Transcript International Humanitarian Law: Is It Sufficient for Space

Promoting Cooperative Solutions for Space Security
Is Current International Humanitarian Law
Sufficient to Regulate a Potential Conflict
in Outer Space?
Ben Baseley-Walker,
Legal and Policy Advisor, Secure World Foundation
[email protected]
+1-202-255-2153
www.SecureWorldFoundation.org
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Overview
Promoting Cooperative Solutions for Space Security
• International Law 101
• Foundations
• Jus ad bellum/ jus in bello
• General Principles
• The Application to Space
• Conclusions
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International Law 101
Promoting Cooperative Solutions for Space Security
– 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 doesn’t really work
given the nature of the field
• Less conventional ‘sticks’
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Foundations
Promoting Cooperative Solutions for Space Security
– 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?
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Jus ad Bellum
Promoting Cooperative Solutions for Space Security
• 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
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Jus in Bello
Promoting Cooperative Solutions for Space Security
• 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
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Key IHL Principles
Promoting Cooperative Solutions for Space Security
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.
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Principles in Relations to Space
Promoting Cooperative Solutions for Space Security
• 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?
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Key impact break-down
Promoting Cooperative Solutions for Space Security
• 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
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Conclusions
Promoting Cooperative Solutions for Space Security
• 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.
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Recommendations for Further Work
Promoting Cooperative Solutions for Space Security
• 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?
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Promoting Cooperative Solutions for Space Security
Many Thanks
[email protected]
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