Targeting in Outer Space: Legal Aspects of Operational Military Actions in Space

By P.J. Blount*

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Introduction

In the 2001, the Rumsfeld Commission released a report that stated that the United States needed to secure itself against a “Space Pearl Harbor.”[1] This was in reaction to the U.S. military’s increasing dependence on satellite technology. According to the report, such dependence could allow for adversaries to gain an asymmetric advantage over the United States by targeting its space assets during a conflict. A similar advantage could be gained by the United States by targeting the limited assets of smaller rivals during conflicts. Regardless of who is targeting whom it seems that the traditional arenas for warfare (land, sea, and air) may soon have a younger brother in space.[2]

These problems have been brought to the forefront in recent years since both China[3] and the United States[4] have demonstrated anti-satellite (ASAT) capabilities. While these incidents have been followed by attempts to ban weapons from space in the forms of draft treaties and codes of conduct, no such legal instrument has yet to be adopted.[5] These attempts are well intentioned disarmament initiatives; however, they may not be politically feasible in the near term. This does not mean that the use of weapons in space is necessarily an unbounded activity. Both space law and general international law (including International Humanitarian Law) place restrictions on the use of weapons in outer space.

This Article will address the legal issues involved with the targeting of space assets through analysis of problems that are specific to the space environment. Specifically, it will address issues such as discrimination of targets, the issues relating to satellites that are administered by international organizations or by a multiplicity of nations, and the problem of orbital debris.

I. The Concept of Space War

One of the underlying principles of space law is that space will be used for “peaceful purposes.” This principle can be found in both the UN General Assembly resolution on the legal principles applicable to outer space[6] and in the Outer Space Treaty.[7] Furthermore, the principle has likely solidified as a part of customary international law. The state practice on the matter can be seen in its ubiquitous usage of the principle in statements, treaties, and policies of space faring nations.[8]

While it is relatively easy to say that “peaceful purposes” is an underlying principle of the law of Outer Space, it is much more difficult to define the content of that norm. It can be asserted that at a minimum, “peaceful purposes” can be read to mean non-aggressive and therefore equal to the prohibition on the use of force found under the UN Charter.[9] While one can read the Outer Space Treaty and the associated body of space law to mean that conflicts are forbidden in space, it is incumbent to read any such measure in light of international law in general. Article III of the Outer Space Treaty incorporates international law and specifically the Charter of the United Nations into the space law regime.[10] Furthermore, it quotes the UN Charter by declaring that the treaty’s purpose is to promote “international peace and security.”[11] This means that the Outer Space Treaty shares one of the main underlying principles of the UN Charter. The UN Charter bans the use of aggressive force, but allows for self-defense and Security Council-sanctioned use of force. Similarly, the Outer Space Treaty’s ban on the aggressive use of force cannot be read to completely preclude the use of force in space. In fact this is borne out by state practice, through the defensive stances that States take in relation to outer space.[12]

For this reason, it is essential that the rules of international armed conflict be extended into space. The International Court of Justice (ICJ) has made it clear that international humanitarian law applies to new technologies—the only question is how they apply.[13] While Article III of the Outer Space Treaty does the leg work as far as making the rules applicable, one cannot simply take rules that were developed for the land, sea, and air environment and apply them to the space environment. This is due to the vastly different arena that space presents to the military. However, if one starts at one of the basic tenets of international humanitarian law—that parties to a conflict do not have unlimited means and methods of warfare—then one can begin to work out the contours of how armed conflict in space will be governed by law.[14]

II. Targeting in International Armed Conflict

The process of targeting is the process by which military officials choose objectives to attack in an armed conflict. For instance the U.S. Air Force defines targeting as:

The process through which objectives are selected for attack and desired effects are determined based upon a stated mission, force posture and capabilities, aerospace doctrine, plans, concepts of operations, and target intelligence.[15]

The process is one that takes into account both pre-attack and post-attack considerations. Pre-attack considerations are those that concern whether the target is a legitimate military objective. Post attack considerations are those that consider the effects that an attack on the potential target will have on civilians, civilian objects, and the environment. The USAF definition is not limited to legal considerations, since targeting necessarily entails other considerations that the military must take into account when selecting and attacking.[16] However, it should be noted that any selection is bounded by legal considerations, or in other words, the target selected must be a legal target and the effects that accrue from the attack must be legal as well, regardless of other considerations taken into account by the attack planner.[17]

Pre-attack legal considerations require that a planner of attacks verify that potential targets are legitimate military objective and not “civilians nor civilian objects.”[18] This is, as stated by the International Court of Justice, one of the “cardinal principles” of international humanitarian law.[19] According to Additional Protocol I:

Attacks shall be limited strictly to military objectives. In so far as objects are concerned, 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.[20]

All objects that are not military objectives are considered to be civilian objects.[21] It is therefore incumbent upon the planner to evaluate the nature, location, and use of an objective and to gauge whether that is making an effective contribution to military action.

Post attack legal considerations require that a planner determine whether an attack will be considered indiscriminate. The International Committee of the Red Cross states that indiscriminate attacks are:

(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which cannot be directed at a specific military objective; or
(c) those which employ a method or means of combat the effects of which cannot be limited as required by international humanitarian law.[22]

In each of these cases the attack must also be “of the nature to strike military objectives and civilians or civilian objects without distinction.”[23] Planners must therefore choose targets that will not result in “a reckless disregard of the principle of distinction.”[24] In other words attack planners cannot choose a target that would have the effect of causing an egregious loss of civilian life or property.

III. Verification of Targets

When targeting, the attack planner must verify that the potential target is a legitimate military objective and not a civilian object. This can be a difficult process in space. The nature of the space environment is such that it is nearly impossible to get a firsthand look at the satellites and other space objects in orbit. It is necessary then for a planner to gather information on potential targets from a variety of intelligence sources. These, however, made lead to an incomplete picture of exactly what is being targeted.

A primary source of information on space objects is the United Nations Registry of Space Objects. The Registration Convention requires all nations who launch a space object to register these objects on national registers. In the case of two or more launching States, the States should determine between themselves which will register the object.[25] In turn, the convention requires the State of registry to register the space object on the United Nations register. However, the Convention only requires a minimal amount of information:

(a)   Name of the launching State or States;
(b)   An appropriate designator of the space object or its registration number;
(c)    Date and territory or location of the launch;
(d)   Basic orbital parameters, including:

i.     Nodal period;
ii.     Inclination;
iii.     Apogee;
iv.     Perigee;

(e)    General function of the space object.[26]

The limited nature of this information makes it difficult to use the UN register to determine what a space object does. The “[g]eneral function of the space object” was intentionally left broad by the drafters of the treaty so that space faring nations would feel at ease entering information onto the registry. However, these descriptions can be misleading. For instance, USA-193 was a National Reconnaissance Office remote sensing satellite,[27] and the general function listed for it on the UN Registry states that it is a “[s]pacecraft engaged in practical applications and uses of space technology such as weather or communications.”[28] In comparison, Landsat 5, a civil remote sensing satellite,[29] is also stated to be a “[s]pacecraft engaged in practical applications and uses of space technology such as weather or communications.”[30] The registry does not disclose either the military or civil nature of the satellites registered. Additionally, not all satellites get registered. The UN Register lists 438 space objects that are not registered with the UN.[31] One of these is a NATO satellite that would most likely have some sort of military use.[32]

The planner can also turn to information found in the satellite tracking databases. These databases give orbital parameters for objects in orbit. However these parameters are only estimates and are not exact. For instance the recent collision of Cosmos-2251 and Iridium 33 was not avoided due to the fact that the estimated orbits were incorrect.[33] The satellite collision was not even in the top 150 close calls being monitored that day by Analytical Graphics, a commercial satellite tracking company.[34] A State’s ability to know where a satellite is in orbit “depends on the type and number of sensors it has to observe the satellite and the software it has to calculate, based on its observations, the satellite’s orbit and location at a future time.”[35] It is also problematic for other nations that the most complete data sets are collected and distributed by the United States.[36]

While states can bolster this information from other intelligence sources and open sources, it is still difficult to determine what is doing what in space. If, for example, a State knew that an adversary was using high resolution remote sensing imagery to determine troop locations and that that adversary had multiple remote sensing satellites, then there might be no possible way for the targeting state to determine which satellite was tasked with imaging its territory. This is very problematic when a State is presented with a variety of potential targets.

IV. Types of Targets

Space assets come in a variety of flavors from the purely military to the purely commercial. For the purposes of defining targets, these assets can be seen as a spectrum. The planner of a given attack must be able to discern the issues that each potential target presents.

A. Military Satellites

Historically the “armed forces of the adversary” have served as the core of the category of legitimate military objectives.[37] Therefore it is logical that “equipment serving a navy or air force for combat purposes” is “valid as a military objective.”[38] It follows that a military satellite is a legitimate military objective since it would be used for force enhancement in combat situations.[39] It could also be argued that military satellites are “objects for immediate combat service support,” which also constitute legitimate military objectives.[40] Satellites can be used to provide battlefield intelligence in the form of weather information or geospatial information, and they can facilitate advanced communications. In terrestrial, naval, or air warfare military objects that perform such services for troops would traditionally be considered legitimate military objectives; thus it makes sense that the same could be true of such objects in outer space. This principle is linked to the nature, purpose, and use of the object as required under IHL.

B. Civil Satellites

Governments often have civil satellites that are not run by the military. For instance the United States Geographical Survey (USGS) administers the Landsat satellite system. These satellites collect remote sensing data that is then distributed worldwide on a nondiscriminatory basis.[41] The fact that a satellite is owned and operated by a government does not by default make the satellite a military objective. The Government’s ownership does not mean that the “nature” of the satellite has become military. Nor does its purpose of imaging other States’ territories make it a valid target. However, if the use of such a satellite becomes primarily military then it could be argued that the satellite could become a valid military target. For instance if the military was making extensive use of Landsat data and this data was being withheld from the rest of the world in a discriminatory way, then it is reasonable to assume that the use of the system has been altered in such a way that an adversary would be justified in attacking it. An analogy can be found in that of government buildings and offices in land warfare. These objectives are only legitimate objectives “when used in pursuance or support of military functions.”[42]

C. Commercial Satellites

Generally civilian objects cannot be made the target of an attack. However, international humanitarian law allows for “commercial objectives which make an effective contribution to military action” to become valid targets.[43] Civilian objects that are dedicated to civilian usages remain invalid targets “as long as they fulfill only their essential function.”[44] It is important to note that the mere potential for an object to be used for a military purpose does not necessarily create a situation wherein that object becomes a valid military objective.[45] Instead the object must be actively “mak[ing] an effective contribution to military action.”[46]

For example, during an armed conflict a satellite radio company’s (such as XM) assets could be effectively used for military communications. However, if that company is only supplying its customers with routine satellite radio services then the satellites may not become targets. This can be analogized to the classic example of whether a civilian TV station is a legitimate target.[47] Dinstein notes that the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia stated that attacks on TV and Radio stations “could be justified only if the TV and radio transmitters were integrated into the military command and control communications network.”[48] That view though can be contrasted with Hague Cultural Property Convention, which refers to “broadcasting stations” as important military objectives.[49] These two examples leave the question open, however, one can safely assert that when commercial telecommunications satellites begin to assist the military with command and control type functions they open themselves up as potential targets.

There are situations in which militaries become the customers of a satellite company, such as the one that occurred during the U.S. invasion of Afghanistan. During this operation the U.S. military exercised “shutter” control by becoming the sole customer for remote sensing images of the combat zone.[50] While the motivation for such action was to keep such images out of the adversary’s hands in order to protect U.S. troops, it is likely that these images were used to help military strategists in planning and execution of the ground operations. In this case it could be argued that the Geo-Eye satellites were making an “effective contribution to the military action” and would be a valid target. In fact, “[i]telligence-gathering centres related to the war effort (even when not run by the military establishment)” are considered to be targets.[51]

A final problem presented by commercial satellites, is whether those registered to neutral parties to a conflict can become valid targets. For instance, if a belligerent is buying imagery from a third party and that party’s satellite is registered to a neutral state, does the third party’s satellite become a valid target. In this instance, the law of neutrality must be examined. “Neutral state[s] must not assist [parties] to the conflict”;[52] this rule includes a duty for neutral states to “prohibit export and transit of war material by private persons for the benefit of one of the parties to the conflict.”[53] However, current opinion juris considers war material to consist of weapons strict sensu.[54] It is doubtful then that remote sensing imagery provided by a commercial vendor would be considered a “war material.” However, the reasoning behind this rule carries an analogy to space activities.

The traditional rule of neutrality allowed for private citizens to export armaments, but States began to recognize that “[t]he separation of the state and the private armaments industry is nowadays artificial and does not correspond with political reality.”[55] An extension of this means that “[t]o the extent that arms export is subject to control by the state, the permission of such export is to be considered as a non-neutral service.”[56] In a similar way space activities of commercial actors are not necessarily separated from the State. Article VI of the Outer Space Treaty, requires States to execute “continuing supervision” over the national activities of non-State actors.[57] This continuing supervision is usually manifested in a licensing scheme by the State.[58] Furthermore, Article VIII grants “jurisdiction and control” over a satellite to the registering State, this jurisdiction and control creates a further connection between the neutral State and the activities taking place on a satellite. It can be argued that there is a fundamental connection between a State and the activities of the satellite for which it has jurisdiction and/or supervisory duties. The fact that State responsibility attaches to at least some actions of non-State actors taking part in space activities is compelling evidence that a State is just as involved with space activities as it would be with arms exports.[59] Therefore, the commercial satellite may become a legitimate military objective by virtue of the fact that non-neutral activities are occurring from onboard.

Of course, this view is not absolute. The State only has a duty to continually supervise to the extent that the activities taking place on the satellite are national ones.[60] Also, international norms could bear on this situation, such as the principle of nondiscriminatory access embodied in UN General Assembly Resolution on Principles Relating to Remote Sensing of the Earth from Outer Space.[61] Or the principle that neutral States need not prohibit belligerents from using telecommunications “apparatus belonging to it or companies or to private individuals”[62] or engaging in private commercial transactions with its citizens.[63] It is possible that navigation and communications provided by a neutral State’s commercial satellites would not constitute a breach of neutrality, but that remote sensing of an adversary’s troop positions would constitute a breach and make the satellite a legitimate target.

D. Satellites Run by International Organizations

Numerous satellites are operated by international organizations or by a multiplicity of states. The classic example being Intelsat, which started as a “user-owned cooperative to which national governments became a party.”[64] Under this framework, once a State became a party to the Intelsat treaty, “its government . . . designated an operating organization to invest in the satellite system.”[65] These sorts of systems, with a multiplicity of actors and a quasi State-commercial framework, hold numerous problems for the legal advisor to an attack planner.

In Operation Desert Storm space assets were used to such an extent that it has been referred to as the first space war[66] and “a watershed event for the advancement of space information to the war-fighting personnel.”[67] One of the specific uses of space assets was communications, and during the operation the U.S. military supplemented its communications capabilities by buying bandwidth on Inmarsat satellites.[68] Inmarsat is a telecommunications satellite system that was originally set up as an international organization with the purpose of “provid[ing] satellite-based, commercial communications services to ships, aircraft, and other mobile users.”[69] In 1999, Inmarsat became the “first intergovernmental organisation to transform into a private company,” and it is publicly traded on the London stock exchange.[70] While Inmarsat has a commercial character, it is still overseen by an international organization, the International Mobile Satellite Organization (IMSO), which retains a “‘special share’ in Inmarsat Ltd which provides a mechanism to ensure that any commercial decisions taken are not detrimental to the public services.” [71] This organization currently has 95 member states.[72] The governing treaty for IMSO states that States shall “act exclusively for peaceful purposes” while carrying out the purposes of the treaty.[73] However, the structure of Inmarsat is such that almost any entity can use its services including terrorist organizations,[74] and Inmarsat itself markets its services to the defense organizations.[75]

While there is strong support for the concept that these services do not violate the peaceful purposes principle found in international law, these actions may still “make an effective contribution to military action.”[76] One must then question whether a satellite’s multinational nature would have an effect on its status as a legitimate military objective. Inmarsat is a public private partnership, but it is substantially controlled by an international organization. The multinational character becomes more complex when it is taken into account that member States of a multinational organization may also be neutral states. In the case of Inmarsat, it can be presumed that since both the United States and Iraq are State parties of the IMSO that the military use of Inmarsat did not violate the treaty and the destruction of an Inmarsat satellite by either party would have violated the IMSO agreement’s peaceful purposes provisions. There is, though, the potential for a situation in which at least one belligerent is not a party to such an agreement. In this situation it seems that there would be a political outcry over the destruction of such a satellite, but it is unclear as to whether the destruction would be illegal.[77]

E. Human Space Stations

Another potential target in space would be that of a space station containing humans. The problems here stem from the status mixtus (i.e. they may fall into two different legal classifications at the same time) that astronauts aboard a space station may have. Traditionally, under international space law astronauts are considered the “envoys of mankind.”[78] States are required to render assistance to and to return to the launching State astronauts that land in distress either in the territory of that state or on the high seas.[79] Some authors have argued that the classification of “envoys of mankind” gives astronauts diplomatic immunity,[80] however such an interpretation is not borne out by the plain meaning of the text of the Outer Space Treaty.[81] It would seem reasonable that the outbreak of conflict could constitute a “fundamental change in circumstances,” which could allow for an astronaut to change from the status of an envoy of mankind to that of a combatant.[82]

Astronaut corps are often made up of military personnel even in civil space programs.[83] International humanitarian law allows for the targeting of “all members of the armed forces, whether or not they are actually engaged in combat.”[84] Thus the question must be asked whether military personnel are afforded a special protection when participating as astronauts. Such distinction will most likely have to be made on a case by case basis. For instance, if the personnel are actively engaged in military activities supporting combat operations[85] any immunity given by the Outer Space Treaty may be lost since such activities would be in conflict with the rules of diplomatic immunity.[86] It might also be relevant whether there are civilian astronauts on board the station with the military astronaut; if so, the collateral damage caused by targeting the military astronaut may be too great to allow the attack.[87] It should be noted that if these civil personnel are also participating in the warfighting effort then they expose themselves to the risk of being targeted.[88]

The tough fact pattern is the military astronaut who is not taking part in hostilities. While political and strategic considerations would not make this individual a likely target,[89] the question remains as to whether the individual would be a legal target. If diplomatic immunity is granted as part of the envoy of mankind status then this question may turn on the status of the Outer Space Treaty between the two parties during the conflict. One argument is that the Outer Space Treaty is a law making treaty and therefore it remains in force, making the military astronaut an illegal target.[90] However, it could also be argued that a “fundamental change in circumstance” has taken place between the two parties and that the recognition of envoy status is no longer in force between the two. This would be similar to politicians (and in particular the head of state that serves as a commander in chief) who also serve in the military.[91] Fortunately, such a situation as this seems far removed, but it should be noted that military uses of space stations have been contemplated,[92] and that new nations are looking to enter this part of space exploration.[93]

V. The Physics of Space and Indiscriminate Attacks

One of the most important limiting factors for the strategic uses of space is the physics of space. When an object is destroyed in space its fragments can remain orbiting the Earth as space debris. Space debris is “all man made objects including fragments and elements thereof, in Earth orbit or re-entering the atmosphere, that are non functional.”[94] All objects in space orbit at a very high velocity; for this reason, space debris poses a threat to other objects.[95] There are currently 19,000 tracked items of space debris over 10 cm, and untracked debris under 10 cm is probably in the tens of millions.[96] An example of how the destruction of a space object can affect the amount of space debris can be found in the Chinese destruction of FY-1C. This ASAT test resulted in the creation of 2317 pieces of tracked debris making China “responsible for nearly half of all known and tracked satellite breakup debris currently in Earth orbit.”[97] Strategically, militaries that are reliant on space assets understand the risk that debris pose to these assets and would most likely avoid an attack that destroyed a space object in orbit. However, a lesser military power looking to take advantage of a space power’s reliance on space assets could see such an attack as a very inviting.[98] However, the physics of space may actually create a legal limitation to the destruction of space objects.

It is incumbent on the planner of an attack to be sure that the effects of the attack will not be indiscriminate.[99] Indiscriminate attacks include attacks that “employ a method or means of combat the effects of which cannot be limited as required by” international law.[100] An attack on a destructive attack on a space object may violate this principle due to the potential debris cloud.

As already stated, a kinetic attack that destroys a satellite on orbit can create a large cloud of debris. The method and means of such an attack cannot be limited as required by international law. The first problem is that such an attack could put civilian objects at risk due to the number of commercial satellites in orbit. This is especially so in light of the fact that not all impacts can be accurately predicted, as in the case of Cosmos-2251 and Iridium-33 discussed in Part III. The risk of impact with the remains of the destroyed satellite by a civilian object would create a situation that could constitute an indiscriminate attack. An imperfect analogy can be made to the rules regarding sea mines and torpedoes. These means of warfare are limited in their use due to the risk that they pose to civilian objects. The specific risk is that a civilian object may collide with a mine or torpedo, thus detonating it. To ensure that this does not happen States are required to ensure that these instruments deactivate after a certain amount of time.[101] In a similar manner, fragmentation debris poses a risk to civilian objects that must cross its path. If a commercial satellite collided with space debris resulting from an attack by a belligerent, then it could be argued that the damage was the result of an attack that was not limited in accordance with the laws of armed conflict. Of course, adhering to this rule may create an absurd result, in that the destruction of a commercial satellite by space debris caused by ASAT activity when not during an armed conflict would not be prohibited. However, such damage is covered by international law in a variety of instruments and doctrines and is therefore not problematic from the perspective of the law of armed conflict.[102]

Furthermore, an attack causing a wide debris field could violate the principle that an attack must not create long term, widespread and severe damage to the environment. Environmental considerations must be taken into account “when assessing what is necessary and proportionate in the pursuit of legitimate military objectives.”[103] Additional Protocol I states that “[i]t is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.[104] For the purposes of Additional Protocol I, widespread “may well be less than several hundred square kilometers” and long-term is measured in decades.[105] Orbital debris can certainly be considered to cause both long term and widespread damage to the space environment. Space debris in low earth orbit can remain orbiting the entire circumference of the globe for years to decades.[106] This inhibits all parties from using that particular orbit. However, there could be some dispute as whether such damage is severe or not, since the “[t]he probability of two large objects (> 10 cm in diameter) accidentally colliding is very low.”[107] However, these collisions do take place, and are more likely as orbital debris increases.[108] The meaning of severe under AP I “is not sufficiently clear.”[109] One can look to the Environmental Modification Convention (ENMOD) in order to clarify the term. The Understanding attached to Article 1 of the ENMOD Convention states that severe refers to “serious or significant disruption or harm to human life, natural and economic resources or other assets.”[110] It can certainly be argued that orbital debris significantly harms economic interests in space by placing multimillion-dollar assets at risk. Also, space debris poses a threat to the natural resource of orbits. However, this definition of severe is limited by its terms in the ENMOD convention, which itself is a narrower prohibition than that of AP I.

Not all attacks on satellites will be considered indiscriminate. Possibilities for planners to choose methods and means that do not create indiscriminate attacks in space do exist. Attacks that use technologies that dazzle or blind a remote sensing satellite in order to keep it from viewing a specific area will leave the satellite intact and still controlled by the adversary.[111] The same can be said of jamming or spoofing attacks on telecommunications or navigation satellites.[112] These attacks only serve to disrupt the satellites usefulness to the adversary and not to destroy the satellite itself. Cyber attacks can also be used. While a cyber attack can be used to completely disable a satellite, it is arguable that this would not create an indiscriminate attack. The disabled satellite would fall under the definition of space debris, but it would only be a single piece instead of a cloud of debris. The creation of a single piece of space debris would probably not meet the threshold of widespread, long term, or severe under the IHL rubric.

Conclusion

Conflict in space is not inevitable, and embracing strong international cooperation can reduce the threat of conflict.[113] However, the political reality is that asymmetric powers will pursue their own self interests, which increases the risk of armed conflict in space. While conflict in space in not inevitable, it is prudent to be prepared for such situations. Crucial to this preparedness is understanding how the rules of international armed conflict will be applied in space. International humanitarian law has been developed for land, sea, and air operations, and addresses specific differences of each of these environments. Space is a drastically different environment, and the law will have to be adapted to address the specific issues relating to this environment. Many conflict situations that could occur in space highlight lacunae in the law of armed conflict. However, application of the core principles of international humanitarian law can help to protect the space environment so it remains available for the “benefit . . . of all countries.”[114]