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Space law and military operations 101 – Dr Dale Stephens and Jenna Higgins

Despite its futuristic feel, the first space war has already been fought, and by some decades. In 1991, in fact – the Gulf War[1]. While not fought in the physical domain of space, the conflict itself relied heavily upon space-based assets. Such reliance utilised satellites for precision navigation, space situational awareness, global communications, ISR and early warning ballistic missile defence. Even with that characterisation of being the first space war, only eight percent of munitions were guided and none by GPS[2]. Fast forward to the second Gulf War only a little over 10 years later and 70 percent of munitions were guided, mostly by GPS[3]. Further, up to 60 percent of bandwidth in the 2003 Iraq war was provided through commercial (non-military) satellites[4].


Space has become critical for terrestrial military capability. Therefore it comes as no surprise that space is a domain in its own right, and an important one indeed. In 2017 the US Air Force Secretary, Heather Wilson explicitly stated that ‘we must expect that war, of any kind, will extend into space in any future conflict, and we have to change the way we think and prepare for that eventuality’. Subsequently, in 2019, NATO recognized the critical nature of space-based military operations and formally declared space as an operational area[5].


Australia is equally clear in its recognition of the criticality of the space domain, solidifying its intent in the 2020 Defence Strategic Update (DSU). Within this key document, the government specified that ‘assured access to space is critical to ADF warfighting effectiveness, situational awareness and the delivery of real-time communications and information’, and that it will ‘significantly increase investment in Defence’s space capabilities. This includes plans for a network of satellites to provide an independent and sovereign communications network and an enhanced space control program.’ The Defence Force Structure Plan supports the strategic update stating that:

Our space services and space control programs, along with the Geospatial Information and Intelligence program, contribute to Defence operations by providing assured access to space capabilities, enabling situational awareness and delivering real-time communications and position, navigation and timing information.


Further:

Continued investment and development of space capabilities will be required to further improve Defence’s resilience and enhance a large number of space-dependant capabilities across the Joint Force. Investment of around $7 billion in space capabilities over the next decade, which includes investment in sovereign-controlled satellites, will provide assured access to these services when needed.


This investment will be critical if Australia is truly serious about protecting vulnerabilities associated with satellite systems – of which there are many; Anti-Satellite Weapons (ASAT), Co-Orbital ASAT, directed energy weapons, cyber weapons, electromagnetic pulse (EMP) or proximity operations are a few.

Also critical to protecting our interests in the space domain is the application of space law. Australia is a party to all five existing space treaties (‘space law treaty series’). Perhaps the key treaty – the Outer Space Treaty (‘Treaty on Principles Governing the Activities of States in the Exploration and Use of Other Space, including the Moon and other celestial bodies’), came into effect in 1967 and forms the basis of all international space law. This treaty specifies a number of key rules relating to military activities as follows:

  • No Weapons of Mass Destruction (WMD) in full orbit or stationing WMD in space or installation of WMD on the Moon or other celestial bodies

  • No military installations, bases or fortifications on the Moon or other celestial bodies

  • No military manoeuvres on the Moon or other celestial bodies

  • No weapons testing on the Moon or other celestial bodies.


The OST also forbids claiming sovereignty over space, the Moon or other celestial bodies. Interestingly however, mining is allowed or, at least is not prohibited, and several States, including the United States, have started enacting national laws permitting the mining of the Moon, asteroids and other celestial bodies. Such efforts are designed to produce raw materials, including, in particular, water to enable humanity to reach further into the solar system. Indeed, there are multiple projects planned by Governments and private companies in the near future to settle semi-permanently on the Moon and Mars and this inevitably requires planning for mining activity to sustain such endeavours.


It is clear that security issues will emerge as humanity starts undertaking mining activity, as well as ongoing exploration and semi-permanent settlement in space. Despite the aforementioned military prohibitions, there is still a lot of scope for military action, and it is indeed increasing. With the increase of military space objects and systems being deployed there is also a corresponding reaction by other States in testing and probing such systems[6]. Recent unclassified reporting points to jamming, close proximity operations, ASAT testing and the use of remotely piloted space shuttles remaining in orbit for over a year.


The 2020 DSU notes that the legal frameworks and boundaries underpinning planned activities in space are not as clear as they could be. Moreover, it also notes the likelihood of countries taking advantage of the legal and policy uncertainties to advance their own interests at the expense of others is a real possibility. Within this uncertain operational and legal realm there is a real risk of strategic miscalculation. While the United Nations Charter applies to space and the law relating to the use of force (and its prohibitions) also apply, it is very unclear where the thresholds for crossing lines relating to the Use of Force and Armed Attack apply in space. In the absence of territorial boundaries and even temporary land/use legal rights there is a potential for overreach. Coupled to this is the criticality of space-based systems for existing terrestrial operations in land, sea, air and cyberspace and there is a genuine set of strategic risks that must be navigated carefully.


It is also abundantly clear that under existing legal rules concerning the Law of Armed Conflict (LOAC) that many Global Navigation Satellite Services such as GPS and GLONASS may well be lawful targets in any armed conflict to the extent that they are used in support of a State’s military actions (indeed this is what they were originally created for!). If this were to occur, then the digitalised world in which we all live in at present would generally cease to exist. The world would be plunged back in a 1970’s type analogue world and there would almost certainly be severe impact upon the world’s financial system as well as cognate impacts on transport, communications, agriculture, medicine and a wide range of other services. So ubiquitous has global space infrastructure become to modern living that its loss would have a convulsive impact upon modern living. Remarkably, LOAC provides very few prohibitions on targeting such infrastructure that has military application and where the loss of life to civilians and expected damage to civilian property is not expected, or is not excessive to the military advantage anticipated.


To date, the legal positions of States regarding the thresholds and limits of the law in space operations via-a-vis the Space law treaty series are not generally publicly stated, indeed they are probably still evolving. While no doubt there is internal Governmental legal analysis occurring, there is precious little public articulation. To date, only the U.S. in its Law of War Manual[7] has presented any public views and these are general in their scope and short in their application. There is no corresponding statement of legal and policy position from Russia, China, India, the UK or indeed even Australia. Such a void has allowed many academic views to proliferate that are sometimes inimical to Australian security positions and these should be challenged and countered with a principled legal response.


At the present time, the current legal and policy realities are these:

  • Space is militarized and is being weaponized

  • Military activity is permitted outside of those specific prohibitions contained in Article IV of the OST (no WMD etc)

  • Mining and human settlement will occur in space in the near future

  • The legal limits and thresholds under the Law relating to the Use of Force in space are not publicly stated or agreed and there is a genuine risk of strategic miscalculation

  • It is unclear how the Law of Armed Conflict would be applied to space to ameliorate the consequences of such armed conflict on civilian society, though under existing rules it is almost certain that the digitally integrated world that we have come to know over the past 30 years will cease to exist.


The 2020 DCU is correct in its focus to encourage better understanding of the legal thresholds applicable to military activity in space. Government supported, though University led efforts like the Woomera Manual Project[8], which seek to identify the law currently applicable to military operations in space are helpful and useful in providing a common understanding of what law does apply. However, despite the optimistic efforts of such projects to reliably inform decision making, it is critical for Governments themselves to articulate their own views of what laws apply to condition military activities in outer space. Additionally, there is much to be said for the role of military diplomacy in establishing dialogues and understandings between military counterparts. This currently occurs in the land, sea and air military command environments but has yet to be initiated in the military space environment. It is time that military space commanders of the key space powers and their allies started constructive dialogue to better locate and articulate the accepted legal and policy boundaries of military activity in space. While it may be nostalgic for some to re-live the 1970’s, a return to bell bottomed flares, disco and analogue communications is ‘life Jim’ …’but not as we know it’ (apologies to Spock and Star Trekkin’ music video creators).


This post was developed as the output from a recent Adelaide Drink & Think event. Adelaide Drink & Think is an informal, community-based network that holds monthly events in Adelaide to encourage national security discussion & debate. For details on upcoming events check out twitter @DrinkThinkADL or email adldrinkandthink@gmail.com to get on the mail list.


Dr Dale Stephens is a Professor of Law at the University of Adelaide. He was previously a permanent Navy Legal Officer and served multiple positions during his time in the ADF, including Director of Operations and International law. He is currently an Editor of the Woomera Manual on the International Law of Military Space Operations.


Squadron Leader Jenna Higgins is a Royal Australian Air Force aviator who specialises in ISREW. She has a Masters in Strategy and Security and a Masters in Aerospace Systems. She is an editor of the Central Blue Blog. Follow her on Twitter @Jenna_Ellen_


The views expressed are the author’s alone and do not reflect the opinion of the Royal Australian Air Force or the Department of Defence.

Image credit: SpaceX

[1] Yasushito Fukushima, ‘Debates over the Military Value of Outer Space in the Past, Present and the Future: Drawing on Space Power Theory in the U.S.’ (2013) 14(1) NIDS Journal of Defense and Security, 42; Larry Greenemeier, ‘GPS and the World’s First Space War’ Scientific American, Feb 8, 2016 found at: https://www.scientificamerican.com/article/gps-and-the-world-s-first-space-war/

[2] See GAO report at 5.2.2 found at: https://www.govinfo.gov/content/pkg/GAOREPORTS-NSIAD-97-134/html/GAOREPORTS-NSIAD-97-134.htm

[3] http://news.bbc.co.uk/2/hi/middle_east/2950403.stm; see also Peter L Hayes, Space and Security: A Reference Handbook (ABC-CLIO, 2011), 51

[4] https://www.militaryaerospace.com/home/article/16709259/satellite-communication-key-to-victory-in-iraq

[5] https://www.nato.int/cps/en/natohq/topics_175419.htm

[6] For an outline of current space and counter space capabilities see https://swfound.org/counterspace/

[7] US DoD LoW Manual (Dec. 16) at : https://dod.defense.gov/Portals/1/Documents/pubs/DoD%20Law%20of%20War%20Manual%20-%20June%202015%20Updated%20Dec%202016.pdf?ver=2016-12-13-172036-190

[8] The Woomera Manual on the International Law of Military Space Operations, see https://law.adelaide.edu.au/woomera/