LENS Essay Series: “State Practice and Military Objectives: International Humanitarian Law Regarding Military Applications of Otherwise Civil/Commercial Satellites”
Today I’m pleased to announce a new addition to the LENS Essay Series, and this one is a first: an essay by a Duke Law alumnus! Major Daniel (“Danny”) P. Beaulieu graduated from Duke Law in 2015 with his J.D. as well as a Master of Laws (LL.M.) in International and Comparative Law.
In 2022 Danny earned another LLM, this one in Air and Space Law from the University of Mississippi School of Law where he was awarded summa cum laude honors. (Lawfire® readers may remember Danny from these posts (here and here).
Danny has graciously allowed us to publish what is, in essence, his LLM thesis. His essay, “State Practice and Military Objectives: International Humanitarian Law Regarding Military Applications of Otherwise Civil/Commercial Satellites”, challenges a proposition discussed by Lawfire® contributor Dave Koplow in his post, “The Illegality of U.S. Space Policy” (which he discusses in more detail his law review article found here)
As the U.S. (and its allies) increasingly depend upon civilian satellites and satellite services in military operations, Danny’s essay is very much a timely issue – especially since, as the Atlantic Council put it discussing the conflict in Ukraine, “[c]ommercial satellites are on the front lines of war today”.
An abstract of Danny’s essay is below, but be sure to read his full essay (found here).
Abstract:
In his article Reverse Distinction: A U.S. Violation of the Law of Armed Conflict in Space, Professor David Koplow argues that the intermingling of military capabilities with civilian objects on satellites violates the requirement from Article 58, Additional Protocol 1, for combatants to protect civilians and civilian objects from the effects of attacks. This paper challenges that assertion in multiple ways. First, Professor Koplow’s argument requires that a satellite can be sub-divided into multiple objects for the purpose of conducting an analysis under IHL. In other words, a satellite must consist of both a protected civilian object and a lawful military objective. However, under either of the two currently accepted approaches for determining the granularity with which something must be analyzed in order to determine whether it comprises a lawful military objective, satellites should be considered a single object. Because satellites are a single object, they are either a protected civilian object or a lawful military objective — not both. For this reason, there can be no violation of Article 58.
Further, the widespread and consistent practice of States does not square with an interpretation of IHL that reads the practice of using otherwise civil/commercial satellites for military purposes as unlawful. To the contrary, the clear trend among States is to increase military uses of otherwise civil/commercial satellites. Interestingly, not only do States appear to be expanding their own military uses of otherwise civil/commercial satellites, but States also appear to be largely accepting of other States taking these same actions. This State practice must be considered when interpreting international law as it applies in outer space.
[1] DAVID KOPLOW, Reverse Distinction: A U.S. Violation of the Law of Armed Conflict in Space, 13 Harv. Nat’l Sec. J. 25, 79-83 (2022).
About the author:
Major Danny Beaulieu is an Operations Law Attorney and Space Law Instructor for Space Training and Readiness Command (STARCOM) in Colorado Springs, CO. After graduating from Duke University School of Law in 2015 with his J.D. and an LL.M. in International and Comparative Law, he commissioned as an active duty Air Force JAG officer.
He has previously served as a Chief of Military Justice and an Area Defense Counsel, and he recently graduated summa cum laude from the University of Mississippi School of Law with an LL.M. in Air and Space Law. In addition to his current duties, he is actively pursuing a Masters of Military Operational Art and Science from Air University.
Disclaimers:
*The views expressed in this article are solely those of the author and do not necessarily reflect the official policy or position of the U.S. Department of Defense, the U.S. Air Force, the U.S. Space Force, or any part of the US Government.
The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!
