Sqn Ldr Tara Brown on “New outer space situations and a lack of State Practice: the utility of analogies”

Today I am extremely pleased to welcome back Lawfire^®  contributor Squadron Leader (Sqn Ldr) Tara Brown of the Royal Air Force.   Sgn Ldr Brown is currently working towards her PhD while teaching at the U.S. Naval War College where she specializes in space law.

In this post she continues Lawfire’s examination of space law by focusing on the importance of being cautious about applying analogies from other domains to the law of outer space.  In a real way, it confirms what we’ve said on Lawfire several times: in law, words do matter.  Here’s the latest from one of the rising (risen!) stars of the space law community:

New outer space situations and a lack of State Practice: the utility of analogies

by Sqn Ldr Tara Brown

Without doubt, the importance of space cannot be understated. It is critical to national security, essential to the operation of missile detection systems. We use space capabilities for transport, communications, agriculture, shipping, fishing, environmental monitoring, disaster relief, banking transactions, scientific research, weather forecasting, and space exploration. Space underpins a range of military functions – from global communications, to navigation, targeting and missile precision, to intelligence collection.

A glimpse into the utility of space during armed conflict is illustrated by Ukraine’s use of Starlink for a range of functions, raising important questions such as the legality of targeting civilian space systems (as noted by a Russian official – “commercial satellites may become a target for retaliation,” and acknowledged by the US – “we anticipate that adversary nations are unlikely to discriminate between U.S. military satellites and commercial satellites providing services to the U.S. Government”).

Use of commercial satellite imagery is particularly useful in terms of monitoring movement of enemy troops, on the flip side it has been used to time an evacuation mission ahead of a planned attack, and it has also demonstrated its value for rebutting allegations of War Crimes. 

Space is often referred to as contested, congested, and competitive – the domain is becoming more accessible; the protection of space infrastructure, support systems, and the environment are a live challenge, particularly as adversary and non-State actor threats to space are on the rise.

The Outer Space Treaty (OST), crafted in 1967, contains a range of range of duties and obligations, as do other conventions such as the International Telecommunications Union (ITU) Regulations – but how should these be interpreted where they are ambiguous, where there is limited State Practice and opinio juris, or where there have been events that perhaps did violate the law, but States have exercised silence?

For centuries the military have used historical analogies and applied lessons learned during armed conflicts in the development and evolution of national military doctrine. Analogical reasoning certainly can have its place in the development of the law, but this short piece considers how legal analogies may (or may not) be useful with regards to outer space specifically.

You will see a lot of people comparing outer space to cyber space purely because it is one of the newer domains – but unlike cyber, there is a dedicated Treaty.

Obligations relevant to the security and sustainability of space include, but are not limited to, the obligation to avoid harmful (forwards and backwards) contamination, exclusions on certain weapon types (nuclear and weapons of mass destruction) in certain circumstances, a duty to conduct international consultations where an activity might cause potentially harmful interference, and a duty to ensure activities are carried out with due regard for the interests of other States.

My two BLUF points of note in relation to the utility of making legal analogies for outer space are:

1. 1. There is no need to use analogies to confirm that a general rule of international law or IHL is applicable to outer space, Article III of the OST already does this. However, analogies may be helpful to clarify meaning and interpretation.
   2. As to clarifying the meaning of a certain provision or obligation within space law, while analogies can be useful as a tool to guide the interpretation and development of international law, there are reasons as to why it may be inappropriate to attach the same meaning to the interpretation given to similar provisions that exist in other domains. Caution must be exercised.

The physics of space are unique and so the practical application of the law is different, and the travaux préparatoires may also indicate that a different meaning was intended, despite similar or identical wording in some provisions, and of course precedence is given to such sources versus analogies when it comes to treaty interpretation.

There are many examples we could explore – including space traffic management v air traffic management, the use of military zones in air v space (NB international air law has sovereignty provisions and allows these, but space has no sovereignty and Article II of the OST contains a non-appropriation provision), and the protection of persons and objects in IHL and how this might apply and be achieved in space.

The two aspects of space law that I will analyse to consider the utility of analogies in this domain are:

1. 1. The peaceful purposes principle – and why it is not appropriate to rely on analogies.
   2. The obligation of due regard – the standard is relevant, but we must be careful to ensure we are applying it flexibly as this is a different context, and it is important to be mindful of State practice.

Peaceful purposes

The reference to “peaceful purposes” appears in the OST – first in the preamble whereby activities and use of outer space should be in accordance with peaceful purposes, and then also in Article IV of the OST which requires that celestial bodies are used for exclusively peaceful purposes.

Significantly, the term “peaceful purposes” appeared in the Article 1 of the Antarctic Treaty:

“Antarctica shall be used for peaceful purposes only. There shall be prohibited, inter alia, any measures of a military nature, such as the establishment of military bases and fortifications”

As noted in the introduction to this piece, military uses of outer space are extensive. Regards Antarctica, peaceful purposes equates to non-military. Conversely, for space it is quite the opposite. It becomes clear on a reading of the travaux préparatoires for the OST that it was not intended that the military should be excluded from operating in outer space. Therefore, an analogy in this sense would be wrong.

As summed up by Jean-Pol Poncelet, Director of Strategy and External Relations of the ESA and the former Defense Minister of Belgium:

“It seems, on regarding the wording ‘for exclusively peaceful purposes’ in Article II of the ESA convention, it no longer has the meaning intended at the time by the founders in the context of the cold war. For us today, it basically comes down to non-aggressive.”

This is consistent with the State Practice of using space for military purposes, as well as the reluctance of most States to sign or ratify the Moon Treaty which prohibits hostile activity and could therefore prevent a State from responding in self-defense.

The key takeaway here is that even when it seems obvious to apply an analogy, for example where similar language is used in two or more treaties, there are sometimes key and deliberate differences so with analogies it is always important to go back to the preparatory work and discern the intent of the drafters.

In-fact, during the negotiations for the OST France actually emphasized that “theoretical discussions should be avoided and, as the law of outer space was a new field, the Committee should be careful not to argue by analogy.”

Australia adopted a similar position, commenting on analogies made with scenarios in the land domain when international air law was being developed and noting that situations are “seldom if ever really identical, and the appropriateness of an analogy must always depend on the closeness of the comparison. In a field such as outer space… it was peculiarly difficult to isolate features in which really fruitful analogies could be based.”

Due regard

Contained within Article IX of the OST is a requirement that in exploration and use of outer space, States shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities with due regard to the corresponding interests of all other States Parties to the Treaty.

Due regard is also referred to in environmental law, air law, and is a recurring theme in maritime law. The provision most comparable to the space domain is that codified in Article 87 of the United Nations Convention on the Law of the Sea (UNCLOS), which sets out various freedoms enjoyed by States in the high seas but requiring that States exercising such freedoms do so with due regard to the interests of other States.

The high seas are also an area without territorial jurisdiction – therefore the standard of due regard is still relevant, but it is being applied in a different context.

Due regard was articulated by the Permanent Court of Arbitration in the Chagos Marine Protected Area Arbitration as requiring States to have such regard for the rights of other States as is called for by the circumstances and nature of those rights.

There are a range of activities in space which may call for the exercise of due regard – for example, anything from what safety zones in space might look like, how operations on the lunar service should be carried out, through to how to conduct debris removal with due regard. For each of those aforementioned activities there are several ways in which a State may demonstrate how it will discharge its obligation of due regard.

Taking the meaning attributed to due regard in other domains, ASAT testing in outer space is one example of an activity in space that would seem to be relatively obviously in violation of the principle.

In particular, China’s 2007 ASAT created over 3500 large trackable pieces of debris, over 70% of which remain in orbit and Russia’s 2021 ASAT created over 1700 large pieces of debris, nearly 20% of which remain in orbit. No State has identified such conduct as violating the due regard principle contained within Article IX of the OST.

As such, while an analogy can be drawn with maritime, it is not as simple as saying “activity X violates due regard on the high seas, so in a space context activity Y would violate due regard.”  Ultimately, State practice is of much greater significance and State practice has, historically, shown a high tolerance for what is (on the face of it) irresponsible behaviour in space.

The UN work on developing internationally accepted responsible space behaviours, alongside other soft law initiatives such as the U.S. tenants of responsible behaviors, may refer to due regard – a hard law obligation, and perhaps any consensus reached among States as to what this looks like and requires will help formulate an understanding of the correct interpretation applicable to space.

Concluding thoughts

As with a lot of international law, certain provisions lack clarity and as threats to space capabilities continue to grow, both above and below the threshold of War, it is more important than ever to understand the point at which actions violate the law.

As to what analogies can offer, the key takeaway is that they can be helpful, but there are significant limitations to their utility in this domain. The words of the drafters, together with an examination of State practice, emphasize the need to exercise caution when looking to apply analogical reasoning in this domain.

About the author

Squadron Leader Tara Brown is a commissioned officer in the Royal Air Force and currently serves as a military professor at the Stockton Center for International Law at the U.S. Naval War College, where she co-teaches a course on Air, Space and Cyber Law. She is studying for her PhD in space law and has been involved in the State Consultation process for the Woomera Manual on the International Law of Military Space Activities and Operations.  She has served in various assignments including prosecuting and defending at court martial, a deployment to the Combined Air Operations Center and most recently advising a wide range of policy clients within U.K. Headquarters Air Command.

Disclaimers: 

The views expressed in this essay are those of the author alone and do not necessarily reflect the official policy or position of the Naval War College, the US government, or the U.K. government

The views expressed by guest authors do not necessarily reflect my views or those of the Center on Law, Ethics and National Security, or Duke University.  See also here.

Remember what we like to say on Lawfire: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!