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Published: 1 December 2008
Air & Space Power Journal - Winter 2008

Defense of US Space Assets

A Legal Perspective

Capt Adam E. Frey, USAF

The U.S. is more dependent on space than any other nation. Yet the threat to the U.S. and its allies in and from space does not command the attention it merits.”¹ This was the conclusion of a space commission headed by former secretary of defense Donald Rumsfeld, warning of a possible “space Pearl Harbor” incident that could exploit the vulnerabilities of US space assets. Gen Lance Lord, former commander of Air Force Space Command, similarly warned that a loss of space assets “not only cripples our land, air and sea forces but . . . would have catastrophic consequences to our entire economy.”² For example, the accidental loss of a single satellite in 1998 disrupted pagers, television, and radio broadcasts worldwide.³ It takes little imagination to consider the resulting chaos if multiple satellites were destroyed simultaneously.

The possibility of a space Pearl Harbor is very real. On 11 January 2007, exactly six years after the Rumsfeld report, the People’s Republic of China steered a missile into one of its own aging weather satellites, bringing this hypothetical danger one step closer to reality.⁴

China’s test reignited the debate over whether and how the United States should prepare for space warfare. Because of its heavy commercial and military dependence on satellite technology, America has good reason to take notice of this test. The Air Force, one of the largest contributors to satellite operations, has a particular interest in learning how China accomplished this feat and, more importantly, how the United States can defend its satellites from similar attacks.

When developing satellite-defense strategies, one must consider a particularly important factor—the law. This article examines how relevant treaties and legal principles affect space warfare. First, it outlines the pertinent international space law, focusing on both United Nations (UN) treaties and conventions and the principles of the Law of Armed Conflict (LOAC), and then analyzes the legality of China’s test under these bodies of law. Finally, it discusses the options available to the United States, explaining why the best legal and practical choice is to design better satellites and limit the extension of warfare into outer space.

Overview of Space Law

Any legal analysis of space activities must begin with the UN’s Outer Space Treaty of 1967, which establishes the basic legal principles and prohibitions relevant to space.⁵ Its first two articles set the framework by declaring that nations have “freedom of scientific investigation in outer space” and that space and celestial objects (such as the moon) cannot be owned.⁶ The broad concept is that all nations will share space.

Articles 3 and 4 of the treaty significantly restrict military activity in space. Under Article 3, states must conduct their space activities “in the interest of maintaining international peace and security.” Article 4 prohibits placing “nuclear weapons or any other kinds of weapons of mass destruction” into orbit or permanently affixing them to a celestial body. Furthermore, the moon and other celestial bodies may be used only for “peaceful purposes”; they cannot be equipped with military bases or be used for weapons testing. However, celestial bodies may be used for “scientific research” or “peaceful exploration.”⁷

There are two noteworthy points here. First, the treaty explicitly places the “peaceful purposes” restriction only on the moon and other bodies. As written, Article 4 suggests that states may engage in nonpeaceful activity in outer space as long as it does not occur on a celestial body. Indeed, this is how the United States officially interprets this article.⁸ However, as a matter of policy, the United States conducts its space activities for peaceful purposes.⁹

Second, the phrase “peaceful purposes” is problematic since it is undefined. Some argue that the “peaceful purposes” clause applies by extension to outer space, meaning that any military use of space violates the treaty.10 However, the clause is generally interpreted to mean that states cannot use outer space for full-scale warfare, particularly nuclear war.¹¹ Military use of space in support of operations—such as communications, intelligence gathering, and precision targeting—is commonly considered peaceful if it does not violate other international law.¹² In other words, space operations are peaceful, provided they are not “aggressive.”¹³ Space may still be used as a medium of warfare: the treaty does not prohibit antisatellite (ASAT) weapons or even nuclear weapons that merely transit space.¹⁴ Other weapons may be deployed in space so long as they are neither nuclear weapons nor weapons of mass destruction.¹⁵ Furthermore, self-defensive acts in space are also permissible, provided they do not violate other treaty restrictions.¹⁶

The Outer Space Treaty also provides the appropriate response if one state interferes with another’s space activities. Articles 6 and 7 hold states liable for damage caused by their space activities and launches, whether such activity is conducted “by governmental agencies or by non-governmental entities” within the state.¹⁷ Article 9 requires states to avoid the “harmful contamination” of outer space and celestial bodies. If a state believes that its activities could cause such harm, it must undertake “appropriate international consultations” before proceeding. Conversely, if a state believes it could be harmed by another’s actions, it “may request consultation concerning the activity or experiment.”¹⁸ Article 10 further allows states to request observation of each other’s launches, and Article 12 requires any space facilities and equipment to be open for observation.¹⁹ However, the treaty provides no right of appeal if two states cannot resolve these issues themselves.

These sections of the treaty suffer criticism for shortcomings such as vague terms and lack of enforcement mechanisms.²⁰ However, the UN’s Liability Convention addresses some of these problems by expanding when, how, and to what extent a nation is held accountable when its space activities injure another’s interests.²¹

The convention’s first article provides that states can be held liable for loss of life, personal injury, or property damage caused by their space operations. It also reinforces the Outer Space Treaty’s provision that a state is liable for damage caused by nongovernmental entities launching under state license. It further provides that a state is liable for damage caused not only by an object but also by an object’s “component parts.”²² However, Article 3 qualifies the liability by noting that the launching state is liable only if those controlling the launch are at “fault.”²³

The remainder of the convention presents procedures for an aggrieved state to make a claim for damage. Articles 9 through 15 provide that claims must be presented within one year through “diplomatic channels” or, if unavailable, through the UN secretary-general. If the states cannot settle matters, they may create a commission, with each state providing a representative and a mutually appointed chairman. Damages are determined under ­international law, with the goal of restoring the state to its preinjury condition.²⁴

Although it clarifies some of the Outer Space Treaty’s ambiguity, the convention still faces criticism. First, its definition of an “object” as including “component parts” does not specify whether this includes debris, so a launching state might not be liable for debris-based damage.²⁵ Second, although the convention imposes a “fault” standard for damages, it does not define how much care should be exercised during a launch.²⁶ In other words, if two space objects collide, one state could argue that it took all reasonable precautions while the injured state could argue that it did not. Third, fault may be difficult to prove since specific pieces of debris can be difficult to identify and track, and the cause of a collision can prove equally elusive.²⁷ One scholar notes that the mere fact of a collision does not automatically put the state that created the debris at fault.²⁸ Finally, there is no established system for processing claims or for interpreting or enforcing the convention’s terms.²⁹ The convention’s litigation mechanisms have never been used, so their effectiveness remains unknown.³⁰

A final body of law for consideration—LOAC—governs how nations may wage war. LOAC sets limits on conflict-related issues, including when and to what degree force may be used; targeting; and treatment of noncombatants, civilians, and prisoners of war. Although several LOAC principles are inapplicable to satellites, others, such as targeting principles, are very relevant to their wartime application.

The first principle to consider, “military necessity,” provides that a person or object should not be targeted unless doing so gives an attacker some real advantage.³¹ The United States formally acknowledged this principle when it signed the 1907 Hague Convention, which prohibits any action “to destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.”³² The Nuremberg trials further explained that “destruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces.”³³

A second relevant LOAC principle, proportionality, holds that an attacker must balance the expected damage against the military advantage to be gained.³⁴ This principle is reflected in Additional Protocol 1 to the Geneva conventions, which prohibits “an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”³⁵ Thus, an action causing excessive or catastrophic damage to civilians or property is illegal.

A final, relevant principle—discrimination—holds that attackers must distinguish between military and nonmilitary targets. Additional Protocol 1 limits targets “strictly 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.”³⁶ Examples of prohibited targets include civilians, civilian property, cultural places, food supplies, and drinking water.³⁷

Discrimination can be difficult to apply to “dual use” objects having both civilian and military functions, such as airports, buildings, and communications systems.³⁸ Although attacking such objects would hinder the enemy, civilians would also suffer. Moreover, since Additional Protocol 1’s test is subjective, commanders could reasonably disagree on whether attacking these objects truly “offers a definite military advantage.”³⁹ Here, the principle of proportionality gives some guidance: since collateral damage to civilians is considered a natural consequence of combat, the proportionality test should determine if an attack on a dual-use object warrants the consequences to the innocent.⁴⁰

China’s Test and Its
Legal Ramifications

Satellites are vulnerable to several possible attacks from ASAT weapons.⁴¹ A nuclear detonation could generate an electromagnetic pulse, disabling the sensitive circuitry of unshielded satellites over a wide range.⁴² Space mines or other “proximity weapons” could explode within lethal range of a satellite.⁴³ A ­laser or energy-based weapon could damage a satellite’s components, including circuitry, optics, or solar panels.⁴⁴ Or a “soft kill” could render a satellite inoperable—for example, by tipping it out of orbit, jamming its signals, or blinding it with lasers or paint.⁴⁵

China’s recent ASAT test offers an example of another type of attack: the “kinetic energy weapon,” which relies on force of impact rather than an explosion.46 This weapon has the tremendous speed necessary to achieve orbit, traveling in the range of 17,500 miles per hour.47 Even the smallest space objects can cause serious damage at such tremendous velocities.⁴⁸

China’s “kill” occurred in an orbit over 800 kilometers (500 miles) above Earth’s surface, dangerously close to the range of many US spy and missile-defense satellites as well as many civilian satellites.⁴⁹ Besides the test’s proximity to US space interests, the major concern is the danger to satellites or other space objects from the test’s debris. The explosion created a “hypersonic shockwave” that tore both missile and satellite into a high-speed debris cloud, composed of 300,000 pieces.⁵⁰ Scientists have labeled this contribution to orbital space debris “the worst ever,” as it scattered fragments between orbits as low as 200 kilometers (124 miles) and as high as 3,800 (2,360 miles).⁵¹ Although some of the individual particles may fall back to Earth, others are expected to remain in orbit for “a very long time.”⁵² Additionally, many of the particles are too small to track, making them effectively invisible to spacecraft and payloads.⁵³ Most satellites lack the protective shielding necessary to defend against such debris.⁵⁴

China claims that its test was both nonbelligerent and completely legal; on the latter point, that appears mostly correct.⁵⁵ That is, the test does not seem to have violated any of the aforementioned treaties or LOAC principles. First, the ASAT test evidently did not violate the Outer Space Treaty, which provides that all nations have an equal right of access to space for peaceful purposes. China could claim that it conducted the test for scientific and defensive purposes, which would make it peaceful under the treaty’s terms.

The only treaty section that China could have violated is Article 9, which prohibits the harmful contamination of space. However, whether the test amounted to a contamination is open to interpretation. Under the treaty, “harmful contamination” of space, though prohibited, is undefined. China could point out that because some of the debris will fall into the atmosphere and disintegrate, the incident was not “harmful” as envisioned by the convention. It might also note that space debris is not a new problem and that no other nation has yet been held responsible under international law for polluting outer space.⁵⁶

The Liability Convention may also be of little aid. Even if China’s debris damages another state’s assets in the future, China might simply argue that it was not at “fault” under the convention since it could not have reasonably predicted the amount of debris created by the collision.

Furthermore, the Liability Convention outlines a state’s options in the event of disaster; it is a reactive rather than a proactive measure. Presently, the United States can only observe the debris cloud and prepare for damage to its space assets. If this occurs, the United States could invoke the convention but would still need to establish its damages, prove that the harm is traceable to China’s test, demand payment, and hope that the collections process goes favorably. Since these litigation mechanisms have yet to be employed, their effectiveness remains unknown.⁵⁷

LOAC’s targeting rules do not directly apply to China’s test since that country targeted its own satellite. LOAC could only affect any future warfare application of the test. The principle of military necessity would permit China to target US military satellites in a US-China war. China would only need to show a benefit to its war effort, such as disrupting US communications, targeting, or battlespace awareness. Although the principle of discrimination prohibits China from targeting purely civilian satellites, dual-use satellites shared by the military and the civilian sector might also become legal targets under this first principle.

However, the principle of proportionality would require further restraint from China. An attack on satellites could be considered “catastrophic” for two reasons. First, attacking even a single satellite risks creating additional debris, further contaminating Earth’s orbit. Each successive attack would put other satellites and spacecraft at increased risk, and these deadly debris particles would not distinguish among friend, foe, or neutral. Even China’s own space operations could be disrupted if space became sufficiently polluted. Attacking any satellite, therefore, requires serious consideration of the collateral consequences.⁵⁸

Second, since the United States depends heavily on satellite technology and since the military and the civilian sector share many satellites, destroying certain satellites could drastically affect the civilian population. Attacking communications systems could impair banking and trade, disrupting the US economy. Likewise, the Federal Aviation Administration may upgrade the national air traffic controller systems to exclusive use of global positioning system satellites.⁵⁹ The unexpected loss of this network could result in numerous lost or crashed aircraft.

Although proportionality should restrain China from attacking US satellites under these circumstances, LOAC is largely self-regulatory, so states must ensure their own compliance with these rules. Therefore, China could interpret the rule unfavorably or disregard it altogether. Furthermore, LOAC analysis could come too late. That is, the realization that an attack violates the rule of proportionality might occur only after a catastrophe has taken place.

The Appropriate US Response

Because of space law’s uncertainty, the only practical limitation on an attack against US space assets is a foreign power’s own self-­restraint. This may exist in one of two forms: fear of US retaliation with political and military power, or compliance under a moral or legal obligation to treaty law. However, as developing nations and terrorist groups gain access to space, the United States can no longer assume that either form of self-restraint will protect its orbital assets. Instead, it must now take proactive defensive measures. Two questions remain. First, what options does the United States have? Second, how does the law restrict those options?

Space law provides only two diplomatic options that the United States could invoke to prevent future missile tests by China or another nation. The first is the Outer Space Treaty’s provision allowing consultation if one state believes that another’s activities could interfere with its space programs. The second is the provision allowing one state to observe and inspect another’s space programs and facilities. Neither provision, however, enables a state actually to stop future tests. The treaty allows only a request for consultation or inspection, and the other nation is not obligated to grant it.

The United States, therefore, is left with two military options—“weaponization” and “hedging.”⁶⁰ Weaponization is the process of placing permanent weapons systems in space in anticipation of an attack. Hedging, which focuses on vulnerability reduction, “minimize[s] any adverse consequences in the event of space warfare initiatives by other states, and . . . deter[s] other states from first crossing the critical thresholds of flight-testing and deployment.”⁶¹ The Air Force is already considering both options, weighing whether to shield satellites individually (hedging) or to build a ballistic missile system to destroy missiles before they reach US satellites (arguably, a form of weaponization if extended into outer space).⁶²

Although arguments may exist for employing either option, space law appears to prefer hedging over weaponization. Recall that the United States is generally limited to using space for peaceful purposes. Although the Outer Space Treaty does not entirely preclude weaponization, it does restrict it—a fact illustrated by its prohibitions on placing nuclear weapons or weapons of mass destruction into orbit. Aggressive uses of space are generally disfavored, but defensive use of space is considered acceptable. Thus, the only permissible weaponization under either the treaty or US policy might be systems exclusively designed to protect satellites.

The better argument against weaponization lies in the United States’ obligation to protect the space environment, both legally (treaty requirements) and practically (the need to keep space safe and usable). Nations always have a right to self-defense (which cannot be surrendered, even by treaty), but the United States is still bound by the treaty’s prohibition against contaminating space. Although a self-defensive act that pollutes space may be permissible, the testingof technology in anticipation of self-defense might not be. Therefore, the United States should remember its obligation to avoid creating debris when developing defensive space weapons.⁶³ “Soft-kill” weapons that disable an attacking weapon are clearly acceptable. Explosive weapons, such as space mines surrounding satellites, might not be if they create significant space debris.

Thus, it is evident that weaponization, in practice, may violate the duty to avoid the harmful contamination of space. Hedging, therefore, is the only remaining military alternative. The United States has multiple hedging options with which it could successfully defend its space assets. An examination of these options reveals that they do not risk violating any part of the relevant space law.

First, the United States could rely upon existing technology to prevent space-based weapons from leaving Earth’s atmosphere. The primary goal would involve targeting the enemy’s weapons before launch, with a secondary goal of targeting enemy space facilities to disable their launch capability.⁶⁴ An antiballistic missile (ABM) system could be used on missiles that are successfully launched, whether from space facilities or mobile platforms such as ships or aircraft. The United States recently tested the effectiveness of an ABM system when an F-16 fighter used an air-to-air missile to destroy a rocket in its boost phase.⁶⁵ Since the missile never reached orbit, there was no space debris.

Second, several possibilities for reducing satellite vulnerabilities present themselves. These include using antijamming measures; hardening the satellites to protect against electromagnetic pulses, radiation, or explosions; adding maneuverability to actively avoid attacks; or including stealth features.⁶⁶ Making satellites more difficult to locate and disable also eliminates the problem of space debris. Moreover, as a passive methodology, hedging ensures that the United States’ use of space remains peaceful. Admittedly, implementation of hedging mechanisms on currently orbiting satellites is problematic. However, the United States can reduce vulnerabilities by upgrading its newer replacement satellites. Although these features could make a payload more expensive, the benefit to the fragile satellite network would clearly outweigh the cost.

Third, the United States should prepare redundancies or backups to protect its satellite network in case of an attack. The results of losing a satellite in 1998, mentioned previously, suggest that a major attack on its space systems—or even one critical satellite—could shatter US interests. Options for compensating for the network’s weaknesses include redundant satellites, ready-to-launch replacements, or secondary alternatives to satellite functions. Strategic planners also should plan for scenarios in which the benefits of satellite technology are suddenly unavailable to war fighters.

Finally, one option involves neither weaponization nor hedging. Specifically, the United States can influence other nations by using its other instruments of national power, including information, diplomacy, and economics. In brief, these instruments present nonmilitary alternatives for convincing foreign powers to use space peacefully. For example, the United States could use diplomatic power to engage in discussions with nations regarding their space programs. It could even use diplomacy to invoke the consultation and observation portions of the Outer Space Treaty. Although the effectiveness of those parts of the treaty remains uncertain, they still present a peaceful alternative to space warfare.

Conclusion

China’s test raises two important points. First, the United States does not hold a monopoly on space operations. Other nations have been operating in space for decades, and developing nations such as China are now entering that realm. By signing the Outer Space Treaty, the United States acknowledged that all nations have the right to explore and operate in space. It is therefore obligated to respect other nations’ space operations as long as they do not threaten its own.

Second, the test illustrates that Thomas Jefferson’s statement that “the price of freedom is eternal vigilance” applies as readily to space as it does to Earth. US space assets are not immune from warfare by virtue of being in orbit. Rather, the United States should assume that its space systems could be attacked. Although many nations have signed the relevant space treaties, the United States should not naïvely assume full compliance. Nor should it expect nonstate actors, such as terrorists, to comply.

The applicable international treaties, conventions, and LOAC principles do not specifically explain what the United States should do in preparation for a real attack. Rather, they outline what it cannot do. The United States must use space for peaceful purposes, refrain from using space aggressively, take care not to pollute the space environment, and be prepared to make reparations if it damages another state’s assets. In the event of war, states might be able to treat each other’s satellites as legitimate targets but only after ensuring that the satellite’s loss would not excessively harm civilians.

Although arming the heavens might seem the most tempting military response, the law clearly favors the defensive method of hedging. Admittedly, weaponization could be legal in some limited circumstances. However, hedging raises fewer concerns over violating international law and still provides viable solutions for protecting space assets. Whether hedging occurs via ABMs, more secure satellites, or some other method is a question best left to military strategists. Ultimately, following the law is vital for ensuring that outer space remains the peaceful environment envisioned by the treaties. By doing so, the United States will maintain not only the ultimate strategic high ground but also the moral one.

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Notes

1. Jean-Michel Stoullig, “Rumsfeld Commission Warns against ‘Space Pearl Harbor,’ ” Space Daily, 11 January 2001, http://www.spacedaily.com/news/bmdo-01b.html.

2. Gen Lance W. Lord, “Why America Needs Space: The Prerequisites for Success,” High Frontier 2, no. 1 ([Fall 2005]): 2, http://www.afspc.af.mil/shared/media/document/AFD-060524-005.pdf.

3. “Wayward Satellite Wreaks Havoc,” Reuters, 20 May 1998, http://www.wired.com/science/discoveries / news/1998/05/12414.

4. James Oberg, “Bold Move Escalates Space War Debate,” MSNBC.com, 18 January 2007, http://www. msnbc.msn.com/id/16694039.

5. “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies,” in United Nations Treaties and Principles on Outer Space (New York: United Nations, 2002), 3–8, http://www.unoosa.org/pdf/publications/STSPACE11E.pdf. China joined the treaty by accession in 1983.

6. Ibid., 4.

7. Ibid.

8. Maj Douglas S. Anderson, “A Military Look into Space: The Ultimate High Ground,” Army Lawyer, no. 276 (November 1995): 25.

9. National Aeronautics and Space Act of 1958, US Code, vol. 42, sec. 2451 (2007): “The Congress hereby declares that it is the policy of the United States that activities in space should be devoted to peaceful purposes for the benefit of all mankind.”

10. Richard A. Morgan, “Military Use of Commercial Communication Satellites: A New Look at the Outer Space Treaty and ‘Peaceful Purposes,’ ” Journal of Air Law and Commerce 60 (1994): 318–19.

11. See Maj Christopher M. Petras, “Space Force Alpha: Military Use of the International Space Station and the Concept of ‘Peaceful Purposes,’ ” Air Force Law Review 53 (2002): 157–61, for a fuller discussion of the limits of “peaceful purposes.”

12. Maj Robert A. Ramey, “Armed Conflict on the ­Final Frontier: The Law of War in Space,” Air Force Law Review 48 (2000): 79–82. US policy states that “peaceful purposes” include “defense and intelligence-related activities.” US National Space Policy, Article 2, 6 October 2006, http://www.fas.org/irp/offdocs/nspd/space. pdf.

13. Ramey, “Armed Conflict,” 79; Maj Elizabeth Waldrop, “Integration of Military and Civilian Space Assets: Legal and National Security Implications,” Air Force Law Review 55 (2004): 222–24; and Petras, “Space Force Alpha,” 171–72.

14. Ramey, “Armed Conflict,” 83–84; and Col Carol Hattrup and Maj Elizabeth Waldrop, “Space Law: Past, Present, and Future,” High Frontier 2, no. 1 (Fall 2004): 24.

15. Ramey, “Armed Conflict,” 83–84.

16. Anderson, “Military Look into Space,” 26.

17. “Treaty on Principles,” 5. Under Article 6, nongovernmental entities conduct space activities only under the authorization and supervision of the state from where the activity is conducted. Ibid.

18. Ibid., 6.

19. Ibid., 6, 7.

20. Robert C. Bird, “Procedural Challenges to Environmental Regulation of Space Debris,” American Business Law Journal 40 (2003): 655–56; and Peter T. Limperis, “Orbital Debris and the Spacefaring Nations: International Law Methods for Prevention and Reduction of Debris, and Liability Regimes for Damage Caused by Debris,” Arizona Journal of International and Contemporary Law 15 (1998): 330.

21. “Convention on International Liability for Damage Caused by Space Objects,” in United Nations Treaties and Principles on Outer Space, 13–21. China joined the convention by accession in 1988.

22. Ibid., 13.

23. Ibid., 14. However, under Article 2, if an object causes damage while “on the surface of the Earth or to aircraft in flight,” liability is absolute, with no consideration to whether the launching state was at fault. Ibid., 13.

24. Ibid., 16–17.

25. Limperis, “Orbital Debris,” 330–33; and Christopher D. Williams, “Space: The Cluttered Frontier,” Journal of Air Law and Commerce 60 (1995): 1147–48.

26. Limperis, “Orbital Debris,” 330–31.

27. Jennifer M. Seymour, “Containing the Cosmic Crisis: A Proposal for Curbing the Perils of Space Debris,” Georgetown International Environmental Law Review 10 (1998): 900; and Williams, “Cluttered Frontier,” 1158–59.

28. Williams, “Cluttered Frontier,” 1159.

29. Marc S. Firestone, “Problems in the Resolution of Disputes Concerning Damage Caused in Outer Space,” Tulane Law Review 59 (1985): 763–64.

30. Ramey, “Armed Conflict,” 91. Canada invoked the convention in the “Cosmos 954” incident in 1978, when a crippled Soviet satellite fell into its Northwest Territories. However, the incident was settled without resorting to litigation. See “Across Canada: Ottawa Signs Cosmos Pact on Crash,” Globe and Mail, 3 April 1981.

31. The principle has four subelements: the user of force must be capable of regulating it; force must be necessary to achieve, as quickly as possible, the enemy’s partial or complete submission; it must be no greater in effect on the enemy’s personnel or property than needed to achieve victory; and it must not otherwise be illegal. Ensign Florencio J. Yuzon, “Deliberate Environmental Modification through the Use of Chemical and Biological Weapons: ‘Greening’ the International Laws of Armed Conflict to Establish an Environmentally Protective Regime,” American University Journal of International Law and Policy 11 (1996): 812.

32. “Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land, the Hague, 18 October 1907,” Article 23(g), International Committee of the Red Cross (ICRC) International Humanitarian Law Database, http://www.icrc.org/ihl.nsf/ 385ec082b509e76c41256739003e636d/1d1726425f6955aec125641e0038bfd6.

33. United States v. List, in Trials of War Criminals before the Nurenberg Military Tribunals under Control Council Law No. 10, vol. 11 (Washington, DC: Government Printing Office, 1950),1253–54, http://www.loc. gov/rr/frd/Military_Law/pdf/NT_war-criminals_Vol-XI.pdf.

34. Ramey, “Armed Conflict,” 39. The proportionality test is the United States’ preferred method of determining whether a target is a permissible one. The United States has declined to sign certain treaties, or portions thereof, that prohibit certain targets without any balancing test.

35. “Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977,” Article 51(5)(b), ICRC International Humanitarian Law Database, http://www.icrc.org/ihl.nsf/FULL/470. A common example of this principle is the act of destroying a dam, which both disrupts an enemy’s power supply and simultaneously kills a large civilian population. For this reason, Article 56 of Additional Protocol 1 specifically prohibits attacking dams and other installations containing “dangerous forces.” The United States has not ratified Additional Protocol 1 but does interpret it as a restatement of customary international law. (See ICRC International Humanitarian Law Database, http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=470&ps=S.) I discuss it here for illustrative purposes.

36. “Protocol Additional to the Geneva Conventions,” Article 52(2).

37. Ibid., Articles 51–54.

38. J. Ricou Heaton, “Civilians at War: Reexamining the Status of Civilians Accompanying the Armed Forces,” Air Force Law Review 57 (2005): 182.

39. Ibid.

40. Ibid., 182–83.

41. Satellite systems are also indirectly vulnerable in two other aspects: at their ground-based control installations and in their data links via jamming. Michael Krepon with Christopher Clary, Space Assurance or Space Dominance? The Case against Weaponizing Space (Washington, DC: Henry L. Stimson Center, 2003), 68, http://www.stimson.org/space/pdf/spacebook.pdf. International space law likely would not apply to attacks on these aspects, so I will not analyze them further in legal terms.

42. Maj Earl D. Matthews, “U.S. Space Systems: A Critical Strength and Vulnerability,” student paper (Newport, RI: Naval War College, 1996), 12, http://handle.dtic.mil/100.2/ADA307419; and Ramey, “Armed Conflict,” 19–21.

43. Ramey, “Armed Conflict,” 19-21; Krepon and Clary, Space Assurance, 64–65.

44. Krepon and Clary, Space Assurance, 65; and Ramey, “Armed Conflict,” 23–26.

45. Ramey, “Armed Conflict,” 27.

46. Daniel Engber, “How to Blow Up a Satellite,” Slate, 19 January 2007, http://www.slate.com/id/2157855; and Ramey, “Armed Conflict,” 22–23.

47. “General Urges Protection of Space Assets against ASATs,” Space and Missile Defense Report 8, no. 44 (3 December 2007).

48. Ramey, “Armed Conflict,” 22.

49. “US Condemns China Satellite-Killer Test,” Agence France Presse, 18 January 2007; Marc Kaufman and Dafna Linzer, “China Criticized for Anti-Satellite Missile Test,” Washington Post, 19 January 2007, http://www.washingtonpost.com/wp-dyn/content/article/2007/01/18/AR2007011801029.html; and “Scientists Decry China Satellite-Killer,” United Press International, 19 January 2007, http://www.upi.com/Security_ Terrorism/Analysis/2007/01/18/scientists_decry_china_satellitekiller.

50. Oberg, “Bold Move”; and Kaufman and Linzer, “China Criticized.”

51. Frank Morring Jr., “China Asat Test Called Worst Single Debris Event Ever,” Aviation Week, 11 February 2007, http://www.aviationweek.com/aw/generic/story_generic.jsp?channel=awst&id=news/aw021207p2.xml.

52. Ibid.

53. Ned Potter, “China’s Space-Weapon Test Could Endanger Astronauts and Satellites,” ABCNews.com, 1 February 2007, http://abcnews.go.com/Technology/print?id=2841745.

54. “China Anti-Satellite Test Sparks Space Junk Outcry,” Breitbart.com, 19 January 2007, http://www.breitbart.com/article.php?id=070119103900.6anervk3&show_article=1.

55. Associated Press, “China Denies Intent to Militarize Space,” Breitbart.com, 22 January 2007, http://www.breitbart.com/article.php?id=D8MQHI1G0&show_article=1; and “China Calls for Early Treaty to Ban Arms Race in Outer Space,” Malaysia General News,16 March 2007.

56. The United States is rated the highest contributor to the space-debris problem. Erin McCarthy, “Litter Kings,” Popular Mechanics 181, no. 7 (July 2007): 81.

57. Ramey, “Armed Conflict,” 91. See also note 30 above. The “Cosmos 954” incident was settled without any formal trial between the countries. Christopher C. Joyner, International Law in the 21st Century: Rules for Global Governance (Lanham, MD: Rowman & Littlefield, 2005), 244.

58. Maj David L. Wilson, “An Army View of Neutrality in Space: Legal Options for Space Negation,” Air Force Law Review 50 (2001): 210–11.

59. “ ‘NextGen’ Air-Traffic Control Would Mean Safer Skies,” News Tribune [Tacoma, WA], 18May 2007.

60. Krepon and Clary, Space Assurance,58–86.

61. Ibid., 58–59.

62. “Air Force Mulls How to Defend Space Assets, Wynne Says,” Space and Missile Defense Report 8, no. 12 (26 March 2007).

63. Some might question whether the United States violated these standards when it shot down one of its own spy satellites on 21 February 2008. The satellite became inoperable after launch and risked crashing into a populated area, exposing humans to its toxic fuel supply. However, the US strike differs from China’s in that it poses a lower risk from space debris. The US strike occurred 130 miles above Earth’s surface, unlike China’s, which occurred much higher. Although debris from the Chinese strike still remains in orbit, much of the debris from the US strike was expected to fall back to Earth within 48 hours, and the rest within 40 days. “Navy Says Missile Smashed Wayward Satellite,” MSNBC.com, 21 February 2008, http://www.msnbc.msn.com/id/23265613.

64. China currently has three launch facilities at Xichang, Tiayuan, and Jiuquan, with a fourth under development at Wenchang. William Atkins, “China to Add 4th Launch Site: Wenchang Satellite Launch Center,” iTWire.com, 24 September 2007, http://www.itwire.com/content/view/14574/1066.

65. Bettina Haymann Chavanne, “First NCADE [Network Centric Airborne Defense Element] Missile Intercept Test Successful,” Aerospace Daily and Defense Report, 6 December 2007.

66. Krepon and Clary, Space Assurance, 68–71.

Contributors

Capt Adam E. Frey (BSc, Villanova University; JD, Ave Maria School of Law) is an assistant staff judge advocate at Eighth Air Force, Barksdale AFB, Louisiana. Previously he served at Elmendorf AFB, Alaska, as the chief of labor law, defending the Air Force in civilian-labor lawsuits and union disputes. He also served as chief of claims, legal assistance, and civil law at Patrick AFB, Florida. In 2008 he deployed in support of the Office of Administrative Review for the Detention of Enemy Combatants in Arlington, Virginia, where he evaluated combatant-status review tribunals for the detainees at US Naval Station Guantanamo Bay, Cuba. Captain Frey is a graduate of Squadron Officer School.

Disclaimer

The conclusions and opinions expressed in this document are those of the author cultivated in the freedom of expression, academic environment of Air University. They do not reflect the official position of the U.S. Government, Department of Defense, the United States Air Force or the Air University

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