Prof Laurie Blank on the “Status of Woomera Manual on International Law Applicable to Conflict in Outer Space” (and more!)
Last week the Defense Intelligence Agency released a report, “Challenges to Security in Space — 2022” which points out that the “combined in-orbit space fleets of China and Russia grew more than 70% in just over two years, evidence of both nations’ intent to undercut U.S. and allied global leadership in the space domain.” The report has an amazing amount of information about adversary threats and capabilities, but a remarkable dearth of discussion about the law.
This is no small matter since about a year ago U.S. Space Force commander General John Raymond said “There are really no norms of behavior in space. It’s the Wild, Wild West.” Noting there were just four treaties that related to outer space (the last enacted in 1984), he contends that “Other than that, there’s no rules.”
Actually, there are rules. For example, the U.S. Department of Defense Law of War Manual says:
[L]aw of war treaties and the customary law of war are understood to regulate the conduct of hostilities, regardless of where they are conducted, which would include the conduct of hostilities in outer space. In this way, the application of the law of war to activities in outer space is the same as its application to activities in other environments, such as the land, sea, air, or cyber domains.
In addition, Lawfire readers know, Professor David Koplow recently addressed the principle of distinction with respect to satellites (see here), and prior that I explored this question: “Are commercial satellites used for intelligence-gathering in attack planning targetable?”
Still, General Raymond’s real point seems to be that the interpretive norms applying existing law to the domain of outer space is mostly underdeveloped or even wholly wanting.
Those who saw our 27th Annual National Security Law Conference last February learned from Emory Law Professor Laurie Blank that there was a project nearing completion that attempts to speak about the law and its attendant norms in the context of outer space. The video of her presentation is found here.
Appropriately enough, Laurie’s talk was entitled the “Status of Woomera Manual on International Law Applicable to Conflict in Outer Space.” She explained that the project aims to be “a compilation of what is the existing law, on the international law applicable to military operations in outer space.” She advised that the now six-year effort involved an “international group of experts on international space law, and the law of armed conflict and the use of force.” She adds:
The goal of this enterprise is to provide a useful resource for states, for international organizations, for private entities, really for anybody who’s going to encounter the questions and issues that might come up in these situations. It’s, again, not to make new law, but to try to take a lot of complicated things and at least provide analysis of them in one place.
Outer space inevitably will provide scenarios that have yet to be considered. Here’s one Laurie provided:
Imagine that two countries with space capabilities are engaged in an armed conflict, right, and one or both of them have military astronauts doing something in outer space. Are those astronauts envoys of all humankind, meaning they are protected, you can’t hurt them, and if they end up leaving outer space, perhaps unintentionally deorbiting in some way and landing on your territory, you’ve got to give them back to their home country?
Or are they military personnel, because if I look at that through the law of war lens, they are lawful targets at all times in an armed conflict and they are POWS if I capture them? Well, which one is it?
She gives her answer on the video, so be sure to watch!
As the conflict in the Ukraine was at the time (Feb 25) just getting underway, I asked her to share here expertise with the audience on some of the emerging issues. Laurie graciously agreed and spoke to such issues as whether or not the provision of weapons and war materials to a belligerent in an international armed conflation would make the providing nation co-belligerent in that conflict with the recipient. (Before the tape ran out she also spoke to the legal concept of a levee en masse).
Again, you can watch (or listen to) the video here.