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- Publisher
- Oxford University Press
- Copyright
- © Oxford University Press 2020; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
- ISSN
- 1467-7954
- eISSN
- 1467-7962
- DOI
- 10.1093/jcsl/kraa005
- Publisher site
- See Article on Publisher Site
Abstract
Abstract This article looks at how international humanitarian law may apply to military operations in space. Though the laws of war are well established on earth, space poses new challenges to the principles of distinction, proportionality and precaution in attack. Future scenarios whereby operations might be directed against moon-based objects, or where military astronauts might be deployed into space raise further questions as to how these principles should apply. By considering the laws of war as they are enforced on earth, and through engagement with academic opinion, this article seeks to understand the level of protection provided by the law when applied to this new domain. In anticipation of official clarification, this approach leads to reasoned arguments for reform in key areas. The challenges posed are addressed through both a contemporary and a future lens. Broad conclusions that the law of armed conflict does not shift seamlessly into space are strengthened by the numerous anomalies that ensue. 1. Introduction Though its classical constitution focused largely on the rights and duties of military personnel during combat, modern International Humanitarian Law (IHL)—inaugurated by the 1949 Geneva Conventions—has evolved to place the principle of humanity and the notion of protected persons at its centre.1 Recent decades have also seen space evolve from a neutralised territory to one providing significant military advantages in times of war. This note considers the extent to which IHL might serve its purpose when applied to military operations in this unique domain. The launch of Sputnik in October 1957 initiated the so-called ‘Space Race’ between the Soviet Union and the USA. Be it symbolic of ideological power, or a logical next step for national security, the fierce competition for technological superiority peaked in July 1969 as Apollo 11 touched down upon the Moon. Contrary to the optics that a ‘space race’ invokes, however, strategic restraint soon guided the space policy principles of both nations during the Cold War.2 At least, that is, regarding the development of expensive outer space weaponry.3 Their subsequent pursuit of legal frameworks that circumvented military growth in space came to fruition through the widely ratified Outer Space Treaty (OST) in 1967.4 Inevitably, this Cold War conservatism did not survive the course of history. Moreover, the ambiguous terms of the OST now raise questions as to its applicability in times of war. A trend catalysed by the extensive satellite reliance of the US during the 1991 Gulf War,5 the military potential of space assets is increasingly guiding the defence programmes of numerous space-faring nations. In May 2007, for example, the European Space Council (ESC) approved policy with specific reference to ‘defence and security’ applications.6 A discrete yet significant departure from the European Space Agency’s (ESA) ‘peaceful purposes’ mantra.7 Recent decades have also seen several countries demonstrate their ability to conduct kinetic attacks against satellites in orbit.8 Following India’s first successful anti-satellite (ASAT) operation in March 2019, Prime Minister Modi boasted that the country had ‘established itself as a global space power’.9 Of particular note are the efforts of China, who successfully destroyed a weather satellite four months prior to Europe’s policy shift.10 Today, the technological headway achieved by the US has rendered its strength and influence sui generis. For 2019 alone, the Trump administration sought $19.9 Billion funding for the National Aeronautics and Space Administration (NASA).11 The ESA’s €5.72 Billion budget for the same fiscal year pales in comparison.12 More importantly, the administration afforded $686 Billion to the Department of Defence (DOD). Here, ambitions to ‘renew the nation’s leadership and freedom of action in space’ are realised by securing ‘battlefield dominance across the spectrum of conflict’.13 The ultimate consequences of the US’ pursuit of a military dominance in this global common might be viewed through two opposing schools of thought. Some believe the restraint displayed in the Cold War shows that the weaponization of space is not inevitable. They suggest that the strengthening of efforts to promote ‘space assurance’ would prove a more sustainable use of resources.14 The other side to this equation, and the one from which this piece finds an appropriate premise to proceed, argues the contrary. Lives are saved by Global Positioning System (GPS) space craft which prevent aeroplane collisions, locate ships and allow weapons to be delivered with the utmost precision. Early warning and reconnaissance satellites assist military operations by locating foreign adversaries and pre-empting missile launches.15 It is difficult to ignore the benefits of such advancements, yet that is not to suggest that vulnerability does not follow reliance. Indeed, reports outlining the proposed structure of the Trump administration’s 2020 ‘Space Force’ embody this notion wholeheartedly. Space has become increasingly militarised and questions as to how IHL might seek to regulate military operations within it appear unavoidable. Though the law of armed conflict—the jus in bello—is well established on earth, space poses new challenges to the application of certain principles and rules. Challenges which, this author asserts, require an official reinterpretation of IHL be adopted by space faring nations. Concerns that traditional interpretations of the law may not shift seamlessly into space have gained momentum internationally. Indeed, the release of The Woomera Manual on the International Law of Military Space Operations (Woomera Manual) is eagerly awaited. Drawing on the knowledge of space and security experts, it expects to ‘objectively articulate and clarify existing international law applicable to military operation in space’.16 The present analysis begins by addressing the scope of the relevant law. Here, notions that the seemingly earthbound jus in bello may not legitimately govern military operations in space are discredited. Section 3 grapples with how the core IHL principles of distinction, proportionality and precaution might apply to military operations in space. This assessment is of a contemporary nature and much of the discussion concerns the lawful targeting of satellites. Finally, Section 4 considers how the law may apply to two future scenarios. Specifically, that is, regarding the lawful targeting of military objectives placed upon the moon and the level of protection to be afforded to astronauts serving military functions. 2. The Applicability of the Jus in Bello The jus in bello comprises an extensive set of conventional and customary rules, with the 1907 Hague Conventions17 and the 1949 Geneva Conventions18 lying at its core. Though the former might once have been distinguished as regulating the conduct of hostilities and the latter as overseeing the protection of civilians, this distinction is now somewhat outdated. In 1977, Additional Protocols I19 (AP/I) and II20 (AP/II) broadened the scope of ‘Geneva Law’. AP/I, in particular, introduced various conduct related provisions to international armed conflicts (IACs), causing overlap between the two bodies of law. As such, the International Court of Justice (ICJ) has since acknowledged that the branches are ‘ … so closely related that they are considered to have gradually formed one single complex system … ’.21 Almost none of the provisions within this system, however, expressly extend their application to space. On the contrary, and with the exception of the Environmental Modification Convention (ENMOD),22 many of the relevant clauses use vocabulary of a decidedly terrestrial nature. Common Articles 2 and 3 of the Geneva Conventions, for example, limit their ambit to ‘the territory’ of State Parties.23 Moreover, the inability of the Hague Regulations to reach beyond ‘war on land’ might be deduced from the title to that instrument.24 It is therefore necessary, in the absence of hard law, to debunk presumptions that this leaves States unconstrained by IHL in space. Indeed, the findings of the Court in The Case of the S.S Lotus that ‘Restrictions on the independence of States cannot be … presumed’ would lend support to that argument.25 A. The Martens Clause The Martens Clause serves as a general statement for humanitarian principles and a guideline for how existing international law should be interpreted. Its ‘modern version’—as it was referred to in the Nuclear Weapons Advisory Opinion26—can be found in Article 1(2) of AP/I. ‘In cases not covered by this protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and the dictates of public conscience’.27 The clause has been incorporated into numerous international agreements. Importantly, its dynamic phrasing clearly anticipates the need to regulate unforeseen types of warfare as technology develops. Though an expansive interpretation of the text is favoured by many, Dinstein argues that ‘while the “principles of humanity” and “the dictates of public conscience” may foster within the evolution … ’ of IHL ‘ … they do not constitute additional strata of the law’.28 This piece seeks not to establish that warfare is illegal. Clearly, the ‘principles of humanity’ and ‘dictates of public conscience’ run counter to any means of attack. The term ‘in cases not covered by this protocol’ may, however, in the absence of hard law, allow the scope of the jus in bello to extend to space warfare. B. Past Expansions of IHL The general tendencies of IHL to follow States into seemingly ungoverned domains deserves note. In Corfu Channel, the first case ever to be considered by the ICJ, efforts to substitute a lack of ‘black letter’ law with general and well recognised principles of IHL were distinct.29 Addressing the civil liability of Albania after UK naval destroyers struck mines in its sovereign waters, the Court circumvented the apparent inapplicability of Hague law. Given that the incident did not take place in ‘war time’, obligations laid out in Hague Convention VIII to, inter alia, ‘notify the danger zones as soon as military exigencies permit’, were purportedly without effect.30 Nevertheless, it was held that the same obligations were otherwise required by ‘elementary considerations of humanity, even more exacting in peace than in war’.31 This use of underlying IHL principles to fill gaps in the law was recognised further in the Nicaragua decision.32 Drawing upon the findings of the Corfu Channel case, the lack of warning given by the US as to the presence of mines laid in Nicaraguan ports was again deemed unlawful by the Court.33 Even, that is, in the absence of a specific rule applicable in peacetime. In the Nuclear Weapons Advisory opinion, the ICJ tackled just one instance where the scope of the relevant law was unclear in its relation to a novel technology.34 The United Nations (UN) Charter, when drafted, made no specific reference to nuclear weapons in its prohibition of the ‘threat or use of force’.35 Nevertheless, noting the ‘intrinsically humanitarian character’36 of the provision and the ‘overriding consideration of humanity’37 applicable to IHL generally, the rule was held to ‘apply to any use of force, regardless of the weapons employed’.38 The extent to which the drafters of the Charter had not foreseen the creation of nuclear weapons appeared irrelevant to the Court. A more recent example concerns claims that existing international law should not apply to cyberspace. Here, calls for information technology to have ‘new law and legal institutions of its own’ stemmed from ‘an undermined feasibility and legitimacy of applying laws based on geographic boundaries’ to a borderless phenomenon.39 Though acknowledging that ‘additional norms could be developed over time’,40 a consensus report of UN-based experts in 2013 promoted ‘anchoring … security in the existing frameworks of international law’.41 These findings have been welcomed by a UN General Assembly resolution and further cement the applicability of international regulations to unanticipated environments.42 C. The Law of Air Warfare Submissions seeking to extend the jus in bello to space should acknowledge the trajectory of the law applicable to air warfare. Indeed, the use of space power, particularly by the US, developed in a similar style to the way air power did in the early 20th century. Initially, both theatres served only to facilitate intelligence gathering and support operations. Each respective medium was then used as a means of transportation before offensive and defensive combat roles were assumed.43 For air power, technological advancements catalysed by the First World War saw military aircraft shift from being artillery spotters and couriers to full combat participants.44 Though kinetic attacks are yet to be waged from or through space, it appears obvious to most forecasters that they someday will, thus bringing the analogy full circle.45 Drawing this parallel lends insight into the difficulties that space warfare codification efforts will likely face. Indeed, in an age of rapid technological advancement, the infancy of space-power may see military curiosity jeopardise support for sensible regulation. While the Hague Regulations and AP/I contain prohibitions, restrictions and guidelines specific to air warfare, there remains no codified body of law for the sky as there is for land and sea. Year 2009 saw the Manual on International Law Applicable to Air and Missile Warfare (AMW Manual) provide the most authoritative codification effort to date, but this catalogue remains non-binding. Failed attempts to codify the law of air warfare are largely attributable to a fundamental challenge symptomatic of the regulation of new means and methods generally—the tension between humanity and the need for military effectiveness.46 This dissonance was conspicuous at the First Hague Peace Conference of 1899 where ‘ … the launching of projectiles and explosives from balloons … ’ was only temporarily prohibited for a mere five years.47 Almost 80 years on, following two world wars and the piecemeal recognition of core customary principles, the framers of Additional Protocol 1 remained bound by an international community unwilling to shoulder a comprehensive set of prohibitions.48 It is likely that the jus in bello for space will too evolve incrementally, given the untapped potential of the theatre. Indeed, a treaty-based system of prohibitions for air warfare does not appear imminent. Rather, the efficiency of dual-purpose aircraft, and the trade potential of airborne weaponry have recently seen the relative significance of humanitarian considerations fall even further behind.49 The terrestrial nature of the jus in bello is unsurprising. Not only do many of the rules enshrined within it significantly predate the ‘space age’, but subsequent efforts to recodify it were marked by the reluctant geopolitics of the Cold War era.50 In any event, past decisions of the ICJ and the UN clarify that a lack of statutory recognition would not, itself, render the law of armed conflict (LOAC) inapplicable to the conduct of hostilities in space. Undoubtedly, customary international law and relevant general principles would apply.51 Former ICJ judge, Manfred Lachs, wrote that ‘outer space never had been a lawless area or a legal vacuum, but had been subject to international law, though the matter could never have been put to the test before’.52 From a broad perspective, such a stance is affirmed by Article III of the Outer Space Treaty, where States must ‘carry on activities … in accordance with international law’.53 Moreover, Common Article 1 to the Geneva Conventions mandates that an adherence to the jus in bello must be observed ‘in all circumstances’.54 Such terminology clearly accommodates for conflicts of a nature not anticipated by the drafters to those instruments. 3. A Contemporary Application of Core Principles At the heart of IHL lie two opposing concepts. That every act of war must be justified as necessary to the attainment of a discernible military advantage,55 and that humanity puts a break on actions which might otherwise be justified as militarily necessary.56 The equilibrium between military necessity and humanitarian consideration forms ‘the fabric’ of IHL.57 The challenge, according to the preamble to the St Petersburg Declaration, is to fix ‘the technical limits at which the necessities of war ought to yield to the requirements of humanity’.58 Given the uniqueness of every conflict, guidance as to how this challenge should be approached is offered through three sub-principles to the two conflicting themes; namely distinction, proportionality and precaution in attack. Grappling with each principle independently, the forthcoming analysis addresses the extent to which IHL might serve to ‘alleviate as much as possible the calamities of war’ in space.59 Given the contemporary nature of this assessment, and the current non-existence of space based weaponry, the legalities of land-to-space operations deserve particular attention. It should be noted, however, that the provisions of AP/I in which the core principles are enshrined remain limited in scope. Indeed, they serve only to govern attacks against land based targets, or non-land based targets insofar as that attack has incidental effects on civilians or civilian objects on the ground.60 This invites speculation as to the governance of future land-to-space or space-to-space missions not affecting civilian entities located on earth. Sensible legislative clarification will likely echo widely accepted air warfare convention; that the general norms enunciated in AP/I regarding distinction, proportionality and precaution are customary and would serve to fill much of the lex scripta void.61 In any event, the increasing civilian reliance upon satellite functions places ASAT operations firmly within the protocol’s ambit. A. Distinction Set forth in Article 48 AP/I, the rule of distinction requires that parties to a conflict shall ‘ … at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and shall … direct their operations only against military objectives’.62 Customary in nature63 and considered ‘cardinal’ by the ICJ, this basic rule treats separately the protection of people and objects.64 Regarding the former, issues relating to the distinction between civilians and combatants in space are beyond the contemporary scope of this discussion. They shall, nevertheless, be discussed in Section 4 with particular reference to the status of military astronauts. (i) Distinction between military and civilian objects In response to India’s successful ASAT mission in early 2019, the Assistant Secretary of the US Air Force for Acquisition, Technology and Logistics said, ‘satellites are too militarily useful to pretend that adversaries will consider them off limits’.65 But in establishing whether an object in space is a legitimate ‘military objective’, Article 52(2) AP/I first requires that by its ‘ … nature, location, purpose or use … ’ it must ‘ … make an effective contribution to military action … ’.66 This definition ‘is widely accepted as an expression of customary international law’,67 and generally aligns with the practice of the US who object to AP/I on other grounds. Applying this initial test to single-use objects in space (that is those which serve only military or civilian functions) appears straightforward. The ‘nature’ of the object relates to its intrinsic character. Put simply, it must be endowed with some inherent attribute which eo ipso makes an effective contribution to military action.68 To date, over 91% of all satellites, probes, landers, crewed spacecraft and space station flight elements launched into earth orbit or beyond have been registered with the UN Secretary General.69 Importantly, the nature of a registered space object is easily deciphered due to the required ‘full and open access’ to information within the register.70 The criterion of ‘purpose’ is concerned with the intended future use of an object, while that of ‘use’ is concerned with its present function.71 Again, determining usage is simplified through the requirements of registration. Particularly given that information on ‘the general function of the space object’ is to be carried on the registry.72 Determining purpose, however, might prove more difficult. Indeed, intelligence as to the future use of an object must be based upon solid information as oppose to speculation.73 The tendency of States to partially, or falsely, communicate the future use of a satellite might make this a higher bar to reach in space than on earth.74 If, merely by means of its location, an object in space offers an effective contribution to military action, it may also qualify as a military objective.75 Theoretically, therefore, if a non-military satellite were to be in sufficient proximity to a military one as to affect a military need, operations might be directed against it. The latter part of Article 52(2) permits only the targeting of objects ‘whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage’.76 Some assert the speed at which a satellite in orbit moves may allow its status as a military objective to shift and thus subject the ‘circumstances ruling at the time’ to change.77 Though possible, such an assessment relies heavily upon the locational contribution provided by the object. The nature and use of a satellite would more likely distinguish the military advantage provided by targeting it. Predictions of rapid circumstantial changes due to ‘extreme high velocity in orbital paths’78 might be unrealistic in practice. Finally, the ‘definite military advantage’ offered by an object must be concrete and not merely speculative. Considering the increasing extent to which States rely upon satellite technologies in times of war, establishing this part of the Article should not prove problematic.79 (ii) Distinction in the USA The US has adopted a broad interpretation of the term ‘military action’, asserting that this may be a matter of potentiality as oppose to reality.80 Under this model, it is not necessary that the object provide immediate tactical or operational gains or that the object make an effective contribution to a specific military operation. Rather, the object’s effective contribution to the war-fighting or war-sustaining capability of an opposing force is sufficient.81 In their pursuit of the Islamic State of Iraq and the Levant (ISIL), post-9/11 administrations have embraced this stance. In addition to strikes against its oil infrastructure, tanker trucks, wells and refineries, former President Barack Obama condoned the targeting of storage sites where ISIL held its funds. ‘Its money … ’ said the President ‘ … is literally going up in smoke’.82 Criticisers of the ‘war sustaining’ approach argue that without a proximate nexus to ‘war-fighting’ the link between the target and ‘military action’ is too remote. Undeniably, President Obama’s tack supports Dinstein’s assertion that broad interpretations of ‘military action’ are devised merely to justify attacks that would leave the enemy’s economy in a shambles.83 Nevertheless, as long as an enemy satellite offers a definite military advantage in the circumstances ruling at the time, US decision makers may satisfy the principle of distinction more readily than their foreign counterparts. (iii) Distinction of dual-use objects Satellites are becoming increasingly dual-use, providing both military and civilian services. Indeed, communication requirements for governmental research, security and military systems form the largest single user group on commercial satellite systems.84 Furthermore, the ability of States to ‘retain’ civilian satellites for military objectives was seen in 2001 when the US government purchased all commercial satellite imagery over Afghanistan to supplement its wartime surveillance.85 Though this might appear to place the criterion of ‘nature’ and ‘use’ in a grey area, the extent to which Article 52(2) prohibits the targeting of dual-use objects is limited. Subject to the principle of proportionality and the requirement of exercising feasible precautions, so long as the conditions of the article are met, a satellite’s contribution to civilian life may be ignored.86 Ultimately, the fact that an object is also used for civilian purposes does not affect its qualification as a military objective.87 B. Proportionality Customary in nature and anchored in Article 51(5)(b) of AP/I, the principle of proportionality forbids as indiscriminate ‘an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’.88 Essentially, the use of military force that creates collateral damage to civilians or property, not otherwise legitimate targets, must not be disproportionate to the military value of the objective.89 Debates surrounding two themes run through the following discussion; namely ‘direct’ and ‘indirect’ collateral damage. The former is concerned with harm caused as the immediate result of an attack, such as the collapsing of a building hit by a bomb. The latter, sometimes known ‘reverberating’ collateral damage, concerns harm that occurs after an attack but as a foreseeable result of it. The effects of the loss of electrical power to a hospital following the destruction of a power plant would fall into this category. Though there are single-use civilian objects in space which might require a direct assessment of potential damage, there are no civilian populations living in space to whom an attack might cause incidental loss of life or injury. Contemplating this, Ramey asserts that the minimization of human suffering, the chief goal of IHL, is therefore already fulfilled. Subsequently, he suggests that the law of war might be more concerned with the regulation of means and methods of space warfare than the protection of human life.90 Such conclusions align with the somewhat ‘immediate’ scope of the principle as it is applied on earth, and the hesitation of military planners to incorporate ‘reverberating effects’ into their proportionality calculus.91 As noted, satellites constituting legitimate military objectives are increasingly dual-use by nature. This author submits that attacks made against such objects will almost certainly cause ‘indirect’ harm or damage to civilian entities. Moreover, contrary to Ramey’s assertions, the scope of the principle should be enhanced in order to minimise that harm to a sufficient degree. This does, however, rely upon the reform of key areas to the principle. The level of discretion afforded to decision makers when determining whether or not an attack might be proportionate remains broad. The principle merely examines the extent to which he/she ‘in the circumstances …’ made ‘ … reasonable use of the information available’.92 As Dinstein notes, the damage or loss caused must be ‘excessive’ rather than ‘extensive’ to be deemed disproportionate.93 Furthermore, Article 51(5)(b) requires only the assessment of ‘expected’ injury to civilians or damage to civilian objects and to ‘anticipated’ military advantage. Though the process ‘necessarily contains a large subjective element’,94 Shue and Whippman suggest that two loose options are available to those assessing the proportionality of an attack upon a dual-use facility.95 Developing this stance, the GPS provides a useful case study. (i) Limited proportionality This simplistic theory draws upon the apparent conclusiveness of Article 52(2) in its disregard for the civilian contributions of legitimate dual-use military objectives. As Greenwood said, ‘There is no intermediate category of “dual-use objects” – either something is a military objective, or it is not’.96 As a result, the civilian contributions of dual use objects are excluded from the limited proportionality calculus. Only ‘direct’ incidental harm to civilians and civilian objects is considered here. Though this approach largely reflects current US practice, it has received considerable criticism from within the military itself.97 Major Mayer, of the US Air Force, drew attention to the unnecessary, long-term civilian damage stemming from so called ‘restrictive interpretations’ of Article 52(2) to dual-use objectives in the Gulf War.98 Successful attacks against GPS satellites would cause widespread harm to civilians. In urban areas, the sudden loss of signal to traffic and lane control systems could cause road accidents. Disruption to the dispatch and navigation of emergency vehicles poses a further threat. At sea, the likelihood of ships or submarines colliding is increased and the inability of emergency beacons to broadcast positions would delay search and rescue. The efficacy of health services, global financial systems, water supply infrastructure and energy production would also suffer. Should the attack be kinetic, the eventual damage to civilian, neutral or friendly assets in orbit appears an inevitable consequence of fragmentation. Though devastating, such consequences would prima facie be defensible under this model. In the absence of ‘direct’ harm or damage, ‘concrete and direct military advantage’ may prevail unchallenged. As noted by Lieutenant Colonel Rizer, however, though the law does not require the inclusion of long term, indirect effects in proportionality assessments, ignoring such effects would be irrational.99 (ii) Enhanced proportionality Commander Crawford submits that the military planner’s job would not ‘ … become unduly burdensome merely because an additional level of cognition is required …’ in assessing proportionality relative to collateral costs.100 Enhanced proportionality enlarges the scope of the traditional test, requiring decision makers to consider if the loss of a dual-use object’s civilian function would be excessive as compared to the military advantage gained from its attack. Though an object may be a legitimate military objective as per Article 52(2), the factoring in of ‘indirect’ harm might substantially alter the proportionality calculus. Indeed, some contend that this approach is already required by Protocol I.101 This model clearly affords greater protection to civilian entities. Indeed, if the destruction of a GPS satellite were to cause excessive reverberating effects, the attack would be disallowed. Though the likely ‘indirect’ harm may appear sufficient to satisfy this test, true protection requires fundamental reform of the principle in three ways. Firstly, the GPS constellation consists of 27 satellites arranged into six orbital planes. Nevertheless, under current practice, ‘each target is assessed individually’,102 and ‘there appears to be no requirement that the cumulative effect of attacks against targets of a similar type should be taken into account’.103 If numerous GPS satellites were to be targeted at once, a comprehensive assessment of foreseeable loss would serve to protect civilians to a greater extent. Secondly, claims that ‘indirect’ effects are too speculative and remote to be considered need to be addressed sensibly. Agreeably, temporal limits on ‘indirect’ effects may be difficult to specify.104 Stock market disruption, for example, caused by the sudden loss of GPS assistance may be hard to predict. Attempts to separate the likely harm caused as a result of the attack from that caused by a host of contributing factors lead to further uncertainty. Nevertheless, much of the resulting harm caused by destructing a GPS satellite is clear and foreseeable. Drawing on Schachter’s assessment of the bombing of Iraqi infrastructure, the attack might predictably devastate civilian life.105 A final hurdle for enhanced proportionality stems from the entrenched notion that any civilian loss, could be thought to be outweighed by an even greater military advantage.106 Dinstein notes that ‘military advantage and civilian losses are incomparable in a quantifiable manner’.107 It is this, perhaps, that has allowed some dual-use objects to be deemed ‘ … indispensable to an effective wartime campaign’.108 As technology improves, State reliance upon GPS systems in times of war increases. Consequently, even a thorough application of enhanced proportionality might be of little use to civilians given the discretion afforded to decision makers. If the GPS were attacked, limited interpretations of Article 51(5)(b) provide insufficient protection to civilians. In order to minimise human suffering to a sufficient degree, reverberating effects should be carefully considered in advance. Though enhanced interpretations of proportionality allow these considerations to take place, issues surrounding cumulative effects, remoteness and discretion serve to hinder any protection afforded by that model. In any event, the absence of a ‘direct’ threat to civilians in space renders the environment unique. This, combined with technological improvements in targeting, may draw increasing attention to the ‘indirect’ effects of attacks on dual-use facilities in the future.109 As Schmitt suggests, ‘If first-tier collateral damage and incidental injury become rarer, it is probable that humanitarian attention will increasingly dwell on the subsequent tier of reverberating effects.’110 Without legislation prohibiting ASAT operations, further optimism might be gained from the tendencies of modern military forces to exercise policy driven constraint. Particularly given the volume of civilians reliant upon the service.111 C. Precaution in Attack (i) Active precautions Article 57(2)(ii) AP/I requires that when undertaking attacks on land, belligerents shall ‘take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimising, incidental loss of civilian life, injury to civilians and damage to civilian objects’.112 Defining ‘feasible precautions’, the Convention on Certain Conventional Weapons (CCCW) describes them as those which are ‘ … practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations’.113 Article 57(4) AP/I applies a slightly modified test to military operations at sea or in the air. Here, belligerents must exercise ‘reasonable precautions’114 which are deemed ‘a little less far reaching’ than those mandated on land.115 The rule was absent from the International Committee of the Red Cross (ICRC) draft and the numerous amendments presented at the Diplomatic Conference.116 Indeed, it appeared for the first time in a report of the Working Group of Committee III ‘In recognition of the limitation of the scope’ of Article 57 to attacks directed against objectives on land.117 Though ‘the nuance is tenuous’,118 it follows that space-to-space and land-to-space missions should apply a test of reasonableness while space-to-land operations should consider what is feasible. In any event, it is clear that States must be attentive to the potential impact of various types of weapons and ordnance.119 It is necessary, therefore, to consider the two basic variations of ASAT technologies that have developed in recent decades. Kinetic ASAT operations may involve the use of fixed or mobile direct ascent launchers, the placement in orbit of an interceptor vehicle that subsequently attacks the target satellite, or even the release of a cloud of pellets into the path of a satellite.120 To date, the People’s Republic of China, Russia, the US and recently India have all demonstrated Kinetic ASAT capabilities.121 China’s weather satellite destruction in 2007 revealed the extreme consequences to be expected from attacks of this nature. The missile strike created around two million pieces of debris which, by 2009, still carried almost 2,400 detectable fragments orbiting at speeds of up to 7600 meters per second.122 Generally, if such events occur at altitudes greater than the lower end of low earth orbit, debris will remain in orbit for the foreseeable future.123 As a result, one estimate suggests we should now expect a major collision in space every three–four years, and a catastrophic crash every 12–14 years.124 The widely accredited findings of Donald Kessler et al. in 1978, strengthen arguments that debris creation should be mitigated through the employment of reasonable precautions. Coining the term ‘Kessler Syndrome’, the study highlights the potential for fragments travelling at hyper-velocity in a densely populated orbital path to multiply exponentially and create an irreversible belt of debris around the earth.125 Boothby asserts that ‘ … the growing debris problem causes one to wonder for how long kinetic ASAT activities will continue to be acceptable among spacefaring nations’.126 Given the seriousness of this threat, less discretion might be afforded to States that class non-kinetic ASAT attacks as outside the realms of reasonability. It is not inconceivable that, depending on the altitude of the target, recourse to softer means would be required by the principle. Already, the ‘mitigation guidelines’ adopted by The Inter Agency Debris Co-ordination Committee (IADC) show international support for this stance. Any intentional kinetic attacks should, for example, ‘ … be conducted at sufficiently low altitudes so that orbital fragments are short lived’.127 Nevertheless, the alternatives available today do present problems which, in the absence of a kinetic ASAT ban, should be addressed. Weapons falling under the title ‘soft kill’ are those designed to merely disable satellites. Laser weapons are mentioned in much of the commentary in this area yet the extent to which States have developed those draws speculation.128 Indeed, the Trump administration’s 2019 budget proposals shed little light on what ASAT technologies are being developed by the US and upon what timescale.129 It is clear, however, that the technology itself is ‘within the reach of even modest military powers’.130 ‘Directed energy’ ASAT attacks of this nature could permanently disable satellite function while avoiding the civilian threats posed by fragmentation. Though recourse to such means may be required by Article 57(2)(ii), the assessment might be complicated by issues of distinction. Indeed, if ground-based lasers were to be operated without reference to the nature, identity or nationality of the space vehicles passing overhead, they may be found to breach the indiscriminate weapons rule.131 In any event, and in light of Boothby’s assertions, simply monitoring the positioning of such vehicles and turning the weapon on and off accordingly may not be an unreasonable expectation.132 Cyber ASAT operations offer another alternative to States in their application of Article 57(2)(ii). The technologies required to carry out such attacks upon satellites are well developed. Moreover, the ‘operational reality’133 of the military assistance they provide is underscored by the existence of the 2013 Tallinn Manual on the International Law Applicable to Cyber Warfare.134 Through ‘jamming’ or ‘spoofing’ States might block, distort or even replace the information provided by a particular satellite.135 Some contend that an obligation to use cyber-attacks as oppose to kinetic means stems from a ‘logical deduction’ of Article 57(2)(ii).136 Notwithstanding, however, the avoidance of debris, the extent to which cyber-attacks provide a practical alternative might be jeopardised by the relative decrease to the military advantage they provide. Though overcoming an attack of this nature may take time,137 the effects are, for the most part, temporary and limited to a single use before the enemy devises an adequate cyber-defence. Indirect harm to civilians would be minimised through the short term disabling of dual use facilities, but whether recourse to such means represents a reasonable precaution in space remains to be seen.138 (ii) Passive precautions In accordance with Article 58 AP/I, parties to a conflict must take precautions to protect the civilian population and civilian objects under their control against the effects of attacks. Similarly to Article 57(2)(ii), belligerents need only operate within the confines of ‘feasibility’. However, allowing for extra discretion, the three parts to this provision contain other qualifiers that remain open to interpretation. In addition to their general obligation to take ‘other necessary’ precautions,139 defenders should ‘endeavour’ to remove civilian entities from the vicinity of military objectives140 and ‘avoid’ placing legitimate targets within densely populated areas.141 Though the Eritrea–Ethiopia Claims Commission held that Article 58 represents customary international law,142 many commentators have devalued its status to that of a mere recommendation on, inter alia, the grounds of its infrequent use and ambiguous phrasing.143 On the face of it, the reliance of States upon dual-use satellites frustrates the Article 58 obligation to distance military objectives from civilian ones. Nevertheless, given the increasing military support provided by private and commercial systems,144 and the strategic benefits of procuring single use systems in war time,145 untying dual use satellite functions for the purpose of this provision is not practicable. Indeed, that the article ‘should in no way affect the freedom of a State Party … to organise its national defence to the best of its ability and in the most effective way’ was the view of several governments during its negotiation.146 Strictly speaking, the article is only addressed to ‘the parties to the conflict’ yet the commentary to the provision provides examples of ‘other necessary’ precautions decidedly preventative in nature.147 To this extent, the passive counter space strategy of the US demonstrates practicable measures that may protect civilian entities from the effects of attacks against dual-use satellites.148 These include advanced data encryption and the physical hardening of facilities.149 4. Applying Core Principles to Future Scenarios Thus far, the scope of core IHL principles has been addressed in light of contemporary challenges and threats. Indeed, it remains unclear how future uses of space may invite the application of the jus in bello. The San Remo Manual, applicable to armed conflict at sea, appears to prepare for the unexpected by applying to the Martens Clause to cases not covered within it.150 When official guidance applicable to space is released, it will likely contain a similar disclaimer. Nevertheless, military activity in space remains largely ungoverned and as technologies advance certain future scenarios appear more topical than others. This chapter first considers the legal feasibility of military objectives being placed upon the moon. This analysis is followed by a tentative discussion as to how IHL principles may affect the targeting of such objects. Attention then turns to the legal status of deployed astronauts serving military functions. Here, conflicting legal principles are assessed and a practical solution is suggested. A. The Moon Given the increasing exploitation of lunar resources and the absence of hard law banning the installation of ‘conventional’ weapons on celestial bodies, legitimate military objectives may soon sit on the moon. Before applying the jus in bello to a scenario whereby military operations are directed towards these objects, the extent to which the lex specialis might prohibit such a situation deserves note. In its first paragraph, Article IV of the OST proscribes the installation or stationing of ‘nuclear weapons or any other weapons of mass destruction’ on celestial bodies or in outer space generally. The second paragraph to the article places a positive obligation upon State Parties to use ‘the moon and other celestial bodies … exclusively for peaceful purposes’. As such, ‘the establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres’ is forbidden.151 Though the scope of Article IV awaits modern clarification,152 an objective deconstruction of the provision, coupled with the logical application of ‘superior’ international law, reveals its limited and temporal applicability in times of war. The first paragraph of Article IV serves only to prohibit the placement of nuclear weapons or weapons of mass destruction in outer space. Whether the exclusion of ‘conventional’ weapons was deliberate or merely a reflection of its time, the freedom of States to install such weapons upon the moon appears unfettered by this part of the provision. This deduction is, however, subject to the caveat presented by the second paragraph to the article where the concept of ‘peaceful purposes’ is set forth through an exhaustive list of prohibitions. Generally, and in light of the existing military uses of space, much of the western world has adopted a ‘non-aggressive’ interpretation of ‘peaceful purposes’.153 Addressing the weight of the term in times of war, an imperfect comparison might be drawn with the ‘peaceful use clause’ enshrined within the United Nations Convention on the Law of the Sea (UNCLOS).154 Early assertions from the US that ‘the term “peaceful purposes” did not, of course, preclude military activities generally’155 were supported by the 1994 San Remo Manual. Here, it was accepted that ‘hostile actions by naval forces may be conducted in, on or over … the high seas’.156 This author agrees that in the absence of official clarification, the ‘peaceful purposes’ clause should be construed through the lens of established international law. The purpose of the use of force ‘within the corpus of public international law … is a jus ad bellum question’.157 A natural consequence of this stance is that the scope of the second paragraph to Article IV remains restricted to peacetime operations.158 Indeed, Article III of the OST makes specific reference to the primacy of ‘ … international law, including the Charter of the United Nations’ with regards to inter alia ‘ … maintaining international peace and security’.159 This authority is further clarified by Article 103 of the Charter itself where its own provisions are to ‘prevail’ in the event that they conflict with the obligations of other treaties.160 Within this context, the lawful use of military force as sanctioned by the Security Council under Article 42 of the Charter161 or the exercise of the jus cogens right to self-defence as recognised by Article 51 therein,162 would supersede the prohibitions of Article IV.163 Consequently, the use of force against an object placed on the moon is a legitimate scenario to which core IHL principles must be applied. Though the assessment requires an inevitable degree of speculation, key questions remain difficult to answer when applying the LOAC traditionally. (i) Moon-based munitions Applying the principle of distinction to a weapon stationed upon the moon appears straightforward. Missiles and other weapons will usually, by their very nature, provide an effective contribution to military action rendering them legitimate military objectives.164 If the target is single-use, serving no civilian function, then an assessment of proportionality may also prove uncomplicated. Assuming that there are no civilians or civilian objects within affectable proximity of the target, the anticipated advantages of destroying it would likely outweigh any direct collateral damage caused. Though the regulation of celestially based munitions was clearly relevant to the framers of the OST, the operational reality of the scenario is, perhaps, questionable. As discussed, the scope of Article IV appears limited to peace-time operations. In light of this, the ‘installation’ of a ‘conventional’ weapon on the moon, merely in anticipation of war, may breach the second paragraph to the provision. Conversely, outside of peace-time, the principle of ‘pre-emptive’ self-defence might render futile the deployment of a moon-bound munition. From the moment the weapon leaves earth, it would undoubtedly become a legitimate target due to its nature and purpose. Presumably, its stationing would be of considerable strategic importance to its operator, thus increasing the likelihood of it being targeted ‘en-route’ proportionately. Notwithstanding restrictive readings of Article 51 of the Charter where self-defence is only warranted ‘in response to an armed attack’, support for a wider interpretation is considerable.165 Many States, including the US, shall factor ‘imminent’ threats into their self-defence calculus.166 Applying the Caroline test, a moon-bound munition may be pre-emptively targeted if its threat is ‘instant, overwhelming, and leaving no choice of means, and no moment for deliberation’.167 As discussed, the extent to which kinetic attacks are to be restricted by debris concerns remains unclear. Though the threat posed by fragmentation may be reduced by striking a stationed object at a greater altitude,168 exercising such precaution may not be militarily feasible given the strategical advantages such stationing may afford the opposition. (ii) Moon-based mining technologies In light of Article II of the OST, it is well settled that the moon cannot be subject to territorial appropriation by States.169 Nevertheless, the legal status of lunar natural resources that are extracted using human technologies remains unclear. Though by no means a ‘universal consensus’, support for a reinterpretation of Article II to enable the appropriation of natural resources from celestial bodies, is gaining momentum.170 Indeed, the US Space Act of 2015 capitalises upon the limited and State-focused wording of the OST. Section 403 of the Act added a new provision whereby ‘A United States Citizen engaged in the commercial recovery of … a space resource … shall be entitled to any … space resource obtained, including to possess, own, transport, use and sell the … space resource obtained in accordance with applicable law’.171 The American approach appears to legitimise the severance of a State’s assertion of national sovereignty from that of an individual’s or a company’s intent on claiming ownership of extracted resources. Subsequently, ventures such as Moon Express, a privately held American company intent on unlocking the moon’s ‘mysteries and resources for the benefit of humanity’ have secured federal backing.172 The extent to which moon-based mining technologies may be legitimate military objectives remains uncertain. Nevertheless, recent discoveries of water on the moon might allow for parallels to be drawn with the lawful targeting of oil installations on earth.173 Though dams, dykes and nuclear electrical generation stations are afforded partial protection by Protocol I,174 ‘oil installations of every kind are in fact legitimate military objectives open to attack by any belligerent’.175 They are, according to Dinstein, ‘the backbone of the military industry’.176 Hydrogen and oxygen, the constituents of water, can be used to make rocket fuel which could, as technology progresses, provide considerable assistance to military objects in space. Given the legitimacy of targeting oil installations on earth, save only those functioning in civilian residential areas,177 mining technologies offering similar support in space would likely provide ‘an effective contribution to military action’. In the words of Moon Express, ‘Water is the oil of the solar system’.178 According to scientists, the quality and quantity of the moon’s natural resources are of particular importance to overcoming the so called ‘energy crisis’.179 Stocks of raw materials are running out and it has been proven that the utilization of lunar resources will conquer the challenge more effectively than current energy generation methods used on earth.180 The extent to which civilians may one day rely on lunar energy assistance is unclear. Moreover, efforts to construe the objects likely to facilitate this service as ‘indispensable to the survival of the human population’ under Article 54(2) AP/I181 might be premature. It is difficult to predict how moon-based systems serving this function might provide an effective military contribution thus rendering them legitimate targets of attack. It is clear, however, that if companies develop mining technologies which serve the energy needs of civilians and the operational needs of military objects simultaneously, the level of protection afforded to the former is uncertain. B. Military Astronauts Though inherently peaceful in its function, the International Space Station (ISS) continues to make ground-breaking biological and biotechnical advancements in the pursuit of a ‘sustainable presence beyond low earth orbit’.182 Indeed, future scenarios whereby astronauts are deployed to pursue long or short-term military operations in space are not inconceivable. The Trump administration’s Space Force Legislative Proposal states that ‘ … combat and combat-support functions … ’ are ‘ … necessary to form the basis for a complete and immediate mobilization for the national defence in the event of a national emergency’.183 Inconsistencies, however, between the roles ascribed to such persons under the lex generalis of IHL and the lex specialis of space law, create uncertainty as to their legal status in times of war. This note contends that tensions between the two bodies of law need not be resolved through a definitive assessment as to which doctrine should prevail. Instead, a flexible and temporal application of both systems appears to provide a practical solution, consistent with statutory intent. As discussed, parties to a conflict must at all times distinguish between civilians and combatants.184 Aiding the prohibition of attacks against the former, Article 43 A/P I provides a positive definition of combatants as those who fall within the category of ‘armed forces’ set forth by the provision.185 Therefore, so long as space-based members of the armed forces do not fall into one of the listed exceptions, such as medical or religious personnel, their status as a combatant is clear.186 The consequences of this qualification are important. Combatants can be the subject of enemy attack at any time, their mere participation in hostilities is not sufficient grounds for prosecution and importantly, if captured they are to be treated as prisoners of war (POWs).187 By contrast, space law sets a conflicting precedent. Under Article V of the OST, States party to the treaty are to regard astronauts as ‘envoys of mankind’. Therefore, when astronauts make emergency landings on the ‘territory of another State Party or the high seas’ they are to be ‘safely and promptly returned to the State registry of their space vehicle’.188 Ramey asserts that ‘it would simply be incongruous for one person to simultaneously constitute a combatant and an “envoy of mankind”’.189 Agreeably, although the jus in bello grants extensive protections to POWs, their lawful detainment until the close of hostilities is far from compatible with the elevated protection afforded by the OST. Consistent with previous conclusions that Article IV OST is restricted to peacetime operations, there appears to be considerable support behind similar interpretations of Article V. The official records of negotiation relevant to the Rescue and Return Agreement, a consensus intended to elaborate upon Article V, emphasise the humanitarian motives underpinning the treaty. That the statutory intent of the provision was to protect astronauts in the context of peaceful exploration, appears clear from these delegations.190 From here, a temporal application of the OST appears straightforward, yet there is disagreement as to whether the outbreak of an armed conflict should automatically render a military astronaut a legitimate military objective. Stephens & Steer predict that, upon official clarification, ‘ … the rules might be assimilated under a modified hors de combat concept’.191 Therefore, when deployed astronauts constitute members of the military during an armed conflict, yet are not directly engaged in belligerent action, they might still avail of their ‘envoy’ status under Article V. This stance is problematic on two fronts. Firstly, the hors de combat principle is well established in the jus in bello and protects those to whom its literal translation extends—persons incapable of performing their ability to wage war. Unless a military astronaut wished to surrender or was incapacitated, they would not fall seamlessly into this category of persons by mere virtue of their non-involvement. Secondly, attempts to redefine the principle may serve to undermine its status in international law as an ‘interlocking and comprehensive system’.192 This thesis agrees with the stance that astronauts should, until engaged in activity with ‘a material nexus’ to an armed conflict, maintain the elevated status afforded to them through Article V.193 The concept of a ‘material nexus’ draw parallels with the notion of ‘acts harmful to the enemy’, a term used in numerous IHL rules to define when special protection afforded to certain categories of people and objects shall cease. For example, ‘the protection to which civilian medical units are entitled shall not cease unless they are used to commit, outside of their humanitarian function, acts harmful to the enemy’.194 The future role that military astronauts may play remains unclear. If this approach were to be adopted, guidance as to how close to the armed conflict a ‘material nexus’ need be would be crucial to establishing the status of such persons under IHL. 5. Conclusion Though restatements of the law have no binding force per se, when successful they may be seen as authoritative replicas of existing IHL frameworks.195 They may even pave the way for eventual treaties in the area to which they advise. As the military use of space increases, so too does the need for official clarification as to how IHL should approach this new challenge. On many fronts, a traditional application of IHL leaves considerable room for speculation. The scope of IHL clearly extends to regulate the conduct of military operations in space. Though it remains unclear whether territorially focused Geneva Treaty provisions apply de jure, past decisions of the ICJ and the UN clarify that a lack of statutory recognition would not render space a lawless zone. Moreover, that customary norms have been applied to air warfare confirms the legitimate application of the principles discussed in this article. Although the principle of distinction appears straightforward in its application, the level of discretion afforded to decision makers when applying tests of proportionality remains concerning. This note disagrees with Ramey’s stance that a lack of direct harm would render human suffering sufficiently ‘minimised’ in accordance with general IHL goals.196 Calls for an enhanced interpretation of Article 51(5)(b) AP/I stem from the widespread, indirect harm likely to be inflicted upon civilians should a limited interpretation be adopted. It would be legitimate to expect the Woomera Manual to draw heavily upon the effects of China’s ASAT operation in 2007. Indeed, Kessler’s findings are significant and hard to ignore. Drawing upon Boothby’s assertions, it is quite likely that less precautionary discretion may be afforded to States as a consequence.197 In the absence of a treaty-based ASAT ban, the Woomera guidance may align with the approach of the IADC and suggest limiting kinetic attacks to altitudes of lesser risk.198 Looking ahead, the limited and temporal effect of Article IV of the OST legitimises a scenario whereby military objectives might be stationed upon the moon. Although moon-based munitions were envisaged by the drafters of the OST, the principle of pre-emptive self-defence renders the stationing of such weapons unlikely, even if the law permits. The increasing support for a reinterpretation of Article II of the OST as to allow for the appropriation of natural resources from celestial bodies, may see moon-based mining technologies become targets more readily. Generally, if a stationed object upon the moon were to be attacked kinetically, the fragmentation would not appear to contribute towards Kessler Syndrome. Indeed, the study is not concerned with the fragmentation of stationed objects in higher altitudes. If guidance on precaution seeks to prevent Kessler Syndrome exclusively, decision makers may be afforded more discretion in targeting moon-based military objectives. Finally, the status to be afforded to astronauts serving military functions continues to leave questions unanswered. The proposed requirement that a ‘material nexus’ to the conflict be present for combatant status to be established appears to strike a logical balance between the two bodies of relevant law. Nevertheless, if this approach is officially adopted, clarity as to how proximity should be gaged is of particular importance. If a balance between the lex generalis and lex specialis is articulated by the Woomera Manual, such clarification would surely ensue. Footnotes 1 R Kolb, Advanced Introduction to International Humanitarian Law (Edward Elgar Publishing Ltd 2014) 2, 12. 2 J Johnson-Freese, Heavenly Ambitions: America’s Quest to Dominate Space (University of Pennsylvania Press 2009) 4. 3 WJ Broad, ‘From the Start, the Space Race Was an Arms Race’ New York Times (New York, 25 September 2007) 10. 4 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 27 January 1967, 18 UST 2410, TIAS No 6347, 610 UNTS 205. 5 P Anson and D Cummings, ‘The First Space War, The Contribution of Satellites to the Gulf War’ (1991) 136 The Rusi Journal 45. 6 European Space Agency, ‘Resolution on the European Space Policy’ (2007) BR 269, 5. 7 M Sheehan, ‘Profaning the Path to the Sacred: The Militarisation of the European Space Programme’ in Natalie Borman and Michael Sheenan (eds), Securing Outer Space (Routledge 2009) 170. 8 D Wright, L Grego and L Gronlund, The Physics of Space Security: A Reference Manual (American Academy of Arts and Sciences 2005) 135–38. 9 ‘Mission Shakti: Space Debris Warning After India Destroys Satellite’ (BBC News, 28 March 2019) <www.bbc.co.uk/news/world-asia-india-47729568> accessed 1 April 2019. 10 ‘China Confirms Satellite Downed’ (BBC News, 23 January 2007) <http://news.bbc.co.uk/1/hi/world/asia-pacific/6289519.stm> accessed 22 January 2019. 11 Office of Management and Budget, ‘Fiscal Year 2019: Efficient, Effective, Accountable. An American Budget’ (2018) 107. <www.whitehouse.gov/wp-content/uploads/2018/02/budget-fy2019.pdf> accessed 22 January 2019. 12 <www.esa.int/About_Us/Welcome_to_ESA/Funding> accessed 22 January 2019. 13 Office of Management and Budget (n 11) 37. 14 See generally, M Krepon and C Clary, ‘Space Assurance or Space Dominance? The Case Against Weaponizing Space’ (2003) The Henry L Stimson Centre <www.stimson.org/sites/default/files/file-attachments/spacebook_1.pdf> accessed 23 January 2019. 15 J Moltz, The Politics of Space Security: Strategic Restraint and the Pursuit of National Interests (2nd edn, Stanford University Press 2014) 1. 16 The Woomera Manual <https://law.adelaide.edu.au/woomera/> accessed 20 January 2020. 17 Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague (18 October 1907) 36 Stat 2277, T.S 539 (entered into force 26 January 1910). 18 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (12 August 1949) 75 UNTS 31, [1958] ATS No 21(entered into force 21 October 1950) [Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (12 August 1949) 75 UNTS 85, [1958] ATS No 21 (entered into force 21 October 1950) [Geneva Convention II]; Geneva Convention relative to the Treatment of Prisoners of War (12 August 1949) 75 UNTS 135, [1958] ATS No 21 (entered into force 21 October 1950) [Geneva Convention III]; Geneva Convention relative to the Protection of Civilian Persons in Time of War (12 August 1949) 75 UNTS 287, [1958] ATS No 21 (entered into force 21 October 1950) [Geneva Convention IV]. 19 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 (entered into force 7 December 1978). 20 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977 (entered into force 7 December 1978). 21 The Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) 1996, ICJ Report 226, 257. 22 Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques, 10 December 1976 (entered into force 5 October 1976) art 2. 23 Geneva Conventions (n 18) Geneva Convention I, arts 2–3; Geneva Convention II, arts 2–3; Geneva Convention III, arts 2–3. 24 Hague Conventions (n 17). 25 The Case of the S.S. 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Geneva Convention II, art I; Geneva Convention III, art I. 55 Dinstein (n 28) 8. 56 APV Rogers, Law on the Battlefield (Manchester University Press 2004) 5. 57 Nuclear Weapons (n 21) 257, para 78. 58 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, 29 November 1868 (entered into force 11 December 1868). 59 ibid. 60 Additional Protocol I (n 19) art 49(3); Schmitt (n 46) 124. 61 Schmitt (n 46) 125; MN Schmitt, ‘International Law and Military Operations in Space (2006) 10 Max Planck Yearbook of United Nations Law 116. 62 Additional Protocol I (n 19) art 48. 63 Eritrea–Ethiopia Claims Commission, Partial Award, Western Front, Aerial Bombardment and Related Claims, Eritrea’s Claims 1, 3, 5, 9–13, 14, 21, 25 and 26 (2005), 45 ILM 396, 417, 425. 64 Nuclear Weapons (n 21) 257, para 78. 65 The Economist, ‘America Seeks Faster Ways to Launch Military Satellites’ Science and Technology (5 December 2019) <www.economist.com/science-and-technology/2019/12/05/america-seeks-faster-ways-to-launch-military-satellites> accessed 21 January 2020. 66 Additional Protocol I (n 19) art 52(2). 67 Eritrea–Ethiopia Claims Commission (n 63) 418. 68 ibid 110. 69 United Nations Office for Outer Space Affairs, <www.unoosa.org/oosa/en/spaceobjectregister/index.html> accessed 11 March 2019. 70 Convention of Registration of Objects Launched into Outer Space, GA Res 3235 (XXIX), 14 January 1975 (entered into force 15 September 1976) art 3(2) and art 4(1)(e). 71 International Committee of the Red Cross, Commentary on the Additional Protocols of 8 June 1977to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff 1987) para 2022. 72 Convention of Registration (n 70) art 4(1)(e). 73 Dinstein (n 28) 114. 74 Stephens and Steer (n 51) 18. 75 Commentary on the Additional Protocols (n 71) para 2021. 76 Additional protocol I (n 19) art 52(2). 77 Stephens and Steer (n 51) 18. 78 ibid. 79 Moltz (n 15) 1. 80 Dinstein (n 28) 109. 81 Department of Defense Law of War Manual (12 June 2015) 214. 82 Remarks by the President on Progress Against ISIL (25 February 2016) <https://obamawhitehouse.archives.gov/the-press-office/2016/02/25/remarks-president-progress-against-isil> accessed 30 December 2019. 83 Dinstein (n 28) 110. 84 JN Pelton, ‘Satellite Security and Performance in an Era of Dual Use’ (2004) 6 Online Journal of Space Communication <https://spacejournal.ohio.edu/Issue6/perspectives1.html> accessed 11 March 2019. 85 US Buys Afghan Image Rights (BBC News, 17 October 2001) <http://news.bbc.co.uk/1/hi/sci/tech/1604426.stm> accessed 11 March 2019. 86 H Shue and D Whippman, ‘Limiting Attacks on Dual-Use Facilities Performing Indispensable Civilian Functions’ (2002) 35 Cornell International Law Journal 559, 562. 87 M Roscini, Cyber Operations and the Use of Force in International Law (OUP 2014) 185. 88 Additional Protocol I (n 19) art 51(5)(b). 89 Ramey (n 43) 39. 90 ibid 4. 91 Shue and Whippman (n 86) 567. 92 Prosecutor v Galić (ICTY, Trial Chamber, 2003) para 58. 93 Dinstein (n 28) 156. 94 H Blix, ‘Means and Methods of Combat’ International Dimensions of Humanitarian Law (UNESCO, 1988) 93, 135. 95 Shue and Whippman (n 86) 569. 96 C Greenwood, ‘Customary International Law and the First Geneva Protocol of 1977 in the Gulf Conflict’ Peter Rowe (ed), The Gulf War 1990-91 in International and English Law (Routledge1993) 73. 97 Shue and Whippman (n 86) 569. 98 JM Meyer, ‘Tearing Down the Facade: A Critical Look at the Current Law on Targeting the Will of the Enemy and Air Force Doctrine’ (2001) 51 AFL Review 143 177. 99 Lt Col KR Rizer, ‘Bombing Dual-Use Targets: Legal, Ethical and Doctrinal Perspectives’ (2001) <www.airuniversity.af.edu/Portals/10/ASPJ/journals/Chronicles/Rizer.pdf > accessed 20 March 2019. 100 JW Crawford, ‘The Law of Non-combatant Immunity and the Targeting of National Electrical Power Systems’ (1997) 21 Fletcher Forum of World Affairs 115. 101 ibid 106. 102 FJ Hampson, ‘Means and Methods of Warfare in the Conflict in the Gulf’, in Rowe (ed) (n 96) 98. 103 ibid. 104 Rizer (n 99) 8. 105 O Schachter, ‘United Nations Law in the Gulf Conflict’ (1991) 85 American Journal Of International Law 452, 466. 106 Shue and Whippman, (n 86) 572. 107 Dinstein (n 28) 158. 108 Crawford (n 100) 101. 109 Shue and Whippman (n 86) 567. 110 MN Schmitt, ‘The Principle of Discrimination in 21st Century Warfare’ (1999) 2 Yale Human Rights & Development Law Journal 143, 168. 111 Stephens and Steer (n 51) 27. 112 Additional Protocol 1 (n 19) art 57(2)(ii). 113 Protocol (II) on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, 10 October 1980, UN, A/CONF.95/15, 27.101980, Annex I, (entered into force 2 December 1983). 114 Additional Protocol 1 (n 19) art 57(4). 115 Commentary on the Additional Protocols (n 71) para 2230. 116 ibid, para 2229; 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Journal of Conflict and Security Law – Oxford University Press
Published: Sep 1, 2004