David Koplow introduces “The Woomera Manual: A Handbook on the Military Law of Outer Space”

Today I am extremely pleased to have my friend, Georgetown Law Professor David Koplow, introduce to us the long–awaited Woomera Manual on the International Law of Military Space Activities and Operations.   Professor Koplow was an editor of the new Manual, and he shares with us some of the unique aspects of outer space law by using the perennial question of “demarcation” as an illustration.  Here’s David:

The Woomera Manual: A Handbook on the Military Law of Outer Space

By David A. Koplow

            Everybody talks about outer space, and everybody needs outer space – but nobody really knows where it is. 

            That is, outer space has become so thoroughly insinuated into the civilian economy and into the national security apparatus that we could hardly operate our modern structures or sustain our way of life without satellite services. 

           From the legal point of view, the international law applicable to space is unique – quite different from the legal regime governing human activities in the air, on the oceans, or on the ground.  And yet, there is no acknowledged legal boundary line defining where space begins or ends.

            That lack of a fixed, known boundary – the absence of an accepted “demarcation” or “delimitation” principle between air and space – is one of the important challenges addressed in the new Woomera Manual on the International Law of Military Space Activities and Operations. 

           This handbook, recently published by Oxford University Press, provides the first comprehensive presentation of the current intricate legal regime governing national security actions outside the atmosphere.  This short article, introduces the Manual and illustrates some of its key principles by focusing on this demarcation question.

          First, however, a brief word about the sheer fact that there is such a thing as the law of outer space.  People sometimes joke or complain that outer space is a “law-free zone,” akin to the Wild West, where anything goes.  Like most caricatures, there is some element of truth in that cartoon, but in reality there is a substantial corpus of international law regulating human activities in space – law that is widely accepted and complied with by the major players. 

           The foundational 1967 Outer Space Treaty, now joined by 115 countries, including virtually all the major spacefaring states, establishes the critical “constitutional” standards.  It has been supplemented by a series of three other important treaties, which together provide at least a modicum of legal infrastructure.

          On the other hand, the system lacks the true density of law that applies in other domains.  The foundational treaties are concise, lacking detailed elaboration, and they date to the 1960s and 1970s.  Since that era, the world has not been able to fashion additional increments of legally-binding accords, despite the incessant march of technology and the recent stark acceleration in private investment in space. 

          Outer space is not “law-free,” but it might well be described as “law-deficient,” because the world community has not demonstrated a willingness to supplement the important principles with sufficient implementing specifics.  In that chaotic environment, the Woomera Manual has to determine where the existing rules exist and where the persistent gaps linger.

Woomera Manual

            The Woomera Manual is the long-awaited result of years of rigorous toil by an outstanding cadre of international experts in law, technology, military science, and allied fields.  The experts met repeatedly (in a variety of global venues before the pandemic, and virtually thereafter) to analyze, debate, draft, and edit. 

           They generated a series of 48 black-letter rules summarizing states’ obligations and freedoms in space, divided into three sequential time periods: peacetime, periods of tension or crisis, and during an armed conflict. 

          The experts supplemented those rules with detailed commentary and explanation, to describe the content and context of each rule, delineate any exceptions, and provide illustrative examples.  At a deeper level of detail, voluminous footnotes provide citations to states’ public statements and behaviors, to establish the binding character of the rules (or, in several cases, the absence of clarity and uniformity of state practice).

            Throughout, the editors sustained a rigid focus on the lex lata (presenting the law as it currently is), without the proscriptive gloss of lex ferenda (the law as it might or should become).  The self-assigned mission in this enterprise is to provide a neutral, objective vademecum, free from the recommendations or policy prescriptions that ordinarily populate law review literature. 

            As one of the editors of the Manual, I can testify about the rigor and energy of the group’s discussions, as contrasting interpretations were offered and assessed, always with an eye on impartial summary of state lawmaking behavior.

            As a result of that lengthy analysis, experts’ views converged in interpreting the applicable law of space, but inevitably there were important gaps.  In a field that is still novel, with newly-emerging behaviors and rapid technological and economic change, it is not surprising that noteworthy lacunae still remain. 

          The Manual does not shy away from those interstices or volunteer to resolve them, but highlights the legal uncertainties they present.  One of the most important and vivid examples of such a conspicuous gap in the law concerns the unresolved question of demarcation of the vertical boundary line between the upper limit of the international regime of air and the lower limit of the regime of space.

Air Law vs. Space Law

            The absence of an accepted dividing line is particularly important because the two contrasting legal orders are very different, starting with the foundational principles.  In space, the touchstone is broad freedom of access and operation, without sovereign control. 

           The Outer Space Treaty grandly proclaims that space “shall be free for exploration and use by all States,” that space “is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means,” and that states shall “carry on activities in the exploration and use of outer space…in accordance with international law, including the Charter of the United Nations.”

            Accordingly, in space, every state has the unfettered right to overfly every other state, without providing advance notification or requesting permission, for almost any purpose.  No state can exclude or limit another state’s maneuvers, exploration, or access to resources.  No state can validly claim that “this part of space is mine” and purport to exercise sovereign claims or jurisdiction.

            In stark contrast, the international legal regime applicable to air is precisely the opposite, being grounded in the tenets of state sovereignty.  Under the 1944 Convention on International Civil Aviation, each state holds “complete and exclusive sovereignty” in its airspace.  

           Each state is authorized and expected to claim sovereignty in all the air superjacent to its land territory, and to exercise similar authority in both domains.  A state may exclude others from entering its airspace; it may discriminate between those aircraft it does allow to enter; and it may charge fees, limit the activities conducted, or insist upon reciprocity. 

            In earlier generations, people had pondered how high up the rights of a landowner or a territorial sovereign would extend – do legal claims based on the land extend infinitely upward through the skies into the heavens?  Today, the world has determined an answer – or, rather, two answers — to that question. 

          Regarding air, the default position is that the territorial sovereign does reign supreme.  Regarding space, however, a different rule has been specified by the 1957 overflights by Sputnik and its successors, generating “instant customary international law,” and by the negotiated, signed, and ratified provisions of the Outer Space Treaty.  But if the law of space is so different from the law of air, where is the dividing line between them?

Demarcation of Air and Space

            No treaty articulates a boundary between air and space, and state practice has not solidified around any demarcation principle or practice.  As a practical matter, users (both state actors and private corporations) have to operate differently in the two milieus.  Vehicles that rely on aerodynamics for lift and maneuver have difficulty sustaining operations above ten miles or so, as the air becomes impossibly thin.           

Conversely, satellites find it unsustainable to operate lower than about one hundred miles, because their high speed is incompatible with the drag from even the few air molecules at those levels.  But those limits are imprecise and they reflect only our current technology, which may evolve further.  Moreover, the density of the upper atmosphere is far from uniform, varying with latitude, temperature, and space weather.

            Therefore, many have proposed the construction of a rigid legal boundary, via a future binding international legal instrument, segregating air and space at perhaps 60, 80, or 100 miles altitude.  The so-called “von Kármán line” has been a popular target, to identify activities above 100 kilometers (62 miles) as occurring space. 

           But there has been no genuine consensus.  Sometimes (mostly as a novelty or public relations gambit) governments or corporations award “astronaut wings” or similar badges to tourists and others who ascend above 50 miles – but there is no legal significance to such trinkets.

           Some authorities, including the U.S. government, have long maintained that there is no current necessity for a legal demarcation line – no activities in air or in space have been interrupted or deterred by the absence of a clean boundary. 

          Perhaps, therefore, the world should further defer the demarcation debate until the relevant interests and stakes have further coalesced.  Some also maintain that perhaps instead of a single divisor, the law could create a series of different frontier lines for different purposes. 

          For comparison, the 1982 Law of the Sea Convention establishes a series of concentric zones, radiating out from the shore, balancing the interests of the coastal and seafaring states in different ways, through the Territorial Sea (reaching out to 12 nautical miles from the baseline along the shore), the Contiguous Zone (out to 24 miles), the Exclusive Economic Zone (out to 200 miles), the Continental Shelf (which can usually extend to 350 miles and beyond).

            The most relevant international forum, the Legal Sub-committee of the United Nations Committee on the Peaceful Uses of Outer Space (COPUOS), has been engaged in the question of the definition and delimitation of outer space for decades.  Despite thorough airing of rival perspectives, no consensus has been achieved there, either, and none is in the immediate prospect. 

           Two alternative schools of thought have emerged: a “functionalist” approach (which focuses on the different ways that air and space are actually used and regulated, and generally denies the necessity for a strict legal definition) and a “spatialist” approach (seeking to recognize a clear boundary line, based on scientific criteria or the contemporary uses of the domains).  But these debates have not resolved the deadlock among states.

            In the Woomera Manual, the editors had no choice but to faithfully report this indeterminacy.  The international law on point is simply unresolved, and practitioners need to be aware of both the high stakes that surround the demarcation question and the uncertain nature of the topic.  Notably, different states may assert different positions on the question of “where is outer space?” including the possibility of offering varying opinions for varying circumstances.

It is hoped that even when the law is chaotic, the Woomera Manual can be of assistance to government practitioners, private space actors, academics, military authorities, journalists, and others.

About the Author

David A. Koplow is Scott K. Ginsburg Professor of Law at the Georgetown University Law Center.  He was an editor of the Woomera Manual on the International Law of Military Space Activities and Operations.  He joined the Georgetown Law faculty in 1981. His principal courses have been International Law I (the introductory survey of public international law topics), a seminar in the area of arms control, non-proliferation and terrorism, and the pro-seminar for LLM students in national security law.

His government service has included stints as Special Counsel for Arms Control to the General Counsel of the Department of Defense (2009-2011); as Deputy General Counsel for International Affairs at the Department of Defense (1997-1999); and as Attorney-Advisor and Special Assistant to the Director of the U.S. Arms Control and Disarmament Agency (1978-1981). He is a graduate of Harvard College and Yale Law School and a Rhodes Scholar.

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!