FOOTNOTES

LEVEL 1 - 1 OF 295 ITEMS

Air Force Judge Advocate General School
The Air Force Law Review

2000

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.

SUMMARY:
...     ... 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. ...  

TEXT:

   I. INTRODUCTION

   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
atom." [n36]

   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
detected. [n43] 

   3. Satellites

   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
satellites. [n45] 

   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
publicized.

   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
categories below.

   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
will." [n87]

   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
the detonation.

   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]

   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
command.

   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
discipline. [n126]

   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
of war.

   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
means." [n136]

   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
bellum." [n140]

   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:

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]

   2. Discrimination

   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.

   3. Proportionality

   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
significant target.

   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]

   4. Humanity

   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,
disproportionate." [n167]

   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
outer space.

   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
territories. [n188]

   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
for space.

   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
targeting options.

   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
protocols.

   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
conflicts.

   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
Protocol.

   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
conflict." [n270]

   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]



   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]

   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.
 [n295]

   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
Lauterpacht writes:

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
change. [n305]

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
less important.

   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:

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]
(emphasis added)

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 resulti