David A. Koplow [*]
[Full text of this Article in PDF is available at this link]
The theory and practice of “social distancing” were suddenly thrust upon a startled U.S. and global population by the novel coronavirus pandemic in spring 2020, as we all learned the importance of establishing adequate buffer zones around ourselves and sustaining a rigid keep-out perimeter against potential threats. Where common sense was insufficient, law augmented this effective barrier against intermingling and enforced the rigorous strictures of separation for mutual protection.
This Article addresses an analogous but very different genre of distancing: the requirement under the law of armed conflict (“LoAC”) for separating military from civilian objects and personnel, and it applies those standards to a novel milieu, outer space. A burgeoning modern propensity for increased intermingling of civilian and military satellite assets may, in a surprising fashion, run afoul of fundamental, longstanding international legal principles that require a salient differentiation—and the United States is the leading (but not the only) offender in deliberately violating the obligation of sharp separation of different categories of space vehicles.
The starting point for the Article is the principle of distinction (also known as discrimination), a most fundamental tenet of the law of armed conflict. The primary thrust of distinction is the mandate that a military force is legally authorized to direct its attacks only against opposing military objectives, not against non-combatants such as civilians and neutrals and their property. An important corollary—which this Article refers to as “reverse distinction”—supports that primary injunction by requiring that military personnel and assets be effectively separated from their civilian counterparts. This physical distancing is intended to mitigate the suffering that armed conflict inevitably inflicts on non-combatants, and also to enable the opposing military to fulfill its primary obligation under the distinction principle, i.e., to direct its hostile fire exclusively against our military.
Reverse distinction is a somewhat “soft” obligation—it applies only to the extent that such separation is “feasible.” But it constitutes operational law nonetheless. For example, the United States has objected bitterly when hostile opponents took “human shields,” illegally impeding a responsive use of force, or when, during the first Gulf War, Saddam Hussein ostentatiously parked fighter jets in front of a famous archeological temple, apparently for the purpose of deterring U.S. strikes against those tempting assets.
Regarding operations in outer space, however, it is the United States that now stands in violation of reverse distinction. Official U.S. government policy, through the last three presidencies, has directed an ever-increasing entanglement of U.S. national security space programs with their civil and commercial counterparts. In part, this blending of diverse functions is justified by cost-cutting economics and the effort to exploit the private sector’s greater finesse at speedy exploitation of new space technology. But a less frequently acknowledged motivation is also evident: the desire to complicate the task confronting any enemy that might seek to attack U.S. national security satellites. While this melding of the functions and identities of spacecraft may carry tactical advantages, the greater proximity is both illegal and unwise in the longer term.
To pursue this thesis, the Article is structured as follows. After this Introduction, Part II presents the fundamentals of the law of armed conflict, with a special focus on the cardinal principles of distinction and reverse distinction. It demonstrates why these provisions are so central to the humanitarian considerations that animate LoAC and provides controversial illustrations of the “feasibility” dilemma.
Next, Part III turns to outer space and the emerging exploitation of a growing armada of satellites by the United States for the whole host of commercial and national security functions. It also describes the factors that have driven the United States in recent years to adopt an official policy of increasing reliance upon private and foreign spacecraft for the performance of previously exclusively military and intelligence community services.
Part IV then juxtaposes the two lines of inquiry, to argue that the United States is behaving here inconsistently with the fundamental LoAC restrictions; there is, at least, an irrevocable “anticipatory breach” of the principle of reverse distinction in space. This Part asserts that this departure from long-established legal obligations is as foolish as it is illegal, and assesses the adverse consequences of the different types of violations.
Part V then presents several proposed remedies, none of which will be cheap, easy, or politically palatable. Finally, a Conclusion offers some reflective, forward-looking thoughts.
Social distancing, whether in dealing with colleagues and neighbors during the onslaught of COVID-19 or with military and civilian satellites in space, has significant costs. When familiar, convenient patterns of human interaction are disrupted by a novel virus, society suffers a profound short-term loss, in the hope of insinuating a degree of protection via herd immunity. In space, too, there is a substantial price to pay when international law compels a rigid separation of military and civilian orbital assets. In each situation, however, casual or deliberate intermingling leads to even worse long-term consequences.
[*] Professor of Law, Georgetown University Law Center. The author gratefully acknowledges the superb support from three exceptional research assistants, Danielle B. Ellison, Perry R. Cao, and Ryan M. Pereira, as well as outstanding assistance from research librarian Jeremy McCabe. Special thanks also to the following friends and colleagues who generously commented on prior drafts of this Article: Almudena Azcárate Ortega, Jack M. Beard, Laurie R. Blank, Michael R. Cannon, Karl Chang, David E. Graham, Peter Hulsrøj, Christopher D. Johnson, David S. Jonas, Matthew T. King, Steven A. Mirmina, James A. Schoettler, Gary D. Solis, Dale Stephens, Matthew Stubbs, Kieran R.J. Tinkler, and Brian Weeden. This work has also benefited from the author’s participation in the Woomera Manual project. Of course, responsibility for any errors or omissions remains mine. The opinions expressed in this Article are not necessarily the views of the U.S. Department of Defense, the U.S. government, or any other entity.