBM is armed with the equivalent of 84
first-generation nuclear weapons. Rhodes, supra note 36, at photograph 106
n39 D. SHUKMAN, TOMORROW'S WAR: THE THREAT OF HIGH-TECHNOLOGY WEAPONS 25
(1996) [hereinafter SHUKMAN].
n40 A tass news agency announcement of Aug. 27, 1957 which reported the
successful test of the Soviet ICBM also included reference to "a series of
explosions of nuclear and thermonuclear (hydrogen) weapons . . . set off at
great altitudes." M.S. McDOUGAL, ET AL., LAW AND PUBLIC ORDER IN SPACE 389 n.7
(1963) [hereinafter McDOUGAL, ET AL.]. Between Aug. 27, 1957 and Sept. 7, 1958,
the U.S. exploded three atomic bombs over the South Atlantic at a reported
altitude of between 200 and 300 miles. During the summer of 1962 in the Pacific
at similar altitudes, the U.S. exploded weapons "in the hydrogen bomb range."
Id. In a Nov. 3, 1958 report to the U.S. President, three possible military uses
of a high-altitude nuclear detonation were identified: "The high energy
radiation including particles from the explosion produces effects on space; the
whirling high energy electrons generate radio noise; and the delayed radiation
from the fission products can affect radio transmission." P.B. STARES, THE
MILITARIZATION OF SPACE: U.S. POLICY, 1945-1984 108 (1985) [hereinafter STARES,
THE MILITARIZATION OF SPACE].
n41 See infra notes 436-446 and accompanying text.
n42 McDOUGAL, ET AL., supra note 40, at 45. The Soviet note and U.S. reply
are reprinted in N.Y. TIMES, Aug. 12, 1962, at 22.
n43 The U.S. "Vela Hotel" series of satellites were launched in 1963 and 1964
to scan above the horizon and detect nuclear tests in space. They were, in the
view of one military space historian, "one of the most successful Air Force
space projects." CURTIS PEEBLES, HIGH FRONTIER: THE U.S. AIR FORCE AND THE
MILITARY SPACE PROGRAM 41 (1997) [hereinafter PEEBLES, HIGH FRONTIER].
n44 SPIRES, supra note 3, at 35. In time, "the relationship between
satellites and missiles had become better understood as rockets with sufficient
thrust soon would be able to launch the heavier satellites. . . ."
n45 HEPPENHEIMER, supra note 15, at 90.
n46 Project Rand later became the Rand Corporation, a federally funded
research and development corporation serving as the primary technical consultant
to the U.S. Air Force.
n47 RAND CORPORATION, PRELIMINARY DESIGN OF AN EXPERIMENTAL WORLD-CIRCLING
SPACESHIP (1998) (from the abstact; Report Number SM-11827, May 2, 1946).
n48 Id. at 2.
n49 Launched as a stop-gap measure for strategic reconnaissance between the
termination of U-2 high altitude reconnaissance aircraft and the WS-117L system,
the Corona system remained operational from its first flight on Feb. 28, 1959
through June 1972. The Air Force was nominally deemed a joint venture partner of
the Corona program, which required mid-air recovery of film imagery taken by the
orbiting camera. For a thorough account of the recently-declassified Corona
program, see CURTIS PEEBLES, THE CORONA PROJECT: AMERICA'S FIRST SPY
SATELLITES (1997) [hereinafter PEEBLES, THE CORONA PROJECT]. The WS-117L
program, standing for "Weapon System 117L," led to development of the first
military satellite, the Advanced Reconnaissance System. The system used an
electro-optical television-type imaging system for its reconnaissance
capability. The Air Force established the requirement for such a system on Nov.
27, 1954, followed by a formal General Operational Requirement in March 1955
which called for a system providing an image resolution of no larger than 20
feet. SPIRES, supra note 3, at 36-37
n50 PEEBLES, HIGH FRONTIER, supra note 43, at 13.
n51 The National Reconnaissance Office was considered so secret
that even in classified documents outside the special security controls
established for satellite photos and data, the words 'National Reconnaissance
Office' and 'National Reconnaissance Program' were not to be used. Instead, the
phrase 'Matters under the purview of DOD TS 5105.23' would be given. (This was
the directive which established the NRO.) It would be thirty-two years before
the initials 'NRO' were spoken in public by a U.S. government official.
PEEBLES, THE CORONA PROJECT, supra note 49, at 96.
n52 PEEBLES, HIGH FRONTIER, supra note 43, at 14.
n53 Upon release of videotape depicting the satellite, AVIATION WEEK &
SPACE TECHNOLOGY declared that it used "the most advanced technology employed by
any U.S. military or civilian unmanned spacecraft." C. Couvalt, Secret Relay,
Lacrosse NRO Spacecraft Revealed, 148:12 AV. WK. & SPACE TECH., Mar. 23, 1997,
n54 Id. With its solar array and still-secret radar antenna, the satellite is
actually much larger than a bus.
n55 Id. at 28. For obvious reasons, the capability of military technology
exceeds that which is commercially available. This continues to challenge
military research and development however with ever-increasing improvements to
commercial remote sensing capability. In April 1999, the Space Imaging
Corporation aspired to exceed Russia's Spin-2 capability of two meters. The
Ikonos 1 satellite boasted digital black and white images to resolutions of one
meter. M. Mecham, Commercial Imaging to Enter 1-Meter Era, 150:17 AV. WK. &
SPACE TECH., Apr. 26, 1999, at 84. After launch on Apr. 27, 1999, the
satellite was lost when an electrical malfunction prevented the satellite from
separating from its booster. Athena/Ikonos Loss Caused by Open Circuit, 150:24
AV. WK. & SPACE TECH., June 14, 1999, at 82; C. Covault, Reviews Advance As New
Satellite Fails, 150:21 AV. WK. & SPACE TECH., May 24, 1999, at 61. The
subsequent launch of a successor satellite on Sept. 3, 1999 now makes one meter
resolution from space available to any purchaser.
n56 MIDAS was originally designated "Subsystem G" in the WS-117L program
before becoming its own separate system. PEEBLES, HIGH FRONTIER, supra note 43,
at 33. Previously, there were U.S. systems used to track space objects, however
none were focused on the distinctive heat signature left by an ICBM or IRBM.
n57 Id. at 38. In 1991, DSP satellites alerted coalition forces to the launch
of Iraqi Scud missiles-the first use of U.S. missile warning satellites in
combat. Id. at 39.
n58 Currently in development is the Space Based Infrared System (SBIRS) which
will incorporate the current DSP system. The SBIRS will include much more than
an early warning capability. Its operational requirements call for four mission
areas: missile warning, missile defense, technical intelligence, and battlespace
characterization. Federation of American Scientists, Space Based Infrared
System, Federation of American Scientists,
http://www.fas.org/spp/military/program/warning/sbir.htm (last visited June 28,
2000) (on file with the Air Force Law Review). The program originally entailed
development of four satellites in GEO and two more in highly elliptical orbits
(SBIRS-High), and a constellation of 24 additional satellites in low-earth orbit
(SBIRS-Low). The U.S. Air Force recently cancelled a demonstrator project for
the SBIRS-Low program citing costs and delays in the SBIRS-High program, which
is now scheduled for launch in 2004. Launch of the SBIRS-Low system is set for
2006. R. Wall, USAF Cancels SBIRS-Low Satellite Demonstrations, 150:6 AV. WK. &
SPACE TECH., Feb. 8, 1999, at 66; R. Wall, Pentagon Delays SBIRS Launch, 150:3
AV. WK. & SPACE TECH., Jan. 18, 1999, at 26.
n59 Though the early emphasis for military satellites was on scientific
exploration and reconnaissance, interest in a space-based telecommunications
network for the military began at least as early as Arthur C. Clarke's 1945
proposal to position three satellites in equidistant geosynchronous orbit
(22,500 miles) for near-global communications coverage. Because Clarke first
proposed use of the GEO for communications satellites, it is also sometime
referred to as the Clarke orbit. G.H. REYNOLDS & R.P. MERGES, OUTER SPACE:
PROBLEMS OF LAW AND POLICY 15 (2nd ed., 1997) [hereinafter REYNOLDS & MERGES].
The first communications satellite, Project Score, was launched on Dec. 18, 1958
and carried a tape-recorded Christmas message from President Eisenhower.
PEEBLES, HIGH FRONTIER, supra note 43, at 44. A subsequent effort, dubbed
Project West Ford, relied upon the release of 400 million copper dipoles of 0.7
inch length at an altitude of 2000 miles. The "needles" were to form a 25 to 30
mile wide ring around the earth off of which communications signals could be
reflected. After a successful test, the military terminated the program in the
face of vigorous scientific and environmental protests. Id. at 45. See also
DELBERT R. TERRILL, JR., THE AIR FORCE ROLE IN DEVELOPING INTERNATIONAL LAW
63-66 (1999). Other systems were used in the 1960s until the Interim Defense
Communications Satellite Program (IDCSP), later renamed the Defense Satellite
Communications System (DSCS) became operational in 1967. These were followed by
second and third generation satellites (DSCS II and DSCS III) providing
strategic communications from fixed military installations. These systems have
been updated by the MILSTAR system, "a totally secure, jam free system; its
terminals can be carried in a suitcase and set up in two and one-half minutes."
Donald J. Kutyna, Indispensable: Space Systems in the Persian Gulf War, in THE
U.S. AIR FORCE IN SPACE 1945 TO THE TWENTY-FIRST CENTURY 103, 117 (R. Cargill
Hall & Jacob Neufeld, eds., 1995). For mobile (tactical) communications, the DOD
has used systems such as the Lincoln Experimental Satellite (LES), the Tactical
Communications Satellite (TACSAT I), and the Navy's Fleet Satellite
Communications System (FLTSATCOM). PEEBLES, HIGH FRONTIER, supra note 43, at
47-50. For a discussion of the legal issues raised by military use of the former
International Mobile Satellite Organization's INMARSAT system, see infra Part
VI, @ E.1. The growth of military dependence on commercial communications
systems will only increase the legal and operational issues during times of
armed conflict. By 1999, approximately 60% of U.S. military satellite
communications traveled over commercial systems. W.B. Scott, Space Chief Warns
of Threats to U.S. Commercial Satellites, 150:15 AV. WK. & SPACE TECH., Apr. 12,
1999, at 51 [hereinafter Scott, Threats to U.S. Satellites].
n60 NASA's Tiros I satellite, launched on Apr. 1, 1960, created a revolution
in weather forecasting. However, it could not satisfy military needs for
coverage, readout locations, or timeliness. Scott, Threats to U.S. Satellites,
supra note 59 at 52. DOD developed a series of satellites in the 1960s placed in
450 mile polar orbits that became the Defense Meteorological Satellite Program
(DMSP). During the Vietnam war, cloud cover imagery from DMSP satellites became
the basis of target selection and mission planning. Id. at 53. The program's
existence was not publicly revealed until 1973. The DMSP has undergone numerous
upgrades since its inception, to include sensors detecting temperature,
atmospheric moisture, soil moisture, sea state, and ice cover. The DMSP has
supported all major U.S. military operations since the Vietnam War. Id. at 55.
n61 Id. at 59.
n62 Id. at 57. See also Air Force News Service, U.S. Discontinues Selective
Availability of GPS to Public, May 2, 2000 (on file with author).
n63 HEPPENHEIMER, supra note 15, at 348-49.
n64 W.J. BOYNE, BEYOND THE WILD BLUE: A HISTORY OF THE U.S. AIR FORCE 274
(1998). Because the U.S. made use of the system available to commercial and
civil users shortly after the destruction of Korean Airlines Flight 007 by the
Soviet Union in 1983, it opened a possible security risk from a military point
of view. One nightmare scenario for security analysts is the specter of a "poor
man's cruise missile" in the hands of hostile States or terrorists - that is, an
old weapon suddenly made extremely accurate by use of GPS. SHUKMAN, supra note
39, at 166. As a result, the U.S. initially degraded the accuracy of the primary
signal, establishing the difference between a "coarse acquisition code" and the
encrypted "precise code," to protect the military advantage the system offers
its military and that of its allies. Recent developments associated with the
U.S. military's Joint Direct Attack Munition (JDAM) put the required military
position accuracy of the system at 3 meters. With growing reliance on the system
by foreign and domestic non-military users as well, the potential liability to
the U.S. has increased proportionately. B.D. Nordwall, World Pressure Grows for
Regional GPS Augmentations, 147:22 AV. WK. & SPACE TECH., Dec. 1, 1997, at 66.
As of May 1, 2000, President Clinton directed that the DOD provide the
undegraded signal for public use. In discontinuing "selective availability," the
President stated that future threats could be dealt with by applying selective
availability on a regional basis as needed. Air Force News Service, U.S.
Discontinues Selective Availability of GPS to Public, May 2, 2000 (on file with
author). For a thorough analysis of potential U.S. liability both under domestic
and international law, see Jeffrey A. Rockwell, Liability of the United States
Arising Out of the Civilian Use of the Global Positioning System (1996)
(unpublished LL.M. thesis, McGill University) (on file with author, and the
Nahum Gelber Law Library, McGill University).
n65 SHUKMAN, supra note 39, at 163 (from a classified Pentagon assessment of
the performance of GPS in the Gulf War).
n66 Id. at 163.
n67 In Operation Allied Force, the NATO allies made heavy use of GPS for
navigation and precision-guided targeting. C. Covault, Recon, GPS Operations
Critical to NATO Strikes, 150:17 AV. WK. & SPACE TECH., Apr. 26, 1999, at 35.
However, heavy military reliance on GPS is a double-edged sword because the
system is still extremely vulnerable to jamming. Interference by electronic
jamming, or even destruction of part of the system by anti-satellite weaponry,
might cripple a military force having abandoned its skills in other forms of
navigation. SHUKMAN, supra note 39, at 164-65.
n68 Vlasic, Space Law and Military Applications, supra note 11, at 397, 398.
n69 For a discussion of the problem of defining "space weapon," see notes
558-565 and accompanying text.
n70 An example of the latter is the U.S. ASAT Air-Launched Miniature Vehicle
(ALMV). First tested against a functioning satellite on Sept. 13, 1985, the ASAT
"kill vehicle" was launched aboard a missile from an F-15 for ascent to the
target satellite and destruction by impact. "The warhead, or Miniature Vehicle
(MV), is an extremely complex and sophisticated device consisting of eight
cryogenically cooled infrared telescopes, a laser gyro, and sixty-four small
computer-controlled rockets used for final course adjustments before colliding
with the target. All this is packed into a 12-by-13 inch casing. After being
guided to and released near the target, the Miniature Vehicle homes in on the
heat emitted by the satellite and rams into it with sufficient force to destroy
it." PAUL B. STARES, SPACE AND NATIONAL SECURITY 99 (1987) [hereinafter STARES,
SPACE AND NATIONAL SECURITY]. See also C. Covault, Antisatellite Weapon Design
Advances, 112:24 AV. WK. & SPACE TECH., June 16, 1980, at 243. In terms of
destructive classification, the ALMV is a kinetic energy weapon.
n71 Though the previous SAINT ("satellite interceptor") system had been
developed, it was never fielded. The latter system, known simply as Program 437,
utilized a nuclear warhead launched atop a Thor IRBM from Johnson Island in the
South Pacific. With a yield of 1 megaton, the warhead had a kill radius of 5
miles. The U.S. declared the system fully operational on June 10, 1964, and it
remained in service or available for speedy redeployment until it was terminated
on Apr. 1, 1975. See PEEBLES, HIGH FRONTIER, supra note 43, at 62-65.
n72 COLLINS, MILITARY SPACE FORCES, supra note 12, at 28.
n73 In a vacuum, winds do not blow and shock waves cannot develop where no
medium such as air, water, or earth resists compression. As for heat, the
fireballs normally associated with nuclear blasts in the air do not occur above
65 miles (approximately 100 km). Id. at 29.
n74 By contrast, collateral damage from initial nuclear radiation "regardless
of type, is indiscriminate, . . . [and] would be difficult to predict and
expensive to control." Id. at 31.
n75 Such an event was portrayed in the James Bond Hollywood production
n76 COLLINS, MILITARY SPACE FORCES, supra note 12, at 29.
n77 Id. at 31.
n78 Id. at 30.
n80 Id. The ionosphere exists from 30 to 500 miles (approximately 48 to 805
km) above the earth's surface. Id. at 9.
n81 During a detonation at 48 miles (77 km) altitude on Aug. 1, 1958 over
Johnson Island, the U.S. observed the degradation of high frequency radio
traffic throughout a region several thousand miles in diameter for a period of
approximately six hours. Id. at 29.
n82 Indeed the Soviet Union used an array of 64 nuclear tipped anti-ballistic
missiles around Moscow as a small-area missile defense system. Code named
"Galosh," the system undoubtedly could be converted into an ASAT system. STARES,
SPACE AND NATIONAL SECURITY, supra note 70, at 96.
n83 PEEBLES, HIGH FRONTIER, supra note 43, at 59.
n84 J.C. Anselmo, U.S. Seen More Vulnerable to Electromagnetic Attack, 147:4
AV. WK. & SPACE TECH., July 28, 1997, at 67.
n85 Ivan Bekey, Force Projection from Space, in (unnumbered Space
Applications Volume) NEW WORLD VISTAS: AIR AND SPACE POWER FOR THE 21ST CENTURY,
at 83, 84 (1995) [hereinafter Bekey].
n87 Id. at 85. With respect to information warfare, the report gives a number
of examples: network viruses, disinformation, memory erasures, and false
signals. For a brief discussion of information warfare and its relation to
space combat, see infra Part VI, @ D.
n88 For example, a 4,000 pound automobile would have to travel almost 270
miles per hour to equal the kinetic energy of a one-pound projectile traveling
at 4.7 miles per second. DAVID E. LUPTON, ON SPACE WARFARE: A SPACE POWER
DOCTRINE 22 (1988).
n89 B. Jasani, Space Weapons and International Security-An Overview, in
SPACE WEAPONS AND INTERNATIONAL SECURITY 22 (B. Jasani, ed., 1987) [hereinafter
Jasani, Space Weapons].
n90 Federation of American Scientists, Kinetic Energy Anti-Satellite,
Federation of American Scientists,
http://www.fas.org/spp/military/program/asat/keasat.htm (last visited June 29,
2000) (on file with the Air Force Law Review).
n93 Bekey, supra note 86, at 83.
n94 M. Potter, Gun Launch to Space: International Policy and Legal
Considerations, in PROCEEDINGS OF THE THIRTY-FOURTH COLLOQUIUM ON THE LAW OF
OUTER SPACE 305 (1992).
n95 Id. at 306.
n96 STARES, THE MILITARIZATION OF SPACE, supra note 40, at 111.
n97 During the height of research on the Strategic Defense Initiative many
scientists openly questioned that a missile defense project involving
space-based lasers could ever work. The Union of Concerned Scientists declared
that an effective defense of the U.S. against a Soviet missile defense was
unattainable. A report from the Congressional Office of Technology Assessment
claimed the likelihood that such a system could protect the U.S. from Soviet
missile attack "so remote that it should not serve as the basis for public
expectations or national policy." L.B. TAYLOR, JR., SPACE: BATTLEGROUND OF THE
FUTURE? 24 (rev. ed., 1988) (quoting Edward Edelson, Space Weapons: The Science
Behind the Big Debate, POPULAR SCIENCE (July 1994)) [hereinafter TAYLOR]. Partly
because of the tremendous technical difficulties, the program began to refocus
on earth-based lasers.
n98 The other ground-based program is a free-electron laser designed to
reflect its high-energy beam off orbiting space mirrors for redirection back to
n99 Federation of American Scientists, Mid-Infrared Advanced Chemical Laser,
Federation of American Scientists,
http://www.fas.org/spp/military/program/asat/miracl.htm (last visited June 29,
2000) (on file with the Air Force Law Review). The beam is created via chemical
Just downstream from the combustor, deuterium and helium are injected into the
exhaust. Deuterium combines with the excited fluorine to give excited deuterium
fluoride molecules, while the helium stabilizes the reaction and controls the
temperature. The laser's resonator mirrors are wrapped around the excited
exhaust gas and optical energy is extracted. The cavity is actively cooled and
can be run until the fuel supply is exhausted. The laser's output power can be
varied over a wide range by altering the fuel flow rates and mixture.
n100 Sami Fournier, U.S. Text-Fires 'MIRACL' at Satellite Reigniting ASAT
Weapons Debate, (Oct. 1997) Arms Control Association,
http://www.armscontrol.org/ACT/oct97/miracloct.htm (on file with the Air Force
Law Review) [hereinafter Fournier].
n101 M.A. Dornheim, Laser Engages Satellite, With Questionable Results,
147:17 AV. WK. & SPACE TECH., Oct. 27, 1997, at 27. The test was not intended to
destroy the satellite but merely examine what various MIRACL power levels could
do to the target satellite's sensors. An official reported that the anticipated
data gathering from the satellite was unsuccessful.
n102 Following the test, the Russian Foreign Ministry issued a statement
saying that the laser "may become a step toward creating an anti satellite
potential." Fournier, supra note 100. Even before the test, several U.S.
lawmakers sent President Clinton a letter stating "we are deeply troubled that a
test of a ground based laser system with such obvious ASAT warfare capabilities
would proceed ahead of any debate or deliberate policy development." Id.
n103 D.A. Fulghum, Airborne Laser Aimed At New Defense Roles, 149:14 AV. WK.
& SPACE TECH., Oct. 5, 1998, at 111; D.A. Fulghum, Airborne Laser Tested,
Weighed for New Missions, 147:17 AV. WK. & SPACE TECH., Oct. 27, 1997, at 26.
The ABL program manager, Colonel Michael Booen, stated that "this [laser's
success] is going to break the door down for directed energy weapons." Id.
n104 W. Matthews, Laser Faces 'Challenges,' Report Says, A.F. TIMES, Jan. 19,
1998, at 24.
n105 Federation of American Scientists, Space Based Laser, Federation of
American Scientists, http://www.fas.org/spp/starwars/program/sbl.htm (last
visited June 29, 2000) (on file with the Air Force Law Review).
n106 J.R. Asker, Washington Outlook, 150:21 AV. WK. & SPACE TECH., May 24,
1999, at 27.
n107 M.A. Dornheim, Pentagon Mulls Space Laser Test, 148:12 AV. WK. & SPACE
TECH., Mar. 23, 1998, at 32.
n108 STARES, THE MILITARIZATION OF SPACE, supra note 40, at 111.
n109 Another theorized advantage of directed energy (DE) weapons will be the
range of employment options offered. These could fill the gap between diplomacy
and bombs by allowing for an escalating scale of destructive from minor
disruption to the target to total destruction. See W.B. Scott, 'Beam' Weapons
Edging Into Arsenal, 151:1 AV. WK. & SPACE TECH. July 5, 1999, at 53.
n110 TAYLOR, supra note 97, at 33. Because of its great speed and capacity
for repeat firing, Taylor suggests that particle beams "would do to the
ballistic missile virtually what the machine gun did to the infantry charge."
Id. at 34.
n111 Id. at 33.
n112 Id. at 35.
n113 Some conceive this ASAT as a kinetic energy weapon. "The Soviet ASAT
system could be categorized as a rocket-propelled KEW [kinetic energy weapon]."
Jasani, Space Weapons, supra note 89, at 19. However, as its title suggest, a
kinetic energy weapon derives its value as a weapon not from an explosive
capacity, if any, but its kinetic energy. The design of the Soviet System relies
heavily on its explosive charge; the ASAT need not even physically impact its
n114 STARES, SPACE AND NATIONAL SECURITY, supra note 70, at 87. The average
wait before launch can occur in order to attack a specific satellite is six
hours. Id. at 88.
n115 Id. at 86.
n116 Reportedly, the Russians resumed ASAT testing in April of 1999 with a
design that will utilize an EMP. As reported, the Pentagon considers this a
"serious development" given that satellites are the "Achilles' heel of the U.S.
military's high-technology force used for sending orders to forces around the
world as well as communicating with troops and organizing logistics." B. Gertz &
R. Scarborough, Russian ASAT, WASH. TIMES, June 18, 1999, at 9.
n117 A.A. Kokoshin, et al., Measures for Counteracting Space Strike Weapons,
in SPACE WEAPONS AND INTERNATIONAL SECURITY 92 (B. Jasani, ed., 1987).
n118 See Bekey, supra note 86, at 87.
n120 This article uses the phrases "law of war," "law of armed conflict," and
"humanitarian law" as being essentially synonymous. Historically, "law of war"
has been used, although "law of armed conflict" is more accurate given that such
law applies in cases of conflict not amounting to war. "Law of war" will
generally be used in order to highlight the connection between the relevant
treaty regimes, rooted in the first five decades of the twentieth century, and
current State practice. Some scholars articulate distinctions among the three
phrases noting for example that humanitarian law is that subset of the law of
war that concerns itself specifically with the reduction of human suffering.
However, because the reduction of suffering is ultimately the goal of all
restrictions on the means and methods of warfare, such distinctions seem overly
technical. Others, such as the International Court of Justice (ICJ), prefer the
term "international humanitarian law" which it describes as the synthesis of
"Hague Law," governing means and methods of warfare, and "Geneva Law," governing
the protection of the victims of war. See The Legality of the Threat or Use of
Nuclear Weapons, 1996 I.C.J. 1, at 27 [hereinafter ICJ Advisory Opinion on
Nuclear Weapons]. This definitional framework is ultimately helpful as it
attempts to contain the full range of law governing the use of force in combat
to a single category of international law. However, use of terms like
"humanitarian" when applied to limits on war's means and methods risks merely
equating the law of war with human rights law. On the dangers associated with
doing so, see infra notes 176 and 220. On the connection between human rights
law and the law of war, see Howard Levie, Violations of Human Rights in Time of
War As War Crimes, in 70 INTERNATIONAL LAW STUDIES, LEVIE ON THE LAW OF WAR 373
(Michael N. Schmitt & Leslie C. Green, eds., 1998); Rene Provost, Reciprocity in
Human Rights and Humanitarian Law, 1994 BRIT. Y.B. INT'L L. 383 (1995).
n121 Schmitt, Bellum Americanum, supra note 6, at 412.
n122 Reasons commonly include: diminishing suffering, diminishing the moral
depravation of the soldiers, lessening the dangers that threaten the survival of
our civilization, lessening the dangers that threaten the survival of mankind,
favorably impacting the peacetime creation of doctrines and weapons, and
furthering the cause of disarmament to the extent specific weapons are
prohibited. B.V.A. Roling, The Significance of the Laws of War, in CURRENT
PROBLEMS IN INTERNATIONAL LAW: ESSAYS ON U.N. LAW AND ON THE LAW OF ARMED
CONFLICT 133 (A. Cassese, ed., 1975). To these six might be added a seventh and
eighth - increased chances for the restoration of peace following armed
hostilities, and, somewhat paradoxically, increased military efficiency by
requiring the focused application of force.
n123 For some, "ironic" is the gentle way of putting it. Some authors express
outright cynicism that the project of regulating warfare can ever succeed.
Others provide examples leading to a measured skepticism over various aspects of
the law of war. This skepticism can take the form either that military forces
and their civilian leaders cannot be trusted to follow the law when war begins,
or that the law simply does not regulate consistently. An example of the former
relates to action at the First Hague Peace Conference to phrase principles of
warfare restrictively subject to exceptions, rather than permissively subject to
restrictions. As Hays Parks notes, "this is a manifestation of the fundamental
distrust international lawyers have for things military, and a reluctance to
permit battlefield commanders any latitude in situations that require a judgment
call." W. Hays Parks, Air War and the Law of War 32:1 A.F. L. REV. 1, 14 n.54
(1990) [hereinafter Parks]. Regarding the latter form of skepticism,
Doswald-Beck claims that the law's prohibition of certain forms of bullets
without an unambiguous prohibition of nuclear weapons "creates skepticism
regarding the seriousness of any of the law of war." L. Doswald-Beck,
Implementation of International Humanitarian Law in Future Wars, in 71
INTERNATIONAL LAW STUDIES THE LAW OF ARMED CONFLICT: INTO THE NEXT MILLENNIUM,
39 at 43 (Michael N. Schmitt & Leslie C. Green, eds., 1998).
n124 Those viewing war as necessarily barbaric, for reasons of strategy or
otherwise, react coolly to the whole notion of rules, or moderation in war.
Thus, British Vice Admiral Sir John Fisher declared at the 1899 Hague Peace
Conference that humanizing war was tantamount to humanizing hell. His suspicion
at the law of war flowed from his view of the very nature of war:
what you call my truculence is all for peace. If you rub it in, both at home and
abroad, that you are ready for instant war with every unit of your strength in
the first line, and intend to be first in, and hit your enemy in the belly, and
kick him when he is down, and boil your prisoners in oil (if you take any!), and
torture his women and children, then people will keep clear of you.
Parks, supra note 123, at 13 n.50.
n125 Charles Dunlap, A Virtuous Warrior in a Savage World, 8 A.F. ACAD. J.
LEGAL STUD. 71, 89 (1997-1998) (quoting Richard Overy, WHY THE ALLIES WON 302-05
n126 Such an argument assumes a certain form of warfare that values and
benefits from order. Theoretically, guerilla or terrorist tactics could eschew
the type of "order" discussed here. But even these methods of warfare assume a
certain level of coordination, planning, and thus order.
n127 Carl von Clausewitz famously wrote that,
war is not merely an act of policy but a true political instrument, a
continuation of political intercourse, carried on with other means. What remains
peculiar to war is simply the peculiar nature of its means . . . . The political
object is the goal, war is the means of reaching it, and means can never be
considered in isolation from their purpose.
CARL VON CLAUSEWITZ, ON WAR, 87 (M. Howard, & P. Paret, trans. & eds., 1976)
[hereinafter CLAUSEWITZ]. Elsewhere, Clausewitz describes how ugly those "other
means" really are:
If one side uses force without compunction, undeterred by the bloodshed it
involves, while the other side refrains, the first will gain the upper hand.
That side will force the other to follow suit; each will drive its opponent
toward extremes, and the only limiting factors are the counterpoises inherent in
war . . . . It would be futile-even wrong-to try and shut one's eyes to what war
really is from sheer distress at its brutality.
Id. at 75-76.
n128 Thus ancient Chinese strategist Sun Tzu "did not conceive the object of
military action to be the annihilation of the enemy's army, the destruction of
his cities, and the wastage of his countryside. 'Weapons are ominous tools to be
used only when there is no alternative.'" Samuel B. Griffith, Introduction to
SUN TZU, THE ART OF WAR, 1, 40 (S.B. Griffith, trans., 1963). The dichotomy
between the approaches of Clausewitz and of Sun Tzu led B.H. Liddell Hart to
Civilization might have been spared much of the damage suffered in the world
wars of this century if the influence of Clausewitz's monumental tome On War,
which moulded European military thought in the era preceding the First World
War, had been blended with and balanced by a knowledge of Sun Tzu's exposition
on 'The Art of War.'
B.H. Liddell Hart, Forward to SUN TZU, THE ART OF WAR v (S.B. Griffith, trans.,
n129 One need only view two recent Hollywood productions, Saving Private Ryan
and The Thin Red Line, to experience the horrors of war beyond the written word.
In both cases, the films vividly portray the existential horrors of warfare
(violent death, mutilation, betrayal, savagery, terror) through realistic
reenactment. Yet even the film medium, powerful as it is, cannot reproduce the
feelings experienced in war either by the combatant or the noncombatant. Beyond
this, Saving Private Ryan, in particular, included reenactment of several
violations of the law of war. In one case toward the end of the film, a young
American soldier is shown killing a German soldier who had his hands in the air
and had surrendered his weapon and intent to resist, thus entitling himself to
protection as a prisoner of war. Though the 1949 Geneva Convention (III)
Relative to the Treatment of Prisoners of War had not yet come into existence at
the time of this depiction, the 1907 regulations annexed to the Hague Convention
(IV) on land warfare had. These regulations, which governed military conduct
during WWII, unambiguously required humane treatment for prisoners of war. The
young American is portrayed as being the underdog having impotently witnessed
another German lawfully, though agonizingly, killing an American compatriot just
moments before. Perhaps the most troubling aspect of this scene is the
unfortunate effect it likely has on most American audiences. Rather than
producing feelings of distaste at having witnessed a war crime, the screenplay
appears designed to elicit a sense of euphoria that the younger, weaker American
finally got the enemy. To the extent that the popular media manipulates public
opinion in ways such as this, respect for the law of war is not engendered, but
diminished. This is not to disparage this particular movie. The Secretary of
Defense rightly honored director Steven Spielberg on Aug. 11, 1999 at a ceremony
during which the Secretary awarded him the DOD Distinguished Civilian Public
Service Award for successfully honoring the memory of a past generation that
made the ultimate sacrifice in a just cause. The example is simply intended to
highlight dangers that may exist for the law of war in the popular mind coming
out of even magnificent works such as Saving Private Ryan.
n130 E.J. Osmanczyk, War, in THE ENCYCLOPEDIA OF THE UNITED NATIONS AND
INTERNATIONAL RELATIONS, 1018 (2nd ed., 1990). Horrible as it is, Malanczuk
notes that war has not always been perceived as it is today.
It is hard to realize that during the eighteenth and nineteenth centuries most
people (except for a few pacifists) regarded war in much the same way as they
regarded a hard winter - uncomfortable, certainly, but part of the settled order
of things, and providing excellent opportunities for exhilarating sport; even
the wounded soldier did not regard war as wrong, any more than the skier with a
broken leg regards skiing as wrong.
PETER MALANCZUK, AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL LAW 308 (7th
ed., 1997) [hereinafter MALANCZUK, INTRODUCTION TO INTERNATIONAL LAW].
n131 Despite some vigorous dissent, the law of war has influenced the conduct
of armed forces in many ways. As examples to the contrary, consider Cicero's
oft-quoted maxim inter arma silent leges (lit. "in war the law is silent"), and
professor Fenwick's pessimistic candor, "it is futile to attempt to revive [the
laws of war] . . . . Let's face the facts. War has got beyond the control of law
. . . . The sooner every man, woman and child old enough to think realizes that
he will be a party to the next war, the better." C.G. Fenwick, 43 PROC. AM.
SOC'Y INT'L L. 110 (1949) (transcript of oral response to W. Downey, Jr.,
Revision of the Rules of Warfare). Roberts and Guelff cite several international
norms that have been observed principally because of the law of war including,
humane treatment of prisoners, a state's entitlement to neutral status,
illegitimacy of certain targets, and that persons not active in the conflict
should be spared from the consequences of the fighting to the extent possible.
Adam Roberts & Richard Guelff, Introduction to DOCUMENTS ON THE LAWS OF WAR, 1,
14 (Adam Roberts & Richard Guelff, eds., 1989) [hereinafter Roberts & Guelff].
n132 Because the law of war is a matter of public international law, and
regulates the conduct of States relative to each other, it does not ordinarily
regulate purely internal, civil wars. Nonetheless, certain regional agreements
relate to internal conflicts. Further, Roberts and Guelff note that,
customary international law provided that the laws of war might become
applicable to a non-international conflict through the doctrine of 'recognition
of belligerency' . . . [by which] the government of a state in which an
insurrection existed could recognize the belligerency of the insurgent faction,
and the laws of war would thereby become applicable.
Roberts & Guelff, supra note 131, at 12. The authors further note that the
doctrine of recognition of belligerency has fallen into decline, and that the
surer basis for application of certain fundamental humanitarian provisions in
non-international conflicts is Common Article 3 of the four 1949 Geneva
Conventions. Id. at 13. Finally, while the 1977 Geneva Protocol II is intended
to expand the provisions of Common Article 3, it too applies only during the
existence of an "armed conflict."
n133 "Today humanitarian law is applicable in any international armed
conflict, even if the parties to that conflict have not declared war and do not
recognize that they are in a formal state of war." Christopher Greenwood,
Historical Development and Legal Basis, in THE HANDBOOK OF HUMANITARIAN LAW IN
ARMED CONFLICT 1, 10 (Dieter Fleck, ed., 1995). As Greenwood uses the term,
"international humanitarian law" is synonymous with the older phrase "law of
war" (with the exception of the law of neutrality), the former including all
rules designed to regulate the treatment of the individual-civilian or military,
wounded or active-as well as rules governing the means and methods of warfare.
Id. at 9.
n134 See infra, Part III, @ C.4.
n135 MICHAEL WALZER, JUST AND UNJUST WARS: A MORAL ARGUMENT WITH HISTORICAL
ILLUSTRATIONS 21 (2d. ed., 1977).
n136 THOMAS FRANCK, FAIRNESS IN INTERNATIONAL LAW AND INSTITUTIONS 246
(1995). Though Franck frames the distinction in moral categories (i.e. "just"),
the context makes clear he is asserting that the early development of
international legal norms mirrored those of the "just war" tradition-an ethical
as well as a legal theory of warfare. Franck claims that this tradition held
sway in Western societies as both a legal and ethical theory until the 1648
Peace of Westphalia ushered in an international order based on "a balance of
power among sovereign nations [rather than] the ideal of a unified empire under
God and right reason. This Westphalian system remained in place until the
outbreak of war in 1914. Positivism largely banished notions of just war from
the realm of law to the outer marches of moral philosophy." Id. at 252.
n137 Fritz Kalshoven, Laws of War, in 4 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL
LAW 316 (Bernhardt, ed., 1982).
n138 MALANCZUK, INTRODUCTION TO INTERNATIONAL LAW, supra note 130, at 306.
n139 Arguably, prior to 1928 and execution of the Treaty of Paris
(Kellogg-Briand Pact) which purported to outlaw warfare as a legitimate means of
dispute resolution, there was no such thing as a jus ad bellum. While there were
ethical principles relating to conditions for a "just war" and for self-defense,
nothing approached the level of international law. Even the Treaty of
Versailles, which took initial steps toward conditioning the use of force (e.g.
Article 16 which made acts of war against any member of the League of Nations
acts of war against all members), did not explicitly ban war itself. Treaty of
Versailles, art. 16, (1919 Supp.) 13 AM. J. INT'L L. 2.
n140 Roberts & Guelff, supra note 131, at 1.
n141 This is subject to the clarification that while the law of war as a body
of legal principles does work to limit the means and methods of warfare, those
principles recognize that in the world of fact (versus legal principle) acts of
combat exist and may even appear to be allowed by reference to the relevant
legal principle. Some may view this reference to legal principles as
authorization, as for example in this reference to the principle of military
necessity: "I did X, an otherwise prohibited act, because it was militarily
necessary." For a discussion of military necessity, see infra, Part III, @ B.1.
But to view the law of war as authorizing or enabling behavior, misses a
fundamental principle of international law. Professor Schmitt, author of the
foregoing military necessity example, puts it best: "To exist as a principle of
law, military necessity must have independent legal valence. That can, by
definition, only occur when it is characterized as a limitation, for, as a
general rule, all that is not prohibited in international law is permitted."
Michael N. Schmitt, Book Review: Law on the Battlefield 8 A.F. ACAD. J. L. STUD.
255, 257 (1997-1998) (reviewing A.P.V. ROGERS, LAW ON THE BATTLEFIELD (1996))
[hereinafter Schmitt, Book Review]. This analysis applies to all principles and
tenets of the law of war-thus all are restrictions on behavior. As for the
general proposition in international law that all that is not forbidden is
permitted, the International Court of Justice recently quoted from two previous
cases, as it recounted the position of several States leading up to its advisory
opinion on the threat or use of Nuclear Weapons. See ICJ Advisory Opinion on
Nuclear Weapons, supra note 120 (referencing the Steamship Lotus and Nicaragua
cases). In the Steamship Lotus case, the Permanent Court of International
Justice (P.C.I.J.) stated that "restrictions upon the independence of States
cannot . . . be presumed" and that international law leaves to States "a wide
measure of discretion which is only limited in certain cases by prohibitive
rules." P.C.I.J. (ser. A) No. 10, at 18-19. Then more recently, the
International Court of Justice stated that "in international law there are no
rules, other than such rules as may be accepted by the State concerned, by
treaty or otherwise, whereby the level of armaments of a sovereign state can be
limited." Military and Paramilitary Activities (Nicar. v. U.S.) 1986 I.C.J. 4,
135. Though the latter language specifically addressed armaments, it rests on
the rationale from the Steamship Lotus case-unless prohibited, an action is
n142 Convention (II) with Respect to the Laws and Customs of War on Land,
July 29, 1899, (1907 Supp.) 1 AM. J. INT'L L. 129.
n143 These four principles are generally viewed as summarizing the customary
law of war, though this enumeration is not accepted universally. Thus, Hays
Parks describes the concept of proportionality as subordinate to, and an
expression of, discrimination. He argues that discrimination is attended today
with some confusion "because of the attempted injection of the concept of
proportionality into the law of war." Parks, supra note 123, at 5 n.18. By
contrast, Professor Schmitt subordinates distinction to proportionality, and
recognizes chivalry as a forth distinct customary principle. See Michael N.
Schmitt, Green War: An Assessment of the Environmental Law of International
Armed Conflict 22:1 YALE J. INT'L L. 1, 52 (1997) [hereinafter Schmitt, Green
War]. Whatever the formulation however, each approach includes the relevant
prescriptive norms as developed in customary law, while giving special emphasis
to some but not others.
n144 As the subsequent analysis shows, the law demands such restraint whether
the operation in question is offensive or defensive in nature.
n145 FREDERIC DE MULINEN, HANDBOOK ON THE LAW OF WAR FOR ARMED FORCES 82-83
(Int'l Committee of the Red Cross 1987) [hereinafter DE MULINEN]. Perhaps
subpart (b) of this formulation is the more important as subpart (a), simply
invoking that which is not forbidden by the law of war, could apply to any
principle of the law of war and says nothing unique about the restrictions
imposed by military necessity.
n146 Such was the case in nineteenth century Germany as expressed through the
doctrine of Kriegsraison. This concept, an interpretation of the traditional
notion of military necessity, asserted that military necessity "could justify
any measures - even in violation of the laws of war - when the necessities of
the situation purportedly justified it." Air Force Pamphlet 110-31, The Conduct
of Armed Conflict and Air Operations P1-3(a)(1) (Nov. 19, 1976) (reissue
pending as AFPAM 51-710) [hereinafter AFP 110-31]. Abuse of the principle
continued into the twentieth century as Carnahan notes: "The modern denigration
of military necessity goes back at least to the Nuremberg trials after World War
II, where some defendants argued that military necessity justified their
atrocities against civilian populations." He continues that "military necessity
is widely regarded today as an insidious doctrine invoked to justify almost any
outrage. As a result, the principle has not been allowed to play the creative
role that it is capable of playing." Bruce M. Carnahan, Lincoln, Lieber and the
Laws of War: The Origins and Limits of the Principle of Military Necessity 92
AM. J. INT'L L. 213, 230 (1998) [hereinafter Carnahan, Lincoln, Lieber and the
Laws of War].
n147 For a discussion addressing this error, see supra note 141.
n148 Schmitt, Green War, supra note 143, at 54.
n149 AFP 110-31, supra note 146, at P1-6(b).
n150 Also termed "distinction."
n151 Roberts & Guelff, supra note 131, at 5.
n152 Professor Green, quoting from a treatise dating to 1802, states that "it
is only with the writers of the nineteenth century that either a clear
definition or the rights of soldiers or the first usage of the term 'combatants'
is found." LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 101 (1993)
n153 Thus, the law protects those combatants who are captured, wounded, sick,
or shipwrecked. The combatant category also does not include every member of the
military force, for example chaplains and medical personnel.
n154 Annex to the Convention, Regulations Respecting the Laws and Customs of
War on Land, Oct. 18, 1907, art. 1, (1908 Supp.) 2 AM. J. INT'L L. 90 (entered
into force Jan. 26, 1910) [hereinafter Hague Convention (IV) Annex]. Those
military members who should ordinarily fit this category but do not for failure
to comply with one of its terms, such as soldiers not wearing a uniform or
concealing their weapons, become "unlawful combatants" and risk loss of
protections afforded to lawful combatants.
n155 Admiral Robertson notes the fundamental character of the principle of
discrimination, and thus of military objective, by reference to the
International Court of Justice Advisory Opinion on Nuclear Weapons. There the
court opined that military objective is one of the two "cardinal principles" of
the law of armed conflict (the other being the prohibition on the use of weapons
causing unnecessary suffering to combatants). H.B. Robertson, The Principle of
the Military Objective in the Law of Armed Conflict, 8 A.F. ACAD. J. LEGAL STUD.
35 (1997-1998) (citing ICJ Advisory Opinion on Nuclear Weapons, supra note 120,
at 28) [hereinafter Robertson].
n156 Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and
Relating to the Protection of Victims of International Armed Conflicts (Protocol
I), Dec. 12, 1977, art. 48, 1125 U.N.T.S. 3. (entered into force Dec. 7, 1978)
[hereinafter Protocol I].
n157 Id., art. 52(2). Though not adopted universally as a treaty rule,
Admiral Robertson notes that Protocol I's provisions on military objective from
Articles 48 and 52 are widely incorporated into military manuals and are
"recognized as a norm of customary international law." Robertson, supra note
155, at 44.
n158 For further discussion of this point, see infra note 196.
n159 See Declaration (XIV) Prohibiting the Discharge of Projectiles and
Explosives from Balloons, Oct. 18, 1907, 36 Stat. 2439; Declaration (IV, 1) To
Prohibit for the Term of Five Years the Launching of Projectiles and Explosives
from Balloons, and Other Methods of a Similar Nature, July 29, 1899, 32 Stat.
n160 Schmitt's observation bears repeating.
[The law of armed conflict] is no longer a body of law designed to ensure a fair
fight between two opponents . . . . Today, the law of armed conflict is designed
primarily to minimize suffering and prevent unnecessary destruction. This being
so, belligerents are held to the standards to which they are capable of rising.
Schmitt, Bellum Americanum, supra note 6, at 412. Schmitt's implication is that
technological advancement comes at some cost with respect to the law of war; the
more effectively weapons can avoid unnecessary destruction, the less ability
belligerents legally have in allowing for the possibility of such destruction.
n161 In this way, proportionality differs from the principle "economy of
force." Schmitt, Green War, supra note 143, at 55 n.267.
n162 This principle not only governs the use of force during the ongoing
operations of armed conflict, but during an act of self-defense under Article 51
of the Charter of the United Nations as well. See infra note 262. Thus, it is a
"rule well established in customary international law" that in exercising its
right to self-defense, a State may only use "measures which are proportional to
the armed attack and necessary to respond to it." Military and Paramilitary
Activities (Nicar. v. U.S.), 1986 I.C.J. 4, 94. The U.S. took the position that
the lawfulness of an act of self-defense depends in part on the necessity and
the proportionality of the measures taken. Id. at 103.
n163 Roberts & Guelff, supra note 131, at 5. The concept of reprisals has
proven controversial in international law. In 1977, Protocol I to the Geneva
Conventions sought to eliminate a form of reprisal taken against civilians or
the civilian population. Professor Green explains that reprisals are "otherwise
illegal measures taken in response to prior illegal measures of the adverse
party and which are intended to cause the adverse party to cease its illegal
activities and comply with the law. They are not measures taken simply by way of
retaliation." GREEN, supra note 152, at 331, 332. Abraham Sofaer points out that
the U.S. decision not to ratify the Geneva Protocol I came, in part, because it
narrowed the right of reprisal. He further states that this factor was of
concern to the U.S. Joint Chiefs of Staff, and that it "would hamper the ability
of the United States to respond to an enemy's intentional disregard of the
limitations established in the Geneva Conventions of 1949 or Protocol I."
Abraham Sofaer, Agora: The U.S. Decision Not to Ratify Protocol I to the Geneva
Conventions on the Protection of War Victims, 82 AM. J. INT'L L. 784, 785
(1988). Interestingly, Parks attributes the failure of the diplomatic
conference to produce fundamental agreement among the delegations to the
"cultural and philosophical differences that were substantially greater than
they had been [at the Hague in 1907 and Geneva in 1949]." He further points out
that many delegations were led by international lawyers lacking subject-matter
expertise; "no delegation had a military officer of the stature of a Mahan,
Fisher, or Rodgers." Parks, supra note 123, at 76.
n164 F.J.S. Gomez, The Law of Air Warfare 323 INT. REV. RED CROSS 347, 354
(1998) [hereinafter Gomez].
n166 In some formulations, chivalry receives attention as a separate
customary principle. As it has developed in the law of war, chivalry
distinguishes between acts of deception that undermine the goodwill of the
enemy, and those that do not. Thus, acts of perfidy are always prohibited. As
enumerated in Article 37 of Protocol I to the Geneva Conventions, these
prohibited acts include feigning an intent to negotiate under a flag of truce or
of a surrender, feigning an incapacitation by wounds or sickness, feigning
civilian or non-combatant status (such as marking of combat aircraft with the
international symbols affording protection as medical aircraft), and feigning
protected status by the use of signs, emblems, or uniforms of the United Nations
or of neutral States. By contrast, the law does not prohibit "ruses," such as
the use of camouflage, decoys, mock operations, and misinformation, which
deceive the opponent yet do not betray his confidence in measures requiring his
goodwill and which are intended to ameliorate the effects of war. Protocol I,
supra note 156, art. 37.
n167 Schmitt, Bellum Americanum, supra note 6, at 409.
n168 As Carnahan notes, "the ban on poisoned weapons is one of the oldest
continuing prohibitions in the law of war." Burrus M. Carnahan, Unnecessary
Suffering, The Red Cross and Tactical Laser Weapons 18 LOY. L.A. INT'L & COMP.
L.J. 705, 714 (1996) [hereinafter Carnahan, Unnecessary Suffering]. It predates
any attempts at codification by centuries.
n169 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles
Under 400 Grams Weight, Dec. 11, 1868, (1907 Supplement) 1 AM. J. INT'L L. 95.
n170 These munitions have soft or hollow points so as to flatten on impact.
Also called "dum-dum" bullets after the munitions factory near Calcutta India
where first developed, they are outlawed for over 30 States Parties to a Hague
Declaration of 1899. Hague Declaration (IV, 3) Concerning Expanding Bullets,
July 29, 1899, (1907 supp.) 1 AM. J. INT'L L. 155. The declaration explicitly
applied to bullets "which expand or flatten easily in the human body, such as
bullets with a hard envelope which does not entirely cover the core or is
pierced with incisions." Id. Though not a party to the Declaration, the United
States has acknowledged that it will abide by the terms of the agreement.
Carnahan, Unnecessary Suffering, supra note 168, at 720.
n171 Protocol [to the Convention on Conventional Weapons] on Non-Detectable
Fragments (Protocol I), Apr. 10, 1981, 1342 U.N.T.S. 7 (entered into force Dec.
2, 1983). This Protocol to the 1980 Convention on Conventional Weapons prohibits
the use of "any weapon the primary effect of which is to injure by fragments
which in the human body escape detection by X-rays." Id.
n172 Protocol [to the Convention on Conventional Weapons] on Blinding Laser
Weapons (Protocol IV), Oct. 13, 1995, 35 I.L.M. 1218 (1996) (entered into force
July 30, 1998) [hereinafter Protocol on Blinding Lasers]. The International
Committee of the Red Cross (ICRC) takes the prohibition of Protocol IV a step
further in its 1995 pamphlet Blinding Weapons, and declares all "blinding as a
method of warfare" to be a violation of international humanitarian law.
Carnahan, distinguishing the ICRC's denunciation of poison gas in 1925, notes
that this "striking policy departure" marks the first time in history that the
ICRC has "publicly denounced a specific method of warfare as a violation of
international law." Carnahan, Unnecessary Suffering, supra note 168, at 705.
Carnahan concludes that by declaring the
undefined concept of 'blinding as a method of warfare' unlawful and making
exaggerated claims for the destructiveness of lasers, the ICRC has helped to lay
the basis for false war crime charges against any soldier captured with a
portable laser. The ICRC may have compromised its own ability to prevent abuse
of prisoners of war subjected to such charges.
Id. at 731. Although itself bordering on exaggeration, at least one important
reminder can be taken from this conclusion-a very possible consequence of
crusading against a means of warfare in the interest of soldiers may make the
very soldiers in view more vulnerable. A final observation regarding this
protocol lasers relates to its prospective nature vis-a-vis the weapons at
issue. This is one of the only attempts in the law of war to prohibit the use of
a weapons system before it has been deployed in combat, or even fielded for
training purposes prior to combat.
n173 For example, under Article 51 of the United Nations Charter, States have
the "inherent right" to use armed force in self-defense. See discussion infra
notes 262 and 267. This raises two fundamental issues. First, because the right
is inherent, and has been recognized by customary international law long prior
to the appearance of the United Nations Charter, the right existed before the
law prohibited warfare as an instrument of national policy. This right has been
widely recognized at least since the Caroline incident of 1837. See D.J. HARRIS,
CASES AND MATERIALS ON INTERNATIONAL LAW 894 (5th ed., 1998) [hereinafter
HARRIS]. Second, because the United Nations Charter speaks of this prerogative
toward self defense as a "right," it appears to be an explicit authorization to
act in certain circumstances. Taken as an authorization, and coupled with the
jus in bello, the reasonable implication of this understanding of Article 51 is
that States not only have the right to self defense, but have the right to use
armed force in self defense, and have the right to attack militarily necessary
targets in proportionate, "humane" ways as long as such attacks are otherwise
predicated on compliance with the jus ad bellum. Though this understanding
borders on repudiation of the principle articulated in the Steamship Lotus case,
that is, States may act as they please unless prohibited by law, by suggesting
that with respect to self defense the law plays an authorizing rather than
merely prohibitive role, it is better seen as merely a limited exception to the
Lotus rule rather than a direct challenge to it. For a discussion of the
Steamship Lotus case, see supra note 141.
n174 GREEN, supra note 152, at 333.
n175 Given the development of international law in this century, it is highly
doubtful States would ever completely restrict themselves from resort to the use
of force under any circumstances - the ultimate extension of pure humanity.
n176 It is for this reason that there is some danger of confusion in
referring to the law of armed conflict as humanitarian law. To the extent that
the latter title evokes images of human rights law, the term humanitarian, and
the legal content it suggests, could be transposed improperly from the one
subset of public international law to the other. This would fail to accord the
term its rightful and more limited place as it functions within the law of armed
conflict. Put simply, humanitarian as used in human rights law does not
necessarily mean "humanitarian" as used in the law of armed conflict. This does
not mean the two bodies of law are strictly distinct. See, e.g., Levie and
Provost cites at supra note 120. It also does not at all mean that humanity in
the law of war is a narrow principle of customary international law. As Schmitt
observes, as applied to protection of the environment in armed conflict,
humanity assumes an extra-anthropocentric quality. In this way it can be seen as
a broader concept than "humanitarian" as used in human rights law, and includes
prohibition of "activities that are not so much inhumane as inhuman. They are
acts we intuitively recognize as inherently wrongful regardless of the context
in which they occur. In a sense, they are violative of the 'dictates of public
conscience.'" Schmitt, Green War, supra note 143, at 61.
n177 Schmitt articulates a sequential analysis in determining whether a
military course of conduct comports with the law.
1. Means: Do the methods or means selected to execute the attack violate the
principles of distinction, humanity, or any specific prohibition of the law of
armed conflict? 2. Target: Is the target a military objective? If so, is attack
on this type of target specifically forbidden? If not, is the destruction of the
target militarily necessary? 3. Result: Does the concrete and direct military
advantage anticipated outweigh the collateral damage and incidental injury
likely to result?
Schmitt, Book Review, supra note 141, at 276 n.24. This approach helpfully
clarifies that each principle acts as a filter to weed out impermissible
military acts while at the same time recognizing that these principles are not
authorizations to act, but limitations on acts which might otherwise be lawful.
n178 It should be remembered that the two basic treaty regimes represented by
the Hague Conventions and the Geneva Conventions, do not purport to be the
exhaustive sources for law of war restrictions. Though they are, to a large
extent, codifications of customary law, customary international law remains as a
viable source not only for circumstances unaddressed in the treaty law, but to
govern the conduct of non-parties to the treaties.
n179 Instructions for the Government of Armies of the United States in the
Field, General Order No. 100, Apr. 23, 1863, THE LAWS OF ARMED CONFLICTS: A
COLLECTION OF CONVENTIONS, RESOLUTIONS AND OTHER DOCUMENTS 3 (Dietrich Schindler
& Jiri Toman, eds., 1988) [hereinafter Schindler & Toman].
n180 Fritz Munch, War, Laws of, History, in 4 ENCYCLOPEDIA OF PUBLIC
INTERNATIONAL LAW 327 (Bernhardt, ed., 1982).
n181 Schindler & Toman, supra note 179, at 3 (introductory note).
n182 Carnahan, Lincoln, Lieber and the Laws of War, supra note 146, at 215.
n183 Roberts & Guelff, supra note 131, at 7.
n184 Conditions for the Amelioration of the Condition of the Wounded in
Armies in the Field, Aug. 22, 1864, Schindler & Toman, supra note 179, at 279.
This convention has been superceded by the 1949 Geneva Conventions.
n185 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles
Under 400 Grammes Weight, Dec. 11, 1868, (1907 Supp.) 1 AM. J. INT'L L. 95. This
declaration is the first agreement among States prohibiting the use of specific
weaponry in time of war. The provisions of the declaration were later
incorporated into the 1899 and 1907 Hague Regulations.
n186 Final Protocol and Project of an International Declaration Concerning
the Laws and Customs of War, Aug. 27, 1874, Schindler & Toman, supra note 179,
at 25. The provisions of the protocol, and the international declaration have
been incorporated into the 1899 and 1907 Hague Conventions and Regulations.
n187 The Laws of War on Land, Sept. 9, 1880, Schindler & Toman, supra note
179, at 35 (originally published by the Institute of International Law). Again,
the influences of the Oxford Manual on the 1899 and 1907 Hague Conventions and
Regulations are clear.
n188 P.J. Cameron, The Limitations on Methods and Means of Warfare, 1984
AUSTRALIAN Y.B. INT'L L. 252 (1985).
n189 Schindler & Toman, supra note 179, at vii (from the Introduction).
n190 Convention (IV) Respecting the Laws and Customs of War on Land, Oct. 18,
1907, (1908 Supp.) 2 AM. J. INT'L L. 90 (entered into force Jan. 26, 1910)
[hereinafter Hague Convention (IV)].
n191 Convention (IX) Concerning Bombardment by Naval Forces in Time of War,
Oct. 18, 1907, (1908 Supp.) 2 AM. J. INT'L L. 146 (entered into force Jan. 26,
1910) [hereinafter Hague Convention (IX)].
n192 Though still in force today, the fourth convention of 1907 lost the
support of eighteen States which were parties to the 1899 second convention.
These eighteen States or their successors (e.g. Yugoslavia) remain formally
bound by the 1899 convention.
n193 Id. at art. 1.
n194 Id. Perhaps the most significant aspect of this list is its inclusion of
industrial targets with military value. For the first time, this was explicitly
recognized by an international instrument. Nonetheless, the entire list was
regarded by the head of the U.S. delegation as simply declaratory of customary
international law. Parks, supra note 123, at 18.
n195 Hague Convention (IX) Annex, supra note 154, at art. 2.
n196 Parks, supra note 123, at 18. Parks further concludes that the rule of
Article 2, was declaratory of customary law. Thus, however provocative such a
claim may sound today, its roots go back to the codified foundations of the law
of war, and beyond. This point about the legal obligations of the defender is a
theme Parks sustains throughout his monumental, book-length article. The piece
provides an excellent scholarly argument, citing to the provisions of both Hague
and Geneva law, for the proposition that defenders bear as heavy an obligation
to ameliorate the possibility and effects of collateral damage from air warfare
as do attackers.
n197 Hague Convention (IV), supra note 154, at art. 25.
n198 Though the drafters of the convention could not have specifically
foreseen the technological revolution in military affairs that would come later
in this century, the absolute terms "whatever means" would seem to include means
of bombardment from unanticipated new combat environments such as outer space.
As for targeting from the air, the Greco-German Mixed Arbitral Tribunal held
that the Convention IV rules relating to bombardment specifically applied to air
warfare. GREEN, supra note 152, at 173 (citing Coenca Bros. v. Germany, 7 M.A.T.
n199 As with most provisions of the fourth 1907 convention, this one came
substantially from the second 1899 convention. See Schindler & Toman, supra note
179, at 75.
n200 See Hague Convention (IV) Annex, supra note 154 and accompanying text.
n201 Id. at art. 3.
n202 Knut Ipsen, Combatants and Non-Combatants, in THE HANDBOOK OF
HUMANITARIAN LAW IN ARMED CONFLICT 65, 66 (Dieter Fleck, ed., 1995).
n203 Article 75(1) of Protocol (I) specifies that
persons who are in the power of a Party to the conflict and who do not benefit
from more favorable treatment under the Conventions or under this Protocol [i.e.
prisoners of war; refugees and stateless persons] shall be treated humanely in
all circumstances and shall enjoy, as a minimum, the protection provided by this
Article without any adverse distinction based upon race, color, sex, language,
religion or belief, political or other opinion, national or social origin,
wealth, birth or other status, or on any other similar criteria.
Protocol I, supra note 156, at art. 75(1).
n204 The category "unlawful combatants" does not include those combatants who
use means and methods of armed conflict that are violative of the jus in bello.
These offenders may be war criminals, and they may be prosecuted under
international law or the domestic law of the opposing belligerent, but they are
not what has traditionally been known as unlawful combatants. Further, contrary
to the impression left by some in the television and print media following the
abduction of three U.S. soldiers in Macedonia during Operation Allied Force,
prisoners of war may be tried under certain conditions. However, as Article 99
of the third 1949 Geneva Convention specifies, this cannot be for any "act which
is not forbidden by the law of the Detaining Power or by international law, in
force at the time the said act was committed." Geneva Convention Relative to the
Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316 (entered into force
Oct. 21, 1950) [hereinafter Geneva Convention III].
n205 Hague Convention (IV), supra note 154, at art. 29.
n206 Id. at 54.
n207 For a relatively recently formulation of the principle, see Protocol I,
supra note 156, at art. 46.
n208 Of course, the rules embodied in Hague Law are equally humanitarian and
equally concerned with protection of the person. However, because Geneva Law
explicitly provides for the sick, wounded, shipwrecked, and prisoners it is more
often thought of as the fullest expression of humanitarian law.
n209 Two examples include the saturation bombing of civilian populations
centers, and certain indiscriminate naval bombardments. Roberts & Guelff, supra
note 131, at 93.
n210 Hays Parks suggests that international lawyers of that era even doubted
the applicability of the law of war to modern warfare, and particularly to
aerial bombardment. Parks, supra note 123, at 50.
n211 Id. (quoting M. GILBERT, WINSTON S. CHURCHILL: THE PROPHET OF TRUTH,
1922-1939 573 (1976)).
n212 Geneva Convention for the Amelioration of the Condition of Wounded and
Sick in Armed Forces in the Field, Aug. 12, 1949, art. 19, 6 U.S.T. 3114
(entered into force Oct. 21, 1950) [hereinafter Geneva Convention I].
n213 Id. at art. 22. Because the convention by its title purports to protect
"armed forces in the field," the inclusion of the last circumstance seems
particularly odd. Not only are civilians non-combatants, they are
non-belligerents. Positing that a protected facility does not lose its
protection merely by virtue of the presence of a wounded civilian, seems to
state the obvious.
n214 Geneva Convention Relative to the Protection of Civilian Persons in Time
of War, Aug. 12, 1949, art. 18, 6 U.S.T. 3516 (entered into force Oct. 21, 1950)
[hereinafter Geneva Convention IV].
n215 Id. The reference to "land, air, and naval forces" appears intended to
highlight that the prohibition applies to all combat environments.
n216 Geneva Convention for the Amelioration of the Condition of Wounded, Sick
and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, art. 22, 6 U.S.T.
3316, (entered into force Oct. 21, 1950) [hereinafter Geneva Convention II].
n217 Id. at art. 23.
n218 Id. at art. 28.
n219 Indeed, protected persons are also potentially subject to attacks from
space. Thus, to the extent that the Geneva Conventions protect individuals from
attack, they restrict space warfare. One example pertains to the prohibitions on
taking reprisals against prisoners of war. See Geneva Convention III, supra note
204, at art. 13. Similarly, belligerents may not take reprisals against
civilians. See Geneva Convention IV, supra note 214, at art. 33.
n220 These Resolutions not only further empowered the ICRC to justify the
need for a diplomatic conference, but represented the early disposition of the
majority of States to the conference on several subjects that would later become
controversial. The first resolution, Respect for Human Rights in Armed
Conflicts, invited the U.N. Secretary-General, in conjunction with the ICRC, to
study steps for better application of existing humanitarian conventions and to
study the need for additional conventions. See Respect for Human Rights in Armed
Conflicts, Dec. 19, 1968, G.A. Res. 2444, U.N. GAOR, 23rd Sess., Supp. No. 18,
at 50, U.N. Doc. A/7218 (1969). The General Assembly adopted the Resolution by a
unanimous vote of 111 to none. More importantly, this Resolution affirmed three
principles, stated in a prior ICRC Resolution
(a) That the right of the parties to a conflict to adopt means of injuring the
enemy is not unlimited; (b) That it is prohibited to launch attacks against the
civilian population as such; (c) That distinction must be made at all times
between persons taking part in the hostilities and members of the civilian
population to the effect that the latter be spared as much as possible.
Id. As displayed by the vote, these principles were not controversial and indeed
were taken as a restatement of customary international law. The larger issue
raised by the Resolution was the use of human rights language to describe what
were historically law of war restrictions. Although the identification of human
rights with humanitarian law has become increasingly prevalent in the scholarly
literature following publication of documents such as Resolution 2444, it
remains to be seen whether this is good for the law of war. While human rights
law has traditionally been rooted in philosophy and politics, the law of war is
rooted in military exigency. As a consensus grows for centralized punishment of
violations within both bodies of law, as envisaged by the International Criminal
Court, one sincerely hopes that the unseemly politicization often characterizing
State rhetoric regarding human rights concerns does not infect the quest for a
robust, enforced law of war. If the latter succumbs to petty world politics, it
may be largely due to the blurring of the humanitarian law of war, aimed at the
focused restricting of suffering during armed conflict, with human rights law,
aimed at far broader issues and concerns.
Following Resolution 2444 by two years, the U.N.G.A. adopted Resolution 2675
by a vote of 109 votes to none, with 18 States abstaining or absent. Basic
Principles for the Protection of Civilian Populations in Armed Conflicts, Dec.
9, 1970, G.A. Res. 2675, U.N. GAOR, 25th Sess., Supp. No. 28, at 76, U.N. Doc.
A/8028 (1971) [hereinafter Resolution 2675]. In two cases, the eight provisions
of Resolution 2675 restated the substance of provisions already stated in
Resolution 2444. Otherwise, Resolution 2675 exhorted States to respect civilian
populations and property by exempting them from attack, and reemphasizes the
human rights rationale for such protections. In some cases the provisions
restated concepts existing in the Geneva Conventions, and in all cases, the
Resolution "restates rules of international law." Schindler & Toman, supra note
179, at 267. Interestingly, regarding civilian property, the Resolution states
that "dwellings and other installations that are used only by civilian
populations should not be the object of military operations." Resolution 2675,
U.N. GAOR, 25th Sess., Supp. No. 28, at 77. Implicitly, this affirms that unless
such property is used exclusively by civilians ("only by"), it may be subject to
attack if not otherwise protected on some other ground.
n221 Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and
Relating to the Protection of Victims of Non-International Armed Conflicts
(Protocol II), Dec. 12, 1977, art. 48, 1125 U.N.T.S. 609 (entered into force
Dec. 7, 1978) [hereinafter Protocol II].
n222 Roberts & Guelff, supra note 131, at 448.
n223 Geneva Convention I, supra note 212, at art. 3; Geneva Convention II,
supra note 216, at art. 3; Geneva Convention III, supra note 204, at art. 3;
Geneva Convention IV, supra note 214, at art. 3.
n224 Robert & Guelff, supra note 131, at 447.
n225 Protocol II, supra note 221, at art. 1(2).
n226 Robert & Guelff, supra note 131, at 448.
n227 Protocol I, supra note 156, at art. 1(4). Addressing the "General
Principles and Scope of Application" of the entire Protocol, Article 1(4)
the situations referred to in the preceding paragraph include armed conflicts in
which peoples are fighting against colonial domination and alien occupation and
against racist regimes in the exercise of their right of self-determination, as
enshrined in the Charter of the United Nations and the [United Nations General
Assembly] Declaration on Principles of International Law concerning Friendly
Relations and Co-operation among States in accordance with the Charter of the
Id. This means that insurgents opposing "colonial domination and alien
occupation and . . . racist regimes in the exercise of their right of
self-determination" were to be accorded the full protections of the jus in
bello, including limits on the state's means and methods of subduing the
insurgents militarily. Id. (emphasis added) This provision alone proved too
difficult politically for some States to accept. (States not having ratified the
Protocol as of 1999 include: Afghanistan, Andorra, Azerbaijan, Bhutan, Fiji,
France, Haiti, India, Indonesia, Iran, Iraq, Ireland, Israel, Japan, Kiribati,
Lithuania, Malaysia, Monaco, Morocco, Myanmar, Nepal, Nicaragua, Pakistan, Papua
New Guinea, Philippines, Singapore, Somalia, Sri Lanka, Sudan, Thailand, Tonga,
Trinidad and Tobago, Turkey, Tuvalu, and the U.S.)
Another provision difficult to accept for some States, including the U.S.,
related to the concept of reprisals. Articles 51(6), 52(1), and 54(4), prohibit
reprisals under any circumstances against the civilian population, against
civilian objects, and against objects indispensable to the survival of the
civilian population, respectively. Id. at art. 51(6), 52(1), 54(4). Parks claims
that the first two provisions were not a codification of customary law, but a
reversal of it. See Parks, supra note 123, at 94. He further states that flawed
legal analysis of the doctrine of reprisals often results from confusion of the
concept with others such as retaliation, revenge, or legitimate acts of
self-defense. Id. Customarily, civilian individuals and property could be
threatened and attacked as a lesser evil in order to avoid a greater evil, and
to promote respect for the law of war. Though reprisals are politically
sensitive because they entail commission of an otherwise illegal act in order to
suppress other illegal acts, they have proven effective historically in
deterring violations of the jus in bello. Id. at 95. Parks cites as an example
the threat by President Franklin Roosevelt to use chemical weapons as
sufficient warning to deter German use of such weapons. Id.
n228 Parks, supra note 123, at 112.
n229 Protocol I, supra note 156, at art. 48.
n230 Id. at art. 49.
n231 Id. at art. 50.
n232 Id. at art. 51.
n233 Id. at art. 52.
n234 Id. at art. 53.
n235 Id. at art. 54.
n236 Id. at art. 55.
n237 Id. at art. 56.
n238 Id. at art. 57.
n239 Id. at art. 58.
n240 Parks, supra note 123, at 112.
n241 Id. Just as significant an issue as is the burden shifting, is the legal
effect of violations by the defender vis-a-vis the attacker. A common view of
Protocol I, Article 58, which requires that "the parties" (including both
attacker and defender) take precautions against the effects of attacks "to the
maximum extent feasible," is that violation by the defender in its obligations
toward its own civilians does not absolve the attacker of its obligations when
considering attacks that put such civilians at risk. Protocol I, supra note 156,
at art. 58. This appears to conflict with the position taken by the U.S. Air
Force law of war manual: "[a] party to a conflict which places its own citizens
in positions of danger by failing to carry out the separation of military
activities from civilian activities necessarily accepts, under international
law, the results of otherwise lawful attacks upon the valid military objectives
in their territory." AFP 110-31, supra note 146, at P5-4b. For an interesting
resolution of this apparent conflict, see Schmitt, Book Review, supra note 141,
at 267. Key to the resolution is the clause "otherwise lawful attacks."
Ultimately, the best view conceives violations by the defender to take
precautions as "merely a factor in mitigation should the attacker violate its
own." Id. It should also be noted that although AFP 110-31 presents a view from
the United States Air Force, the document's preamble specifies that it "does not
promulgate official U.S. Government policy."
n242 Parks, supra note 123, at 112 n.351. Parks notes further that the French
position was not isolated, but representative. Id.
n244 For additional perspectives, see G.H. Aldrich, Prospects for United
States Ratification of Additional Protocol I to the 1949 Geneva Convention, 85
AM. J. INT'L L. 1 (1991); Burrus M. Carnahan, Protecting Civilians Under the
Draft Geneva Protocol: A Preliminary Inquiry, 18 A.F. L. REV. 32 (Winter 1976).
n245 Convention on the Prohibition of the Development, Production and
Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their
Destruction, Apr. 10, 1972, 26 U.S.T. 583 (entered into force 26 March 1975).
n246 Convention on the Prohibition of Military or Any Other Hostile Use of
Environmental Modification Techniques, May 18, 1977, 31 U.S.T. 333 (entered into
force 5 October 1978) [hereinafter Environmental Modification Treaty].
n247 Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons which May be Deemed to be Excessively Injurious or to Have
Indiscriminate Effects, Oct. 10, 1980, 1342 U.N.T.S. 7 (entered into force Dec.
2, 1983) [hereinafter Conventional Weapons Treaty]. The treaty contained
protocols on (1) fragments not detectable by X-rays; (2) mines, booby traps, and
other devices; and (3) incendiary weapons. All three protocols went into force
with the treaty in 1983. A fourth Protocol on Blinding Laser Weapons went into
force on July 30, 1998. See Protocol on Blinding Lasers, supra note 172.
n248 Convention on the Prohibition of the Development, Production,
Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993,
S. TREATY DOC. NO. 21, 103d Cong. (1993), reprinted in 32 I.L.M. 800 (1993)
(entered into force Apr. 29, 1997).
n249 Protocol on Blinding Lasers, supra note 172.
n250 Convention on the Prohibition of the Use, Stockpiling, Production and
Transfer of Anti-Personnel Mines and on their Destruction, Sept. 18, 1997, 36
I.L.M. 1507 (1997) (entered into force Mar. 1, 1999).
n251 Environmental Modification Treaty, supra note 246, at art. III(1).
n252 Id. at art. I(1).
n253 Id. at art. II (emphasis added).
n254 Schmitt, Green War, supra note 143, at 82.
n255 Report of the Conference of the Committee on Disarmament, U.N. GAOR,
31st Sess., Supp. No. 27, at 91, 92, U.N. Doc. A/31/27 (1976).
n256 Given its narrow scope, the Treaty "affects only a very narrow band of
possible operations." Schmitt, Green War, supra note 143, at 85.
n257 Protocol II (as amended), Environmental Modification Treaty, supra note
246, at art. 1, 35 I.L.M. 1206 (1996) (amended May 3, 1996) (entered into force
Dec. 3, 1998).
n258 A recent controversy raises the question whether such weapons have ever
been used against U.S. military personnel. An Apr. 4, 1997 incident suggested
the possible Russian use of such a weapon against a Naval aviator. The aviator
reported severe eye pain and headaches after seeing a distinct dot of red
light emanating from the Russian ship Kapitan Man in U.S. waters. Despite
Russian denials, and a subsequent search of the ship by U.S. authorities which
discovered no laser, suspicions have continued given the several day delay in
executing the search and medical reports showing the aviator's injury consistent
with a laser attack. Associated Press, Navy Officer Blames Russian Laser, N.Y.
TIMES, Feb. 11, 1999, at 1; B. Gertz, Clinton Won't Back Navy Officer After
Laser Attack, WASH. TIMES, May 17, 1999, at 1.
n259 Interestingly, the Protocol on Blinding Lasers implicitly recognizes
that lasers are not prohibited as a weapon system so long as they are not
"specifically designed" to cause blindness. Protocol on Blinding Lasers, supra
note 172, at art. 1. Article 2 states: "In the employment of laser systems, the
High Contracting Parties shall take all feasible precautions to avoid the
incidence of permanent blindness to unenhanced vision. Such precautions shall
include training of their armed forces and other practical measures." Id. at
art. 2. This restriction presupposes that laser systems might in fact be used
("in the employment"), and that they might be used by military forces whose use
will necessitate training for proper use so as to avoid functioning as a
blinding weapon. Among others, the U.S. military is studying the use of an
"Anti-Personnel Beam Weapon" that would likely cause slight skin or eye
irritation by carrying an electrical charge through a lazed stream of ionized
air. D. Mulholland, Laser Device May Provide U.S. Military NonLethal Option,
DEFENSE NEWS, June 14, 1999, at 6.
n260 But note that the law of war applies whether a use of force is lawful or
not. See supra note 140, and accompanying text.
n261 A third function of the Charter is to provide the constitutive features
of the International Court of Justice, established under Article 92 of the
Charter, by means of the Statute of the International Court of Justice appended
to the Charter and consisting of seventy separate articles. STAT. OF THE INT'L
CT. OF J., June 26, 1945, 59 Stat. 1031 (entered into force Oct. 24, 1945)
[hereinafter STAT. OF THE ICJ].
n262 U.N. CHARTER (entered into force Oct. 24, 1945) [hereinafter U.N.
CHARTER]. Article 1, paragraph 1, states the first purpose of the United
Nations: "To maintain international peace and security, and to that end: to take
effective collective measures for the prevention and removal of threats to the
peace, and for the suppression of acts of aggression or other breaches of the
peace . . ." The Charter states this principle against the backdrop of its
preamble which decries the "untold sorrow" of the world wars of the twentieth
century and calls war a "scourge." Id.
n263 Chapter 7, containing articles 39 through 51, applies to "Action with
Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression."
n264 While a thorough exposition of the jus ad bellum is beyond the scope of
this article, some understanding of the field, and of its principal source,
could work to eliminate confusion in legal analysis. For example, one might
misidentify an issue as requiring analysis under the jus in bello which actually
requires analysis under the jus ad bellum. Such confusion could lead to errant
legal conclusions under the law of war.
n265 Malanczuk goes even further: "The prevailing view is that the Charter
has enacted a comprehensive rule on the prohibition of the use of force, which
has become recognized as jus cogens . . ." MALANCZUK, INTRODUCTION TO
INTERNATIONAL LAW, supra note 130, at 311. The International Law Commission
agrees: "the law of the Charter concerning the prohibition of the use of force
in itself constitutes a conspicuous example of a rule in international law
having the character of ius cogens." HARRIS, supra note 173, at 835 (quoting
International Law Commission, Commentary on the Vienna Convention on the Law of
Treaties, 1966 Y.B. INT'L L. COMMISSION 247-48). This is the view of the United
States as well, as quoted from its pleadings at the International Court of
Justice in the Nicaragua case. Military and Paramilitary Activities (Nicar. v.
U.S.), 1986 I.C.J. 4. Taken from Article 53 of the 1969 Vienna Convention on the
Law of Treaties, the concept of jus cogens constitutes "peremptory norm[s] of
general international law," which become the most basic ordering concepts in
international law. They are principles from which no treaty may derogate. Vienna
Convention on the Law of Treaties, May 23, 1969, art. 53, 1155 U.N.T.S. 331
(entered into force Jan. 27, 1980) [hereinafter Vienna Convention]. In this way,
jus cogens is the international legal norm that norms all other norms. Examples
that are widely acknowledged by scholars include the rules against genocide and
n266 U.N. CHARTER, supra note 262, at art. 2(4).
n267 Id. at art. 51.
n268 Several reasons may account for this. Chiefly, the negative effects of a
threat are thought to pale in comparison to the effects of actual force. And, as
Sadurska notes, there may actually be occasions in which the threat of force
"far from precipitating fighting, may be an effective mechanism for dissuading
international actors from using violence." R. Sadurska, Threats of Force, 82 AM.
J. INT'L L. 239, 247 (1988). In this way, the threat may actually work as a
substitute for the use of force.
n269 A. Randelzhofer, Article 2(4), in THE CHARTER OF THE UNITED NATIONS: A
COMMENTARY 118 (B. Simma, et al., eds., 1994) [hereinafter Randelzhofer].
n270 GREEN, supra note 152, at 70.
n271 Randelzhofer, supra note 269, at 112, 113. The author points out that
while these forms of coercion may not constitute "force" under Article 2(4),
their use may violate the general principle of non-intervention.
n272 Id. at 113, 114.
n273 Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 4,
n274 See discussion of information warfare, infra Part VI, @ D.
n275 Such forms of self-defense occur when a State uses armed force to repel
an "imminent" attack before it actually occurs.
n276 In its lengthy review of customary international law related to the use
of force in the Nicaragua case, the International Court of Justice stated that
the right of self-defense referenced in the Charter at Article 51, as an
"inherent right," is firmly rooted in customary international law. This explicit
provision in the Charter therefore provides parallel authority for the
assertion of the right.
n277 In addition to wars of a defensive character, the U.N. Charter also
authorizes armed force pursuant to authority by the Security Council. "Should
the Security Council consider that measures provided for in Article 41 would be
inadequate or have proved inadequate, it may take such action by air, sea or
land forces as may be necessary to maintain or restore international peace and
security." U.N. CHARTER, supra note 262, at art. 42. Presumably, the enumeration
of "air, sea or land forces" is meant to suggest that the Security Council may
use any form of force it deems necessary, these three being the exhaustive means
then in existence in 1945. On this interpretation, the list is not exclusive,
but indicative of the scope of Security Council authority. Though not
specifically mentioned, the use of space forces would be a legitimate exercise
of authority as well.
n278 In addition to the fact that Article 2(4) applies to conflicts not
formally constituting wars, Professor Harris points out an additional reason for
this--the terms of the 1949 Geneva Conventions and the 1977 Protocols apply to
"all cases of declared war or of any other armed conflict." Harris, supra note
173, at 860 n.3.
n279 The laws of war have evolved with State practice regarding initiation of
hostilities. De Mulinen points out that historically an armed conflict commenced
with a previous warning either in the form of a declaration of war or an
ultimatum containing a conditional state of war. See DE MULINEN, supra note 145,
at 30. Subsequently, as such declarations and warnings fell out of use, the laws
of war continued to apply to conflicts short of war. Thus, the common Article 2
to each of the four Geneva Conventions of 1949 applies the provisions of each
convention to "all cases of declared war or of any other armed conflict which
may arise between two or more of the High Contracting Parties. . . ." Geneva
Convention I, supra note 212, at art. 2; Geneva Convention II, supra note 216,
at art. 2; Geneva Convention III, supra note 204, at art. 2; Geneva Convention
IV, supra note 214, at art. 2. The Conventions do not specify what constitutes
an armed conflict, thus De Mulinen appears correct in asserting that "no minimum
of intensity of violence or fighting, no minimum of military organization and no
minimum of control of territory is required." DE MULINEN, supra note 145, at 31.
Any armed violence between the representatives of one State and those of another
will trigger application of the laws of war, whether the conflict amounts to
"war" or not.
n280 Of the legal effects created by a formal state of war, perhaps the most
interesting for purposes of the law of war is the termination of certain
categories of treaties between the belligerent States. See J. Delbruck, War,
Effect on Treaties, in 4 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 310
(Bernhardt, ed., 1982). Delbruck notes that the effect of war on treaty
obligation is nowhere specifically enumerated. The older consensus was that war
terminated all treaty relations and obligations as between the belligerents. The
newer approach in international law takes a more flexible approach, preferring
to preserve international order and to see war as simply suspending the
execution of certain treaties. Thus Justice Benjamin Cardozo, writing as a judge
on the Court of Appeals of New York anticipated the current trend,
"international law today does not [in cases of war] preserve treaties or annul
them regardless of the effects produced. It deals with such problems
pragmatically, preserving or annulling as the necessities of war exact. It
establishes standards, but it does not fetter itself with rules." Id. (quoting
from Techt v. Hughes, 229 N.Y. 222, 241 (1920)). Delbruck continues, "war may
now be illegal, but it has not thereby become a phenomenon outside the realm of
law." Id. at 311. In this way, the law prefers to give effect to treaties to the
maximum extent possible. Those treaties that must be suspended during war
include multilateral treaties with which the belligerents are unable to comply
due to the impact of the war. Those that will be terminated include political
treaties that depend for their existence and proper functioning on normal
political and social relations between the belligerents -- relations that are
terminated by war. Significantly, though the Vienna Convention on the Law of
Treaties provides that the severance of diplomatic relations between the parties
to a treaty does not normally affect the legal relations between them as
established by the treaty, the Convention does not specify how war effects the
operation of treaties. Vienna Convention, supra note 265, at art. 63.
n281 McDOUGAL, ET AL., supra note 40, at 514.
n282 Space law is "a newcomer to the family of legal disciplines." I UNITED
STATES SPACE LAW: NATIONAL & INTERNATIONAL REGULATION 17, Release 98-2 (1998).
That space law rightfully takes its place as a major branch of international law
is now beyond question. Jennings notes seventeen categories of international
law: (1) the position of States in international law, (2) the law relating to
international peace and security, (3) the law relating to economic development,
(4) State responsibility, (5) succession of States and governments, (6)
diplomatic and consular law, (7) the law of treaties, (8) unilateral acts, (9)
the law relating to international watercourses, (10) the law of the sea, (11)
the law of the air, (12) the law of outer space, (13) the law relating to the
environment, (14) the law relating to international organizations, (15)
international law relating to individuals (including nationality, extradition,
right of asylum and human rights), (16) the law relating to armed conflicts, and
(17) international criminal law. See R.Y. Jennings, International Law, in 11
ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 278 (Bernhardt, ed., 1982).
n283 P. Malanczuk, Space Law as a Branch of International Law, 1994 NETH.
Y.B. INT'L L. 143, 147 (1995) [hereinafter Malanczuk, Space Law].
n284 V. Kopal, Evolution of the Doctrine of Space Law, in SPACE LAW:
DEVELOPMENT AND SCOPE 17 (N. Jasentuliyana, ed., 1992).
n285 Although the U.S. had placed a man-made object in outer space prior to
this, 1957 is considered the watershed year in which the "Space Age" is most
often said to have begun. On October 4 of that year, the Soviet Union launched
Sputnik I, the world's first man-made satellite. See HEPPENHEIMER, supra note
15, at 122.
n286 See infra, Part VI, @ A.1.
n287 MATTE, SPACE ACTIVITIES, supra note 13, at 175, 176.
n288 N. Jasentuliyana, The Lawmaking Process in the United Nations, in
SPACE LAW: DEVELOPMENT AND SCOPE 41 (N. Jasentuliyana, ed., 1992).
n289 B.M. HURWITZ, THE LEGALITY OF SPACE MILITARIZATION 29, 30 (1986)
n290 See McDOUGAL, ET AL., supra note 40, at 729.
n291 See supra note 141.
n292 Of course, prohibitions could come from a variety of sources other than
space treaties. Customary international law could also supply the requisite
prohibition on State action. In the case cited however, as will be argued
further below, no such prohibitions exist.
n293 As one source puts it, "Astrolaw contemplates the practice of law in
outer space. . . . The direct subjects of Space Law are sovereign nations; the
direct subjects of Astrolaw are natural and legal persons in space. . . .
Astrolaw focuses not upon space as a legal regime, but upon space as a place."
G.S. ROBINSON & H.M. WHITE, JR., ENVOYS OF MANKIND: A DECLARATION OF FIRST
PRINCIPLES FOR THE GOVERNANCE OF SPACE SOCIETIES 147 (1986) [hereinafter
ROBINSON & WHITE]. Others refer to Astrolaw as a necessary supplement to the
space law treaty system, and as a "common law of outer space." D. O'Donnell &
N.C. Goldman, Astro Law as Lex Communis Spatialis, in PROCEEDINGS OF THE
FORTIETH COLLOQUIUM ON THE LAW OF OUTER SPACE 322 (1998).
n294 C.J. Cheng, New Sources of International Space Law, in THE USE OF AIR
AND OUTER SPACE COOPERATION AND COMPETITION 209 (C.J. Cheng, ed., 1998). Cheng
further notes that although different titles for this body of law such as
"Aerospace Law," "International Law of Outer Space," "International Space Law,"
"Space Law," and "The Law of Outer Space," "provide notional concepts about the
scope of international space law . . . in its inception, this new branch of law
was defined as a corpus of rules which govern the space activity of States."
Id. at 208 n.1, 209 (emphasis added).
n295 Though this is true generally as a basic tenet of international law, it
is especially true of space law which makes States internationally responsible
for all national activity, whether public or private. See infra note 324 and
n296 In classical international legal theory, customary international law
serves as a formal source of law. Thus, Article 38 of the Statute of the
International Court of Justice charges the Court with resolving disputes in
accord with international law by applying, inter alia, "international custom, as
evidence of a general practice accepted as law." STAT. OF THE ICJ, supra note
261, at art. 38.
n297 The two factors generally regarded as necessary for the crystallization
of an emerging norm into customary law are the practice of States and general
opinion that the norm under consideration bears the force of law. Thus Malanczuk
when inferring rules of customary law from the conduct of States, it is
necessary to examine not only what States do, but also why they do it. . . .
State practice alone does not suffice; it must be shown that it is accompanied
by the conviction that it reflects a legal obligation. . . . The technical name
given to this psychological element is opinio iuris sive necessitatis (opinio
iuris for short). It is usually defined as a conviction felt by States that a
certain form of conduct is required by international law.
MALANCZUK, INTRODUCTION TO INTERNATIONAL LAW, supra note 130, at 44. The
author continues by pointing out the difficulty of ascertaining a state's opinio
juris and the modern tendency to "infer opinio iuris indirectly from the actual
behavior of States." Id.
n298 Malanczuk, Space Law, supra note 283, at 159. But see opinion of
Professor Diederiks-Verschoor, "customary law is already playing a significant
role in space law, and . . . States have evidently found it necessary, if not
expedient, to abide by its rules." I.H.PH. DIEDERIKS-VERSCHOOR, AN INTRODUCTION
TO SPACE LAW 12 (1993) [hereinafter DIEDERIKS-VERSCHOOR].
n299 As suggested in Part VI, @ A.1.b., infra, the development of a jus in
bello for space will likely track the method by which the jus in bello for
aerial combat evolved. In the latter case, after over seventy years of aerial
combat, the international community has yet to witness a treaty dedicated to
means and methods of aerial warfare. The incremental, customary development of
an aerial jus in bello will likely be the pattern for space warfare.
n300 Although a minority view, some scholars denied the existence of any
customary law for outer space in the early days of space flight. Thus, as late
as 1961, Professor Cooper wrote
it is quite impossible to apply international legal principles in a satisfactory
manner in any geographic area whose legal status is unknown. Today the legal
status of outer space is as vague and uncertain as was the legal status of the
high seas in the centuries before Grotius, in the Mare Liberum, focused
attention on the need of the world to accept the doctrine of the freedom of the
seas. . . . No general customary international law exists covering the legal
status of outer space.
J.C. Cooper, The Rule of Law in Outer Space, 47 AM. BAR ASS'N J. 23 (1961)
(quoted in MATTE, SPACE ACTIVITIES, supra note 13, at 83).
n301 B. Cheng, United Nations Resolutions on Outer Space: 'Instant'
International Customary Law?, 5 INDIAN J. INT'L L. 23 (1965) [hereinafter Cheng,
'Instant' Customary Law]. In his fascinating article, Professor Cheng challenged
the orthodox view of customary law. Placing greater stress on the requirement
that States express acceptance of a general practice (opinio juris), Cheng
continued by noting that
it may be permissible to go further and say that the role of usage in the
establishment of rules of international customary law is purely evidentiary: it
provides evidence on the one hand of the contents of the rule in question and on
the other hand of the opinio juris of the States concerned. Not only is it
unnecessary that the usage should be prolonged, but there need also be no usage
at all in the sense of repeated practice, provided that the opinio juris of the
States concerned can be clearly established. Consequently, international
customary law has in reality only one constitutive element, the opinio juris.
Where there is opinio juris, there is a rule of international customary law.
Id. at 36. Though this attenuated view of customary law is widely disputed,
Cheng's watershed 1965 article largely framed the debate. Indeed, no less a
distinguished scholar than R. Bernhardt regards the notion of instant custom a
distinct possibility under exceptional cases (though not under "traditional
concepts") in which such instant law is useful or necessary "at least if a new
rule is accepted without exception and the conduct of States conforms to it
and no measures contrary to the rule are taken." Malanczuk, Space Law, supra
note 283, at 160-61. See R. Bernhardt, Customary Law, in 7 ENCYCLOPEDIA OF
PUBLIC INTERNATIONAL LAW 61, 64-65 (Bernhardt, ed., 1982). Perceptively,
Malanczuk notes that the exceptional cases about which Bernhardt allows under
the rubric "customary law" are nothing of the sort. "There may indeed be a need
for this, but then it is not custom but some other (new) source of international
law." MALANCZUK, INTRODUCTION TO INTERNATIONAL LAW, supra note 130, at 46.
n302 North Sea Continental Shelf Cases (F.R.G. v. Den.; F.R.G. v. Neth.),
1969 I.C.J. Rep. 4, 43 [hereinafter North Sea Continental Shelf Cases].
Specifically, the Court stated that "an indispensable requirement would be that
within the period in question, short though it might be, State practice,
including that of States whose interests are specially affected, should have
been both extensive and virtually uniform in the sense of the provision
invoked." Id. This cautionary approach requires that to the extent the time
element is shortened, State agreement on the emerging norm must increase. Yet,
nowhere does the Court allow that the requirement for the passage of time may be
dispensed with, even in cases of perfect unanimity.
n303 Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 4,
n304 North Sea Continental Shelf Cases, supra note 302, at 42.
n305 H. Lauterpacht, Sovereignty Over Submarine Areas, 1950 BRIT. Y.B. INT'L
L. 376, 394. The author went on to point out, by way of example, the special
importance of maritime powers such as the U.S. and U.K. for matters pertaining
to the seas. To this perspective can be added the view of Virally, writing on
the eve of the North Sea decisions: "firm opposition of a number of states,
especially if they constitute an appreciable section of the international
community or comprehend one or more of the great powers, may no doubt obstruct
the formation of a general customary rule." M. Virally, The Sources of
International Law, in MANUAL OF PUBLIC INTERNATIONAL LAW 137 (M. Sorensen, ed.,
1986) (emphasis added).
n306 J.I. Charney, The Persistent Objector Rule and The Development of
Customary International Law, 1985 BRIT. Y.B. INT'L L. 1 (1986) [hereinafter
Charney]. In those cases involving persistent objectors not "specially
affected," international law allows that although the customary norm under
development may fully ripen into customary international law, the objecting
State is not bound. Thus held the International Court of Justice in both the
Anglo-Norwegian Fisheries and Asylum cases. In the former, the Court stated "in
any event the ten-mile rule would appear to be inapplicable as against Norway
inasmuch as she has always opposed any attempt to apply it to the Norwegian
coast." Fisheries Case (U.K. v. Nor.) 1951 I.C.J. 116, 131. In the Asylum case,
the Court stated that "even if it could be supposed that such a custom existed
between certain Latin-American States only, it could not be invoked against Peru
which, far from having by its attitude adhered to it, has, on the contrary,
repudiated it." Asylum Case (Colom. v. Peru)  I.C.J. 266, 277-78. "In both
[cases], the Court had previously found that the substantive rule of law did not
exist in the first place. The Court then went on to allow that even if the rule
were international law, the objecting States in these cases would not legally be
obligated to abide by the rule." Charney, id. at 9. Accord I RESTATEMENT (THIRD)
OF FOREIGN RELATIONS LAW OF THE UNITED STATES, @ 102 cmt. d (1987) (stating, "in
principle a dissenting state which indicates its dissent from a practice while
the law is still in the process of development is not bound by that rule of law
even after it matures.") This is not to say that a State must express its
affirmative consent in order to be bound by customary law, just that its
objection can work to remove its obligation to comply with the subsequent
customary norm that crystallized over its objection.
n307 Among this number would certainly include the United States, Russia, the
United Kingdom, France, China, India, and Japan.
n308 This examination of interested State practice appears to be the method
employed consistently by the International Court of Justice in its examination
of customary law, and comports with the opinion expressed by numerous scholars
today. Thus, in the Nicaragua case, the Court undertook to establish the
customary legal basis for the principle of nonintervention as it analyzed the
dispute between the United States and Nicaragua. In so doing, the Court pointed
out that although the U.S. expressed its opinion that U.N. General Assembly
Resolution 2131 was not a formulation of law but only a statement of political
intention, the U.S. later accepted resolution 2625 which purported to declare
law on the same point as resolution 2131. Military and Paramilitary Activities
(Nicar. v. U.S.), 1986 I.C.J. 4, 107. The Court's exercise in resolving the
apparent U.S. reservation to the principle of nonintervention is instructive,
and makes the most sense when viewed as an attempt to show that the U.S. was not
a persistent objector to the principle. In this light, the Court has employed a
method logically flowing from its prior assertion as to the required acceptance
of "specially affected" States in the formation of customary international law.
Given this disposition of the court, and apparently of international law in
general, the emerging practice of the United States with respect to the
recognition (or nonrecognition) of restrictions on space warfare, becomes most
n309 Malanczuk, Space Law, supra note 283, at 159.
n310 See id.
n311 See infra, Part IV, @ B.1.
n312 This is subject to the observation that debate now exists as the to
status of potential customary norms not otherwise addressed by treaty law. These
include the notion that international law recognizes a right of space objects,
headed either to or from outer space, to freely transit the sovereign airspace
of other States. Although some have pointed to the lack of objection by certain
States in the case of occasional violations of its airspace by space objects as
evidence that the "norm" has crystallized, this view is highly suspect. At a
minimum these anecdotal occasions assume that the violated state was aware of
the intrusion--unlikely in most cases usually cited. Thus Malanczuk observes
the contention can hardly be sustained that the practice of space powers to
launch their space objects into outer space after 1957 by crossing the air
space under the sovereignty of other countries developed into custom by the
acquiescence of those States. The countries affected simply often lacked the
technological capacities to find out.
MALANCZUK, INTRODUCTION TO INTERNATIONAL LAW, supra note 130, at 43. Beyond
this, even if a State knew about the violation, isolated instances of an
intrusion followed by a mere failure to protest is hardly sufficient to
establish a customary norm binding the entire international community. More than
this would be necessary to evince the requisite opinio juris. Thus Professor
There is no a [sic] right of (instant?) customary international law that space
objects can 'freely' transit through foreign airspace. The fact that in practice
so far no objections have been raised against transit through a State's airspace
by a foreign space object, is not an argument to refer to a customary right of
transit, as too few States have considered to be confronted with such transit
(and none have been), and no opinio juris with respect to such practice has been
pronounced as yet.
H.A. WASSENBERGH, PRINCIPLES OF OUTER SPACE LAW IN HINDSIGHT 36 (1991). By
contrast, the widespread recognition of the principle of freedom of space,
though it came rather quickly following the Soviet launch of Sputnik I, was
accompanied not only by the lack of objection in the face of orbital
overflights, but affirmative acquiescence by most States in the form of United
Nations resolutions. An additional customary norm pertains to the right of
space surveillance. In this instance a much stronger case can be made that
international law contains a customary norm to freely observe other States. As
Professor Diederiks-Verschoor notes "it is important to bear in mind that there
is as yet no statutory obligation on States, in U.N. Resolutions or elsewhere,
to ask for prior consent . . ." DIEDERIKS-VERSCHOOR, supra note 298, at 11.
Given this, and given the general international legal principle that in the
absence of prohibition States are free to act as they please, it is perhaps
better to see the right of space surveillance not so much as requiring specific
authorization by an explicit customary norm but as the natural prerogative of a
State flowing from its sovereignty and from the principle that space is free.
n313 For example, as of 1993, Colombia and Indonesia had not ratified any of
the multilateral space treaties; Iran had ratified the Rescue & Return
Agreement, and Liability Convention; and Yugoslavia had ratified the Rescue &
Return Agreement, Liability Convention, and Registration Convention. Resolution
of the difficult question of the Federal Republic of Yugoslavia's uncertain
status within international law and its succession to treaties ratified by the
Socialist Federal Republic of Yugoslavia is to some extent ongoing as of this
writing (July 2000). For discussion of the international legal implication of
the dissolution of the former Yugoslavia, see HARRIS, supra note 173, at 120-31.
n314 For example, in addition to the two principles cited above, namely, the
freedom of space for use and exploration, and the prohibition on national
appropriation of space or celestial bodies, a third customary principle provides
for the rescue of astronauts in distress. Regarding the first two cited
principles, see supra note 310 and accompanying text.
n315 Established by resolution of the U.N.G.A. in 1958, COPUOS has served as
a central forum for international negotiations toward the development of space
law. Although made up of only 61 members, less than one-third of the United
Nations membership, and unable to adopt rules and regulations binding on State
parties (unlike the International Civil Aviation Organization for example),
COPUOS has nonetheless played a remarkably effective role in the early
development of space law. Of the five treaties now in force under the corpus
juris spatialis, all five originated within COPUOS. With only one exception in
1982, COPUOS has acted on the basis of consensus. "In other words, every
member of the Committee . . . was given a veto." Cheng, 'Instant' Customary Law,
supra note 301, at 27. As might be expected, this makes the negotiation and
drafting process "detailed, laborious, and time-consuming." N. Jasentuliyana,
The Lawmaking Process in the United Nations, in SPACE LAW: DEVELOPMENT AND SCOPE
34 (N. Jasentuliyana, ed., 1992). This principle of action-by-consensus also
increases the commitment to the legal regimes created as well.
This is not to suggest that COPUOS is the only international body concerned
with space law. The scope of COPUOS' mandate in the progressive development of
space law excludes consideration of military uses, which the major space powers
relegate to "fora dealing with disarmament and arms control issues." Malanczuk,
Space Law, supra note 283, at 150. The most notable such forum is the U.N.
Conference on Disarmament. As of 2000, there were sixty-one member States of
COPUOS (unchanged from 1995): Albania, Argentina, Australia, Austria, Belgium,
Benin, Brazil, Bulgaria, Burkina Faso, Cameroon, Canada, Chad, Chile, China,
Colombia, Cuba, Czech Republic, Ecuador, Egypt, France, Germany, Greece,
Hungary, India, Indonesia, the Islamic Republic of Iran, Iraq, Italy, Japan,
Kazakhstan, Kenya, Lebanon, Mexico, Mongolia, Morocco, Netherlands, Nicaragua,
Niger, Nigeria, Pakistan, Philippines, Poland, Portugal, Republic of Korea,
Romania, Russian Federation, Senegal, Sierra Leone, South Africa, Spain, Sudan,
Sweden, Syrian Arab Republic, Turkey, Ukraine, the United Kingdom, the United
States, Uruguay, Venezuela, Viet Nam, and Yugoslavia. COPUOS, Membership of the
Committee on the Peaceful Uses of Outer Space, U.N. Doc. A/AC.105/602 1 (1995).
n316 Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space in the Exploration and Use of Outer Space,
Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410,
610 U.N.T.S. 205 (entered into force Oct. 10, 1967) [hereinafter Outer Space
n317 Namely, Resolution 1772, Jan. 3, 1962, International Co-operation in the
Peaceful Uses of Outer Space; Resolution 1962 (XVIII), Dec. 13, 1963,
Declaration of Legal Principles Governing Activities of States in the
Exploration and Use of Outer Space, and Resolution 1963 (XVIII), Dec. 13, 1963,
International Co-operation in the Peaceful Uses of Outer Space. For a discussion
of the second, and most important of these resolutions, see infra notes 482-485
and accompanying text.
n318 ROBINSON & WHITE, supra note 293, at 181.
n319 N. Jasentuliyana, The Role of Developing Countries in the Formation of
Space Law, XX:II ANNALS AIR & SPACE L. 95, 97 (1995) [hereinafter Jasentuliyana,
n320 I.A. Vlasic, A Survey of the Space Law Treaties and Principles Developed
Through the United Nations, in PROCEEDINGS OF THE THIRTY-EIGHTH COLLOQUIUM ON
THE LAW OF OUTER SPACE 324 (1996).
n321 "[The Outer Space Treaty] represents de facto and de jure the
constitution of outer space." I.A. Vlasic, Some Thoughts on Negotiating and
Drafting Arms Control and Disarmament Agreements Relating to Outer Space, in IV
ARMS CONTROL AND DISARMAMENT IN OUTER SPACE: TOWARDS A NEW ORDER OF SURVIVAL
203, 212 (M.N. Matte, ed., 1991) [hereinafter Vlasic, Negotiating and Drafting
Agreements Relating to Outer Space]. Subsequent multilateral space law treaties
serve primarily as commentaries and clarifications of the Outer Space Treaty.
n322 Outer Space Treaty, supra note 316, at art. II.
n323 Private entrepreneurs are now declaring their intent to make claims of
ownership over asteroids. See, e.g., P. Landesman, Starship Private Enterprise,
THE NEW YORKER, Oct. 26, 1998, at 178. As a matter of law, the possibility of
private appropriation has been widely rejected as an implicit violation of the
Outer Space Treaty's "no-sovereignty-in-outer-space" provision. However, growing
privatization of space activities, recognition of the economic benefits of
commercialization, differentiation of space resources from ocean resources, and
hesitation among venture capitalists to invest short of security interests
backed by ownership may lead to a gradual change in practice and law. The
positions of Wassenberg and Gorove that private appropriation does not violate
the Outer Space Treaty, while a minority view today, may became the majority
view in the twenty-first century. See H. Wassenbergh, Responsibility and
Liability for Non-Governmental Activities in Outer Space, in ECSL SUMMER COURSE
ON SPACE LAW AND POLICY: BASIC MATERIALS 197 (1994); S. Gorove, Interpreting
Article II of the Outer Space Treaty, 37 FORDHAM L. REV. 349, 351 (1969).
Indeed, "some scholars writing in the wake of the Outer Space Treaty's
ratification took the position that Article 2's no-sovereignty provisions bar
any property rights in outer space resources. That position has lost its
popularity over time, however, and is no longer held by many scholars." REYNOLDS
& MERGES, supra note 59, at 82. As an example, some business interests have
begun planning to construct space resorts. "The Space Transportation
Association, an industry lobbying group, recently created a division devoted to
promoting space tourism, which it sees as a viable way to spur economic
development beyond earth." T. Beardsley, The Way to Go in Space, 280:2
SCIENTIFIC AMERICAN, Feb. 1999, at 81. See also W.B. Scott, Studies Claim
Space Tourism Feasible, 146:14 AV. WK. & SPACE TECH., Apr. 7, 1997, at 58.
n324 Outer Space Treaty, supra note 316, at art. VI.
n325 As State responsibility for national space activity has been a
cornerstone of the corpus juris spatialis since 1967, it may well be a principle
of customary international law binding non-contracting States as well.
n326 The idea appeared previously in Principle 5 of U.N.G.A. Resolution 1962
(XVIII). However, this Resolution did not legally bind any State. See discussion
infra note 482.
n327 Outer Space Treaty, supra note 316, at art. IX.
n328 The entire body of international space law as it applies to space
warfare is subject to the limitations effected by a state of war between
belligerents. The difficult question of how an armed conflict terminates or
modifies obligations otherwise binding on belligerents in peacetime cannot be
avoided with respect to space warfare. For an example, see supra note 280 and
n329 Outer Space Treaty, supra note 316, at art. IX.
n330 Though Article IX also requires States to "conduct all their activities
in outer space . . . with due regard to the corresponding interests of all other
States Parties to the Treaty," this vague exhortation could just as likely apply
to the activities of States on earth as well. Outer Space Treaty, supra note
316, at art. IX. Certainly as a general proposition the intentional creation
of harmful contamination would run counter to various principles of
international law. However, as is often the case with armed conflict, the law
recognizes that as a matter of brute reality, certain activities illegitimate in
peace will be tolerated in war. Thus, in analyzing space warfare, the corpus
juris spatialis cannot be read in isolation from the law of war. In the context
of armed conflict, Article IX seems to create no greater duty for States with
respect to the space environment than that which exists for the terrestrial
environment. But see Professor Vlasic, "although these provisions apparently are
not aimed at hostile uses of outer space, they could nonetheless be invoked
against military activities not otherwise banned by the Treaty." Vlasic, Space
Law and Military Applications, supra note 11, at 397.
n331 Outer Space Treaty, supra note 316, at art. IX.
n332 B. REIJNEN, THE UNITED NATIONS SPACE TREATIES ANALYSED 130-31 (1992)
n333 Outer Space Treaty, supra note 316, at art. IV.
n334 I.A. Vlasic, The Legal Aspects of Peaceful and Non-Peaceful Uses of
Outer Space, in PEACEFUL AND NON-PEACEFUL USES OF SPACE: PROBLEMS OF DEFINITION
FOR THE PREVENTION OF AN ARMS RACE 37, 39 (B. Jasani, ed., 1991) [hereinafter
Vlasic, Peaceful and Non-Peaceful Uses of Outer Space].
n336 Id. (quoting text of letter as contained in McDOUGAL, ET AL., supra note
40, at 395).
n337 Id. at 40.
n338 C.Q. CHRISTOL, THE MODERN INTERNATIONAL LAW OF OUTER SPACE 22 (1982)
[hereinafter CHRISTOL, MODERN INTERNATIONAL LAW OF OUTER SPACE]. In addition to
the textual problems associated with equating the terms peaceful and
non-military, (indeed Article IV itself contemplates the military use of space
for scientific research) the interpretation suffers from a practical difficulty.
Just about any use of space can support a military purpose. Thus, even if a
satellite were developed, tested, launched, and controlled by a "civilian" organ
of State government, the information it provided could be useful for military
purposes. Weather, navigation, communications, and remote sensing are just a few
applications of space capabilities of great use to military forces. To say that
the Outer Space Treaty forbids this activity seems highly dubious. Yet this is
the logical extension of the claim that all uses of space must scrupulously
avoid any military uses and thereby remain peaceful.
n339 See id. at 29.
n340 Indeed the term includes the prospect of space weapons as well.
If one chooses to ignore the controversy concerning the 'true' meaning of
'peaceful' in the Outer Space Treaty, it is safe to conclude that the Treaty
permits the deployment in outer space of anti-satellite weapons, directed energy
weapons, or any other kind of weapon, as long as these weapons are not in
conflict with the prohibitions of Article IV [such as weapons of mass
destruction in orbit] of the Outer Space Treaty, or some other international
Vlasic, Space Law and Military Applications, supra note 11, at 397. As a
linguistic matter, though the true meaning of peaceful can just as accurately
mean "non-aggressive," (in part evidenced by the fact that Article IV forbids
military bases, installations, fortifications, and maneuvers--a meaningless
partial demilitarization if "peaceful" simply means "non-military") the relevant
issue is this: what does the term allow and what does it prohibit under the law?
On this, the corpus juris spatialis is clear.
n341 See infra notes 469, 471 and accompanying text. Though none go so far as
the Antarctic Treaty in divorcing "military" activities from "peaceful
purposes," other treaties specifically suggest that "peaceful," as used therein,
means non-military. Thus,
an examination of agreements which use the term 'peaceful'--namely, the Statute
of the International Atomic Energy Agency; the Antarctic Treaty; the Treaty for
the Prohibition of Nuclear Weapons in Latin America; the Convention on the
Prohibition of the Development, production and Stockpiling of Bacteriological
(Biological) and Toxic Weapons and Their Destruction; and the Convention on the
Prohibition of Military or Any Other Hostile Use of the Environmental
Modification Techniques--shows that in all these treaties the term 'peaceful' is
used in contradistinction to 'military.'
Vlasic, Negotiating and Drafting Agreements Relating to Outer Space, supra note
321, at 215. Assuming for the sake of argument that this interpretation is
accepted for each treaty cited, the exercise simply demonstrates that when the
drafters of a treaty intend for "peaceful" to mean non-military, they so state.
In the absence of doing so, one cannot simply assume it. For example, Article 88
of the United Nations Convention on the Law of the Sea specifies that "the high
seas shall be reserved for peaceful purposes." United Nations Convention on the
Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397, reprinted in 21 I.L.M. 1261
(entered into force Nov. 16, 1994). Given the history of State practice on the
high seas, no one assumed that this article turned the high seas into a
demilitarized zone. This provision "most certainly cannot be interpreted to mean
that military uses of the high seas are prohibited. Both customary law and the
uniform practice of States, before 1982 and after, are crystal clear on this
point." Vlasic, Negotiating and Drafting Agreements Relating to Outer Space,
supra note 321, at 215. Unless the treaty specifies that "peaceful" means
non-military, or its negotiating history makes it obvious, it cannot be assumed.
n342 Agreement Among the Government of Canada, Governments of Member States
of the European Space Agency, The Government of Japan, The Government of the
Russian Federation, and The Government of the United States of America
Concerning Cooperation on the Civil International Space Station, Jan. 29, 1998,
art. 1(1), IV UNITED STATES SPACE LAW: NATIONAL & INTERNATIONAL REGULATION 98-1
(S. Gorove, ed., 1998) [hereinafter ISS Agreement].
n343 Id. at art. 9 P3(b).
n344 CHRISTOL, MODERN INTERNATIONAL LAW OF OUTER SPACE, supra note 338, at
n345 Christol quotes the principal U.S. negotiator of the treaty, Ambassador
Arthur Goldberg, for this proposition: "'obviously whatever the definition of
outer space, the Moon and other celestial bodies are in outer space.'" Id. at
n346 Id. at 24.
n347 Professor Vlasic provides one insight as to why the U.S. preferred to
restrict the application of "peaceful purposes" to the moon and celestial
bodies: "According to [a] former Legal Advisor in the U.S. Department of State,
the "language of Article IV was carefully chosen to ensure that general
principle of 'peaceful uses' would not interfere with the testing" of weapons
such as nuclear ballistic missiles." Vlasic, Peaceful and Non-Peaceful Uses of
Outer Space, supra note 334, at 42. Of course, on the widely-accepted view that
peaceful means non-aggressive, such testing would not have been a problem.
Indeed, on this understanding, the actual use of weapons in space can be
peaceful if compliant with the jus ad bellum. Thus, Professor Christol's
pragmatic recognition that
it is a fact that [Article 4(2)] says that the moon and celestial bodies full
stop shall be used exclusively for peaceful purposes; and by that I take it to
mean that this inhibition or restriction does not apply to outer space today.
Though I do realize that there are many who make arguments which sometimes are a
little overreaching, and whereas my sympathies go with them, my legal training
tells me that we had better not read it that way . . .
C. Christol, Discussion, in M. COHEN & M.E. GOUIN, LAWYERS AND THE NUCLEAR
DEBATE 233 (1988).
n348 See supra notes 266-274 and accompanying text.
n349 Outer Space Treaty, supra note 316, at art. III.
n350 National Aeronautics and Space Act of 1958, 42 U.S.C. @ 2451(a) (1994).
n351 The White House, National Science and Technology Council, National
Space Policy, Sept. 19, 1996 (from the Introduction). The policy statement
articulates the long-held U.S. position on the meaning of peaceful purposes by
stating that "'Peaceful purposes' allow defense and intelligence-related
activities in pursuit of national security and other goals." Id. P3.
n352 "In the case of weapons systems, there is a much broader feeling [beyond
that for military support systems] that they are destabilizing and should be
banned." P. Jankowitsch, Legal Aspects of Military Space Activities, in SPACE
LAW: DEVELOPMENT AND SCOPE 143, 150 (N. Jasentuliyana, ed., 1992). Further, in a
fascinating recent article, Lieutenant Colonel Bruce DeBlois argued that for
reasons of national policy, the U.S. should resist the urge to weaponize space
with ASATs. He boldly proclaims the U.S. National Space Policy "weak and
ambiguous" with "no clear vision" and no one "in charge," and that for space
matters "few people would argue" that the U.S. is "fumbling around in an ad hoc
manner." DeBlois, supra note 3, at 52. Yet even this advocate of the "space
sanctuary" school recognizes that "except for [weapons of mass destruction] and
[anti-ballistic missile systems for the U.S. and Russia], no international
prohibition on space weapons exists." Id. at 46.
It is beyond the scope of this article to fully consider the policy merits of
weaponizing space. However, the debate that Lieutenant Colonel DeBlois invites
is sure to yield a flood of comment, much of which will no doubt take issue with
his central premise that space weapons are ultimately destabilizing. With
respect to ASATs in the context of the cold war, Stares helpfully summarizes the
opposing positions, portions of which still carry some currency in the post-cold
[The pro-ASAT school] starts from the belief that space is just another military
arena where satellites will have to adapt to new threats with new
countermeasures in the same way that their counterparts on earth have adapted. .
. . [Proponents believe the U.S. can] deny the Soviets the use of their space
assets in wartime while simultaneously preserving the security of U.S. space
systems. Moreover, they argue that any attempt to constrain the development of
antisatellite systems is illogical and unfeasible; illogical because there are
no such limitations on weapons capable of attacking, say, high-flying
reconnaissance aircraft or early warning radars, and unfeasible because of the
unavoidable presence of the residual antisatellite systems . . . . The second
school . . . starts from the belief that the United States is more dependent on
the service of military satellites than the Soviet Union is and therefore has
more to lose in the event of hostilities in space. The proponents of this view
remain highly skeptical of the United States' ability to defend its vital
space assets in the face of unconstrained antisatellite development by the
Soviet Union. In addition to stimulating an expensive and in the end fruitless
competition, they believe an ASAT arms race could seriously erode superpower
stability during a severe crisis. Specifically, the knowledge that the other
side had a highly effective ASAT weapon system capable of crippling one's own
vital early warning and strategic communication satellites could become an
overwhelming incentive to strike first in a major superpower crisis.
STARES, SPACE AND NATIONAL SECURITY, supra note 70, at 5.
n353 Because the Outer Space Treaty does not define nuclear weapon its
prohibition has stimulated debate over newer technologies such as the X-ray
laser which is powered by a nuclear explosion. Whether a nuclear-powered laser
is a nuclear weapon will mean the difference between its lawful orbiting of
earth or not. P. Jankowitsch, Legal Aspects of Military Space Activities, in
SPACE LAW: DEVELOPMENT AND SCOPE 147 (N. Jasentuliyana, ed., 1992). Given its
destructive power, the military significance of such a laser will be tremendous.
For example, the intense X-rays emitted as a result of the initial nuclear blast
lead some to speculate that one X-ray laser no larger than a packing crate would
be able to destroy the entire Russian ICBM arsenal if they were launched at one
time in a massive attack. TAYLOR, supra note 97, at 36. In addition to the
possibility that such weapons may be nuclear weapons under the Outer Space
Treaty, their immense destructive capability may otherwise render them weapons
of mass destruction.
n354 Professor Stojak points out that though it is unlikely to happen, the
change could occur without a new treaty were Article IV(1) modified to read:
States Parties to the Treaty undertake not to place in outer space [instead of
"in orbit around the earth"] any objects carrying nuclear weapons or any other
kinds of weapons of mass destruction, install such weapons on the moon or on
celestial bodies, or station weapons [instead of "such weapons"] in outer
space in any other manner.
M.L. Stojak, Recent Developments in Space Law, in ARMS CONTROL AND THE RULE OF
LAW: A FRAMEWORK FOR PEACE AND SECURITY IN OUTER SPACE 62 (J.M. Beier & S.
Mataija, eds., 1998) [hereinafter Stojak].
n355 The exception to this applies only to the U.S. and Russia under the
Anti-Ballistic Missile Treaty, which prohibits interference with "national
technical means" of arms control verification. See infra Part V, @ A.2. With
respect to the ban on orbiting of nuclear or other weapons of mass destruction,
it has been widely observed that the proscription does not extend to partial
To be 'in orbit,' an object must circumnavigate the planet at least one full
time. When, on Nov. 3, 1967, U.S. Secretary of Defense McNamara announced that
the U.S.S.R. had been testing a Fractional Orbiting Bombing System (FOBS), that
could become operational in 1968, he hastened to add that as such an object,
while entering outer space, does not completely circle the globe, it, like an
intercontinental ballistic missile, was not in violation of the 1967 treaty.
HURWITZ, supra note 289, at 111.
n356 For discussion of the prohibition on nuclear weapons tests in space, see
infra notes 436-438 and accompanying text.
n357 W.E. Burrows, The Military in Space: Securing the High Ground, in
SPACE: DISCOVERY AND EXPLORATION 142 (M.J. Collins & S.K. Kraemer, eds., 1993)
(quoting speech by Brigadier General Homer A. Boushey).
n358 Agreement on the Rescue of Astronauts, the Return of Astronauts, and the
Return of Objects Launched into Outer Space, Apr. 22, 1968, 672 U.N.T.S. 119, 19
U.S.T. 7570, T.I.A.S. No. 6599, (entered into force Dec. 3, 1968) [hereinafter
Rescue & Return Agreement]. Although widely used, the shorthand "astronaut
agreement" is unfortunate because it masks the treaty's application to return of
objects as well as astronauts. A better shorthand reference would be the "rescue
and return agreement." CHRISTOL, MODERN INTERNATIONAL LAW OF OUTER SPACE, supra
note 338, at 152.
n359 Though never defined, it seems best to think of a space object as
something distinct from astronauts. However, when international law finally
settles on a definition of space object it may include astronauts. See infra
n360 Other than the Moon Agreement, the U.S. and Russia are parties to four
of the five multilateral treaties under the corpus juris spatialis. For
discussion of the Moon Agreement, see infra, Part IV, @ B.5.
n361 Though the treaty does not specify whether the notifications to the
launching authority and the U.N. Secretary General are conjunctive or
disjunctive, the language of Article 2 requiring similar notifications is
n362 Rescue & Return Agreement, supra note 358, at art. 1.
n363 Id. at art. 2. Article 2 further specifies that if assistance by the
launching authority would "effect a prompt rescue or would contribute
substantially to the effectiveness of search and rescue operations" it shall
cooperate with the State Party in whose territory the astronaut has landed.
Id. This raises two observations. First, if the conditions for cooperation are
satisfied, the launching authority must assist. Second, because Article 6
defines launch authority, in part, as "the State responsible for launching," it
could constitute a State other than the astronaut's home state. For example,
when the U.S. launches Canadian, French, or Spanish astronauts on its Space
Shuttle, if the occupants were to land in the territory of another contracting
party by reason of "accident, distress, emergency, or unintended landing," the
U.S. as "launching authority" could be required under Article 2 to assist in any
recovery efforts. Id. Such efforts would then be "subject to the direction and
control of the Contracting Party, which shall act in close and continuing
consultation with the launching authority." Id. With respect to the treaty, its
provisions, including the duty to rescue and assist, formally apply only to
States Parties. However, by analogy with Maritime Law, it seems likely that this
duty to assist astronauts in distress is rooted in customary international law.
The duty to assist mariners on the sea has long been established both by treaty
(e.g. 1910 Brussels Treaty) and custom, and likely applies equally to
n364 Id. at art. 3.
n365 The Liability Convention, does define space object as including the
"component parts of a space object as well as its launch vehicle and parts
thereof." Convention on International Liability for Damage Caused by Space
Objects, Mar. 29, 1972, art. 1(d), 24 U.S.T. 2389, 961 U.N.T.S. 187 (entered
into force Sept. 1, 1972) [hereinafter Liability Convention]. However in using
the very term to be defined within the definition itself, the definition is so
hopelessly circular that it amounts to no definition at all.
n366 Rescue & Return Agreement, supra note 358, at art. 5(1).
n367 Id. at art. 5(3).
n368 The satellite was designed for ocean reconnaissance and was powered by a
"nuclear reactor working on uranium enriched with isotope of uranium-235."
SPACE LAW AND INSTITUTIONS: DOCUMENTS AND MATERIALS 295 (I. Vlasic, ed., 1997)
(containing Statement of Claim by Canada, Jan. 23, 1979). The Cosmos 954 crash
was the first instance "in the history of space exploration where a claim was
made by one sovereign state against another on account of damage caused by a
falling space object." B. Schwartz & M.L. Berlin, After the Fall: An Analysis of
Canadian Legal Claims for Damage Caused by Cosmos 954, 27 McGILL L.J. 676
(1982). The satellite contained over 50 kg of enriched uranium, suggesting it
was not designed for reentry in 1978 but only after a long orbital lifetime.
n369 President Carter notified Canadian Prime Minister Trudeau and actually
repeated an offer made prior to the satellite's reentry. A.F. Cohen, Cosmos 954
and the International Law of Satellite Accidents, 10:1 YALE J. INT'L L. 78, 80
(1984). Not only does this suggest that the U.S. had tracked the satellite to
its reentry point, but that the U.S. earnestly wanted an analysis of the Soviet
spy satellite. Cohen reports that prior to the reentry, the Soviet Union
secretly provided the U.S. with information about the satellite's reactor,
though this information was only formally provided to Canada months after the
crash. See id. at 179.
n370 Indeed, though the Soviet Union expressed no interest in the return of
the object and therefore claimed it had no obligation to provide identifying
data under Article 5(3) (required prior to return of the object), it expressed
regret that its specialists did not participate in the search and removal of the
object. CHRISTOL, MODERN INTERNATIONAL LAW OF OUTER SPACE, supra note 338, at
179. Because no State has ever requested return of a space object from another,
Article 5 has never been tested in practice.
n371 Rescue & Return Agreement, supra note 358, at art. 5(2).
n372 Id. at art. 4.
n373 Austria, supported by France, wished to continue to offer asylum in
keeping with its "traditional policies toward aliens." CHRISTOL, MODERN
INTERNATIONAL LAW OF OUTER SPACE, supra note 338, at 175.
n374 REYNOLDS & MERGES, supra note 59, at 204. These States plausibly
asserted that requests for asylum under conditions of the unintended landings
specified in the treaty could be coerced, "particularly when the requestor is
the victim of a recent space accident and may not be in full possession of his
or her faculties." Id.
n375 Id. Also, though its terms suggest application to living astronauts, the
treaty does not answer whether a duty exists to return the remains of expired
n376 Liability Convention, supra note 365.
n377 See infra, Part VI, @ E.3.
n378 Liability Convention, supra note 365 (from the Preamble).
n379 Outer Space Treaty, supra note 316, at art. VII. Article VI of the Outer
Space Treaty also provided the drafters of the Liability Convention some
guidance in its assertion that States Parties "shall bear international
responsibility for national activities in outer space . . . ." Id. at art. VI.
Foster notes that the Outer Space Treaty left several left several questions
(a) what flight instrumentalities are covered by the term 'object?';
(b) what is meant by the phrase 'internationally liable?';
(c) what regime will govern the liability of States engaged in a joint venture-
-will they be jointly and severally liable or only severally liable?;
(d) what is encompassed by the term 'damage?';
(e) how is an international organization to be responsible under the Treaty when
it cannot become a party to, or even accept the obligations contained in the
(f) what mechanisms will be used to settle disputes arising when damage is caused?
W.F. Foster, The Convention on International Liability for Damage Caused by
Space Objects, 1972 CAN. Y.B. INT'L L. 137, 143 n.3 [hereinafter Foster]. Of
these, with the exception of the first, all have been clarified to some
meaningful degree by the Liability Convention.
n380 Defined more expansively than "launching authority" under the Rescue &
Return Agreement, "launching state" under the Liability Convention includes (1)
the State who launches a space object; (2) the State who procures the launch of
a space object; and (3) the State from whose territory or facility a space
object is launched. Liability Convention, supra note 365, at art. I(c).
n381 Liability Convention, supra note 365, at art. 2. This significant
provision was the first time that an international agreement provided for
attaching absolute liability to State actors.
n382 Id. at art. 3.
n383 As stated previously, the Liability Convention's definition of "objects"
attempts, but fails to define the term. Though it would appear to include
non-operational space debris, it leaves several unresolved issues. For example,
it is unclear whether a space object is simply an object designed for travel in
outer space. Foster notes that all of the draft definitions of "space object" in
the COPUOS Legal Subcommittee "contained the criterion of being designed for
movement in outer space." Foster, supra note 379, at 145. On this approach,
sounding rockets that fail to leave earth's atmosphere and scientific equipment
permanently left on the moon are not space objects. By contrast, a satellite in
transit by rail that rolls off its platform causing damage would logically
subject the State of origin to absolute liability. Though the Liability
Convention attaches liability to "launching States" it does not specify that to
be compensable the damage must occur during or after a launch. Further, because
the Liability Convention definition of "space object" includes "component parts
of a space object," it is unclear whether, for example, cargo and crew of a
space object also qualify themselves as "space objects." They might if Christol
is correct that "component parts' is to be construed in a broad sense to include
such property on board as would be conducive to the successful operation of the
space object." CHRISTOL, MODERN INTERNATIONAL LAW OF OUTER SPACE, supra note
338, at 109. Because the Convention does not explicitly define the term "space
object," these hypothetical scenarios raise potential future disputes over what
types of objects can create liability.
n384 Liability Convention, supra note 365, at art. I(a).
n385 Id. at art. IV.
n386 Id. at art. V.
n387 Id. at art. VI.
n388 Id. at art. VII.
n389 Id. at art. VIII.
n390 Id. at art. X.
n391 Id. at art. XI.
n392 Id. at art. XIV--art. XX.
n393 CHRISTOL, MODERN INTERNATIONAL LAW OF OUTER SPACE, supra note 338, at
n394 Convention on the Registration of Objects Launched into Outer Space,
Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15 (entered into force Sept. 15,
1979) [hereinafter Registration Convention].
n395 DIEDERIKS-VERSCHOOR, supra note 298, at 41.
n396 Outer Space Treaty, supra note 316, at art. VIII.
n397 Arguably, the Outer Space Treaty implicitly required the maintenance of
a registry simply because use of the term in the Treaty assumes that States
maintain them. Yet, the matter was not stated as a requirement until 1975.
n398 Registration Convention, supra note 394, at art. I. The first two
phrases are given definitions identical to those found in the Liability
n399 Id. at art. II(1). This suggests that space objects, or other objects,
launched into sub-orbital trajectories need not be registered. Technically, this
would include objects failing to complete a single circumnavigation of the
globe, as for example objects following a 180 or 270 degree arc, short of the
complete 360 degree path required of orbital flights.
n400 Id. at art. II(3).
n401 Essentially, this information has been made optional in view of Article
V which suggests that space objects may or may not carry identifying markings:
"Whenever a space object launched into earth orbit or beyond is marked with the
designator or registration number referred to in Article IV, paragraph 1(b), . .
." The obvious but unstated assumption flowing from "whenever" is that in some
cases the object might be marked, in some cases it might not, at the option of
the launching state.
n402 Also termed "orbital period." "The time it takes a spacecraft or other
object to circumnavigate Earth, . . . High altitude circuits take longer to
complete than low ones. Elliptical and circular orbits have equal periods, if
the average of apogee and perigee altitudes is the same." COLLINS, MILITARY
SPACE FORCES, supra note 12, at 156.
n403 Also termed "orbital inclination."
The angle of a flight path in space relative to the equator of Earth, . . .
Equatorial paths are 0 [degree] for flights headed east, 180 [degrees] for those
headed west. Polar paths are 90 [degrees]. All other paths overfly equal parts
of the northern and southern hemispheres (from 50 [degrees] N latitude to 50
[degrees] S, for example).
n404 "The maximum altitude attained by a spacecraft in elliptical orbit
around Earth, its moon, or another planet." Id. at 146.
n405 "The minimum altitude attained by a spacecraft in elliptical orbit
around Earth, its moon, or another planet. Spacecraft in [low-earth orbit]
attain maximum velocity at that point where Earth's gravitational pull is
strongest." Id. at 157.
n406 Registration Convention, supra note 394, at art. IV(1).
n407 In some cases, what is practicable may require delay for up to a year or
more. During the prosecution of an international armed conflict, it would hardly
be practicable for a belligerent to transmit the launch of its space objects to
an opposing belligerent through the United Nations. Notification to the opposing
belligerent is the practical result of such notifications made during the armed
conflict, given the fact that "there shall be full and open access to the
information in this [United Nations] Register." Id. at art. III(2). On this
interpretation of Article IV(1), a belligerent could avoid the difficult
conclusion that the Registration Convention does not apply during armed
conflicts--the belligerent could simply and reasonably apply the Convention's
own terms in the context of armed conflict. This interpretative approach to the
Registration Convention is available to belligerents in any conflict, not merely
those involving space combat. Thus, during Vietnam, the 1991 Persian Gulf War,
and the 1999 war in the former Yugoslavia, belligerents could legitimately delay
notification to the U.N. Secretary General under Article IV until doing so
provided no tactical advantage to the enemy. Once the military threat posed by
earlier notification is passed, the notification became practicable for the
State of registry.
n408 Indeed, protection of the "national technical means" (including space
reconnaissance capabilities) under the Anti-Ballistic Missile (ABM) treaty
between the U.S. and U.S.S.R., is the sine qua non of an effective verification
structure. To the extent the ABM Treaty should survive in its current form, the
U.S. and Russia must protect the secrecy of their space reconnaissance assets.
The Registration Convention allows them to do this. For a discussion of the ABM
Treaty, see infra, Part V, @ A.2.
n409 DIEDERIKS-VERSCHOOR, supra note 298, at 42.
n411 In addition to reconnaissance satellites, the vague reporting
requirements could easily obscure the true nature of attack satellites as well.
n412 Agreement on the Activities of States on the Moon and Other Celestial
Bodies, Dec. 5, 1979, G.A. Res. 34/68, U.N. GAOR, 34th Sess., Supp. No. 46, U.N.
Doc. A/34/664 (1979) (entered into force July 11, 1984) [hereinafter Moon
n413 As of 2000, nine States had ratified the treaty, few of which are active
in space and none of which are major space actors. Among others, these include
Australia, Mexico, and Pakistan. Multilateral Treaties Deposited with the
Secretary-General (July 21, 2000), available at
(copy on file with the Air Force Law Review). France signed but has
not ratified the treaty. Id.
n414 Moon Agreement, supra note 412, at art. 4(1); accord Outer Space Treaty,
supra note 316, at art. I.
n415 Moon Agreement, supra note 412, at art. 4(1); accord Outer Space Treaty,
supra note 316, at art. I.
n416 Moon Agreement, supra note 412, at art. 11(2); accord Outer Space
Treaty, supra note 316, at art. II.
n417 Moon Agreement, supra note 412, at art. 12(1); accord Outer Space
Treaty, supra note 316, at art. VIII (using term "object" versus "vehicles,
equipment, facilities, stations, and installations").
n418 Moon Agreement, supra note 412, at art. 2; accord Outer Space Treaty,
supra note 316, at art. III.
n419 Moon Agreement, supra note 412, at art. 14(1); accord Outer Space
Treaty, supra note 316, at art. VI.
n420 Moon Agreement, supra note 412, at art. 15(1); accord Outer Space
Treaty, supra note 316, at art. XII. The Moon Agreement adds a fifth category,
facilities, to the list of items open to States Parties.
n421 Moon Agreement, supra note 412, at art. 1(1).
n422 Id. at art. 1(3).
n423 Id. at art. 6(2). Unfortunately, the treaty does not define "sample."
Thus it is not clear from the treaty's terms either what sized object
constitutes a sample (1 cm? .5 m? 10 m? 100 m?) or how many samples may be
removed. Article 6(2) goes on to state that "States Parties may in the course of
scientific investigations also use mineral and other substances of the moon in
quantities appropriate for the support of their missions." Id. While this comes
close to providing guidance on a permissible amount, the fact that minerals and
substances may "also" be used in this way suggests that it is in addition to the
taking and retaining of samples. Thus, there is no clear answer.
n424 The Apollo 11 moon landing in 1969 is regarded as providing the first
major impetus toward negotiating a specific treaty governing moon activities.
The negotiators were motivated in part by "an awareness that tangible Moon rocks
were being returned to Earth, the possibility that mineral and other substances,
as well as intangible resources, might be exploited, and speculation that it
might be possible to establish human habitations on the Moon." CHRISTOL, MODERN
INTERNATIONAL LAW OF OUTER SPACE, supra note 338, at 246. The provision allowing
for limited exploitation of the moon's resources came at the expense of
proposals by some developing countries to outlaw the exploitation of natural
resources in space except under the auspices of an international regime.
n425 Moon Agreement, supra note 412, at art. 3(3). The prohibition on
orbiting weapons of mass destruction around the moon was thought to close a gap
left by Article IV of the Outer Space Treaty. The latter outlawed the orbiting
of weapons of mass destruction around the earth, and the installation or
stationing of such weapons on celestial bodies or in outer space. Though the
prohibition on stationing weapons of mass destruction in outer space could be
read to foreclose the lawfulness of orbiting, for example, a nuclear weapon
around the moon, the Outer Space Treaty did not specifically forbid orbiting of
the moon by nuclear or other weapons of mass destruction. The Moon Agreement
n426 Id. at art. 3(2).
n427 Id. at art. 11.
n428 As applied to outer space, the concept first arose in July 1967 at the
behest of the Ambassador of Argentina, Aldo Armando Cocca, in discussions held
with the COPUOS Legal Subcommittee.
A few months later, the Maltese Ambassador to the United Nations, Arvid Pardo,
applied the principle to the law of the sea when he stated that the seabed was
the 'common heritage of mankind.' The concept was formalized first in the 1979
Moon Agreement, and subsequently in the 1982 Law of the Sea Convention.
Jasentuliyana, Developing Countries, supra note 319, at 106. Prior to this, the
CHM concept appeared in a 1970 U.N.G.A. resolution declaring principles
governing the seabed and subsoil beneath it.
n429 During negotiations over the Moon Agreement, the Argentinean delegation
submitted a working paper in which it proposed that the merit in "replacing the
vague expression 'province of mankind' by the more meaningful expression 'common
heritage of mankind' is that in doing so one has specified the commencement of
an action, replacing an abstract statement by a means of operating, within a
specified legal framework." Jasentuliyana, Developing Countries, supra note 319,
at 107-08. Perhaps Diederiks-Verschoor puts the distinction best:
The 'province of mankind' must be identified as a general political principle
with certain moral overtones, meant to govern rights and duties in outer
space. Its legal substance, according to Article I [of the Outer Space Treaty]
is international cooperation and use of outer space without discrimination of
any States, and the duty to take into account the interests of other States. The
scope of the term 'common heritage' is much more restricted in legal terms,
covering only the exploitation of the moon's natural resources.
DIEDERIKS-VERSCHOOR, supra note 298, at 45. As usual, Professor Christol gets to
the heart of the matter:
[despite commonalities] it is evident that the two principles carry separate and
distinct characteristics. The province of mankind principle is linked to the res
communis principle which allows for the exploration, use, exploitation, and
voluntary sharing of common resources. On the other hand, the Common Heritage of
Mankind principle, as contained in the Moon Agreement, may be characterized as a
"res communis plus" principle in the sense that successful explorers, users, and
exploiters of the moon and its natural resources will be obligated to conform to
the decisions of the international legal regime identified in Article 11 of that
agreement . . . . The province of mankind principle does not contemplate the
formation of an international inter-governmental body or that there be an
obligatory sharing of the tangible acquisitions of Moon and celestial body
C.Q. Christol, Important Concepts for the International Law of Outer Space, in
PROCEEDINGS OF THE FORTIETH COLLOQUIUM ON THE LAW OF OUTER SPACE 73, 80 (1998).
n430 Jasentuliyana, Developing Countries, supra note 319, at 106-07. For more
detailed analyses, see G.M. Danilenko, The Concept of the Common Heritage of
Mankind in International Law, XIII ANNALS AIR & SPACE L. 247 (1988); N.
Jasentuliyana, The U.N. Space Treaties and the Common Heritage Principle, 2
SPACE POL'Y 296 (1986); A. Cocca, The Common Heritage of Mankind: Doctrine and
Principle of Space Law--An Overview, in PROCEEDINGS OF THE TWENTY-NINTH
COLLOQUIUM OF THE LAW OF OUTER SPACE 17 (1986); N.M. Matte, Limited Aerospace
Natural Resources and their Regulation, VII ANNALS AIR & SPACE L. 379 (1982);
K.B. Walsh, Controversial Issues Under Article XI of the Moon Treaty, VI ANNALS
AIR & SPACE L. 489 (1981); and S.M. Williams, The Common Heritage of Mankind and
the Moon Agreement--Economic Implications and Institutional Arrangements, in
PROCEEDINGS OF THE TWENTY-FOURTH COLLOQUIUM ON THE LAW OF OUTER SPACE 87 (1981).
n431 The Agreement calls for an international regime that contains four
(a) The orderly and safe development of the natural resources of the moon;
(b) The rational management of those resources; (c) The expansion of
opportunities in the use of those resources; and (d) an equitable sharing by all
States Parties in the benefits derived from those resources, whereby the
interests and needs of the developing countries, as well as the efforts of those
countries which have contributed either directly or indirectly to the
exploration of the moon, shall be given special consideration.
Moon Agreement, supra note 412, at art. 11(7).
n432 Id. at art. 11(5).
n433 Indeed, friction between the U.S. and U.S.S.R. did not help the
prospects for ratification. Although the other leading global space power, and
presumably capable of developing the means to exploit the moon's natural
resources, the U.S.S.R. generally sided with the interests of the developing
States. Both were against incorporation of the CHM principal, however, the U.S.
and U.S.S.R. could not agree on whether exploitation could begin before
establishment of the international regime called for in Article 11--the U.S.
position--or not, the Soviet position. See DIEDERIKS-VERSCHOOR, supra note 298,
at 46. For further information on the debates within the U.S. Senate and State
Department, see M.L. Nash, Contemporary Practice of the United States Relating
to International Law: Moon Treaty, 74 AM. J. INT'L L. 418, 421-26 (1980). Though
the State Department supported the Agreement, a large number of space interest
groups mounted a tremendous protest to the implications of the CHM principle.
What is most surprising is that despite the strong objection to the CHM
principle coming from the U.S., "the U.S. delegation in COPUOS was the main
architect [of the concept]." D. Goedhuis, Some Recent Trends in the
Interpretation and the Implementation of the Rules of International Space Law,
19 COL. J. TRANSNAT'L L. 213, 231 (1981). See also C. Christol, Current
Developments: The Moon Treaty Enters Into Force, 79 AM. J. INT'L L. 163 (1985).
n434 REYNOLDS & MERGES, supra note 59, at 116.
n435 J.F. Kennedy, PUBLIC PAPERS OF THE PRESIDENTS OF THE UNITED STATES: JOHN
F. KENNEDY, 1961, 405 (1962).
n436 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space
and Underwater, Aug. 5, 1963, 14 U.S.T. 1313, 480 U.N.T.S. 43 (entered into
Force Oct. 10, 1963) [hereinafter Limited Test Ban Treaty]. As the title
suggests, the Treaty effected a "limited" ban on nuclear testing that did not
restrict detonations under ground. Important as its restrictions on space
activities are, some scholars refer to it as a sixth space treaty. See, e.g.,
REIJNEN, supra note 332, at ix.
n437 The only limitation of course being those locations where the detonation
would constitute an illegal use of force under the jus ad bellum, or means and
method of warfare against foreign property or persons in violation of the jus in
bello. Because France and China never signed the treaty, they would in theory
still be free to initiate detonations in the atmosphere, under water, or in
outer space. Such activity would have to overcome the strong argument that doing
so violates customary international law, including that related to environmental
protection. France continued to test on the high seas until 1973. Though
Australia sought a declaration from the International Court of Justice that such
testing violated international law, the Court determined the issue moot when
France declared it would carry out no further such testing in the South Pacific.
See Nuclear Test Cases (Australia v. France; New Zealand v. France), 1974 I.C.J.
n438 Limited Test Ban Treaty, supra note 436, at art. I(1) (emphasis added).
Interestingly, the drafters sidestepped the issue of where space begins by
simply forbidding detonations within the atmosphere and "beyond its limits,
including outer space." Id.
n439 Id. The U.S. signed the Comprehensive Test Ban Treaty, which was
rejected by the Senate in October of 1999.
n440 Of course, negotiators were not oblivious to the clear military
implications as well. Jankowitsch writes, "In 1962, the international community
was jolted and the situation changed dramatically when the first nuclear weapon
was tested in outer space. Suddenly, the extension of the arms race into outer
space posed a real and present threat to international peace and security, . .
." Jankowitsch, Legal Aspects of Military Space Activities, in SPACE LAW:
DEVELOPMENT AND SCOPE 143 (N. Jasentuliyana, ed., 1992).
n441 REYNOLDS & MERGES, supra note 59, at 54.
n442 Although one of his highest priorities as President, Dwight D.
Eisenhower declared the failure of his administration to secure a nuclear test
ban "the greatest disappointment of any administration--of any decade--of any
time and of any party." P.H. Nitze & S.D. Drell, This Treaty Must Be Ratified,
WASH. POST, June 21, 1999, at 19.
n443 See N.M. Matte, The Treaty Banning Nuclear Weapons Tests in the
Atmosphere, in Outer Space and Under Water (10 October 1963) and the Peaceful
Uses of Outer Space IX ANNALS AIR & SPACE L. 391, 397(1984). The Soviets did not
begin their testing until Aug. 29, 1949.
n444 REYNOLDS & MERGES, supra note 59, at 59.
n445 Id. at 61. The authors note that the United States abandoned its
experimentation on the ORION nuclear propulsion system after ratification of the
treaty. Such system used small atomic bombs as fuel. A similar process is
thought to fuel the X-ray laser developed as part of the Strategic Defense
Initiative. See supra note 353. The U.S. Congressional Office of Technology
Assessment opined in 1985 that existing international law prohibits "the testing
or deployment in space of nuclear space mines or ASATs that would require a
nuclear detonation as a power source." U.S. Congress, Office of Technology
Assessment, Anti-Satellite Weapons, Countermeasures, and Arms Control, 1985, at
21. The basis of this conclusion is likely not the Outer Space Treaty's ban on
the orbiting or stationing of nuclear weapons in space, the definition of which
is reasonably open to interpretation, but the Limited Test Ban Treaty's ban on
nuclear detonations in space.
n446 Because electromagnetic pulses are not dissipated in space, a single
two-megaton bomb exploded at 50 km or higher above the earth could affect the
circuits of nearly all satellites up to the geostationary orbit. REYNOLDS &
MERGES, supra note 59, at 59. While military satellites are shielded against
such threats, commercial satellites usually are not. Of course, the treaty does
not prohibit all explosions in space, only those generated by a nuclear blase.
n447 Treaty on the Limitation of Anti-Ballistic Missile Systems, May 26,
1972, U.S.-U.S.S.R., 23 U.S.T. 3435 (entered into force Oct. 3, 1972)
[hereinafter ABM Treaty].
n448 REYNOLDS & MERGES, supra note 59, at 96.
n449 ABM Treaty, supra note 447, at art. I, II. As would become significant
in 1983, the ABM Treaty did not prohibit research into ABM systems.
n450 Id. at art. III, as amended. The treaty originally allowed two ABM
systems having a radius of 150 km or less. This was reduced to one, by Protocol
of 1974. See Limitation of Anti-Ballistic Missile Systems, July 3, 1974,
U.S.-U.S.S.R., 27 U.S.T. 1645 (entered into force May 24, 1976). The Protocol
specified that the U.S. would not deploy an ABM system in the area centered on
its capital, while the Soviet Union would not deploy a system in the deployment
area of its ICBM silo launchers. Id. at art. I. While the U.S. explored the
development of a system as authorized by the Treaty, it never fielded one. By
contrast, the Soviet Union did field one around Moscow. In addition, the U.S.
suspected at least one other site maintained by the Soviets that was not
authorized under the Treaty. As Shukman notes, "Mikhail Gorbachev was forced to
admit, after years of denials, that one large radar, built near Krasnoyarsk in
Siberia, was in breach of the agreement." SHUKMAN, supra note 39, at 57.
n451 ABM Treaty, supra note 447 (from the Preamble).
n452 Id. at art. V(1).
n453 REYNOLDS & MERGES, supra note 59, at 97.
n454 ABM Treaty, supra note 447, at art. XII.
n455 REYNOLDS & MERGES, supra note 59, at 97.
n456 The term 'national technical means' (NTM) includes
a variety of technical information-gathering methods for monitoring both
military activities and armaments subject to verification. NTM consists, most
importantly, of satellites, ships, aircraft and ground-based radar stations, as
well as other technical devices. . . . Of course, neither side entirely relies
only on its technical means of verification; many additional methods for
collecting intelligence are also used to complement the information obtained by
I.A. Vlasic, Verifying Compliance With Arms Control Agreements: Whatever
Happened to 'ISMA'?, in ARMS CONTROL AND DISARMAMENT IN OUTER SPACE 191 (N.M.
Matte, ed., 1985).
n457 The possibility of a Security Council use of force authorization is
practically zero as both Parties to the Treaty maintain a veto over any such
Security Council resolutions.
n458 Recently published criticisms are numerous: C. Krauthammer, The ABM
Trap, WASH. POST, July 2, 1999, at 27 [hereinafter Krauthammer]; R.K. Bennett,
Needed: Missile Defense, READER'S DIGEST, July 1999, at 117; J. Hackett, Urgent
Need to Exit ABM Treaty, WASH. TIMES, June 11, 1999, at 19; Editorial, Where's
the Treaty?, WALL ST. J., May 10, 1999, at 22; J. Skrlec, ABM Pact Outdated,
Kissinger Tells Panel: Rogue States Pose Threat, WASH. TIMES, May 27, 1999, at
These sources show that in addition to the growing chorus of criticism from
the U.S. public and Congress, critics include those having negotiated the treaty
itself, including Henry Kissinger and John Rhinelander. Critics point to the
threat to U.S. cities of missile attacks by nations such as North Korea, Iran,
and Pakistan. Even those skeptical of the technical feasibility of ABM systems
are witnessing some recent system successes, after numerous failures. A
successful June 10, 1999 test firing of the Army's Theater High-Altitude Area
Defense system (THAAD), showed, according to program manager Brigadier General
Richard Davis, that the U.S. now has "the guidance control, accuracy and the
processing that allows us to hit a bullet with a bullet." P. Shenon, After Six
Failures, Test Of Antimissile System Succeeds, N.Y. TIMES, June 11, 1999, at 1;
See also THAAD Seeker Views Hera Target Before Hit-to-Kill Intercept, 150:26 AV.
WK. & SPACE TECH., June 28, 1999, at 42; World News Roundup, 150:24 AV. WK. &
SPACE TECH, June 14, 1999, at 56. The system scored a second successful test on
Aug. 2, 1999. M.A. Dornheim, Tough Tests for THAAD Are Several Years Off, 151:7
AV. WK. & SPACE TECH, Aug. 16, 1999, at 70. The second success prompted the DOD
to consider an expedited fielding of the theater system; moving it from 2007 to
2006. R. Wall, Missile Defense Changes Emerge, 151:9 AV. WK. & SPACE TECH, Aug.
20, 1999, at 30; See also R. Wall, THAAD At Crossroads After Intercept, 151:6
AV. WK. & SPACE TECH, Aug. 9, 1999, at 29. The technical implications of these
theater ABM successes are still unclear. This uncertainty is especially acute
given a recent national missile defense test failure off the coast of
California. See Elaine Sciolino, Antimissile System Fails Over Pacific, Pentagon
Reports, N.Y. TIMES, July 8, 2000, at 1. However, as with early critics of ICBM
or satellite technology who predicted such innovations were not feasible, the
drive to accomplish each was simply a matter of scientific and fiscal willpower.
It is likely that the quest for a technically feasible national missile defense
system will follow a similar course. The strategic implications are more
apparent. Among other benefits, a single THAAD missile battery could defend
Taiwan while three batteries could defend the entire island of Japan. J.
Hackett, What the THAAD Hit Means, WASH. TIMES, June 15, 1999, at 18. As
currently proposed, a national missile system could protect most of the U.S.
against a limited missile strike.
n459 Following the dissolution of the U.S.S.R. in 1991, Russia became the
successor State to the former U.S.S.R.'s rights and obligations under the
n460 ABM Treaty, supra note 447, at art. XV(2). Recent signs show that
withdrawal by the U.S. may not be necessary. After repeatedly objecting to
U.S. requests for a renegotiation of the Treaty so as to allow for a national
missile defense, Russia decided to discuss the matter under President Yeltsin.
J. Gerstenzang, Clinton, Yeltsin OK New Look at Arms Treaties, L.A. TIMES, June
21, 1999, at 1. Whether the process begun by these negotiations will result in
meaningful progress remains to be seen. As of this writing, the U.S. had
proposed a draft treaty that would allow a defensive system consisting of, in
part, 100 missiles and launchers, as well as sophisticated new radars. Steven
Lee Myers & Jane Perlez, Documents Detail U.S. Plan to Alter '72 Missile Treaty,
N.Y. TIMES, Apr. 28, 2000, at 1. However, not only has the proposal met with
great sceptism by the Russians, but several key national security experts have
begun questioning the entire renegotiating strategy. Paul Mann, Tide Surges
Against Clinton's NMD Plan, 152:25 AV. WK. & SPACE TECH., June 26, 2000, at 31.
n461 For example, the U.S. recently discovered that the North Korean ICBM
program maintains a 3-stage rocket capability. Its Taepo-Dong missile travels at
7 to 8 km per second, faster than the Army's Theater High Altitude Area Defense
ABM system could counter. Krauthammer, supra note 458.
n462 E. Becker, House Approves Star Wars Defense System, N.Y. TIMES, May 21,
1999, at 1.
n463 M.A. Dornheim, National Missile Defense Focused on June Review, 151:7
AV. WK. & SPACE TECH, Aug. 16, 1999, at 66.
n464 Characteristically, Reagan communicated his disagreement with the
assumptions made by the ABM Treaty in simple, populist terms. His views,
articulated almost seventeen years ago, typify the current widespread
disaffection with the treaty:
I've become more and more deeply convinced that the human spirit must be capable
of rising above dealing with other nations and human being by threatening their
existence. . . . If the Soviet Union will join with us in our effort to achieve
major arms reductions, we will have succeeded in stabilizing the nuclear
balance. Nevertheless, it will still be necessary to rely on the specter of
retaliation, on mutual threat. And that's a sad commentary on the human
condition. Wouldn't it be better to save lives than to avenge them? . . . I
clearly recognize that defensive systems have limitations and raise certain
problems and ambiguities. If paired with offensive systems, they can be viewed
as fostering an aggressive policy, and no one wants that. But with these
considerations firmly in mind, I call upon the scientific community in our
country, those who gave us nuclear weapons, to turn their great talents now to
the cause of mankind and world peace, to give us the means of rendering these
nuclear weapons impotent and obsolete. . . . My fellow Americans, tonight we're
launching an effort which holds the promise of changing the course of human
history. There will be risks, and results take time. But I believe we can do it.
As we cross this threshold, I ask for your prayers and your support.
R. Reagan, Peace and National Security, Address to the Nation (Mar. 23, 1983),
in WEAPONS IN SPACE 351-53 (A. Long, et al., eds., 1986). Well before the
President's "Strategic Defense Initiative" speech, derisively termed "star wars"
by members of the news media, ABM research had been underway. "As early as the
1950s, Pentagon planners first suggested fielding anti-missile missiles."
SHUKMAN, supra note 39, at 55.
n465 P. Mann, Historic Turn Eyed in Missile Defense, 151:1 AV. WK. & SPACE
TECH, July 5, 1999, at 30. Specific improvements noted include radar capability
and data processing, optical systems, lasers and sensors, and miniaturization of
crucial missile defense components such as rocket thrusters. Id.
n466 H. DeSaussure, The Freedoms of Outer Space and Their Maritime
Antecedents, in SPACE LAW: DEVELOPMENT AND SCOPE 1 (N. Jasentuliyana, ed.,
n467 United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833
U.N.T.S. 3 (entered into force Nov. 16, 1994; U.S. has signed but not ratified)
[hereinafter LOS Convention].
n468 Article 87 states that "the high seas are open to all States, whether
coastal or land-locked. Freedom of the high seas is exercised under the
conditions laid down by this Convention and by other rules of international law.
It comprises, inter alia, . . . (a) freedom of navigation; (b) freedom of
overflight." Id. at art. 87. Indeed the principal Outer Space Treaty negotiator
for the U.S. stated that the analogy of the high seas was a guiding theme during
the drafting of Article 1 of the Outer Space Treaty establishing the freedom of
outer space. CHRISTOL, MODERN INTERNATIONAL LAW OF OUTER SPACE, supra note 338,
at 41. From this, Christol concludes that the negotiators of the Outer Space
Treaty were "aware of the res communis concepts applying to the ocean and were
employing this analogy as they contemplated the legal rules to be applied in the
exploration and use, including exploitation, of the space environment." Id. at
n469 That is, territory belonging to none. Regarding the principle of terra
nullius and the example of Antarctica, see MALANCZUK, INTRODUCTION TO
INTERNATIONAL LAW, supra note 130, at 149.
n471 The Antarctic Treaty, Dec. 1, 1959, 402 U.N.T.S. 71 (entered into force
June 23, 1961) [hereinafter Antarctic Treaty].
n472 Though the Treaty does permit the presence of military personnel,
Article 1 ensures that the activity of such personnel will not be "of a military
nature." Id. at art. 1.
n473 Although the Antarctic Treaty "has often been invoked as the most
authoritative aid for the interpretation of the term 'peaceful' found in various
outer space official texts," the phrase cannot be divorced from the immediate
context in which it is subsequently used. Vlasic, Peaceful and Non-Peaceful Uses
of Outer Space, supra note 334, at 41. As noted previously, understanding of the
term evolved from its early use in 1957 as applied to space activity through its
final expression in the Outer Space Treaty. See supra, notes 334-343 and
though it is sometimes offered as a model for space, Antarctica has never
offered military advantages that exceed the costs it imposes. . . . The
arguments for many military uses of space, however, are cast in just such
cost-effectiveness terms, making Antarctica, in that sense, not the analog but
the inverse of space.
W. Durch, Introduction to Durch & Wilkening, supra note 13, at 7.
n475 By explicitly prohibiting the orbiting of nuclear weapons and other
weapons of mass destruction in Article 4, the Outer Space Treaty implies that
States remain free to orbit non-nuclear weapons that are not weapons of mass
n476 Antarctic Treaty, supra note 471, at art. 1. The military inefficiency
of Antarctica likely accounts for the wide adherence to this provision of the
n477 Interestingly, the LOS Convention claims at Article 88 that the "high
seas shall be reserved for peaceful purposes." LOS Convention, supra note 467,
at art. 88. As Professor Vlasic notes however, this
most certainly does not mean 'non-military,' given the well-known fact that the
high seas are navigated by naval vessels of many nations and used for tests of
nuclear missiles as well as for naval maneuvers. Hence, it is difficult to find
the rationale for the inclusion of the reference to 'peaceful purposes' under
the heading 'high seas.'
Vlasic, Peaceful and Non-Peaceful Uses of Outer Space, supra note 334, at 41. If
the term "peaceful" as used in the LOS Convention were given the meaning
ascribed to the similar term in the Outer Space Treaty by the majority of
States, that is non-aggressive, the comparison of outer space with the high seas
for purpose of military use becomes all the more apt. While the high seas have
been the location of military activity for centuries, outer space is becoming
increasingly so. That both environments must be used for non-aggressive
(peaceful) purposes does not impugn the current military uses, so long as they
remain compliant with the jus ad bellum.
n478 U.N. CHARTER, supra note 262, at art. 10.
n479 STAT. OF THE ICJ, supra note 261, at art. 38.
n480 A standard text on international law includes helpful commentary on
General Assembly resolutions are not as such legally binding upon member or
non-member States in the manner of legislation enacted by national parliaments.
In terms of the sources listed in Article 38(1) [of the Statute of the
International Court of Justice], although some writers have argued that General
Assembly resolutions might be seen as informal treaties or as indicating general
principles of law, the most common view . . . is that they contribute in some
way to the formation of custom. It is generally agreed by writers that General
Assembly resolutions may serve as a convenient statement of a custom already
established by state practice of the accepted kind (diplomatic notes, etc.), or
may at once or gradually cause States to march in step in their practice so as
to create one . . . General Assembly resolutions may also contribute to custom
more directly as a form of 'collective' State practice. They are the collective
equivalent of unilateral general statements or, in the context of a particular
dispute, '150 diplomatic protests.'
Harris, supra note 173, at 61. Following the adoption of Resolution 1721, the
U.S. delegate stated that "when a General Assembly resolution proclaimed
principles of international law - as resolution 1721 (XVI) had done - and was
adopted unanimously, it represented the law as generally accepted in the
international community." Cheng, 'Instant' Customary Law, supra note 301, at 35.
Key to this broad assertion is the word "represented." That is, the Resolution
did not become customary law, it simply served as the vehicle by which the
international community expressed unanimous agreement that the resolution's
substance was reflective of the law. The U.S. delegate's statement is broad in
that it purported to give the U.N. principles the status of customary
international law before any custom had developed. For the criticism of this
assumption, see supra notes 301-303 and accompanying text. The assumption aside
however, the statement recognizes that formally speaking, the U.N. Resolution
does not bind any State, whether expressing legal principles and adopted
unanimously or not. As a 1975 U.S. Department of State pronouncement asserted:
as a broad statement of U.S. policy in this regard, I think it is fair to state
that General Assembly resolutions are regarded as recommendations to Member
States of the United Nations. To the extent, which is exceptional, that such
resolutions are meant to be declaratory of international law, are adopted with
the support of all members, and are observed by the practice of states, such
resolutions are evidence of customary international law on a particular subject
Harris, supra note 173, at 62 (emphasis added). For further discussion of the
legal significance of U.N.G.A. resolutions, see infra note 485.
n481 This is likely a result of the increasingly fractious nature of
international negotiation over space issues since the 1979 Moon Agreement. The
international governing organization called for by the Moon Agreement enshrined
the interests of developing States not seen before in treaty law. To many of the
more developed States, this progress came at the expense of their own economic
and security interests. Thus, the absence of any new space treaties since 1979
is likely the result of failures in negotiation, as well as a genuine reticence
by the more developed States against undertaking treaty obligations with which
the State has little intention of complying or even incentive for entering.
n482 Declaration of Legal Principles Governing the Activities of States in
the Exploration and Use of Outer Space, Dec. 13, 1963, G.A. Res. 1962 (XVIII),
U.N. GAOR, 18th Sess., Supp. No. 15, at 15, U.N. Doc. A/5515 (1964). It should
be noted that though several of the U.N. Resolutions addressing outer space
issues use the term "principles" in the title, these are not used in the same
sense as the term appears in Article 38 of the Statute of the International
Court of Justice. As articulated by the U.N.G.A., "principles" related to the
use of outer space, remote sensing, or nuclear power sources in space are worthy
precepts toward which States should aim in their use of outer space, but they
are not "general principles of law recognized by civilized nations." STAT. OF
THE ICJ, supra note 261, at art. 38 P1.c.
n483 In lockstep fashion, the Outer Space Treaty adopted the Resolution's
nine provisions practically word for word. Thus, Principle 1 became Article I,
sentence 1 of the Outer Space Treaty. Principle 2 calling for the free
exploration and use of space in accord with international law became Article I,
sentence 2. Principle 3 became Article II. Principle 4 on the applicability of
international law to outer space became Article III. Principle 5, setting
forth the novel requirement that States bear international responsibility for
national activities in space became Article VI. Principle 6 became Article IX.
Principle 7 became Article VIII. Principle 8 became Article VII. Principle 9
became Article V.
n484 Jasentuliyana, Developing Countries, supra note 319, at 97.
n485 Though the Soviet Union wanted the substance of the Resolution
incorporated into a legally binding instrument, it did not claim that the
vehicle used, the U.N. resolution, achieved that end. The fact that a General
Assembly Resolution assumes for itself the term "Declaration" does highlight the
importance of the document. It does not however render the resolution "legally
more binding than any other recommendation." Cheng, 'Instant' Customary Law,
supra note 301, at 31. As the United Nations Office of Legal Affairs has noted
in a Memorandum on "Use of the Terms 'Declaration and Recommendation'"
3. In United Nations practice, a 'declaration' is a formal and solemn
instrument, suitable for rare occasions when principles of great and lasting
importance are being enunciated, such as the Declaration on Human Rights. A
recommendation is less formal. 4. Apart from the distinction just indicated,
there is probably no difference between a 'recommendation' or a 'declaration' in
United Nations practice as far as strict legal principle is concerned. . . .
However, in view of the greater solemnity and significance of a 'declaration,'
it may be considered to impart, on behalf of the organ adopting it, a strong
expectation that Members of the international community will abide by it.
Consequently, in so far as the expectation is gradually justified by State
practice, a declaration may be custom become recognized as laying down rules
binding upon States.
Id. Use of the word "may" in the last quoted sentence, means that the
'declaration,' by itself, cannot bind States. Nonetheless, some scholars speak
in terms suggesting that Resolution 1962 is itself law. Thus, Judge Lachs,
former Chairman of COPUOS concluded that "it is difficult to regard the 1963
Declaration as a mere recommendation: it was an instrument which has been
accepted as law." M. LACHS, THE LAW OF OUTER SPACE: AN EXPERIENCE IN
CONTEMPORARY LAW-MAKING 138 (1972).
n486 Principles Relating to Remote Sensing of the Earth from Space, Dec. 3,
1986, GA Res. 41/65 (XLII), U.N. GAOR, 29th Sess., 95th Plen. Mtg., U.N. Doc.
A/Res/41/65 (1987) [hereinafter Remote Sensing Resolution].
n487 Though not specifically geared toward remote sensing, several provisions
of the Outer Space Treaty could apply to remote sensing. These include Article I
(equal use of space by all States), Article III (activities conducted in accord
with international law in the interest of maintaining international peace and
security), Article VI (States bear international responsibility for national
activities), and Article XI (duty to inform U.N. Secretary General of space
activities of member States to the greatest extent feasible).
n488 C.Q. CHRISTOL, SPACE LAW: PAST, PRESENT AND FUTURE 73 (1991)
[hereinafter CHRISTOL, SPACE LAW]. After outlining the five general categories
of compromise leading to agreement, Christol points out that the principle of
"open skies" won the day. Id. at 76. He notes that in the end, even States
initially hesitant to agree on freedom of surveillance from space "consulted
self interest" and developed an expectation that the benefits to be gained by
access to sensed data would outweigh any lost sovereignty to be suffered. Id. at
n489 Although the Resolution made no exception for military activities, this
civil/commercial orientation can be seen from the Resolution's specific
definition of "remote sensing" which aims at "improving natural resources
management, land use and protection of the environment." Remote Sensing
Resolution, supra note 486, at Principle (princ.) I(a). Major civil and
commercial applications for remote sensing data include: water resource
management (surface water inventory, flood control mapping, irrigation demand
estimation, water circulation, lake eutrophication survey, ground water
location); forestry and rangeland management (forest inventory, clearcut
assessment, habitat assessment, fire fuel potential); fish and wildlife
management (habitat inventory, wetlands location, vegetation classification,
snow pack mapping, salt exposure); land resource management (corridor analysis,
facility siting, land cover inventory, flood plain delineation, solid waste
management, lake shore management); environmental management (water quality
assessment, coastal zone management, wetlands mapping, resource inventory,
dredge and fill permits); agriculture (crop inventory, crop yield prediction,
assessment of flood damage, disease monitoring); and geological mapping
(lineament mapping, mineral surveys, powerplant siting, radioactive waste
storage). U.S. Congress, Office of Technology Assessment, Remote Sensing and the
Private Sector, Mar. 1984, at 57. Some of these could easily be converted to
military reconnaissance and surveillance purposes for locating targets, tracking
fleet movements, identifying supply and transport facilities, monitoring air
activities, and warning of enemy preparation or attack.
n490 A number of civil satellite systems produce data that is
commercially-available to both private and public entities: KFA-1000 (Russia, 6
m resolution, 120 km swath); Radarsat (Canada, 8-30 m resolution, 55-550 km
swath); ADEOS (Japan, 8-16 m resolution, 80 km swath); SPOT (France, 10-27 m
resolution, 60-81 km swath); Landsat 6 (U.S., 15-120 m resolution, 185 km
swath); JERS-1 (Japan, 18 m resolution, 100 km swath); CBERS (Brazil, 20 m
resolution, 120 km swath); ERS-1 (European Space Agency, 15-30 m resolution, 80
km swath); RS-1 (India, 36-72 m resolution); MOS-1 (Japan, 50 m resolution). B.
PRESTON, PLOUGHSHARES AND POWER: THE MILITARY USE OF CIVIL SPACE 29 (1994)
[hereinafter PRESTON]. An update to include improvements since 1994 would swell
this list as to the total number of systems, as well as technical capabilities.
Today, imagery at 5 m resolution is widely available.
n491 Preston makes clear the military connection to remote sensing:
From a traditional military view of national security, the obvious reason to
worry about sensing from space is the ability of adversaries to exploit
intelligence from remote-sensing information to achieve military advantage on
the battlefield. A broader perspective on national security would include
economic benefit and foreign policy advantage. For example, the Joint Chiefs of
Staff basic national defense doctrine includes psychological or informational
powers in its list of elements of national strategy. Remote sensing from space
affects all of these: battlefield intelligence, economic strength, and
Id. at 25.
n492 Remote Sensing Resolution, supra note 486, at princ. IV.
n494 Id. at princ. I(b). Primary data are defined as "the raw data that are
acquired by remote sensors borne by a space object and that are transmitted or
delivered to the ground from space by telemetry in the form of electromagnetic
signals, by photographic film, magnetic tape or any other means."
n495 Id. at princ. I(c). "The products resulting from the processing of the
primary data, needed to make such data usable."
n496 Id. at princ. I(d). "The information resulting from the interpretation
of processed data, inputs of data and knowledge from other sources."
n497 Id. at princ. XII.
n498 Arguably it is a victory for Article I of the Outer Space Treaty as well
which requires that the use and exploration of outer space remain "free."
n499 Id. at princ. XIII.
n500 Again, as with all U.N. resolutions, language suggesting that States
"shall" take action or "will" refrain therefrom does not require such action or
bind such States. The mandatory, directive language used in the Remote Sensing
Resolution, as with other U.N. resolutions, is always subject to this
clarification. See, e.g., the following phrases from the principles indicated,
Principle II-"shall be carried out;" Principles III and IV-"shall be conducted;"
Principle V and VIII-"shall promote international co-operation;" Principle
VII-"shall make available technical assistance;" Principle IX-"shall inform the
Secretary-General of the United Nations;" Principle X-"shall promote the
protection of the Earth's natural environment;" Principle XI-"shall promote the
protection of mankind from natural disasters;" Principle XII-"shall have
access;" Principle XIII-"shall . . . enter into consultations;" Principle
XIV-"shall bear international responsibility;" and Principle XV-"disputes . . .
shall be resolved through . . ." To the extent that these provisions draw from
the authority of international law, they simply reiterate a State's preexisting
n501 CHRISTOL, SPACE LAW, supra note 488, at 94. The author goes so far as to
suggest that the Resolution's principles are representative of customary
international law. After considering the fact that, despite the lack of thorough
agreement, there is no overwhelming demand to overturn the principles or even
reduce them to a treaty, Christol concluded in 1988 that
for the moment the debate has been somewhat stilled. Even the best of agreements
can become controversial or even unstuck. Perhaps the best long-term approach is
to retain remote sensing on the agenda of COPUOS so that efforts can be made to
transmit the terms of the Principles into a treaty. In this manner those who
wish to dissent from the Principles can opt out. In considering this approach
they may find that they may have no where to go. As has been abundantly
indicated, they will not find it easy to escape the norms of customary
Id. at 95 (emphasis added).
Other commentators writing more recently have agreed. Thus, "this resolution
has come to represent a codification of customary legal principles that are
binding on nations." J.I. Gabrynowicz, Defining Data Availability for Commercial
Remote Sensing Systems: Under United States Federal Law, XXIII ANNALS AIR &
SPACE L. 93, 95 (1998).
n502 See supra notes 368-370 and accompanying text for a discussion of the
n503 Paragraph 9 of General Assembly resolution 33/16, dated Nov. 10, 1978,
requested that launching States "inform States concerned in the event that a
space object with nuclear power sources on board is malfunctioning with a risk
of re-entry of radio-active materials to earth." This subsequently became
Principle 5 of the NPS Resolution. Further, paragraph 11 of General Assembly
resolution 42/68, dated Dec. 2, 1987, endorsed "the agreements reached in the
Scientific and Technical Sub-Committee [of COPUOS] with respect to the use of
nuclear power sources in outer space." As Terekhov notes, "those agreements were
the recommendations formulated by the technical experts with the view to
ensuring safe use of NPS in outer space, which recommendations had been
subsequently reflected in the NPS [Resolution]." A.D. Terekhov, U.N.G.A.
Resolutions and Outer Space Law, in PROCEEDINGS OF THE FORTIETH COLLOQUIUM ON
THE LAW OF OUTER SPACE 97, 101 (1998) [hereinafter Terekhov].
n504 Principles Relating to the Use of Nuclear Power Sources in Outer Space,
Dec. 14, 1992, U.N. Doc. A/Res/47/68 [hereinafter NPS Resolution].
n505 Because the Outer Space Treaty forbids the orbiting of "objects carrying
nuclear weapons," the Resolution did not address the question of nuclear power
sources in space used for weaponry. Outer Space Treaty, supra note 316, at art.
IV. Although a strict exegesis of Article IV of the Outer Space Treaty reveals
that what is prohibited by this clause is the orbiting of "objects carrying
nuclear weapons" not "nuclear weapons" themselves, the subsequent clause-"or
station such weapons in outer space in any other manner" - appears to foreclose
the possibility of nuclear warheads in space. Id. The obvious exception,
undoubtedly heavy on the minds of Outer Space Treaty drafters during the course
of negotiations, were the case of ICBMs capable of delivering nuclear warheads
to terrestrial targets after transiting outer space for several minutes.
Although such objects would put nuclear weapons or conceivably other weapons of
mass destruction into space, such delivery systems would not constitute a
placement "in orbit" or a "stationing" of such weapons in space, and would not
therefore violate the Outer Space Treaty. For a discussion of the meaning of
placing an object in orbit, see supra note 355. As used in the NPS Resolution,
nuclear reactors in space apply neither to nuclear weapons (except those which
might conceivably use nuclear power for "generation of electric power"), nor to
nuclear power sources used for propulsion. NPS Resolution, supra note 504 (from
the Preamble). Thus, it appears the law would allow the orbiting of nuclear
power sources used for space weaponry. Such is not likely covered by the phrase
"nuclear weapon" as used in the 1967 Outer Space Treaty, which more properly
refers not to the weapon's method of propulsion, but to the nuclear source of
its destructive power.
n506 NPS Resolution, supra note 504 (from the Preamble).
n507 Though the Resolution does not cover nuclear propulsion, and is not
legally binding in any event, there are other reasons it may not find
widespread use as a prescriptive guide for military spacecraft. Collins notes
that even though nuclear space propulsion has many proponents, it "attracts
little official support and few funds, because it is costly compared with
chemical systems, and powerful opponents (rightly or wrongly) fear it is unsafe.
International political pressure to ban such engines is great." COLLINS,
MILITARY SPACE FORCES, supra note 12, at 103.
n508 NPS Resolution, supra note 504, at princ. 3.
n509 "Sufficiently high orbits" are those
in which the orbital lifetime is long enough to allow for a sufficient decay of
the fission products to approximate the activity of the actinides. The
sufficiently high orbit must be such that the risks to existing and future outer
space missions and of collision with other space objects are kept to a minimum.
Id. at princ. 3(2)(b).
n510 Id. at princ. 3(2)(a).
n511 Id. at princ. 3(2)(c).
n512 Id. at princ. 3(2)(e).
n513 Id. at princ. 5(1). In the aftermath of the Cosmos 954 incident, the
former Soviet Union disclaimed a duty to warn Canada of the impending crash,
though it did in general recognize a duty to warn. Supra notes 368-370 and
accompanying text, Because its errant calculations revealed the satellite's
debris would either be incinerated on reentry, or land over the Aleutian
Islands, the Soviet Union did notify the U.S. prior to impact. In one of the
diplomatic exchanges, the Soviets maintained that
calculations made on the basis of [Cosmos 954's] last orbits within the
visibility range of our tracking facilities showed that if, because of the
satellite's emergency condition, individual parts of the satellite were not
fully consumed in the atmosphere and reached the earth's surface, they might
fall into the open sea in the region of the Aleutian Islands. In this
connection, the appropriate information was given to the U.S. government.
REYNOLDS & MERGES, supra note 59, at 181. Because Canada agreed that the Soviets
had a duty to warn, this agreement on the basic norm-that the Soviet Union had a
duty to warn-represents significant State opinio juris on one of the few cases
involving the reentry of a space object carrying radioactive materials. Indeed,
whether customary law or not, the Convention on Early Notification of a Nuclear
Accident requires such notifications as contemplated in Principle 5 of the NPS
Resolution. Convention on Early Notification of a Nuclear Accident, Sept. 26,
1986, 1439 U.N.T.S. 275 (entered into force Oct. 27, 1986; signed but not
ratified by the U.S.). This treaty, adopted soon after failure of the Soviet
Chernobyl nuclear reactor, applies to "any nuclear reactor wherever located."
Id. at art. 1(2) (emphasis added). Thus, even for reactors located in space, the
treaty mandates notification to other States Parties of accidents "from which a
release of radioactive material occurs or is likely to occur and which has
resulted or may result in an international transboundary release that could be
of radiological safety significance for another State." Id. at art. (1)
n514 Terekhov, supra note 503, at 101. Again, these U.N. principles are
recommendations even though the NPS Resolution, as with the previous Remote
Sensing Resolution, makes frequent use of "shall" in its attempt to encourage
State behavior. The distinction between a resolution's use of "shall" and its
use of "should" matters little and does not affect the document's non-binding
character. "The fact that, for example, the [Remote Sensing Resolution]
contain[s] 'shall' and the [Benefits Resolution] uses mostly "should" is not
perceived as an indication that the former makes stronger recommendations than
the latter. In view of the foregoing, it appears that the "shall/should"
controversy has basically lost its relevance at least as far as outer space
declarations are concerned." Id. at 102.
n515 Id. at 101.
n516 See, e.g., Is Cassini Risky? Look to Facts, Not Emotion, 147:13 AV. WK.
& SPACE TECH., Sept. 29, 1997, at 66.
n517 J. Wilson, The International Telecommunication Union and the
Geostationary Satellite Orbit: An Overview, XXIII ANNALS AIR & SPACE L. 249
n518 Supra note 59.
n519 "Members retain their entire freedom with regard to military radio
installations." Constitution and Convention of the International
Telecommunication Union, Dec. 22, 1992, art. 48(1), S. Treaty Doc. No. 104-34
(1996) (as amended through 1994), available at
http://www.itu.int/publications/cchtm/cnv.htm. Because the RRB regulations do
not regulate military activity either in peacetime or war, they cannot be
classified as part of the jus in bello. Nonetheless, because they govern the
civil and commercial use of radio spectrum, they become a critical factor in
establishing a military telecommunications capacity in support of armed
conflict. Beyond this, however, Article 48(2) requires "so far as possible" that
military radio installations
observe statutory provisions relative to giving assistance in case of distress
and to the measures to be taken to prevent harmful interference, and the
provisions of the Administrative Regulations concerning the types of emission
and the frequencies to be used, according to the nature of the service performed
by such installations.
Id. at art. 48(2).
n520 Toward the end of the 1991 Persian Gulf War, the DSCS system was
providing 75 percent of all inter and intratheater multichannel trunking. Leased
commercial satellites provided 20 to 25 percent of all satellite communications
used by U.S. forces. See PRESTON, supra note 490, at 131, 132. For a discussion
of the DSCS system, see supra note 59. The Commander in Chief of USSPACECOM
later testified before the U.S. Congress that, "effective command and control of
U.S. and coalition forces simply would have been impossible without military
satellite communication systems. Over ninety percent of the communications to
and from the area of operations were carried over satellite systems." PRESTON,
supra note 490, at 133.
n521 The effects of losing commercial telecommunications services were
dramatically illustrated for participants of the 1999 U.S. "Army-After-Next
Space and Missile Defense" wargame. When the "Blue" forces lost information
superiority as a result of degraded commercial space services, participants
witnessed a "drastic impact on combat capabilities. . . . Regional commanders
found they had to compete with other paying customers for commercial space
services, such as communications. Ideal time slots and capacities were not
always available." P. Proctor, ed., Wargame Wake-Up Call, 150:14 AV. WK. &
SPACE TECH., Apr. 5, 1999, at 17.
n522 CLAUSEWITZ, supra note 127, at 119.
n523 ICJ Advisory Opinion on Nuclear Weapons, supra note 120, P86. In this
important opinion, the Court cites several of the numerous statements advanced
by States for the conclusion that the law of armed conflict applies to nuclear
weapons whether nuclear weapons were in existence at the time the law developed
or not. Two relevant points arise from this discussion. First, as the Court
quotes from the representative statements of States, the following phrases are
used and are assumed by the court to be synonymous: "international humanitarian
law" (New Zealand), "rules applicable to armed conflict" (Russian Federation),
"jus in bello" (United Kingdom), and "law of armed conflict" (United States).
Second, as the noted quotation above makes clear, the court's conclusion that
humanitarian law applies to nuclear weapons is equally applicable to any "past .
. . present and . . . future" forms of warfare and kinds of weapons. This
statement certainly provides the ICJ's answer to the question of whether the law
of war will apply to space warfare.
n524 While the author is aware of one paper presented at a Princeton
symposium in May 1999 by Professor M. Bourbonniere, with one exception he is
aware of no other authors in print on the specific topic under review. That
exception, dating to 1959, presciently outlined several themes related to the
regulation of space warfare from the relative infancy of military space
development in the 1950s. J.G. Verplaetse, The Law of War and Neutrality in
Outer Space, 29 NORDISK TIDSSKRIFT FOR INT'L RET 49 (1959). Verplaetse pointed
out that "the unknown cannot be regulated, even less juridically organized." Id.
Somewhat surprisingly, 41 years after the appearance of this article, the
regulation of means and methods of space warfare still appears to be largely
unknown. Verplaetse's prediction about the possibility of armed conflict in
space remains as true today as ever: "Human forecast cannot but accept the
likelihood that outer space will soon be part of the theater of war of
terrestrial belligerents." Id. at 51.
n525 In the 1999 production Star Trek Insurrection, one scene has Chief
Engineer Lieutenant Geordi LaForge commenting on a weapon's explosive impact
with his spaceship: "I thought subspace weapons were outlawed by the Khitomer
Accords?" "They were," comes his crewmate's ominous reply thereby identifying a
violation of the 24th Century law of war. Beyond this specific reference, a
review of the following recent cinematic releases shows the general popularity
of space and science-fiction themes at the box office: Apollo 13, Independence
Day, 2001: A Space Odyssey, Armageddon, Deep Impact, Contact, Lost in Space, My
Favorite Martian, Wing Commander, Battlefield Earth, Titan A.E., Galaxy Quest,
the Star Wars remake, and a total of eight Star Trek movies. The increasing
popularity of these movies may account for the lack of scholarly legal analysis
as commentators find it difficult to take seriously what the popular mind
relegates to the category "science fiction."
n526 Just this year, the Air Force established the first annual wargame
devoted entirely to space. The Air Force hopes the game will, entitled "The Air
Force Space Game," will eventually "become a Title-10 game on a par with annual
events such as Navy 'Global,' 'Army After Next' and Air Force 'Global
Engagement." William B. Scott, Innovation Is Currency of USAF Space Battlelab,
152:14 AV. WK. & SPACE TECH., Apr. 3, 2000, at 52.
n527 Indeed, even beyond wargame scenarios, events prompting such questions
have already occurred. One author has reported electronic interference by a
hostile Middle East power against a U.S. military satellite.
In one recent case the interference continued for weeks. When the U.S.
satellite changed to a different channel, the interference also changed
channels, suggesting a deliberate attempt by a Third World country to jam a U.S.
military communications satellite. The potential of radio interference is
especially significant considering that the United States is dependent on
satellites for 75 percent of its long-distance military communications.
Hackett & Ranger, Proliferating Satellites Drive U.S. ASAT Need, SIGNAL, May
1990, at 156. While cases such as this arguably do not rise to the level of an
"armed attack" justifying the use of armed force in self defense under the U.N.
Charter, they do raise questions about the legitimacy of coercive responses
short of armed conflict, and whether non-aggressive military action could or
should be interpreted as a threat or use of force under Article 2(4). See supra
notes 262, 267, and accompanying text. For an insightful analysis of the
analogous problem of computer network attacks under the jus ad bellum, see M.N.
Schmitt, Computer Network Attack and the Use of Force in International Law:
Thoughts on a Normative Framework, 37:3 COL. J. TRANSNAT'L L. 885 (1999)
[hereinafter Schmitt]. Beyond this, the 1997 "Army After Next" wargame "jolted
military and civilian leaders by showing that if U.S. satellites are quickly
destroyed in the early stages of a conflict, ground forces can rapidly grind to
a halt." W.B. Scott, Wargames Revival Breaks New Ground, 149:18 AV. WK. &
SPACE TECH., Nov. 2, 1998, at 56, 58. To be effective, wargames require clear
rules specifying what players can and cannot do. To the extent space wargaming
continues raising questions to which there are no clear answers, such as
application of the law of war and the jus ad bellum, these scenarios have served
a useful purpose in prompting the development of national policy. However, with
respect to law of war principles, the games often reveal a shortcoming beyond
the control of the U.S. military or government: an inability to ensure that the
development of international law will account for anticipated military
capabilities. On the possible role law of war manuals might play in remedying
this shortcoming, see infra note 598 and accompanying text.
n528 SPIRES, supra note 3, at 244-45.
n529 The North Atlantic Treaty Organization (NATO) air strikes against
Yugoslavia in 1999 (Allied Force) were even more heavily supported by space
assets than the 1991 Persian Gulf War. In the Yugoslavian conflict, although the
United States Space Command (USSPACECOM) classified all orbital data on U.S.
military spacecraft during the conflict stating that even the reason for the
classification remained classified (suggesting the critical role space systems
played), several facts were apparent. NATO made heavy use of two National
Reconnaissance Office (NRO) Lacrosse imaging radar satellites for pre-strike
intelligence and post-strike bomb damage assessment with resolutions of one to
three meters. Offering more precise resolutions, NATO used NRO's three KH-11
satellites for more sensitive optical and infrared imagery. It was also thought
that NATO was using as many as three other of NRO's highly secret smaller
imaging spacecraft. For weather data, NATO used ten spacecraft, including four
USAF DMSP spacecraft flying in 500-mile polar orbits and two European Meteosat
spacecraft in geosynchronous orbits. As in Desert Storm, Allied Force made heavy
use of the twenty-four medium-earth orbit satellites comprising the Global
Positioning System (GPS). These were used for precision strikes guiding both
munitions and aircraft. See C. Covault, Military Space Dominates Air Strikes,
150:13 AV. WK. & SPACE TECH., Mar. 29, 1999, at 31. In addition to the Meteosat
assets, several other non-U.S. space systems also contributed to NATO's effort
including France's Helios 1 military imaging satellite, which provided images of
one to five meter resolutions. See P. Sparaco, French Satellite Details Air
Strike Damages, 150:15 AV. WK. & SPACE TECH., Apr. 12, 1999, at 26.
n530 While recognizing the tremendous qualitative difference between the use
of space in support of combat operations, and the weaponization of space itself,
the author believes it virtually assured that within the near future space will
be widely viewed as its own military theater of operations and thereafter
weaponized. Increasing awareness in the U.S. of the need to protect national
space assets continues to drive the debate closer toward weaponization. Though
space weapons will likely be developed with the principal purpose to defend
satellites, some will undoubtedly be fielded to provide for an offensive
counter-attack. In both cases, the strategic and political implications appear
to be the same. As Colin Gray points out, it "is a distinction without a
difference." C.S. GRAY, AMERICAN MILITARY SPACE POLICY: INFORMATION SYSTEMS,
WEAPON SYSTEMS AND ARMS CONTROL 49 (1982) [hereinafter GRAY]. Gray proceeds to
articulate four strategic reasons why the U.S. should weaponize space. Though
written before the breakup of the Soviet Union, and largely directed toward a
Soviet adversary, the continuing Russian threat coupled with the evolution of
new space powers, could make Gray's points equally compelling today: first, both
the U.S. and Soviet Union (now Russia) use space for military purposes that
would be critically important during war; second, passive defensive techniques,
or survival aids short of weaponization, are not certain to succeed; third, the
Soviet Union likely already has deployed ASATs; and fourth, it is unlikely that
U.S. spacecraft can be protected through deterrence given that the Soviets have
too much to gain by attacking them in war. Id. at 49-51.
Overall, these arguments amount to the following policy judgment: U.S.
self-denial of ASAT capability will not contribute to the survival prospects of
U.S. C3I assets in space-indeed, quite the opposite is true. Such self-denial
could, and most probably would, permit the Soviet Union [or other potential
future space adversary] to gather and relay strategic intelligence fatal to the
validity of the U.S. policy of continuing deterrence.
Id. at 51.
n531 Professor Cheng hints that such is the case in his syllogistic argument
for the proposition that the legal regime for outer space is analogous to the
basis status of the high sees. His major premise, "that international law is
inherently applicable to outer space," would certainly include the law of war.
B. Cheng, Astronauts, in 11 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 40
(Bernhardt, ed., 1982).
n532 These include restrictions on the orbiting of nuclear weapons or other
weapons of mass destruction under Article IV of the Outer Space Treaty, as
well as the detonation of nuclear weapons in outer space under the Limited Test
n533 See supra notes 466-477 and accompanying text.
n534 As implied throughout this article the jus in bello for space
demonstrates an "already/not yet" character. Legal commentators understandably
seem reluctant to speak of an existing and distinct jus in bello spatialis ("not
yet"), though as has been shown in Parts III-V above, numerous specific
customary and conventional norms operate to limit means and methods of space
warfare that States may lawfully employ ("already").
n535 For example, the U.N. Convention on the Law of the Sea distinguishes
between territorial sea (complete State sovereignty and jurisdiction) and high
seas (no State sovereignty or jurisdiction, except jurisdiction over its
registered vessels). LOS Convention, supra note 467, at art. 2(1), 87(1).
Similarly, in the space above the earth, States recognize the distinction
between national airspace (complete State sovereignty and jurisdiction) and
outer space (no State sovereignty or jurisdiction, except jurisdiction over its
registered objects). Compare Convention on International Civil Aviation, Dec. 7,
1944, art. 1, 61 Stat. 1180, 15 U.N.T.S. 295, with Outer Space Treaty, supra
note 316, at art. II.
n536 "As a general rule, neutral territory is treated as sacred space; it is
inviolable." J. Astley & M.N. Schmitt, The Law of the Sea and Naval Operations,
42 A.F. L. REV. 119, 140 (1997). The law of neutrality is a part of the law of
war but not of the jus in bello and is largely consistent with the law of the
sea. Thus, the maritime rights and duties of States in peacetime continue to
exist for the most part during armed conflict. See id. at 138.
n537 At the risk of descending into logical abstraction, a further
clarification is necessary. With reference to the macro/micro categories
established above, the form of argumentation here amounts to a
meta-macro-analogy. That is, not only are we in this case comparing one combat
environment to another to conceive a suitable legal framework for war, we are
examining the development of that comparison as it has been used to establish
the newer framework for aerial combat. Thus, the suggestion made here as to the
evolution of norms limiting aerial warfare depends not only on the comparison of
entire legal systems (macro-analogy between aerial combat and land/sea combat)
within international law, but on an analysis of the larger (meta) process by
which the comparison led to the newer legal regime in the first place.
n538 The possible exception being the proscription on discharging projectiles
from balloons. See Declaration (XIV) Prohibiting the Discharge of Projectiles
and Explosives from Balloons, Oct. 18, 1907, 36 Stat. 2439.
n539 COLLINS, MILITARY SPACE FORCES, supra note 12, at 1 n.2.
n540 Id. at 2.
n541 Outer Space Treaty, supra note 316, at art. III. In addition, the Outer
Space Treaty references international law as well at Article I. "Outer space,
including the moon and other celestial bodies, shall be free for exploration and
use by all States without discrimination of any kind, on a basis of equality and
in accordance with international law." Id.
n542 U.N. CHARTER, supra note 262, at art. 1(1). The phrase appeared
previously in the Covenant of the League of Nations. Covenant of the League of
Nations, June 28, 1919, 225 Consol. T.S. 188.
n543 That is, it requires the "activity which is necessary for maintaining
the conditions of peace." R. Wolfrum, Article 1, in THE CHARTER OF THE UNITED
NATIONS: A COMMENTARY 50 (B. Simma, et al., eds., 1994).
n544 Hague Convention (IV), supra note 190 (from the Preamble).
n546 The distinction between customary law and other general principles of
law was later announced as comprising two separate sources of international law.
See STAT. OF THE ICJ, supra note 261, at art. 38.
n547 Geneva Convention I, supra note 212, at art. 63 P4; Geneva Convention
II, supra note 216, at art. 62 P4; Geneva Convention III, supra note 204, at
art. 142 P4; Geneva Convention IV, supra note 214, at art. 158 P4.
n548 Protocol I, supra note 156, at art. 1(2).
n549 Conventional Weapons Treaty, supra note 247 (from the Preamble).
n550 This possibility is strengthened by the claim of the International
Military Tribunal at Nuremburg in 1946 that convention IV is declaratory of
customary international law. Roberts & Guelff, supra note 131, at 44.
n551 H. Strebel, Martens' Clause, in 3 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL
LAW 252 (Bernhardt, ed., 1982).
n552 Protocol I, supra note 156, at art. 1(2).
n553 Vlasic, Negotiating and Drafting Agreements Relating to Outer Space,
supra note 321, at 209.
n554 See definitions of "militarization" and "weaponization," supra note 11.
n555 As suggested above, the common view today regards peaceful purposes as
synonymous with non-aggressive. Such operations would include not only peacetime
military activity, but also activity involving the use of force during armed
conflict. What makes an activity aggressive and thus non-peaceful is not the use
or absence of armed force, but the larger purpose to which it is put. An
aggressive act unlawfully initiated by one belligerent, may trigger a lawful,
though overwhelming armed response from another in individual or collective
self-defense. The latter response is not rendered aggressive even though it may
involve a ferocious degree of force, or even what constitutes an act of war. In
this way, even an act of war may have a larger peaceful purpose. To the extent a
use of force is taken in self-defensive, or pursuant to a U.N. Security Council
authorization, and is proportional to the initial aggressive act (that is, to
the initial violation of the jus ad bellum), it complies with international law
and may occur in space just as elsewhere. For a discussion of the requirement
that the jus in bello principle of proportionality applies to acts of
self-defense, see Military and Paramilitary Activities (Nicar. v. U.S.), 1986
I.C.J. 4, 103 ("The Parties also agree in holding that whether the response to
the attack is lawful depends on observance of the criteria of the necessity and
the proportionality of the measures taken in self-defense.").
n556 Perhaps the most difficult of all space law issues relates to the
delimitation, or boundary, separating a State's territorial airspace and outer
There is no clear answer to the question of where space begins. But equally
clearly, at some point above the earth, there exists an environment completely
different from the one we have here. A sort of customary law has developed . . .
to the effect than any object in orbit is in space, and that seems enough to
satisfy everyone for the time being.
REYNOLDS & MERGES, supra note 59, at 12. For an excellent, recent legal analysis
of the air and space boundary question, see Elizabeth Kelly, The Spaceplane: The
Catalyst for Resolution of the Boundary and 'Space Object' Issues in the Law of
Outer Space? (1998) (unpublished LL.M. thesis, McGill University) (on file with
author, and the Nahum Gelber Law Library, McGill University).
n557 Liability Convention, supra note 365, at art. 1(d).
n558 See DeBlois, supra note 3; ZIEGLER, supra note 3. Joseph Justin points
out that the "space sanctuary" school "is fundamentally opposed to any military
weapons in space." Justin, supra note 3, at 104. Justin goes on to claim that
the space sanctuary perspective "believes space should not be used as a military
instrument of policy" and that the military role in space is to work for
demilitarization. Id. Although this may represent the classic sanctuary
position, DeBlois and Ziegler do not advocate space as a sanctuary free from any
military presence, just free from weapons.
n559 David A. Fulghum, USAF Chief Signals Key Funding Priorities, 153:1 AV.
WK. & SPACE TECH., July 3, 2000, at 56. Expanding the point, General Michael
Ryan asserted that while the weaponization of space is still decades off, "there
is some inevitability that it will occur if just to protect extensive
communications and navigation systems already there. . . . I think there will be
attacks-challenges to our space capability. We will have to protect our assets
in space because we're becoming much more dependent on them. So I see defense as
a primary emphasis." Id.
n560 See supra, note 353 for further discussion of the definition of "nuclear
weapons" as applied to X-ray lasers.
n561 S. Gorove, Space Without Weapons: International Legal Aspects of Weapons
and Harms, in SPACE WITHOUT WEAPONS 29 (N.M. Matte, ed., 1989) [hereinafter
Gorove, Space Without Weapons].
n562 Paul B. Stares, The Problem of Non-Dedicated Space Weapon Systems, in
PEACEFUL AND NON-PEACEFUL USES OF SPACE: PROBLEMS OF DEFINITION FOR THE
PREVENTION OF AN ARMS RACE (B. Jasani, ed., 1991) 147 [hereinafter Stares,
Non-Dedicated Space Weapon Systems].
n563 B. Jasani, Introduction to PEACEFUL AND NON-PEACEFUL USES OF SPACE:
PROBLEMS OF DEFINITION FOR THE PREVENTION OF AN ARMS RACE 13 (B. Jasani, ed.,
n564 Stares, Non-Dedicated Space Weapon Systems, supra note 562, at 147.
Stares goes on to suggest 5 criteria that assist in determining the military
capability of non-dedicated systems:
1. Operational readiness. How soon could the non-dedicated system be readied for
use as a space weapon? What does it entail to make it ready? Are trained
personnel available to convert it and use it for this purpose? Are the necessary
support systems, such as target detection and tracking sensors also available?
2. Target coverage. What targets does the non-dedicated system realistically
threaten? How many such attacks can it carry out? 3. Speed of attack. How
quickly can single or multiple attacks using non-dedicated systems be carried
out? Is there any warning associated with their use that might allow defensive
countermeasures to be implemented? 4. Operational confidence. What is the
probability that single and multiple attacks using non-dedicated systems will
succeed in their intended mission? 5. Operational costs. What, if any, are the
military or political costs associated with the use of non-dedicated systems as
Id. at 151. With reference to ASATs, non-dedicated systems are also termed
"residual" ASATs. See STARES, SPACE AND NATIONAL SECURITY, supra note 70, at 3.
n565 Professor Gorove, referring to nuclear and other weapons of mass
destruction, maintains that "unless specifically covered, subcomponents which in
themselves do not qualify as a weapon, should not be taken to be included in a
ban relating to the weapon." Gorove, Space Without Weapons, supra note 561, at
n566 For a discussion of this general international legal principle, see
supra note 141.
n567 Indeed, the Soviet Union went so far as to present a "Draft Treaty on
the Prohibition of the Stationing of Weapons of Any Kind in Outer Space" to the
36th Session of the U.N. General Assembly on Aug. 20, 1981. In pertinent part,
the draft treaty would have required
States Parties . . . not to place in orbit around the earth objects carrying
weapons of any kind, install such weapons on celestial bodies, or station such
weapons in outer space in any other manner, including on reusable manned space
vehicles of an existing type or of other types which States Parties may develop
in the future.
(Article 1(1)). It would have equally required States Parties "not to destroy,
damage, disturb the normal functioning or change the flight trajectory of
space objects of other States Parties, if such objects were placed in orbit in
strict accordance with Article 1, paragraph 1, of this treaty." (Article 3).
GRAY, supra note 530, at 115.
While the treaty would not have prohibited land-based ASATs, it would have
significantly expanded the scope of the partial deweaponization provision of
Article IV, Outer Space Treaty. Outer Space Treaty, supra note 316, at art. IV.
The U.S. dismissed the Soviet draft treaty as a "hypocritical propaganda ploy."
STARES, THE MILITARIZATION OF SPACE, supra note 40, at 230. Following
announcement that the U.S.S.R. would unilaterally refrain from deploying ASATs
"for the entire period during which other countries, including the U.S.A., will
refrain from stationing in outer space antisatellite weapons of any type," the
Soviets presented a second draft treaty that would have prohibited the testing
and deployment of "any space based weapons intended to hit targets on the Earth,
in the atmosphere, or in space." Id. at 231. Over great scientific and
congressional pressure, the Reagan administration rejected this proposal as well
citing the extreme difficulty, if not "impossibility," in verifying an ASAT
treaty. Id. at 233.
n568 After a discussion of the relevant provisions of the Outer Space Treaty
and the Moon Agreement, Professor Christol observed in 1988 that
in the years since 1967 [Outer Space Treaty] and 1979 [Moon Agreement] science
and technology have perfected new generations and families of weapons, including
those employing highly focused energy, such as laser weapons, and those based on
sub-atomic particles, such as particle beam weapons. Pursuant to the general
legal principle that which is not prohibited is permitted, it may be concluded
that the more recent exotic weapons do not fall within the constraints of the
foregoing treaty provisions.
C.Q. Christol, Outer Space: Battle-Ground of the Future?, in SPACE LAW: PAST
PRESENT AND FUTURE 59 (C.Q. Christol, ed., 1991). The Russians have objected to
the orbiting of particle beam weaponry claiming that it constitutes a "weapon of
mass destruction." TAYLOR, supra note 97, at 34. However, given its likely
capacity for great precision, the weapon need not generate "mass" destruction,
though it may be lethal for its intended target. Some authors suggest,
inexplicably, that just about all space weapons constitute weapons of mass
destruction. See, e.g., M.N. Andem, Implementation of Article IV of the Outer
Space Treaty of 1967 During the 21st Century, in PROCEEDINGS OF THE FORTIETH
COLLOQUIUM ON THE LAW OF OUTER SPACE 338, 344 (1998).
n569 M.M. Matte, A Treaty for 'Star Peace,' in 2 ARMS CONTROL AND DISARMAMENT
IN OUTER SPACE 190 (N.M. Matte, ed., 1987).
n570 U.N. CHARTER, supra note 262, at art. 2(4).
n571 Vlasic, Negotiating and Drafting Agreements Relating to Outer Space,
supra note 321, at 211.
n572 The more restrictive view of Article 2(4) is admittedly difficult to
square with the U.N. Charter's plain language and the historic reticence in the
U.N.G.A. against foreign interventions. Nonetheless, "examination of the
language and the negotiating background of Article 2(4) provides no unequivocal
indication of its intended meaning." Vlasic, Negotiating and Drafting Agreements
Relating to Outer Space, supra note 321, at 211.
n573 HURWITZ, supra note 289, at 148-50.
n574 Liability Convention, supra note 365, at art. II.
n575 Id. at art. III.
n576 Id. at art. VI.
n577 In fact, the exoneration from liability shows the very opposite. The
Convention purports to punish States engaging in intentional destructive acts by
eliminating their remedy against the launching State. As Article VI(2)
establishes however, if the damage is caused by activities of the launching
State that are inconsistent with the international law, including the U.N.
Charter and the Outer Space Treaty, there will be no exoneration from absolute
liability "whatever." Id. at art. VI(2). This would mean that an aggressive
military operation by launching State A that causes damage on the earth or in
the air to claimant State B, will result in no exoneration of absolute liability
for State A, even if State B contributed to the damage by acts done with an
intent to cause damage.
n578 After observing that the U.S. ratified the Liability Convention only
"after being advised by the Department of State that the Convention did not
apply to international damage," Hurwitz concludes from this that "the U.S. has
recognized the right to intentionally damage another State's space objects with
impunity (as least as far as the 1972 Convention is concerned)." HURWITZ, supra
note 289, at 149. Whether this overstates the U.S. position or not, it does seem
clear that the Convention exonerates one State from liability only as against
intentional damage caused by the claimant State or the natural or juridical
persons it represents. Liability Convention, supra note 365, at art. VI(1).
Thus, the U.S. Department of State was certainly correct that the Convention
does not "apply" (that is, create liability), as against one State in cases
where the claimant State has at least "partially" caused intentional damage.
n579 Outer Space Treaty, supra note 316, at art. VIII.
n580 U.N. Charter, supra note 262, at art. 51. Given the fact that Article 51
presupposes a previous customary right to self defense ("inherent right"), the
right to respond by State Y may not even require the occurrence of an armed
attack, depending on the nature of the customary right. For further discussion
of article 51, see supra note 173. State Y's act of self defense must also be
proportionate to State X's provocation.
n581 For example, in arguing for an approach to space power that rests in
part on the assertion that "America's future security and prosperity depend on
our constant supremacy in space," United States Senator Smith advocated a shift
of "substantial" national military resources into space. Sen. Bob Smith, The
Challenge of Space Power, 13:1 AIRPOWER J. 32, 33 (1999) [hereinafter Smith]. He
opined that "if we do, we will buy generations of security that all the ships,
tanks, and airplanes in the world will not provide. This would be a real
'peace-dividend' -- it would actually help keep the peace." Id. Subsequently, he
specified that the use of space to secure information superiority does not
constitute space warfare stating that "if we limit our approach to space just to
information superiority, we will not have fully utilized space power." Id. at
34. Calling for a "space-power culture" within the U.S. military, Senator Smith
warned against allowing a "blanket of political correctness and bureaucratic
inertia" from smothering revolutionary ideas. Id. at 35, 36.
n582 Commentators, politicians, academics, and military members have been
calling for such a move for years. For example, in 1970 Robert Salkeld
provocatively claimed that space warfare was a virtual inevitability. "The
concept which naturally suggests itself is the eventual creation and growth of a
fourth major service, a United States Space Force, which might function at
budgetary parity with the Army, Navy and Air Force." R. SALKELD, WAR AND SPACE
189 (1970). Later, another commentator observed that roles and missions debates
for space between the existing services would reach a fevered pitch leading to
an inevitable evolution toward a separate space service.
Military space operations, much like U.S. tactical air combat power, probably
will remain a specialty within several military services that squabble over
respective budgets/prerogatives, until important space missions involve more
than support for armed forces on Earth and powerful spokesmen present
decisionmakers a persuasive case. A Solomon-style decision eventually will be
unavoidable: senior officials must determine whether to deliver the military
space 'baby' intact or divide it. . . . A separate armed service with
centralized control over all military space activities, for example, might avoid
most doctrinal disputes.
COLLINS, MILITARY SPACE FORCES, supra note 12, at 82, 83. In 1999, Senator Smith
suggested the propriety of such a move: "The notion that the Air Force should
have primary responsibility for space is not sacred. . . . If the Air Force
cannot or will not embrace space power . . . we in Congress will have to
establish an entirely new service." Smith, supra note 581, at 37-38.
n583 NEWBERRY, supra note 3, at 6. Major Newberry's point could be applied
equally to the U.S. Army and Navy, and likely to the national security
establishments of all other spacefaring States as well.
n584 National Science and Technology Council, National Space Policy P3 (Sept.
19, 1996) http://ast.faa.gov/licensing/regulations/nsp-pdd8.htm (on file with
the Air Force Law Review) [hereinafter National Space Policy].
n586 A National Security Strategy for a New Century (The White House, Office
of the President 1998) at 25.
n587 National Space Policy, supra note 584, at "National Security Space
n588 Department of Defense Directive 5100.77, DOD Law of War Program P4.1
(Dec. 9, 1998)
n589 Id. P5.3.1.
n590 W.B. Scott, 'Milspace' Maturing Into Warfighter Roles, 147:9 AV. WK. &
SPACE TECH., Sept. 1, 1997, at 46.
n591 W.B. Scott, U.S. Adopts 'Tactical' Space Control Policy, 150:13 AV. WK.
& SPACE TECH., Mar. 29, 1999, at 35.
n592 United States Space Command, Long Range Plan: Implementing USSPACECOM
Vision for 2020 (March 1998) 21 [hereinafter Long Range Plan]. Following release
of the Long Range Plan, DOD issued a space policy which expanded upon themes
raised by USSPACECOM. For example, the DOD policy states: "Purposeful
interference with U.S. space systems will be viewed as an infringement on our
sovereign rights. The U.S. may take all appropriate self-defense measures,
including, if directed by the National Command Authorities (NCA), the use of
force, to respond to such an infringement on U.S. rights." Department of Defense
Directive 3100.10, Space Policy P4.2.1 (July 9, 1999) [hereinafter DODD
n593 Long Rang Plan, supra note 592, at 11. The DOD definition of "space
control" mirrors the USSPACECOM definition: "Combat and combat support
operations to ensure freedom of action in space for the United States and its
allies and, when directed, deny an adversary freedom of action in space. . . ."
DODD 3100.10, supra note 592 PE2.1.3.
n595 W.B. Scott, Space Ops Threatened By Launch Failures, 150:20 Av. Wk. &
Space Tech., May 17, 1999, at 25, 26.
n596 Id. at 26.
n597 AFP 110-31, supra note 146.
n598 W.M. Reisman & W.K. Leitzau, Moving International Law from Theory to
Practice: the Role of Military Manuals in Effectuating the Law of Armed
Conflict, in 64 INTERNATIONAL LAW STUDIES, THE LAW OF NAVAL OPERATIONS 8 (H.B.
Robertson, ed., 1991).
n599 STAT. OF THE ICJ, supra note 261, at art. 38(1)c.
n600 General Fogleman, former Air Force Chief of Staff, asserted that
"dominating the information spectrum is as critical to conflict now as occupying
the land or controlling the air has been in the past." Air Force Doctrine
Document 2-5, Information Operations, 1 (Aug. 5, 1998) [hereinafter AFDD 2-5].
n601 Such potential threats have not escaped notice by the Department of
Defense. For example, fears about potential unauthorized access have prompted
serious debate over whether the military should withdraw from the Internet
altogether. DOD May Unplug from Internet Due to Security Worries at Century's
End, INSIDE THE ARMY, June 21, 1999, at 1.
n602 AIR FORCE 2025, supra note 7, at 4. The study went on to assert that
"the key to achieving and maintaining lasting superiority that cannot easily be
duplicated by others lies in the integration of information, air, and space."
Id. at 9.
n603 Department of Defense Directive S-3600.1, Information Operations (Dec.
9, 1996) [hereinafter DODD S-3600.1]. The Air Force broadens this definition for
its forces, including space forces, as follows: "Those actions taken to gain,
exploit, defend or attack information and information systems and include both
information-in-warfare and information warfare." AFDD 2-5, supra note 600, at
41. Information-in-warfare is defined as "the Air Force's extensive capabilities
to provide global awareness throughout the range of military operations based on
integrated intelligence, surveillance and reconnaissance (ISR) assets; its
information collection/dissemination activities; and its global navigation and
positioning, weather, and communications capabilities." Id.
n604 DODD S-3600.1, supra note 603. As with "information operations," the Air
Force expands this definition as it recognizes the continuing engagement of
defensive information warfare systems even absent crises or armed conflict:
"Information operations conducted to defend one's own information and
information systems, or to attack and affect an adversary's information and
information systems." AFDD 2-5, supra note 600, at 42. Thus, on either
definition, information warfare is a specialized kind of information operations.
Unlike previous definitions, it includes more than just attack of command and
control systems. Id. at vii.
n605 Of course, information warfare and the multi-faceted operations it
entails is not limited to the space environment. However, with the increasing
reliance on space for telecommunications applications, the means of
transmitting, intercepting, and corrupting information will entail use of
n606 For a discussion of the customary principle of military necessity, see
supra notes 145-149 and accompanying text.
n607 For a discussion of the customary principle of proportionality, see
supra notes 150-160 and accompanying text.
n608 For a discussion of the customary principle of discrimination, see supra
notes 161-165 and accompanying text.
n609 For a discussion of the customary principle of humanity, see supra notes
166-177 and accompanying text.
n610 For a discussion of the Hague system, see supra Part III, @ C.1. For a
discussion of the Geneva system, see supra Part III, @ C.2.
n611 Department of Defense, Annual Report to the President and the Congress,
1998, Chapter 7, p.1. The most recent Annual Report continues this theme,
"military operations rely heavily upon information lines of communication to,
in, through, and from space." Department of Defense, Annual Report to the
President and the Congress, 2000, Chapter 8, p.2. The observation from the 1998
Annual Report that space operations provide access to foreign countries "without
violating their sovereignty," requires some clarification as it might apply to
space warfare. It is certainly true that space surveillance and reconnaissance
activities, even if conducted by foreign militaries, do not violate a
sensed-State's sovereignty. This includes all manner of remote sensing and
electronic interception. Yet as space operations evolve into instruments of
combat, actual destruction of an adversary's space assets is likely to be
accompanied by claims that its sovereignty has been violated. The implications
under the jus ad bellum are obvious and the question will increasingly merit
attention, particularly because a State's sovereignty is generally tied to its
territory. The Outer Space Treaty outlaws national appropriation by claim of
sovereignty of outer space, including the moon and other celestial bodies. Outer
Space Treaty, supra note 316, at art. II. By itself, this does not mean that
States will not have sovereign rights in space. Article II was tested in 1976
when eight equatorial States attempted to claim sovereignty in portions of the
geosynchronous orbit by means of the dubious "Bogota Declaration." Predictably,
such claims were roundly rejected by the international community which, on the
authority of the Outer Space Treaty and common sense, refused to recognize
sovereign rights in portions of outer space itself. The claims of these States
(Colombia, Brazil, Ecuador, Congo, Kenya, Uganda, Zaire, Indonesia), four of
whom had previously ratified the Outer Space Treaty, "has met with technically
constructive as well as legally well-reasoned refutations by a majority of
member states of the U.N. in those international fora where it has been
reiterated." M.N. ANDEM, INTERNATIONAL LEGAL PROBLEMS IN THE PEACEFUL
EXPLORATION AND USE OF OUTER SPACE 160 (1992).
Beyond assertions of sovereignty over natural resources from space, or
portions of space itself, lies the question of whether the Outer Space Treaty
allows for sovereignty in a space asset itself beyond an assertion of
sovereignty as a property right. The Outer Space Treaty provides that States
retain jurisdiction and control as well as "ownership" over the space objects on
its registry. Outer Space Treaty, supra note 316, at art. VIII. The ISS
Agreement uses similar language ("ownership," "jurisdiction and control")
without vesting national sovereignty in the asset. ISS Agreement, supra note
342, at art. 5, 6. However, because Article II of the Outer Space Treaty focuses
on national appropriation, only secondarily mentioning sovereignty as one of
several means of effectuating an illegal claim of national appropriation, it
appears that a limitation on State sovereignty over its space assets, if any,
will not come by operation of Article II.
Certainly States have already appropriated objects that they own and control.
In effect, States already maintain a national appropriation over their assets in
space. A possible source limiting a State's sovereignty rights in its space
assets comes from Article XII of the Outer Space Treaty which requires that all
"stations, installations, equipment and space vehicles on the moon and other
celestial bodies shall be open to representatives of other States Parties to the
Treaty on a basis of reciprocity." Outer Space Treaty, supra note 316, at art.
XII. Typically, spaces over which a State exercises its sovereignty may be
closed to foreign entrance. However, although with this provision States Parties
give up a measure of exclusive occupation and privacy in their space objects on
the moon and other celestial bodies, such does not necessarily imply a loss of
sovereignty. As a practical matter, the question of State sovereignty in its
space objects is relatively unimportant for civil and commercial activities
given the "jurisdiction and control" and "ownership" provisions of Article VIII,
Outer Space Treaty. However, the question may become acute as the prospect of
military confrontation in space increases and States engage in hostilities that
may constitute an act of war. For an interesting recent discussion of State
jurisdiction in outer space, see W.P. Heere, Problems of Jurisdiction in Air and
Outer Space XXIV:2 AIR & SPACE L. 70 (April 1999).
n612 See, e.g., R.G. Hanseman, The Realities and Legalities of Information
Warfare 45 A.F. L. REV. 173 (1997); S.P. Kanuck, Information Warfare: New
Challenges for Public International Law (1996) 37 Harv. INT'L L. J. 272; and
Schmitt, supra note 527.
n613 As the practice of space warfare is currently evolving, for the near
future it will likely entail principally the targeting and destruction of
unmanned assets both within airspace and outer space.
n614 Phrasing the issues in this way is intended to illustrate that the
problem of "dual use" assets can be understood in two different ways. The use of
the asset can be "dual," as for example a remote sensing satellite used both for
agricultural research as well as for evidence of war crimes. In this regard the
NATO use of satellite imagery to establish the creation of mass graves could
have come from civilian, commercially available remote sensing systems. Further
the ownership of the satellite can be dual as between several States directly,
or through participation in intergovernmental organizations such as the
International Telecommunications Satellite Organization (INTELSAT) and the
former International Mobile Satellite Organization (INMARSAT).
n615 See Agreement Relating to the International Telecommunications
Satellite Organization "INTELSAT," Aug. 20, 1971, 23 U.S.T. 3813 (entered into
force Feb. 12, 1973).
n616 Article 3 of the INMARSAT treaty requires that the uses of its assets be
reserved for "peaceful purposes." Convention on the International Maritime
Satellite Organization, Sept. 3, 1976, art. 3, 31 U.S.T. 1, 1143 U.N.T.S. 105
(entered into force July 16, 1979).
n617 W.D. von Noorden, INMARSAT Use By Armed Forces: A Question of Treaty
Interpretation, 23:1 J. SPACE L. 1, 2 (1995) [hereinafter von Noorden].
n618 Id. As for military uses authorized by the treaty, the member nations of
INMARSAT, as well the INMARSAT staff itself, have concluded that the treaty's
language "permits the use of INMARSAT assets by UN peacekeeping or peacemaking
forces acting under the auspices of the UN Security Council, even if they are
engaged in armed conflict to accomplish their missions." Department of Defense,
Office of General Counsel, An Assessment of International Legal Issues in
Information Operations (May 1999) at 15.
n619 von Noorden, supra note 617, at 2. The author strongly implies that the
U.S. simply avoided the "peaceful purposes" issue by focusing instead on
n620 See, e.g., R.A. Morgan, Military Use of Commercial Communication
Satellites: A New Look at the Outer Space Treaty and 'Peaceful Purposes' 60 J.
AIR L. & COM. 237 (1994).
n621 Once again, military wargames are precipitating discussion of potential
legal issues. In the Army's 1998 "Space Game 2" an issue arose as to the use of
commercial satellites and whether the U.S. could or should attack either the
space or ground segment. The now-familiar question "which of these options
constitute an act of war?" also was raised. W.B. Scott, Wargame Raises New
Space Policy Dilemmas, 148:8 AV. WK. & SPACE TECH., Feb. 23, 1998, at 98.
n622 The following discussion describes neutrality as a specific legal
category within the law of war:
The term 'neutrality' designates the legal status of a State which does not
participate in a war being waged by other States. A precondition, therefore, is
the existence of a war between sovereign States or a civil war in which the
rebels have been recognized as belligerents. . . . In the case of a use of force
which falls short of actual war, the laws of neutrality do not apply. . . .
Neutrality ends when the neutral State enters the war, but not if it uses force
to counter a violation of its neutrality. . . . A neutral State has the right to
demand respect for its independence and above all for its territorial
sovereignty, including its air space. . . . The supreme precept is that the
neutral State may not, by governmental measures, intervene in the conflict to
the advantage of one of the belligerents. Measures that would assist a
belligerent and those that would harm it are alike forbidden. This prohibition
applies even if equal treatment for both parties is contemplated. Equality of
treatment and impartiality are in this respect irrelevant. It is an obligation
imposed on the government of the neutral State, but not on its nationals. . . .
Basically, neutral obligations are only of a political or a military nature.
R.L. Bindschedler, Neutrality, Concept and General Rules, in 4 ENCYCLOPEDIA OF
PUBLIC INTERNATIONAL LAW 9-13 (Bernhardt, ed., 1982).
n623 See Hague Convention (V) Respecting the Rights and Duties of Neutral
Powers and Persons in Case of War on Land, Oct. 18, 1907 (1908 Supp.) 2 AM. J.
INT'L L. 117 [hereinafter Hague Convention (V)]; See Hague Convention (XIII)
Concerning the Rights and Duties of Neutral Powers in Naval War, Oct. 18, 1907
(1908 Supp.) 2 AM. J. INT'L L. 202.
n624 As previously suggested, references to "bombardment" where used in the
conventions governing land (IV) and sea (IX) warfare have been widely read to
effect limits on means and methods of prosecuting air war. See, e.g., Parks,
supra note 123.
n625 Hague Convention (V), supra note 623, at art. 8. The specific reference
to early instruments of telecommunications is particularly apt as applied to
space warfare. The principal assets in which the "dual use" problem for neutral
and belligerent co-ownership arises in space warfare will be for
n626 Id. at art. 9.
n627 Id. at art. 20.
n628 Other non-parties to the Convention that were active to some degree in
the 1991 Persian Gulf War include Canada, Italy and Turkey.
n629 Roberts & Guelff, supra note 131, at 61.
n630 In addition to those cited below, perhaps the most obvious example of
dual-use technology pertains to launch vehicles. In the civilian context, launch
vehicles are also termed boosters or simply transportation systems. In the
military context, virtually the same launch vehicles become missiles and
rockets. This dual use potential for the same launch vehicle creates tension
given the rise of commercial use of space. For example, the joint venture
between U.S., Russian, Norwegian, and Ukrainian corporations to launch
commercial satellites from an ocean-going oil rig was suspended in 1998 over
missile technology concerns. The effort, popularly known as Sea Launch, uses a
Russian Zenit rocket to boost the commercial payloads to orbit. The U.S. State
Department, fearful that Boeing was educating Russia on improvements to its
missile design, halted work on the project. The Zenit rocket is a modified
version of the Russian SS-18 ICBM. See J. Mintz, U.S. Suspends Boeing-Ukraine
Rocket Launch, WASH. POST, Aug. 8, 1998, at A14. The U.S. has subsequently
allowed work to resume.
n631 The dual-use character of remote sensing satellites benefits military
and civilian organizations in both directions. Thus, military imagery finds
useful civilian application as well. For example, declassification of
photoreconnaisance from the early U.S. Corona satellites has allowed for surface
water studies. Recently-released imagery showed the size of the Soviet Aral Sea
in 1962. By comparison with 1990s imagery, the considerable extent to which the
sea has shrunk due to the diversion of water for irrigation becomes clear.
PEEBLES, THE CORONA PROJECT, supra note 49, at 266. Peebles also notes that
the first NASA Landsat earth resources satellite was launched in 1972 -- a
month after the end of Corona. With the Corona photos, environmental studies
could be extended back another twelve years, helping to separate long-term
changes from normal variations in such areas as movement of sand dunes, loss of
forest areas, and shifts in the courses of tropical rivers.
n632 Christol argues that this dual-use aspect of most space assets
contributed "to the demise of the position that military activities in the
space environment were inherently aggressive. . . . Space objects engaged in
communications, observations of earth from space, weather observation, and
geodesy could be engaged in either a military, a non-military, or both military
and non-military activities." CHRISTOL, MODERN INTERNATIONAL LAW OF OUTER
SPACE, supra note 338, at 28.
n633 A further permutation of the issue arises when several opposing
belligerents simultaneously use the same asset. During Operation Desert Storm,
both the coalition and Iraq were using transponders off the ARABSAT
telecommunication system. F.R. Cleminson, Banning the Stationing of Weapons in
Space Through Arms Control: A Major Step in the Promotion of Strategic Stability
in the 21st Century, in ARMS CONTROL AND THE RULE OF LAW: A FRAMEWORK FOR PEACE
AND SECURITY IN OUTER SPACE 39 (J.M Beier & S. Mataija, eds., 1998). Aside from
the issue of neutral State partial ownership of the system, there appears to be
no jus in bello reason why either side could not have attacked the satellite.
Though each side would have had to calculate whether it stood to gain more than
it lost by the attack, this amounts to a question of military tactics and
strategy rather than permissible conduct under the law.
n634 Thus, in its Report to Congress on the conduct of the Gulf War, the
Department of Defense discussed the coalition attacks on major utilities, the
Iraqi communications system, and bridges. The Report affirms that
when objects are used concurrently for civilian and military purposes, they are
liable to attack if there is a military advantage to be gained in their attack.
('Military advantage' is not restricted to tactical gains, but is linked to the
full context of a war strategy, in this instance, the execution of the Coalition
war plan for liberation of Kuwait.)
Department of Defense Report to Congress on the Conduct of the Persian Gulf War:
Appendix O on the Role of the Law of War, 31 I.L.M. 612, 623 (1992).
n635 If all that were required were a potential military use, any asset could
be targeted. The homes of civilians far from the battlespace could potentially
be used by military forces, but such are not lawful targets unless so used.
Similarly, any satellite with a system of on-orbit propulsion is a potential
kinetic ASAT for another satellite. This, by itself, does not make the
satellite a military objective.
n636 M. COLLINS, LIFTOFF: THE STORY OF AMERICA'S ADVENTURE IN SPACE 161
n637 Outer Space Treaty, supra note 316, at art. V. Though "astronaut" was
originally a U.S. term referring to human beings in space, it can apply equally
to humans in space from other countries, including those that may prefer the
term "cosmonaut." As used here, the two terms are synonymous and use of the
one constitutes reference to both. The phrase "envoys of mankind" comes from the
Outer Space Treaty which declares "States Parties to the Treaty shall regard
astronauts as envoys of mankind in outer space and shall render them all
possible assistance in the event of accident, distress, or emergency landing on
the territory of another State Party or on the high seas." Id.
n638 Commenting on this term, Cocca writes
The term 'envoy' has a precedent in diplomatic law, that of an envoy
extraordinary. An envoy ranks just below an ambassador and always is an agent, a
messenger. The reason for this unique concept lies in the fact that astronauts
have been vested with the legal representation of all mankind in outer space and
celestial bodies. No former representation has ever been as wide and
politically, it goes beyond the most audacious ambition. On the other hand, this
investment was recognized in the General Assembly by unanimity and acclamation.
A.A. Cocca, Prospective Space Law, 26:1 J. OF SPACE L. 51, 54 (1998).
n639 Outer Space Treaty, supra note 316, at art. IV ("The use of military
personnel for scientific research or for any other peaceful purposes shall not
n640 At the time of the adoption of the Outer Space Treaty, virtually all
U.S. astronauts in space from the Mercury and Gemini projects had all been
members of the U.S. military.
n641 It appears to be of little significance that the Outer Space Treaty
requires that astronauts be regarded as envoys of mankind "in outer space." When
read in context, this is not a geographic limitation for the exclusive area in
which astronauts are to be regarded as envoys, but rather a claim that when away
from earth, that is, in outer space, astronauts represent the human race.
n642 Hague Convention (IV) Annex, supra note 154, at art. 1. Although the
requirements to have a distinctive emblem "recognizable at a distance" and to
"carry arms openly" certainly assume new meaning as applied to outer space, such
requirements could be complied with in space just as they are on land, sea, or
in the air. The central point of these requirements is to allow clear
distinction between combatants and civilians, legitimate and illegitimate
military targets. Failure to so identify oneself if done to take advantage of
the enemy's goodwill, amounts to an act of perfidy, one of the most serious law
of war violations as it undermines the entire system and the mutual "confidence"
on which it is based. For a discussion of perfidy under Protocol I to the Geneva
Conventions, see supra note 166.
n643 Article 31 of the Vienna Convention requires that a treaty be
interpreted "in good faith in accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in light of its object and
purpose." Vienna Convention, supra note 265, at art. 31 (emphasis added). Though
the Vienna Convention came into force well after adoption of the Outer Space
Treaty, the U.S. views its provisions as simply codifying preexisting customary
n644 It is for this reason that diplomats stationed in foreign countries are
accorded such wide protections under international law. Not only are their
personal and professional premises, archives and documents, and persons deemed
"inviolable," but they are free from the criminal jurisdiction of the receiving
State. Vienna Convention On Diplomatic Relations, Apr. 18, 1961, 500 U.N.T.S. 95
(entered into force June 24, 1964).
n645 M. Bourbonniere, & L. Haeck, Jus in Bello Spatialis, 1999 PROCEEDINGS OF
THE SPACE STUDIES INSTITUTE 8 (1999) (conference on space manufacturing). Once a
diplomat takes up arms, he arguably loses his diplomatic protections. See J.S.
Beaumont, Self-Defense as a Justification for Disregarding Diplomatic Immunity,
1991 CAN. Y.B. INT'L L. 391 (1992).
n646 The Outer Space Treaty itself hints at this by requiring that States
Parties regard astronauts as envoys. This raises the subtle distinction between
an astronaut actually being an envoy, and simply being regarded as one.
n647 Outer Space Treaty, supra note 316, at art. V.
n648 Rescue and Return Agreement, supra note 358, at art. IV.
n649 See S. Gorove, Legal and Policy Issues Raised by the Proposed Notion of
'Aerospace Object,' in PROCEEDINGS OF THE FORTIETH COLLOQUIUM ON THE LAW OF
OUTER SPACE 411 (1998); C.Q. CHRISTOL, SPACE LAW: PAST, PRESENT, AND FUTURE 339
(1991); M. LACHS, THE LAW OF OUTER SPACE: AN EXPERIENCE IN CONTEMPORARY
LAW-MAKING 59, 60 (1972). Generally, the arguments rests on anecdotal evidence
of spacecraft entering the national airspace of a foreign State without incident
n650 For additional discussion of the question of innocent passage as a
customary norm of international law, see supra note 312. In addition to the
arguments of Malanczuk and Wassenberg, additional space law commentators have
made the argument cogently, including A.D. Terekhov, Passage of Space Objects
Through Foreign Airspace: International Custom?, 25:1 J. SPACE L. 1 (1997); P.
Haanappel, The Aerospace Plane: Analogies with Other Modes of Transportation, in
PROCEEDINGS OF THE THIRTY-SECOND COLLOQUIUM ON THE LAW OF OUTER SPACE 341, 342
(1990); B. Cheng, The Legal Regime of Airspace and Outer Space: The Boundary
Problem Functionalism Versus Spatialism: The Major Premises, V ANNALS AIR &
SPACE L. 323, 357 (1980). Indeed, while backing away from its earlier
unequivocal assertions that such a right exists, Russia more recently stated
that "provisions of international customary law with respect to the passage of
aerospace objects after re-entry into Earth's atmosphere are currently in the
process of being elaborated." Questionnaire On Possible Legal Issues with Regard
to Aerospace Objects: Replies from Member States, U.N. Doc. A/AC.105/635 (1996).
n651 LOS Convention, supra note 467, at art. 19.
n652 Scott, Space As New Area of Responsibility, supra note 2, at 55. While
General Estes' point appears self-evident, the U.S. is not likely to deploy
weapons for some time. "We don't foresee weaponization in space between now and
the 2020 timeframe." Robert Wall, Space Weapons Fall from USAF Vision, 153:2 AV.
WK. & SPACE TECH., July 20, 2000, at 86 (quoting Secretary of the Air Force, F.
n653 This prospect appears unlikely. Following his discussion of events at
the U.N. Conference on Disarmament, Professor Vlasic plausibly asserts:
It may not be too far-fetched to conclude that the position of certain States
on the issue of space weapons reflects their desire not to be subject to
restrictions, at least not yet, by an international legal instrument, even if
only a U.N.G.A. resolution, condemning in unambiguous terms the development,
testing and deployment of devices, wherever based, designed to attack or
interfere with space assets.
Vlasic, Space Law and Military Technology, supra note 11, at 407.
n654 As stated previously, given the continuing implications of State
sovereignty in international relations, it is important to conceive State
behavior not as authorized by international law, but rather inherently lawful
unless proscribed by international law. See supra note 141. Accordingly, it is
appropriate to speak of activity that is "not prohibited" or "consistent with
n655 Several of the items on these prohibited and not prohibited lists were
taken from a July 1985 working paper entitled "Survey of International Law
Relevant to Arms Control and Outer Space" submitted by the government of Canada
to the U.N. Conference on Disarmament. Stojak, supra note 354, at 45, 46.
n656 The two publicly-acknowledged exceptions include the U.S. and Russian
ASAT systems. States have historically been reluctant to agree to restrictions
on their use of potential weaponry before it has been developed and fielded. The
notable exception is the recent restriction on blinding lasers. See supra note
General Howell M. Estes, III USAF (1997)
Before examining how the law of war will restrict means and methods of
space warfare, it is necessary to determine whether it applies to military
space operations in the first place. Given the evolution of aerial
warfare--gradual restrictions on means and methods applied from the existing law
of war--and the apparent similarity of certain aspects of the maritime
environment to that of outer space, one can apply the traditional set of norms
known as the law of war to space warfare by employing a process of analogical
reasoning. The conclusion that the existing law of war will apply to space
warfare is further supported by treaty bases in the Outer Space Treaty and the
law of war's Martens' clause.
That said, when it comes to outlining permissible military activity during
the course of space combat, it appears equally clear that the near-total
atmospheric vacuum characterizing outer space is matched by a similar legal
vacuum with respect to the jus in bello for space warfare. Academicians and
practitioners are left to making educated but uncertain guesses based on
analogies with other legal regimes. As with any attempt to predict the
application of current (though insufficient) legal regimes to future phenomena,
it is extremely difficult to articulate with any precision how this application
should occur. The difficulty is largely a function of developing warfare
technologies that continue to outpace the progressive development of
international law. Ideally however, the task should fall to diplomats and
international legislators having the authority to negotiate clarifications to
international law before the relevant issues are unilaterally decided by States
in the context of actual combat. [n653]
The prospect of space warfare requires the formulation of a new
perspective on the law of war. The law of war contains prescriptive norms
derived from a wide variety of sources. With respect to space warfare, the
corpus juris spatialis, in addition to a variety of arms control treaties,
contributes additional restrictions to the existing law of war. Having concluded
that the traditional law of war will apply to space warfare, and employing the
most widely accepted understandings of the terms "peaceful" and "space weapon,"
an examination of relevant legal sources demonstrates that the following
military activities are prohibited at this time:
* Interference with space-based "national technical means" (space based sensors)
for arms control verification as between the U.S. and Russian Federation;
* Placement of nuclear weapons and other weapons of mass destruction in orbit
around the earth and on celestial bodies or in orbit around them;
* Testing or other detonation of nuclear weapons in outer space;
* Placement of military bases and conduct of military tests or maneuvers on
celestial bodies and in orbits around them;
* Destruction of targets that are not military objects or militarily necessary,
and are specifically prohibited such as hospitals, churches, and non-combatants;
* Use of space weapons or tactics that are "inhumane," "disproportionate" to the
militarily necessary objective sought, or are incapable of use so as to
"distinguish" between legitimate and illegitimate targets (as the terms are used
under the traditional jus in bello);
* Development, testing, and deployment of space-based or other anti-ballistic
missile systems and components (with a single limited exception);
* Military or hostile use of environmental modification techniques in outer
By contrast, an examination of the same sources discloses that, at a
minimum, the following military activities in outer space are not prohibited:
* The use of military personnel;
* The use of space-based remote sensors in support of combat or other military
* The use of space-based communication, navigation, and meteorological systems
for combat or other military purposes;
* The deployment and non-aggressive use of conventional space weapons; and
* The transiting of nuclear and other weapons of mass destruction in non-orbital
Despite nearly forty years of research into space weaponry there is no
binding international instrument limiting the use of such weapons. With two
isolated examples, such weapons have not been fielded, contributing to State
reluctance to foreclose further study into effective deterrents. [n656]
However there will come a day when a treaty governing means and methods of
space warfare will be desirable. In addition to the certainty written law brings
to the legal structures governing human conduct, formal agreements most clearly
evince the consent of the governed. Of course, any treaty developments for
space warfare must strike a pragmatic balance between national security,
international legal order, and human rights--a balance for which the jus in
bello has striven for at least 100 years.
To a certain degree, this review of the law of war and its application to
space warfare serves as a call for further analysis of the topic. Though armed
conflicts apparently have not occurred in space to date, the rudimentary means
for engaging in such conflicts now exist. As each armed conflict since Vietnam
makes greater use of space assets, it is undoubtedly only a matter of time
before a future conflict witnesses the application of force both from and within
the space environment. When it does, and in the absence of specific
international norms restricting the use of means of methods of war in space,
State practice will provide the first insights into how the law will be applied.
As this article has argued, the lawful scope of such warfare will be limited
by the customary principles of proportionality, necessity, discrimination,
humanity, and an array of treaty-based norms affecting the targeting of
individuals and objects. To this extent, the existing law of war restricts the
scope of space warfare today. How the law will evolve into the future law of war
will largely depend upon the nature and scope of such warfare, and upon the new
customary principles that may emerge thereby. However, it is doubtful that the
international community will have any greater success in codifying the law
governing space warfare than it has had with respect to aerial warfare.
n1 JOHN KEEGAN, A HISTORY OF WARFARE 5 (1993).
n2 Professor Matte argues that "airspace" is a misnomer, and that the proper
term is "air medium." He makes this distinction in arguing against "any kind of
arbitrary demarcation between 'air space' and 'outer space.'" N.M. MATTE,
AEROSPACE LAW: TELECOMMUNICATIONS SATELLITES 11 n.31 (1982). Professor Matte
further observed that the two environments are "at present governed by two
different legal regimes," id. (emphasis added), but that the more logical
approach is to speak of an aerospace continuum. On this approach, "the rules and
norms of aeronautical law, on the one hand, and of aerospace law, on the other
hand, should be applied according to functional criteria, i.e., the type of
activity being carried out." Id. This contrasts with the "traditional view" of
crafting and applying law to the medium in which the activity is carried out,
either air or space. Though insightfully recognizing the great difficulty of
establishing a non-arbitrary boundary between air space and outer space, this
view, if applied to armed conflict, would identify applicable norms limiting
weaponry and methods of warfare based on a functional approach, rather than on
where the combat occurs. The difficulty with this from a military point of view
lies in the conceptual challenge of creating warfare policy, doctrine, and
operating plans without a clear demarcation of the theater of operations. See,
e.g., W.B. Scott, Pentagon Considers Space As New Area of Responsibility, 146:12
AV. WK. & SPACE TECH., Mar. 24, 1997, at 54 [hereinafter Scott, Space as New
Area of Responsibility].
n3 One author aptly terms the difference "significant." R.D. NEWBERRY,
SPACE DOCTRINE FOR THE TWENTY-FIRST CENTURY 10 (1998) [hereinafter NEWBERRY].
The difference is helpfully illustrated by three representative schools of
thought on the relationship between military activity and outer space: (1)
space as a demilitarized sanctuary; (2) space as the high ground; and (3)
space as a theater of operations. J.E. Justin, Space: A Sanctuary, the High
Ground, or a Military Theater?, in INTERNATIONAL SECURITY DIMENSIONS OF SPACE
(U. Ra'anan & R.L. Pfaltzgraff, Jr., eds., 1984) 102-09 [hereinafter Justin].
The first view recognizes a minimal role for the military use of space but not
its weaponization. Two thoughtful, moderated accounts representing this view
were recently provided by two USAF officers. One aims at "opening the debate" on
the space sanctuary view. B.M. DeBlois, Space Sanctuary: A Viable National
Strategy 12:4 AIRPOWER J. 41 (Winter 1998) [hereinafter DeBlois]. The other
claims to present the "strongest possible argument for a space sanctuary today."
D.W. ZIEGLER, SAFE HEAVENS: MILITARY STRATEGY AND SPACE SANCTUARY THOUGHT (1998)
[hereinafter ZIEGLER]. The second of the three schools of thought, sees the role
of military activity in space as principally supportive of terrestrial combat
and could include the use of weapons from space. This view stresses the
inseparability of the air and space media, and makes heavy use of the term
"aerospace," a term coined in 1958 by USAF Chief of Staff General Thomas White.
Justin at 107; see also D.N. SPIRES, BEYOND HORIZONS: A HALF CENTURY OF AIR
FORCE SPACE LEADERSHIP 54 (rev'd ed., 1998) [hereinafter SPIRES]. The third view
represents the most complete use of space for military purposes. This view sees
space not merely as another medium in which to augment existing military roles,
but as an emerging combat environment, or military mission, in its own right.
The present author's analysis rests on the conclusion that international law
does not prohibit the use of outer space as a complete military theater of
operations per se. This assumes that any force used as part of military
operations in space is compliant under the jus ad bellum. For a discussion of
the jus ad bellum, see infra notes 132 through 140 and accompanying text.
n4 The unmanned assets used in outer space are obvious-satellites and
missiles. Unmanned assets used within airspace include unmanned aerial vehicles
(UAVs), currently used for surveillance, as well as missiles either headed for
or from space or used entirely within airspace. See generally JEFFREY N.
RENEHAN, UNMANNED AERIAL VEHICLES AND WEAPONS OF MASS DESTRUCTION: A LETHAL
COMBINATION? 5-13 (1997) (provides helpful discussion of UAVs and remotely
piloted vehicle technologies).
n5 This is to say that as long as space warfare is prosecuted through
unmanned missions against assets wholly within the space environment, that
portion of the law of war traditionally known as "Hague Law" will govern space
warfare more readily than that portion known as "Geneva Law." For a discussion
of "Hague Law," see infra notes 188 through 207 and accompanying text. For a
discussion of "Geneva Law," see infra notes 208 through 219 and accompanying
n6 Professor Schmitt has pointed out that on rare occasions, international
law has sought to outlaw the deleterious effects of certain anticipated
technologies. In this regard he cites the ban on blinding laser weapons, adopted
before such weapons had ever been used in military operations. "Much more
frequently, however, law has proven reactive. Indeed, in the twentieth century,
codification efforts have followed major wars in almost lock-step fashion."
Michael N. Schmitt, Bellum Americanum: The U.S. View of Twenty-First-Century War
and Its Possible Implications for the Law of Armed Conflict, in 71 INTERNATIONAL
LAW STUDIES, THE LAW OF ARMED CONFLICT: INTO THE NEXT MILLENIUM 389 (Michael N.
Schmitt & Leslie C. Green, eds., 1998), reprinted in 19 MICH. J. INT'L L. 1051
(1998) [hereinafter Schmitt, Bellum Americanum].
n7 As Geoffrey Best puts it, "there was no international law on aerial
warfare before the turn of our century. The Hague Conferences [1899 and 1907]
gingerly laid a few foundations. . . . but the terms used were soon discovered
to be archaic, and vital questions had been begged." G. BEST, WAR AND LAW SINCE
1945 199 (1994). It will be difficult to avoid similar mistakes as States
contemplate moving into uncharted legal territory once again. Any attempt to
depict the future in plausible terms is fraught with many challenges. The
following three challenges, taken from a fascinating Air Force study on future
concepts, capabilities, and technologies in the year 2025, certainly apply to
any attempt to envision a future law of war and the conditions necessitating it:
First, one runs the risk of assuming that because we can do something, we will.
In this case technology drives planning, not the reverse. Second, we
straight-jacket the future with today's assumptions. That is, we focus on an
array of problems and possibilities that are too narrow compared to the array we
actually will encounter. A third problem is the reverse of the previous one.
Here, we are too expansive and imagine far more than we or the world are in fact
capable of accomplishing in the time frame under review.
J.W. Kelly, Executive Summary, in AIR FORCE 2025 6 (1996) [hereinafter AIR FORCE
n8 Schmitt, Bellum Americanum, supra note 6, at 390. Numerous commentators,
including senior military officers, have widely termed Operation Desert Storm
the first space war. See, e.g., R. Saltus, Air Force says it Might Have Won the
War in 2 More Weeks, BOSTON GLOBE, Apr. 5, 1991, at 10; C. Covoult, DESERT STORM
Reinforces Military Space Directions, 134:14 AV. WK. & SPACE TECH., Apr. 8,
1991, at 42.
n9 Though several interesting studies consider the possibility of warfare
with extra-terrestrial forms of intelligent life, such consideration is far
beyond the scope of this article. Such analyses also exceed the scope of
international law proper. Nonetheless, these works often make useful
observations about future space weaponry and the difficulty of scientific
prediction. For example, one sober, scientifically-respectable work, considering
the technological preconditions for successfully defending against alien attack,
distinguishes this project from that of mere science fiction, and points out the
importance of allowing authors free rein in speculating about future