Ted Richard reviews “The Woomera Manual on the International Law of Military Space Activities and Operations”
Today Lawfire® contributor Ted Richard gives us a very scholarly review of the new Woomera Manual on the International Law of Military Space Activities and Operations.
Ted tells us that the Woomera Manual is “a success in no uncertain terms“ and says it is “essential reading for anyone practicing space law in the international sector, especially those advising on military space operations.”
At the same time he offers what he says are “limited” critiques. He finds:
“While there is much to be praised in Woomera, it occasionally fails to adequately capture US positions on certain law-of-war rules. When it comes to indiscriminate weapons, Woomera struggles to articulate solid hypotheticals. Finally, the manual does not weigh in to the legal debates over the distinction rule and the military use of commercial space capabilities.”
In my view it is imperative that national security law scholars and practitioners get spooled up on the rapidly growing field of space operations. Consequently, this extremely thoughtful critique by one of the nation’s top law of war experts is very much worth a read. Here’s Ted:
A Review of the Woomera Manual on the International Law of Military Space Activities and Operations
(edited by Jack Beard and Dale Stephens with David Koplow. Oxford University Press, 2024, 439 pp.)
by Colonel Theodore Richard, USAF*
Academics, humanitarian organizations, and other experts have been writing and publishing manuals on law of war applications to various domains for several decades. Diplomats and military service members, often acting in their personal capacities, helped shape these works. The first of these modern efforts was the San Remo Manual on the International Law Applicable to Conflicts at Sea, published in 1994.
This was followed by Harvard University’s Program on Humanitarian Policy and Conflict Research, which published the HPCR Manual on International Law Applicable to Air and Missile Warfare and its commentary. For cyberspace, international experts published the Tallinn Manual on the International Law Applicable to Cyber Warfare, followed by the updated Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations. The McGill Manual on International Law Applicable to Military Uses of Outer Space published its rules manual in 2022, but has yet to release the important commentaries. All these efforts purport to be lex lata — restatements of existing international law.
This tradition continues in The Woomera Manual on the International Law of Military Space Activities and Operations. The manual’s name is taken from an Australian space launch range and associated township. Their name is taken, in turn, from a Dharug word for an Aboriginal spear- throwing device similar in function to an atlatl. The Woomera Manual represents a monumental effort by the editors, working with over thirty international legal and technical experts, to write an accurate and concise treatise on space law and State practice, coordinated with the International Committee of the Red Cross and twenty-four States.
Like the other domain-oriented manuals, Woomera strives to align international legal rules for military operations existing in terrestrial domains with space law while emphasizing State practice. The results are often anticlimactic as the manual frequently finds that there is insufficient State practice to reach definitive conclusions on applications of rules to space activities. However, its honest acknowledgement of the lack of State practice and the corresponding lack of opinio juris is a significant triumph of the Woomera Manual.
Indeed, the Woomera editors were mostly able to avoid the temptation of filling in legal voids with expert opinions lacking a basis in either State practice or State declarations of international law positions. In my opinion, Woomera is essential reading for anyone practicing space law in the international sector, especially those advising on military space operations. My critiques are limited. Readers should approach all non-state expert manuals with a degree of trepidation – Woomera is no exception to this.
While there is much to be praised in Woomera, it occasionally fails to adequately capture US positions on certain law-of-war rules. When it comes to indiscriminate weapons, Woomera struggles to articulate solid hypotheticals. Finally, the manual does not weigh in to the legal debates over the distinction rule and the military use of commercial space capabilities.
Expert Manuals
While Woomera and the other domain-specific legal manuals all provide helpful advice to practitioners and policy makers, readers always need to be mindful that definitive sounding rules they contain may not reflect their State’s understanding of international law rules. This observation gets to the heart of the nature of international law.
As Anthea Roberts observed in Is International Law International?, different national communities of international lawyers have different constructs for understanding international law that belie universality. States, not experts or advocacy organizations, are the relevant agents in international law. Thus, from a government practitioner’s standpoint, a manual’s stated rule is really only a rule when the practitioner’s State acknowledges as much.
This is true even when the purported rule is based in treaty language or opinions of an international tribunal. While treaty terms should be interpreted in good faith, State interpretations may be at odds with each other. States may have differing reservations to treaty provisions.
States, like the United States, may not be a party to important treaties but nonetheless may recognize certain provisions as customary international law (i.e., the UN Convention of the Law of the Sea, and the First Additional Protocol to the Geneva Conventions of 1949 (AP I)). States may also have complex or conflicting positions on international tribunals like the UN’s International Court of Justice, which, in turn, issues opinions that are non-binding except to parties of a particular dispute. (Statute of the International Court of Justice, article 59.)
Practitioners need to know where to find their State’s official positions on international law. United States practitioners would look to the Supreme Court opinions and those of other federal courts, foreign courts, and views of the Executive Branch expressed in Presidential statements, Department of Justice Office of Legal Counsel opinions, State Department assertions, and other sources. (Restatement 3rd Foreign Relations Law of the U.S., § 112.)
The DoD Law of War Manual is authoritative guidance for those in the US military, but military manuals may be a problematic source for determining another State’s sense of legal obligations. The DoD Law of War Manual does not even purport to speak for the entire US government.
Heavy reliance on military manuals was part of the critique of the ICRC Customary International Humanitarian Law study made by the US State Department Legal Adviser and DoD General Counsel. The Woomera Manual acknowledges State objections to the methodology used for the ICRC study, but then extensively relies on military manuals throughout.
Manuals, like Woomera, bring together experts for a consensus on lex lata opinions, framed as rules. To the extent that one of the main benefits of international law is conveying legitimacy to a State’s actions, having a consensus opinion from experts may prove consequential. Democratic States need popular support for their actions and legal compliance plays a role in that. States are also concerned about how their allies and partners perceive them, so these expert manuals help achieve a degree of “legal interoperability.”
Moreover, States, their courts, and international tribunals rely on these manuals to determine the law. In fact, the ICJ Statute treats published expert opinions as equivalent to court opinions: “judicial decisions and teachings of the most highly qualified publicists of the various nations” are “subsidiary means for the determination of rules of law.” (Statute of the International Court of Justice, article 38(1)(d).)
However, expert manuals, even when expressly limited in scope, may prove to be problematic when they define rules out of synch with a State’s understanding of requirements or when a State may not have reached a final opinion. The debates over the Tallinn Manual 2.0’s sovereignty “rule” are a notable example. (See, e.g., here, here, here, here, here, here, here, and here.) Rules set forth in other expert manuals have also been criticized. (See here, here, and here.)
The Woomera Manual will doubtless play an important role in shaping academic and international discourse about the law applicable to military space operations. Practitioners need to be mindful that its rules do not carry the force of law. While these rules and expert commentaries may be persuasive, they need to be scrutinized.
The Woomera Manual, in my personal opinion, is commendable in most regards, does not accurately reflect customary international law in a few areas, and omits discussion of some legal questions that exist in the public sphere.
The Good
As mentioned above, the strength of the Woomera Manual is in identifying the lack of opinio juris on key space law concepts. It identifies areas where there is either no widespread State practice, or where there is no declared legal basis for actions.
This is best illustrated by rules on zones, due regard, and harmful interference. Safety zones are a key feature of the Artemis Accords, which are non-binding State commitments for civil space operations. Woomera details a legal theory for how these zones could function, emphasizing the lack of State practice and corresponding inability to treat zones as being based in settled law.
Similarly, Woomera underscores the reality of the 1967 Outer Space Treaty (OST), with broad obligations and lack of State practice to define legal parameters. In Article IX of the OST, State parties commit to “conduct all their activities in outer space, including the Moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty.” They also agree to undertake “appropriate international consultations” before engaging in an activity or experiment that “would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space[.]”
Woomera helpfully addresses the negotiating history of “due regard” and “harmful interference.” It discusses the use of these terms in other international legal domains. Then Woomera details how State space activities, such as some anti-satellite (ASAT) tests, have been dangerous and irresponsible without being characterized as a violation of Article IX of the OST. Thus, no real legal standards can be discerned from State practice.
Woomera’s commentary on the registration of space objects is praiseworthy as well. It provides a concise, readable, yet complete explanation of the general registration regime and associated challenges that result in unregistered, inaccurately registered, and vaguely described space objects. While the commentary covers State practices associated with registration, it sticks to lex lata and generally steers away from recommending changes to the regime.
The experts drafting Woomera also did a masterful job on the controversial belligerent reprisal rule. Belligerent reprisals are uses of force in an international armed conflict in violation of the law of war undertaken with strict conditions in response to the adversary’s violation of the law of war. Woomera covers the conditions for such reprisals, the subjects prohibited by the Geneva Conventions, and the difference between States parties to AP I and non-party States. It also raises space-specific reprisal issues, such as the treatment of astronauts.
The Disappointing
As a United States military lawyer (writing this review in my personal capacity), international law as recognized, interpreted, and applied by the United States is of paramount importance to my practice. The Woomera Manual reflects a consensus of opinions on what experts believe international law to be. Unfortunately, it shorts U.S. interpretations and applications of the relevant law, which, in turn, hampers potential legal interoperability benefits.
While the Woomera Manual recognizes that the belligerent reprisal rule differs between AP I States and others, it fails to make this distinction for other rules. The United States, a major space power, is not a party to AP I. Indeed, the United States rejected this treaty as “fundamentally flawed,” while recognizing certain aspects as reflective of customary international law.
When Woomera discusses the applicability of AP I to military space operations early in its overview of its armed conflict section, it does not effectively caution readers about the complex treatment of AP I by the United States. There is merely an early footnote in Woomera’s armed conflict section noting that the United States is a non-party to AP I in the context of explaining that it applies treaty-based and customary law-of-war rules to space activities.
Since the United State treats much of AP I as customary international law, simply declaring that it is a non-State party as part of an early footnote is not helpful. Woomera’s section on the applicability of AP I to space operations should have reiterated the general complexities of the US position.
Instead, the section appears to be written for AP I States only, asserting “that Articles 48-67 of Additional Protocol I should, where possible, be applied to military space operations.” Perhaps the caveat of “where possible” was intended to present a caution about non-AP I States. If that was the intent, however, it is unclear.
Along these lines, Woomera’s discussion of lawful military objective treats the US position on “war-sustaining” objectives too superficially. By treaty, military objectives are “limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”
The US position, captured in federal law, is that “military action” includes the “object’s effective contribution to the war-fighting or war-sustaining capability of an opposing force.” (DoD Law of War Manual ¶ 5.6.6.2.)
Woomera says that the US position appears to be at odds with Article 52(2) of AP I and implies that the US justification is based on not being a party to AP I. The US, however, is a party to other treaties with a substantially identical definition of military objectives. The US simply interprets the definition differently than other States.
Professor Ryan Goodman has shown that in practice States do often attack their adversaries’ war-sustaining capabilities, such as the economic infrastructure used to generate revenue for an enemy’s armed forces. The belligerents in the Russia-Ukraine war (both are AP I State parties) have attacked the each other’s economically vital infrastructure (agricultural and energy) far from front lines of combat.
When Woomera discusses proportionality in attack, it completely omits mention of the US position on war-sustaining objectives. The proportionality rule prohibits attacks when the expected “loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, … would be excessive in relation to the concrete and direct military advantage anticipated.”
According to Woomera, economic advantages are not relevant to the proportionality calculation. Woomera readers may be surprised to know that this is expressly contrary to the DoD Law of War Manual ¶ 5.6.8. For economic targets, the US does not treat all revenue-generating objects as valid, but requires a case-by-case assessment of the object’s revenue generation and its specific contributions to an adversary’s military capabilities.
The Indiscriminate
The Woomera Manual struggles with capturing clear examples of indiscriminate weapons and attack. AP 1 Article 51(4) and (5) defines indiscriminate attacks as those “not directed at a specific military objective[;]” attacks that treat a “single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects[;]” or attacks that that violate the proportionality rule. Indiscriminate weapons are those which are incapable of being “directed at a specific military objective” or “of a nature to strike military objectives and civilians or civilian objects without distinction.”
The DoD Law of War Manual ¶ 6.7.2 translates this as whether a weapon’s use would violate the principles of distinction and proportionality in all circumstances. It cites World War II examples of Japanese balloon bombs and German unguided rockets as examples of illegal weapons (¶ 6.7.3) – along with bats with tiny incendiary bombs tied around their necks.
However, the DoD Manual emphasizes that weapons whose destructive force cannot be limited to a specific military objective are allowable so long as the weapon can be used for a proportionate attack (¶ 6.7.3). An example of an illegal, indiscriminate weapon would be a contagious biological weapon which would have uncontrollable effects on civilians.
Woomera’s examples of indiscriminate space weapons are more dubious. The first example is that of an “electromagnetic pulse weapon” that is “deployed in space to attack a specific target” but that “cannot limit or control its widespread and damaging effects so as to avoid or minimize harm to persons or objects protected by the law of armed conflict[.]”
Woomera’s hypothetical does not have a satisfactory discussion of the effects of such an EMP weapon. The detonation of an EMP weapons would likely severely damage or completely disable any and all satellites within line-of-sight. Longer term radiation exposure may degrade satellites for years, depending on the orbits.
In other words, an EMP weapon is a space denial weapon that is likely to damage or degrade space-based capabilities, either overall or in specific orbits. While such a weapon could be directed at a specific military target, a belligerent would be unlikely to use it to attack a single satellite as it seems to be more of an area or orbital denial weapon. The test for it being indiscriminate should look at its possible use against a specific target as proportionate, not merely whether it can be limited to a single military objective. For some belligerents, the military advantage to such an attack would be significant.
While Woomera’s discussion of an EMP weapon as indiscriminate is unsatisfactory, the Manual’s other example of an indiscriminate weapon is really strange:
[C]onsider the case in which State A has a direct-ascent ASAT. During an armed conflict with State B, the latter party embeds malware in the ASAT control system that makes its target acquisition unreliable. Although State A discovers the malware and is unable to eliminate it or otherwise repair the guidance system, State A decides to employ the system regardless. In these circumstances, the likelihood that the ASAT will strike a military satellite is accordingly reduced. The use of the system would be indiscriminate and thus prohibited … .
What State would ever fire a weapon when it knows an adversary’s malware is on it? Would an ASAT without a reliable guidance system hit anything? If the ASAT can’t hit anything, it really is indiscriminate? Was this hypothetical an attempt to substitute ASATs for bat bombs? Is it trying to say that less accurate weapons are indiscriminate?
The Omitted
The Woomera Manual’s strength is that it tries to articulate existing law as clearly as possible, placing reliance on State practice and the views of Governments. However, this appears to have stopped the authors from discussion at least one controversial issue.
Notably, Professor David Koplow, one of the editors of the Manual, previously wrote that the U.S. policy of relying upon “dual use” commercial satellites for military purposes violates the law-of-war principle of distinction. His argument, made in 2022, is well articulated and compelling, although it has been disputed. Maj Danny Beaulieu, for example, points to widespread and consistent practice of States for the military use of commercial satellites. Militaries may not have practical alternatives to using commercial space capabilities.
Despite Woomera including a rule on distinction, it does not raise or discuss Professor Koplow’s concerns. Perhaps he raised the issue too late for consideration in the editing and review process. The Manual would have been a perfect venue to discuss this question, the practices of States, and their policies. Unfortunately, it is silent.
Conclusion
In total, my critiques of the Woomera Manual are minor and are center around the complex relationship the United State has with AP I and customary international law. The rules implicated by this are not likely to be encountered by most practitioners. Woomera’s treatment of military activities during peacetime and crisis are phenomenal. Since there has yet to be armed conflict in outer space, the challenges for the Woomera authors in articulating the application of rules are totally understandable. Overall, the Woomera Manual is a success in no uncertain terms.
About the author:
Colonel Theodore Richard is a United States Air Force Judge Advocate and is currently serving as the Staff Judge Advocate at Space Operations Command. He has served in multiple assignments focused on operations law matters to include at the Combined Air Operations Center at Al Udeid Air Base in Qatar, the 603d Air Operations Center at Ramstein Air Base in Germany, and at United States Strategic Command.
Disclaimers:
- The views expressed are those of the author and do not reflect the official guidance or position of the Department of the Air Force, United States Department of Defense (DoD), or the U.S. Government. The appearance of external hyperlinks does not constitute endorsement by the DoD of the linked websites, or the information products or services contained therein. The DoD does not exercise any editorial, security, or other control over the information you may find at these locations.
The views expressed by guest authors do not necessarily reflect my views, 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!
