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Star Laws: Why the law of armed conflict matters in outer space

Think Ahead, McGill Law Faculty 22 March 2016
by

Cassandra Steer

on 22 March 2016

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Transcript of Star Laws: Why the law of armed conflict matters in outer space

photo credit Nasa / Goddard Space Flight Center / Reto Stöckli
STAR LAWS:
WHY IHL MATTERS

IN OUTER SPACE

Targeting Dual Use Satellites
Status of Military Astronauts
Art 54(2) API: unlawful to "
attack, destroy or render useless objects indespensible to the survival of the civilian population
such as foodstuffs, crops, livestock, drinking water installations...for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party..."

Are there services provided by space applications which are indespensible to the survivial of the civilian population?
Transponders
Would this limit lawful targeting of dual use satellites? How to determine the extent to which it is for civilian use?
Collateral damage:
What is proportionate?
Potential fallout of e.g. civil aviation GPS, financial services, disaster relief, telecommunications
Potential impact on neutral State
Principle of distinction
between civilians and combatants
Art 48 AP I and Rule 1 ICRC Study on Customary IHL
Art V OST : astronauts are regarded as "envoys of [hu]mankind in outer space"

1968 Astronaut Agreement
- astronauts in distress shall be assisted and repatriated
v.
Would this change in times of hostilities? Is OST
lex specialis
or should IHL prevail?
Does it matter if an astronaut is DPH?
cassandra.steer@mcgill.ca
SPACE AND CONFLICT
SPECIAL ISSUES OF
JUS IN BELLO
IN SPACE

Art 52(2) AP I: "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."

Art 52 (3): In case of doubt whether an object which is normally dedicated to civilian purposes,
such as a place of worship, a house or other dwelling or a school
, is being used to make an effective contribution to military action,
it shall be presumed not to be so used
."
Principle of distinction between civilian and military objectives
Art III
States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies,
in accordance with international law, including the Charter of the United Nations
, in the interest of maintaining international peace and security and promoting international co-operation and understanding.
1967 Outer Space Treaty
Art IV
States Parties to the Treaty undertake
not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space
in any other manner.

The
moon and other celestial bodies
shall be used by all States Parties to the Treaty
exclusively for peaceful purposes
. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden...
Distinction
Precaution in Attack
Legality of ASATs
Proportionality
Art 35 (3) AP I: unlawful to "employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the environment"

Art 55(1) AP I: "Care shall be taken in warfare to protet the natural environment against widespread, long-term and severe damage"
Customary law:
Art IV OST only prohibits WMDs - what about more precise weapons?
What about using "peaceful" space objects as weapons?
Not all military objects are registered, despite the Registration Convention (although the majority are)
Not all space obejcts will be identifyable by "visible" markings
Civilian satellite could be used as a weapon - is this lawful?
Military Activities in Outer Space
1957: USSR used a military missile to launch SPUTNIK
Dawn of the "Space Age" was both civilian and military race of technology between USSR and USA
ISR
1961: US SAMOS – Satellite and Missile Observation System
1960s on: ABMs and ASATs
Verification
Reconnaissance satellites, which provide photographic or electronic images of the surface of the Earth
Electronic intelligence gathering systems, which provide information on radio communications
Early warning systems
Ocean surveillance systems
Radar calibration, which simulate incoming missiles and test the ground based early warning systems
Communications
Meteorological
From: Unsustainable uses of Earth orbits-WEF-McGill Workshop (July 2013)-Jasani and Jakhu
Dual purpose technologies:
Satellite communications
Earth Observations
Positioning systems
Launch vehicles
...and growing interdependence:
Communications: civil/commercial systems utilized/leased by forces
Marginally dedicated military systems (Syracuse, Skynet, Milstar)
Earth observations: Civilian EO data sold to military communities
Positioning: Originally military but now used by civil agencies and commercial entities
space as the new "high ground" vs. space as sanctuary
OBJECTS
PEOPLE
(PRECAUTION)
carrying arms openly
uniform
direct participation in hostilities
...NOT a long time ago in a galaxy far, far away.....
USAF X-37-B: 3 months in space in 2015
North Korean launches
in 2015 and 2016
Russian Object 2014-28E in 2014
Over 1,250 operating satellites
Over 500,000 trackable pieces of debris
...how much untrackable?
Remote Sensing
GPS
Civilian and Military
1962 Starfish Prime
1963 Project West Ford
Space to Earth
Earth to Space
Space to Space
Operation Desert Storm
First Gulf War 1990
"The first space war"
Weaponisation of space is limited by Art IV OST, but it may be difficult to define "weapon"
ASATs: kinetic and non-kinetic
Cyber
CleanSpaceOne
How to define a "weapon"?
On-orbit servicing and debris control
asteroid mining
Key Principles
Does this outlaw the use of kinetic ASATs, given what we've learned from the US and Chinese tests?
What about effects?
"Proportionality" says cyber methods should be preferred -
but collateral fallout may still be significant
Full transcript