The Law of War in Space
Printed in the Air Force Law Review;
Obtained March 13 2001


CONTENTS

SUMMARY

I INTRODUCTION

II THE MILITARY ASCENT TO SPACE

A. Origins and Evolution of Space Militarization

  1. Missiles and Rockets
  2. Nuclear Devices
  3. Satellites

B. Present and Potential Technologies Available for Space Combat

  1. Electromagnetic and Radiation Weapons
  2. Kinetic Energy and Hypervelocity Weapons
  3. Laser Weapons
  4. Particle Beam Weapons
  5. Explosive Proximity Weapons
  6. 'Soft Kill' Weapons

III. THE LAW OF WAR

A. Jus in Bello vs. Jus ad Bellum

B. Customary Principles within the Law of War

  1. Military Necessity
  2. Discrimination
  3. Proportionality
  4. Humanity

C. Treaty Law

  1. Hague Conventions of 1899 (I-IV) and 1907 (I-XIV)
  2. Geneva Conventions of 1949 (I-IV) and Protocols of 1977 (I-II)
  3. Additional Conventions Adopted Since 1972 Affecting the Jus in Bello
  4. Jus Ad Bellum Under the United Nations Charter

IV. Space Warfare Under the Corpus Juris Spatialis

A. Customary Law

B. Treaty Law

  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
  2. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (Rescue and Return Agreement)--1968
  3. Convention on the International Liability for Damage Caused by Space Objects (Liability Convention)--1972
  4. Convention on Registration of Objects Launched into Outer Space (Registration Convention)--1975
  5. Agreement Governing the Activities of States on the Moon and other Celestial Bodies (Moon Agreement)--1979

V. SPACE WARFARE UNDER RELATED TREATIES AND OTHER AUTHORITATIVE SOURCES

A. Treaties

  1. Treaty Banning Nuclear Weapons in the Atmosphere, In Outer Space and Under Water (Limited Test Ban Treaty)--1963
  2. Anti-Ballistic Missile (ABM) Treaty-1972
  3. Antarctic Treaty-1959, and the United Nations Convention on the Law of the Sea-1982

B. United Nations General Assembly Resolutions

  1. Declaration of Legal Principles Governing State Activity in the Exploration and Use of Outer Space-1963
  2. Principles Relating to Remote Sensing of the Earth from Outer Space-1986
  3. Principles Relevant to the Use of Nuclear Power Sources in Outer Space--1992

C. International Telecommunication Union

VI. THE LAW OF WAR IN OUTER SPACE

A. Bases on Which the Law of War Applies to Outer Space

  1. Analogy

    a. Parallels to Sea Warfare
    b. Previous Application of the Law of War to Aerial Warfare

  2. Outer Space Treaty
  3. Martens' Clause

B. Problems of Legal Definition and the Use of Force in Space

  1. Militarization of Space
  2. Weaponization of Space
  3. Use of Force in Space

C. National Policy, Military Space Doctrine, and Law of War Manuals

D. Information Warfare

E. Other Selected Issues

  1. Military Interaction With Intergovernmental Agencies and "Dual Use" Assets
  2. The Status of Astronauts as Both "Envoys of Mankind" and Combatants
  3. Return of Astronauts Engaged in Combatant Activities
  4. Innocent Passage through Airspace for Destinations to and Return from Space

VII. CONCLUSION

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