1. Promoting Cooperative Solutions for Space Security 1 www.SecureWorldFoundation.org Is Current International Humanitarian Law Sufficient to Regulate a Potential Conflict in Outer Space? Ben Baseley-Walker, Legal and Policy Advisor, Secure World Foundation bbw@swfound.org +1-202-255-2153

2. Promoting Cooperative Solutions for Space Security 2 www.SecureWorldFoundation.org Overview International Law 101 Foundations Jus ad bellum/ jus in bello General Principles The Application to Space Conclusions

3. Promoting Cooperative Solutions for Space Security 3 www.SecureWorldFoundation.org International Law 101 – Treaties Legally binding Consent to be bound – Customary International Law 2 conditions :Opinio Juris (belief that something is a law);Widespread State Practice – Soft Law Guidelines etc. – Evidence for Custom Concept of Enforcement in International law – Enforcement is not a central part of the international legal regime Not because the law is weak but because the concept doesnt really work given the nature of the field Less conventional sticks 3

4. Promoting Cooperative Solutions for Space Security 4 www.SecureWorldFoundation.org Foundations – No concept of war in space no treaties establishing specific jus in bello principles for space combat – No specific territorial limitation to the application of the jus in bello principles. The laws and customs of war apply both to the area where the hostilities actually take place, as well as the broader areas that are in some way affected by the hostilities – Space is militarized, is it weaponised?

5. Promoting Cooperative Solutions for Space Security 5 www.SecureWorldFoundation.org Jus ad Bellum Jus ad bellum – transition from peace to war – UNC Art. 2(4) (refrain from threat or use of force), 51 (recognizing inherent right of self-defense – individual or collective – Questions that arise What is use of force? – Note UNC Art. 42 and 51 – exceptions – nuclear weapons advisory opinion use of force = use of weapons What is territorial integrity? – Oil Platforms Case – is court interpreting armed attack as having to be against the territory? » If so, problem in space as space objects are technically outside the territory of any State

6. Promoting Cooperative Solutions for Space Security 6 www.SecureWorldFoundation.org Jus in Bello Jus in bello – Law of armed conflict, international humanitarian law – Human rights tied to jus in bello through ICJ cases 1996 advisory opinion on use of nuclear weapons – Noting that the threat or use of a nuclear weapon should comply with the requirements of international law relating to armed conflict, particularly the principles of international humanitarian law

7. Promoting Cooperative Solutions for Space Security 7 www.SecureWorldFoundation.org Key IHL Principles Generally five principles Necessity – only military objective targeted Distinction – combatants and non-combatants, those things protected and those that are not Proportionality – subset of distinction – incidental and collateral damage, the effective military contribution, is not grossly disproportionate to the civilian casualty Humanity – does this apply in the indirect form? Chivalry - no perfidious action leading to a reliance on IHL.

8. Promoting Cooperative Solutions for Space Security 8 www.SecureWorldFoundation.org Principles in Relations to Space Necessity – Earth and ground concerns » How to balance the military worth of Earth vs. space Distinction » Is this also relevant to space assets given the limited number of humans is space? Proportionality – Can we quantify the value and magnitude of the role of space resources in human activity? Humanity – requires dignity of human beings – Relevant indirectly? Chivalry - is it relevant to the space environment? – SSA?

9. Promoting Cooperative Solutions for Space Security 9 www.SecureWorldFoundation.org Key impact break-down The impact to the space environment – E.g. space debris The impact of the loss of space resources on Earth based population – Not only direct but indirect effects central to understanding potential space conflict

10. Promoting Cooperative Solutions for Space Security 10 www.SecureWorldFoundation.org Conclusions Crucial to begin academic and political thinking process on this issue – Through discussion, legitimacy? Importance of legal parameters, should the global community find itself in a space conflict situation Key to bear in mind that space is truly global environment with profound national security implications – As a result, importance to approach such a question from a multilateral standpoint.

11. Promoting Cooperative Solutions for Space Security 11 www.SecureWorldFoundation.org Recommendations for Further Work Key conclusions: – Need for definitions what is proportional is space? Are there established codes of behavior that have been developed at this point? How military is a dual use object? – Commercial satellites transmitting military communications signals How much can the loss of space capabilities affect a populace?

12. Promoting Cooperative Solutions for Space Security 12 www.SecureWorldFoundation.org Many Thanks bbw@swfound.org