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Space Weapons and the Law View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by U.S. Naval War College Digital Commons Space Weapons and the Law Bill Boothby 93 INT’L L. STUD. 179 (2017) Volume 93 2017 Published by the Stockton Center for the Study of International Law ISSN 2375-2831 Space Weapons and the Law Vol. 93 Space Weapons and the Law Bill Boothby CONTENTS I. Introduction .............................................................................................. 180 II. Definitions ................................................................................................. 182 III. Three Fundamental Principles of Weapons Law ................................. 184 IV. Weapons Law Rules Relating to the Environment ............................. 190 V. Ad Hoc Rules of Weapons Law ............................................................. 192 A. Poisons and Gases ....................................................................... 193 B. Fragmentation Weapons ............................................................. 194 C. Laser Weapons.............................................................................. 194 D. Chemical Weapons ....................................................................... 195 E. Biological Weapons ...................................................................... 197 F. Incendiary Weapons .................................................................... 198 G. Nuclear Weapons ......................................................................... 199 VI. Space Law’s Rules Relating to Weapons ............................................... 201 VII. Weapon Reviews of Space Weapons ..................................................... 203 VIII. Applying the Rules to Particular Space Technologies ....................... 206 A. Kinetic Anti-Satellite Operations ............................................... 206 B. Missile Defense Operations ........................................................ 208 C. Jamming ......................................................................................... 210 D. Satellites ......................................................................................... 212 E. Ground-Based Lasers .................................................................. 212 IX. Conclusion ................................................................................................. 213 Bill Boothby retired as Deputy Director of Legal Services for the UK Royal Air Force in the rank of Air Commodore in 2011. He now teaches, speaks and writes widely on inter- national law issues on a freelance basis. The thoughts and opinions expressed are those of the author and not necessarily of the U.S. government, the U.S. Department of the Navy or the U.S. Naval War College. 179 International Law Studies 2017 I. INTRODUCTION I t is a regrettable truth that when States find it impossible to resolve their differences by diplomatic interaction, they resort all too often to the use of violence. In the resulting contest, the State with access to the most advanced Wtechnology will frequently have a considerable advantage. The contest may take place in any of the known environments: land, sea, airspace, cyberspace and outer space. While the modern era is not without its tensions between IStates, and while some of these tensions give rise to hostilities, there seems to be a welcome reluctance to extend these hostilities to outer space. That possibility cannot be ruled out, however, and it is doubtful that the reluctance is based in any sense on a taboo as to the deployment of weapons to, or their use in, outer space. There is, at least in some quarters, a recognition that the employment of weapons, particularly kinetic weapons, in space is likely to contribute further to the pressing debris problem, and space-to-ground op- erations, though theoretically feasible, are perceived as being unnecessarily costly and comparatively less reliable than air-to-ground, littoral or land- based solutions.1 Moreover, there remains the possibility of other, less ki- netic or non-kinetic kinds of offensive operation in outer space. So the awful possibility of warfare in outer space cannot be excluded, and if it were to become a reality, it is important to know the rules that would apply. Accord- ingly, this article concerns itself with the law that would determine which weapons it would be lawful for a State to employ in that environment. To accomplish that task it is necessary to understand the general legal principles with which all weapons are required to comply, some treaty-based rules that address the natural environment, the customary and treaty provi- sions that deal with relevant weapon technologies and the particular provi- sions of space law that are concerned with weapons. These rules constitute the criteria against which the legal acceptability of a new space weapon must be judged, so it is those rules that States must apply when undertaking the obligatory legal reviews of all new space weapons. 1. DAVID WRIGHT, LAURA GREGO & LISABETH GRONLUND, THE PHYSICS OF SPACE SECURITY: A REFERENCE MANUAL 6 (2005). The reduced reliability is stated to be at least partly due to the inability to maintain space-based systems. Id. at 8–9. 180 Space Weapons and the Law Vol. 93 Outer space is of critical importance for numerous vital functions in the modern world.2 In the military context, these include anti-ballistic missile operations, long-range precision strike and ground-based mid-course missile defense missions,3 intelligence,4 communications and navigation activities. Were hostilities to break out in outer space, they seem likely to take a variety of forms. They would probably include the direct attack, shading of, or in- terference with, space assets, such as satellites, using physical,5 laser or cyber techniques; electronic attack in the form of jamming or spoofing; physical or cyber interference with the movement of targeted space vehicles; laser blinding; and electromagnetic pulse attack.6 The interception in outer space of transiting missiles is another likely example. Any understanding of the words “weapon” as used in the title of this article and “weaponization” must, therefore, be discussed in the context of these kinds of activity. Part II will consider and explain the meanings of some important terms in the law relating to weapons. Part III will outline the superfluous injury/un- necessary suffering and indiscriminate weapons principles. Then in Part IV, two rules that seek to protect the natural environment during armed conflict will be explained. Part V will briefly note the ad hoc rules of weapons law that might be of relevance to present and foreseeable space weapon technol- ogies. Part VI will address the rules of space law that are relevant to weapons, 2. The Multinational Experiment 7 Access to Global Commons report refers to four space pillars to describe the types of capability that space can provide, namely position, navigation and timing; satellite communications; intelligence, surveillance and reconnais- sance; and space situational awareness. PROTECTING ACCESS TO SPACE ¶ 114 (Joint Staff- MN//ACT Integration 2013), https://www.hsdl.org/?view&did=754742. As to the wider military and civilian utility of facilities provided from outer space, see UNITED KINGDOM MINISTRY OF DEFENSE, DEVELOPMENT, CONCEPTS AND DOCTRINE CENTER, SPACE: DE- PENDENCIES, VULNERABILITIES AND THREATS (2012), https://www.gov.uk/govern- ment/publications/multinational-experiment-7-space-dependencies-vulnerabilities-and-thr eats. For commercial uses of space, see David A. Koplow, ASAT-isfaction: Customary Interna- tional Law and the Regulation of Anti-Satellite Weapons, 30 MICHIGAN JOURNAL OF INTERNA- TIONAL LAW 1187, 1190–94 (2009). 3. As to the military utility of space, see Michael N. Schmitt, International Law and Military Operations in Space, 10 MAX PLANCK YEARBOOK OF UNITED NATIONS LAW 89, 94–98 (2006); UNITED KINGDOM MINISTRY OF DEFENSE, DEVELOPMENT, CONCEPTS AND DOC- TRINE CENTER, JDP 0-30, UK AIR AND SPACE DOCTRINE ¶¶ 508–15 (2013). 4. Consider the improved ground resolution achieved in recent decades. Koplow, supra note 2, at 1195. 5. This could take the form of using a satellite to interfere with the command and control channel of another satellite, for example, by interrupting health and status reports and impeding the ability to send commands to the satellite. 6. PROTECTING ACCESS TO SPACE, supra note 2, ¶¶ 123–27. 181 International Law Studies 2017 principally in Articles III and IV of the Outer Space Treaty, and Part VII will look at the weapon review obligations of States under Article 36 of Addi- tional Protocol I and under an implied rule for States that are not party to Additional Protocol I. Part VIII will take the criteria that States should ad- dress in a weapon review and assess how they may apply in relation to a representative sample of space weapon capabilities. Part IX concludes the discussion. II. DEFINITIONS For the purposes of this article, a weapon is a device, system, munition, im- plement, substance, object or piece of equipment that is used, intended or designed to cause injury or damage to an adverse party in an armed conflict.7 The term “means of warfare” refers to weapons and weapon systems,8 whereas a “method of warfare” is an activity designed to adversely affect the enemy’s military operations or military capacity.9 Taking the examples of space capabilities discussed in Part I, a projectile, space vehicle or laser that is used
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