Limits on Space Weapons: Incorporating the Law of War into the Corpus Juris Spatialis P.J. Blount 51st Colloquium on the Law of Outer Space Glasgow, Scotland © 2008

The Outer Space Treaty Article 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. “

Jus Ad Bellum Limitations Peaceful Purposes Only Applied to the Moon and Other Celestial Bodies in the Outer Space Treaty Probably a norm of customary international law What is the Content of the Norm? Demilitarized? Non Aggressive? Something in between?

Peaceful Purposes & UN Charter Peaceful Purposes – at a minimum UN Charter Principles Peaceful dispute resolution Maintenance of International Peace and Security Nonaggression (Art. 2(4)) Right to Self Defense

Jus ad Bellum Limits on Space Weapons Space Weapons can not be aggressive. They must be Defensive: Necessity Immediacy Proportionality Key is the weapons potential uses

Jus In Bello Cardinal principles of international humanitarian law (ICJ Advisory Opinion on Nuclear Weapons) Protect civilians from attack Reduce suffering of combatants These rules apply during times of international armed conflict But if a weapon can not conform to these rules during wartime it would have no legal basis for being deployed during peacetime (except non-international armed conflict) Key is again to look at the potential uses A weapon that can be used legally is not illegal because it can also be used illegally

Weapons Banned by their Nature - Discrimination States “must consequently never use weapons that are incapable of distinguishing between civilian and military targets.” Space based weapons targeting the Earth assets Weapons targeting space assets

Ability to effectively target is required Targeting the Earth Ability to effectively target is required maneuverability Can’t target large swaths of the Earth

Targeting Space Assets Indiscriminate attack and space debris an attack “which employs a method or means of combat the effects of which cannot be limited a required” by international law (ICRC) Attacks that cause “widespread, long-term and severe damage” to the environment are prohibited (Additional Protocol I) “Intentionally launching an attack in the knowledge that such attack will cause . . . damage to civilian objects or widespread, long-term and severe damage to the natural environment which would clearly be excessive in relation to the concrete and direct military advantage anticipated.” (Rome Statute of the ICC)

Weapons Banned by their Nature – Reduction of Suffering No attacks that cause “harm greater than that unavoidable to achieve legitimate military objectives.” (ICJ)

Specific Weapons – Conventional To some extent Blinding Laser Weapons Poison Incendiaries when used in the vicinity of civilians Unsecured naval mines analogy Unsecured mines must be deactivated within 1 hour of release Space weapons of the same nature may have to same restrictions by analogy due to principles of IHL Torpedoes and ASATs?

Nuclear Weapons and WMDS Banned in space by Art. IV of the Outer Space Treaty ICJ Advisory Opinion on Nuclear Weapons? “contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law.” BUT : Nuclear weapons can be used when the “very survival of a State would be at stake.”

Separation of Jus Ad Bellum and Jus in Bello Jus in Bello applies even if there is a violation of jus ad bellum Ex. Remote Sensing Satellite in an Aggressive War Aggressive war = violation of jus ad bellum IHL requires States to do “everything feasible to verify that the objectives to be attacked are military objectives.” (AP I) States still have a duty to use space assets to protect civilian life

Ships and Planes must distinguish themselves from civilian vessels Duty to Distinguish Ships and Planes must distinguish themselves from civilian vessels Markings are not practical for satellites and radio signals would probably be rejected by States Registration Camouflage is legal But no camouflaging as a civilian

Conclusion Guiding principles from the Space treaties can only go so far in addressing weaponization Jus ad Bellum and Jus in Bello must also be addressed

Cosmos Club, Washington, D.C. Thanks! www.rescommunisblog.com ________________ 3d Eilene Galloway Symposium on Critical Issues in Space Law: Article VI of the Outer Space Treaty: Issues and Implementation National Center for Remote Sensing, Air, and Space Law; IISL; The Journal of Space Law; Arianespace December 11, 2008 Cosmos Club, Washington, D.C.