Insight - The Rule of Law and Military Space Activities

Wednesday, July 5, 2017

By Brian Weeden, Director of Program Planning

Over the last several years, there has been growing concern about armed conflict on Earth extending into space which may include attacks against satellites and space capabilities. This concern is driven by the growing use of space for national security purposes by many countries, and the resulting proliferation of counterspace, or antisatellite, capabilities. The potential for increased threats to satellites and space capabilities has in turn generated discussions in several countries, including the United States, on not only preventing and deterring attacks in space, but also on the sovereign right of self-defense in space.

While armed conflict is a relatively new issue for the space world, it has been an unfortunate feature of human civilization. Over time, the international community has created a body of international law that defines the circumstances by which states may use armed force, and limits the effects caused by armed conflict. This body of international law is generally referred to as International Humanitarian Law (IHL), or the Law of Armed Conflict (LOAC). IHL exists as both formal treaties agreed to by states, and state practice that has over time developed into customary international law. Another important piece of international law is the United Nations Charter, which  forbids the threat or use of force between nations in Article 2.4, but also recognizes the inherent right of individual or collective self-defense in response to an armed attack under Article 51. Article 2.4 of the Charter of the United Nations also formally forbids the threat or use of force between nations.

There are also informal documents known as “manuals” that describe how IHL/LOAC apply to specific domains of military activity. The San Remo Manual on International Law Applicable to Armed Conflicts at Sea, the Harvard Manual on International Law Applicable to Air and Missile Warfare, and the Tallinn Manual on International Law Applicable to Cyber Operations all provide guidance on the application of IHL for the maritime, air, and cyber domains, respectively. These manuals were developed by experts and practitioners to provide advice to military lawyers on the application and use of IHL in their respective domains. While not binding agreements, the manuals have nonetheless had an impact on how militaries conduct activities in peacetime, periods of tension, and armed conflict.

In 2016, the Manual on International Law Applicable to Military Activities in Space (MILAMOS) Project was launched to try to clarify the interaction between international law and military space activities. The MILAMOS Project is co-sponsored by the Centre for Research in Air and Space Law (CRASL) at McGill University in Canada and the Research Unit on Military Law and Ethics (RUMLAE) at the University of Adelaide in Australia. The goal of the MILAMOS Project is to assess how the existing bodies of international space law and IHL apply to military activities in space in peacetime, periods of tension, and armed conflict.

The MILAMOS Project has assembled a group of international experts in law and space operations who are working over the course of three years to develop a set of rules for how international law applies to military space activities. The experts are divided into three groups, each of which is working on a different piece of the manual. The International Space Law (ISL) Group is focused on how international law applies to military space activities during peacetime. The International Humanitarian Law (IHL) Group is focused on how international law applies to military space activities during armed conflict (jus in bello). The International Law on the Use of Force (ILUF) Group is focused on international law and military uses of space in periods of tension, the legal characterisation of coercive or overtly hostile activities, and the conditions under which states might resort to use of force (jus ad bellum). The three groups are supported by the Group of Technical Experts who provide advice on technical and operational aspects of military space activities.

Successfully developing a manual on international law and military activities in space is a daunting challenge. As space has yet to experience any international armed conflicts, or even a publicly known or recognized use of force against a satellite, the space domain does not have the decades or centuries of state practice and international legal opinions that informed the other manuals. Moreover, space law itself has many areas that have not been significantly developed since the major treaties were signed during the 1960s and 1970s. There are also areas where space law and IHL may be in normative conflict, which will require the experts to assess how the two bodies of law interact, whether one or both are lex specialis that overrides general international law on a specific subject matter, and which takes priority if they conflict.

Despite these challenges, the MILAMOS Project is making progress. An initial kick-off meeting was held in Montreal, Canada, in September 2016. Following the kick-off, the experts are working electronically and meeting in-person at workshops held three times per year in geographically diverse locations. In 2017, the first workshop was held in February in Adelaide, Australia, and the second workshop was held in June in New Delhi, India. The third workshop is scheduled to be held in Colorado Springs, the United States, in October.

SWF is both directly and indirectly involved in the MILAMOS project. Several SWF projects and activities, such as a panel discussion on International Law and Military Activities in Space and a workshop on International Perspectives on Self-Defense in Space in March 2015, the Scenario Workshop on Self-Defense in Space in September 2015 and the Tabletop Exercise on Space Crisis Dynamics and Uncertainty in November 2016 identified issues that MILAMOS would need to tackle. SWF Director of Program Planning Dr. Brian Weeden is also one of the technical advisors to the MILAMOS Project with the ILUF Group.

Successful completion of the MILAMOS Project would have a positive impact on the sustainability, stability, and security of outer space. It would clarify the existing peacetime restrictions and restraints on military space activities, identify military space activities that could amount to a use of force or armed attack, and outline the circumstances that trigger the right of self-defense, all of which could help prevent or deter armed conflict. And if armed conflict were to extend into space, MILAMOS could establish restrictions on military conduct during the conflict so as to limit the negative impact on the space environment and human life. MILAMOS may also assist militaries in implementing the same sort of legal screenings and reviews for military space capabilities and conflict as they do for capabilities and conflict on Earth. Finally, MILAMOS will help identify gaps in the existing body of international law that may need to be addressed through future agreements and governance initiatives to help bring about a more secure and sustainable space domain.