1. Law of War in the Space Domain
Lesson Revised: 29 July 2019 (updated PPWT info, added ROE slide)
Lt Col Jimmy Gutzman
Chief, Space Law

2. Luch Intelsat Interaction 2015
Jun-Sep 2015: Russia operates a suspected military satellite,
Luch, in close proximity to two privately-owned and U.S. registered Intelsat satellites in GEO (Intelsat 7 & Intelsat 901)
No Russian satellites in vicinity
Intelsat provides services to DoD
Moved within ten kilometers of an
Intelsat satellite
2015-Present: No Russian
explanation of behavior
Shortly after the Russians demonstrated the ability to conduct RPO in relation to its own space objects, Russia operates one of its satellites in close proximity to two privately-owned U.S. registered Intelsat satellites. The Russians had no satellites in the vicinity of these Intelsat satellites. The Russian satellite moved within 5 kilometers of the Intelsat satellites. The JSpOC issued emergency close approach notifications. Intelsat attempted to contact the Russian satellite operator (not sure how), but it was reported that the Russians did not respond.
The Russians provided no response to the JSpOC notification or to the Intelsat reported attempts to communicate. The Russians have never provided an explanation of their space activity. Some Russian officials have commented that there was no threat to the Intelsat satellites.
Our goal in considering this activity along with the RPO activity in , is to understand the law that applies to the reported activity and to also consider what could have happened and how the law would limit or permit action.
Source: “Dancing in the Dark Redux: Recent Russian Rendezvous and Proximity Operations in Space.” Brian
Weeden, “Dancing in the dark redux: Recent Russian Rendezvous and Proximity Operations in Space” (5 October
2015) The Space Review, online: <

3. Overview
What means may a nation lawfully employ to respond to threats and defeat attacks on its space systems?
International Space Law
Law of War
Standing/Supplemental Rules of Engagement
Now that the stage is set, the important question is “What means may a nation lawfully employ to respond to threats and defeat attacks on its space systems?” Our goal is to be able to understand what means a nation may lawfully employ to respond to threats and defeat attacks on its space systems. To accomplish this, we will examine international space law, general international law to include the law of war, and, finally, the U.S. domestic law that apply to outer space.

4. International Law Basics Sources of International Law
Agreements
(Treaties)
Customary
International
Law
What is international law, and where does it come from? The are two main sources.
The first source is international agreements, or treaties. These are any written agreements entered into with intent to be legally binding. Treaties are made in a deliberative manner and bind only those States that are signatories. The most well known kind of international agreements in the United States are those made under Article II of the Constitution, which require the advice and consent of two-thirds of the Senate. However, Article II treaties are not the only kind of international agreements, which, again, are simply agreements made between or among states with the intent to be legally binding, without regard to the particular form. In fact, the vast majority of international agreements into which the U.S. enters are congressional-executive agreements, not Article II treaties.
The other main source of international law is customary international law. In contrast to treaties, customary international law is not deliberative – it is neither written nor signed by State Parties. Rather, it is developed over time, as we will see in the next slide. Customary international law is also distinct from treaties because it does not merely bind some States. It binds all States. (International law does recognize the possibility, however, that some States can opt out of opt out of a customary practice while it is being developed, such that they are not bound. Such a State is called a “persistent objector”).
It is important to note three things:
Both treaties and custom have equal footing. That is, one is not stronger than the other.
Treaty and Custom can, and often does, overlap, but they are nevertheless independent sources of law. For example, there is a customary right to national self-defense, and there is also a right to national self-defense codified in Treaty – Article 51 of the UN Charter. They may have much in common, but they stand independently as sources of law.
Principles can start as a custom and then become codified in a treaty. Similarly, principles can begin as a treaty and then develop into customary international law, binding all States. We will see how these notions apply to the law of outer space.

5. Major Space Treaties 1968 Rescue and Return Agreement 98 Members
1967 Outer Space Treaty (OST) Members
1968 Rescue and Return Agreement Members
1972 Liability Convention Members
1975 Registration Convention Members
1979 Moon Agreement 18 Members
Some international law is specific to space. There are four major space treaties. The most foundational document in space law is the first of these treaties, the 1967 Outer Space Treaty. Numerous earlier UN Resolutions expressed legal principles for outer space prior to the OST, but they did not become binding until incorporated into a binding treaty in 1967 (with the exception of the principles that can be said to have become customary law even before the OST). Every spacefaring state is a party to the OST. Several of its provisions have become principles of customary international law, also.
The subsequent major space treaties elaborate upon principles expressed in the OST. For instance, Article V of the OST discusses the requirement to render assistance to astronauts, and this idea is elaborated upon in the 1968 Rescue and Return agreement. Article VII address the concept of liability, which is elaborated upon in the 1972 Liability Convention. This is why the OST is regarded as the foundational treaty.
A fifth treaty, the 1979 Moon Agreement, is not regarded as a major space treaty because it has only 18 signatories, none of them major spacefaring states (except Australia). The U.S. has not signed it because, essentially, it declares resources in outer space to be the common heritage of mankind and requires that the creation of a system that would share resources “equitably”.
As you can see, there have been no new space treaties since the 1970s. Space law scholars debate whether the future of space governance should take the form of new binding law or, instead, non-binding norms. Many favor the pursuit of non-binding norms because binding law seems virtually unobtainable, due in no small part to opposition from various political interests within the U.S.

6. Key Principles from Outer Space Treaty
I. Freedom to Use and Explore
The first and perhaps most important principle in the Outer Space Treaty is Article 1. The second paragraph reads:
“Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.”
Why is this so important? Consider the legal nature of airspace. Airspace is recognized as sovereign. Flying over a state’s airspace without that state’s permission is a violation of sovereignty, and thus contrary to international law. So why is a satellite crossing over your territory different than an airplane?
Sputnik, the first satellite, was launched into orbit in That’s 10 years before the Outer Space Treaty codified outer space as free. At that moment there was no clear answer to whether space would be sovereign like airspace or, instead, free. The U.S. could have – and reportedly considered – objecting to having a satellite cross over its territory. However, as Sputnik orbited the earth, crossing over territories over and over again, neither the U.S. not any other state objected. Perhaps the U.S. assented because it wanted the U.S.S.R. to establish a practice a freedom in space so that the U.S.S.R. couldn’t object when the U.S. wanted to take advantage of the same principle. In any event, this practice very quickly became recognized by the leading states as a reflection on the legal status of space. In other words, it achieved the status of customary international law. The Freedom Principle, therefore, is an example of a legal principle that became customary international law and later, in 1967, became codified in a treaty as well. Remember, treaty and custom are independent sources of law. So, if a state were to withdraw from the Outer Space Treaty, the Freedom Principle would remain binding by virtue of its independent status as customary international law.
Before moving on, note the image of the earth’s atmosphere bordering outer space. Even though the legal regimes of space and airspace are different – space is free and airspace is sovereign – there is no legally recognized boundary between the two. The question of where to draw the line has been asked since the inception of the space age, but the U.S. has consistently opposed the creation of a legal boundary. The lack of a clear boundary allows freedom of action. With the advent of aerospace vehicles that travel through both air and space, it may become necessary in the future to draw a line as a means to clearly determine which legal regime applies.
In the context of this course, keep in mind that other state’s enjoy the same freedom to use space as we do. Be careful about condemning conduct that we do, or want the freedom to do, ourselves.

7. Key Principles from Outer Space Treaty
II. Non-Appropriation
Article II expresses the Non-Appropriation Principle. It reads, “Outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”
This means you can’t claim space for yourself. This was written in the context of the Cold War. The U.S. and U.S.S.R. has seen how land grabs in earlier centuries has led to conflict, and they found it mutually agreeable to avoid a similar land grab for territory in outer space.
Here is an example of how this principle can work in practice. If a satellite that is freely using outer space in accordance with it’s Article I right, and is encroached upon by another satellite that is not conducting itself responsibly or transparently, what can it do? Can the satellite declare a non-interference zone around itself? No. Most would agree that any such exclusionary zone would be an unlawful appropriate of outer space, in violation of Article II.
Article II must be understood in relation to Article I. In other words, what is the difference between use and appropriation? When am I lawfully using space, as opposed to unlawfully claiming it for myself?
One example is orbital slots. When a state occupies an orbital slot, no other state is able to use it. Is that lawful use, or unlawful appropriation? The accepted view is that occupation in an orbital slot is permitted as lawful use, but a state cannot claim the slot for itself if it is not using it, for that would be a wrongful claim of appropriation. In other words, states can use the slot, but cannot own it.
Another example is the mining of natural resources on asteroids. Many states and scholars have interpreted Article II as prohibiting assertions of private property interests in resources. The U.S. has taken the contrary position that Article II does not prevent the use of natural resources. When the U.S. collected moon rocks and brought them back, many of those rocks were sold or given away – treated as private property. No one objected. This interpretation that resources, once removed, can be the subject of private property interests underpins the 2015 U.S. Commercial Space Launch Competitiveness Act, which contains a provision recognizing private property interests in resources collected from outer space. Without the recognition of private property interests, the commercial sector would have no incentive to a space resource mining industry. The U.S. regards this law as a legitimate interpretation of Article II, and we will soon see how other states respond in the halls of the UN.
Like the Freedom Principle, the Non-Appropriation Principle is recognized as a principle of customary international law.
Use v. Appropriation

8. Key Principles from Outer Space Treaty
III. International Law and UN Charter apply to space
General Principles of International Law fill the gaps
Things not prohibited are generally permitted
Prohibition on threat or use of force -- UN Charter article 2(4)
Right to use force in self defense – custom and UN Charter article 51
LOAC
Article III declares, “State Parties to the Treaty shall carry on activities in the exploration and use of outer space … in accordance with international law; including the Charter of the United Nations, in the interest of maintaining international peace and security …”
This is how we know the principles of international law apply to space – Article III tells us so. As mentioned earlier, there are no gaps in space law because those gaps are filled by general international law. One of these principals is that things that aren’t specifically prohibited are generally permitted. States are sovereign and free to do as they please, yet states willingly give up a degree of sovereignty in order to establish means of co-existing. Multiple sovereigns would have difficulty coexisting if they didn’t agree to certain limits on their sovereignty -- this is the role of international law.
Pursuant to Article 2(4) of the UN Charter, the threat or use of force is prohibited. This prohibition applies to space, thanks to Article II. There is an exception under Article 51, which permits the use of force in self defense. There also exists an independent right to self-defense under customary international law. These, also, apply to outer space thanks to Article III. The Laws of Armed Conflict (LOAC) also apply in outer space.

9. Key Principles from Outer Space Treaty
IV. Weapons in Space
State Parties undertake not to place in orbit any objects carrying nuclear weapons or other kinds of WMD
The Moon and other celestial bodies shall be used exclusively for peaceful purposes
Chinese-Russian Treaty Proposal - PPWT
People commonly assume that weapons are prohibited in outer space. Article IV is the relevant provision. It states:
“State Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space or in any other manner.”
The second paragraph deals specifically with the Moon, saying it shall be used “exclusively for peaceful purposes.”
Thus, Article IV only prohibits nuclear weapons or WMD, and only if then they are placed in orbit. Any other type of weapon, or anything that can be used as a weapon, is not prohibited. Nuclear ICBM’s are permitted to pass through space because they do not go into orbit.
The vast majority of states oppose the weaponization of outer space. Every year, virtually every state except the U.S. and Israel support a non-binding “PAROS” resolution in the UN (Prevention of an Arms Race in Outer Space). This sentiment against weaponization is one of the reasons Russia and China proposed and continue to push their draft treaty that would ban the placement of weapons in space (Prevention of the Placement of Weapons in space Treaty, or PPWT). The PPWT is deeply flawed, in part because it is virtually impossible to define what constitutes a weapon in space. The fact that Russia and China are even bothering to offer a draft space treaty in support of a popular sentiment gives them soft power in the halls of the UN.

10. Law of War
Jus ad bellum
Pre-armed conflict
Jus in bello
Armed conflict
The law of war is best understood as two distinct areas of law. First is jus ad bellum, which is the international law that regulates the resort to the use of armed force. Second is jus in bello, which is the law governing armed conflict, or the conduct of hostilities. The Law of Armed Conflict falls under the second category, jus ad bellum. However, both categories are relevant to our national security interests in space. These concepts were created to govern activities between state actors, not non-state actors.
“Law of War” is the international law that regulates the resort to armed force (jus ad bellum) and the conduct of hostilities (jus in bello) between states

11. Law of War – jus ad bellum
Unfriendly Act
Breach of Sovereignty
Breach of Principle of Non-Intervention
Use of Force/Armed Attack
Conflict can be conceptualized as along a spectrum. On one end is actions that are not illegal under international law, but merely unfriendly or disagreeable. From there, offenses gradually grow more severe. Anything that breaches a state’s sovereignty is a violation of international law – an example is an unauthorized breach of airspace. Add to that an element of coercion and you get a breach of the principle of non-intervention. Anything done with the intent to interfere with a state’s sovereign right to make its own decisions with regard to the economy, policy, etc., is coercive, and more severe under international law than a benign breach of sovereignty. Lawful responses to such violations include the use of countermeasures, but the use of force is not permitted. Conduct can also be unlawful under specific laws, such as the Outer Space Treaty or those governing the International Telecommunications Union.
Force may only be used in response to an armed attack, and only then if necessary and proportional. The U.S. regards the use of force to be the same as an armed attack, such that either could legally justify a use of force in response, provided that it is necessary and proportional.
Spectrum of Conflict Under General International Law
(U.S. interpretation – No gap between Use of Force and Armed Attack)

12. Law of War – jus ad bellum
Unfriendly Act
Breach of Sovereignty
Breach of Principle of Non-Intervention
Use of Force
Armed Attack
When working in a coalition of allies, there is an additional consideration. Most of our allies regard the use of force as something that can be less egregious than an armed attack, and only and armed attack can legally justify a use of force in self defense under Article 51. In other words, there is a gap between a use of force and an armed attack. This interpretation comes from Nicaragua case, a 1986 case from the International Court of Justice.
Spectrum of Conflict Under General International Law
(Nicaragua interpretation – Gap between Use of Force and Armed Attack)

13. Law of War – jus ad bellum
UN Charter Article 2(4) prohibits the threat or use of force
UN Charter Article 51 permits the use of force in national self-defense against an “armed attack”
Unlawful Use of Force / Armed Attack
Self-defense, actual attack
Anticipatory self-defense, imminent threat
Preemptive self-defense, threat not yet imminent
When is the use of force lawful in a pre-armed conflict environment? The UN Charter prohibits the threat or use of force, and, under Article 51, permits the use of force in national self-defense against an “armed attack.” But what does this mean? Essentially, there are three schools of thought. The most literal interpretation, held by some academics, is that force may only be used in self-defense against an actual armed attack. In other words, you must first be attacked before you can respond in kind. Others believe the use of force in self-defense is permitted against an attack that has not yet occurred but is imminent. Still others consider the use of force in self-defense permissible against a threat that is not yet imminent. This is known as pre-emptive self-defense.
It is important to note that these concepts address the use of force for national self-defense. Unit self-defense is a separate concept to which Articles 2(4) and 51 of the UN Charter do not apply. Unit self-defense, as well as national self-defense, is addressed in Rules of Engagement.

14. Standing Rules of Engagement (SROE)
ROE are directives issued by competent military authority that delineate the circumstances and limitations under which US forces will initiate and/or continue combat engagement with other forces encountered
JP 1-02
The purpose of the SROE is to provide implementation guidance on the application of force for mission accomplishment and the exercise of self- defense
CJCSI B, SROE, Enclosure A, para 1(a)
Self-Defense
Mission Accomplishment
ROE
LOAC
Now that we have covered the law of war, we will see how the law is reflected in the rules that govern the use of force. The Standing ROE guides us on the circumstances and limitations on using force under two different applications: self-defense and mission accomplishment.
Let’s see how this might play out in the space domain and some of the challenges that we face.

15. SUP ROE: 0XX
SUPPLEMENTAL ZERO ZERO ZERO (OOO). CDRUSINDOPACOM, IN COORDINATION WITH CDRUSSTRATCOM, MAY AUTHORIZE DESTRUCTIVE ACTS AGAINST TERRESTRIAL C2 OF XXX ON-ORBIT SPACE ASSETS THAT HAVE COMMMITTED A HOSTILE ACT OR DEMONSTRATED A HOSTILE INTENT

16. Luch/Intelsat What can/should the U.S. do?
This is the struggle our senior leaders face. JAGs can advise on what a commander can do, but the decision maker will ultimately decide what we should do. The law is but one factor.

17. Questions?