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

1. The Outer Space Treaty Article III
“States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security and promoting international co-operation and understanding. “

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

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

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

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

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

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

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

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

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

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

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

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

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

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