**Armed Conflict on the Final Frontier:**

**The Law of War in Space**

[Major Robert A. Ramey]{.smallcaps}[^1]

**I. INTRODUCTION**

\[T\]he lawful bearing of arms--under a strict code of military

justice and within a corpus of humanitarian law--

has been accepted as a practical necessity.[^2]

John Keegan (1993)

Some may reasonably wonder, for purposes of analysis under the
international law of war, whether there is any meaningful distinction
between warfare prosecuted within airspace and warfare prosecuted within
outer space. In both cases, the military assets above the earth's
surface may support the combat occurring below, or may engage targets in
the same combat environment. Given this, some may view armed conflict
from and within outer space as simply a subset of air warfare. Others
may see armed conflict in outer space as superior to air warfare--that
is, air warfare as a subset of space warfare. Still others may view
space conflict as a new category of combat that is sui generis. We can
state the question more simply as follows: is the "aerospace"
environment fundamentally one field of combat operations or two?

This article suggests that for purposes of analysis under the law of
war, space combat will be sui generis--fundamentally different from
combat in terrestrial airspace.[^3] This approach raises at least three
implications for the analysis undertaken herein. First, space combat
will not be analyzed as simply an extension of air combat; the two are
fundamentally different types of combat suggesting different doctrinal
tenets of power. While the military use of space has traditionally been
viewed as a medium from which to support terrestrial warfare, including
air warfare, space as a medium of warfare itself raises entirely
different legal and operational issues.[^4] Thus, freed from a strict
air warfare paradigm, the effort to establish limits on space combat in
its own right can draw principles of armed conflict from those
applicable to land and sea warfare, as well as from those governing air
warfare.

Second, one of the key differences of space warfare, at least for the
near future, will be the spatial separation of human combatants from
their weaponry. Whether kinetic energy or space-based laser weapons in
low-earth orbit, or jamming satellites used to corrupt
telecommunications signals in geosynchronous orbit, the warrior is
distant from his instruments of war by between 100 and 22,500 miles.
When seeking to apply the current laws of war, it appears this
phenomenon will require new ways of thinking about a legal regime that
has as its purpose the amelioration of human suffering. Beyond simply
targeting other combatants, terrestrial infrastructure, or weapons
systems, space warfare as it is now most widely conceived contemplates
the destruction of unmanned military assets in the air or space
environment.[^5] Given these factors, it seems that the minimization of
human suffering, the chief goal of the laws of war, is already achieved
to some extent for space as compared with the other combat environments.
From this observation follows the conclusion that with respect to space
warfare as it is currently conceived, the law of war will be more
applicable to regulation of means and methods of war, than to the
protection of human life.[^6]

Third, the first implication notwithstanding, the legal analysis of
issues unique to space combat, such as the legality of new means and
methods of space warfare, cannot rely solely on analogy with legal
relationships governing other combat environments. This is due in part
to the relative infancy of space warfare and to the recency of its
technology. To a certain extent, the international regulation of space
combat will evolve only *subsequent* to State action making such combat
an imminent possibility.[^7] Because the law governs actual social
relations and not theoretical abstractions, and because there have been
no reported or anticipated cases of actual space combat, conclusions
about legal restrictions on such combat must begin tentatively. This is
not to abandon hope of outlining contours of the legal regulation of
space combat under existing international norms; certain points do
clearly emerge from the analysis. It is simply to acknowledge
realistically the limitations of such an inquiry at this time. States
faced a similar dilemma in the days leading up to World War I with
aerial combat. At that time, one could hardly establish firm legal
principles in the absence of State practice.[^8] As was the case in the
1910s with respect to air warfare, a great deal of original reflection
on the implications of space combat is needed today.

This article will examine the intersection of two subsets of public
international law as they bear on space warfare: the law of war and the
law of outer space. The analysis will focus on the relevant legal issues
from the perspective of the United States, currently the most active
spacefaring nation on Earth. Because the American vision for space war
is the most "developmentally mature,"[^9] it is a virtual certainty that
U.S. practice will dominate the development of international law
limiting the means, methods, and extent of the use of force in space.

Part II presents a historical review of the development of military
activity in space. It discusses reactions by the international community
to new weapons such as V-2 rockets, cruise missiles, intercontinental
ballistic missiles, and nuclear devices. It also examines the history of
U.S. military satellite development. This part also presents aspects of
existing and foreseeable technology for armed conflict within and from
outer space.

Parts III-V consider international law applicable to space warfare. Part
III analyzes international law pertaining to armed conflict and
distinguishes between the *jus in bello* and the *jus ad bellum*.
Further, Part III outlines the key principles derived from treaties and
customary international law and clarifies that "law of war," "law of
armed conflict," and "humanitarian law" are phrases that have come to be
largely synonymous with each other. Part IV examines the five
multilateral space treaties comprising the *corpus juris spatialis*, and
highlights key passages of relevance to space warfare. Part V considers
related authorities such as the Limited Nuclear Test Ban Treaty,
Anti-Ballistic Missile Treaty, Antarctic Treaty, and the United Nations
Convention on the Law of the Sea, as well as three United Nations
General Assembly (U.N.G.A.) Resolutions. Though not regulating outer
space activity per se, the treaties are relevant either because of
inherent parallels they have to the regulation of outer space, or
because they contain specific provisions limiting space activities.

Part VI applies the legal regime governing international armed conflicts
to space warfare. Here, the article examines the bases on which the law
of war applies to outer space. In doing so, the article suggests that
the process by which the law of war was applied to the last new combat
medium, air, serves as a model for the likely development of the
international regulation of space warfare. Part VI discusses problems of
definition within the *corpus juris spatialis* that challenge any effort
to apply the law of war to space combat. It further outlines U.S.
national and military space policy and highlights the role that State
law of war manuals might play in the future development of restrictions
on space warfare. Part VI then briefly considers information warfare, a
phenomenon heavily reliant on space assets and one of growing concern to
the U.S. military.

Part VI also addresses special problems arising from, among other
things, the prospect of applying the law of war to space warfare. This
Part will analyze the significant problem posed by space assets
dedicated to uses of both a civilian and military nature. It will also
examine the status of assets owned both by belligerent and neutral
States, as well as assets owned by opposing belligerents. It will
further consider legal problems raised by the military status of
astronaut combatants in light of the status conferred on all astronauts
under current space law, as well as the question of whether astronauts
found in foreign territory must be returned to opposing belligerents in
time of war.[^10] Part VI concludes by examining whether proposed rights
of innocent passage through foreign airspace for the purpose of
accessing outer space will factor in the future regulation of means and
methods of space warfare.

**II. THE MILITARY ASCENT TO SPACE**

We will engage terrestrial targets someday--ships, airplanes,

land targets--from space. We will engage targets in space,

from space. . . . \[The\] missions are already assigned,

and we've written the concepts of operations.[^11]

General Joseph W. Ashy, USAF (1996)

In most respects, the history of mankind's ascent to space is a history
of the militarization[^12] of outer space. A review of this history,
along with a basic familiarization of current and potential implements
of space warfare, provides the requisite context from which the analysis
herein can proceed to legal considerations related to the weaponization
of space. Among other things, an understanding of technical space
developments provides insight into the way international legal norms
have developed. As discussed more fully in Part III, while the means by
which States may lawfully attack each other's assets and personnel
within space remains partially proscribed, the law has condoned the
non-aggressive military use of space for decades.

**A. Origins and Evolution of Space Militarization**

*1. Missiles and Rockets*

Space warfare, as any other use of outer space, requires access to the
space environment. That access requires the use of missiles and rockets,
later termed "boosters" in view of their utility as launch vehicles for
spacecraft. As for most other segments of space technology, rockets[^13]
were first developed for use by military forces. Matte notes the
likelihood that "as early as 3000 B.C. the Chinese had developed rockets
for, among other things, use in warfare."[^14] It would be almost 5000
years however before rockets became a major instrument of warfare.

It was German ingenuity that first applied rocket technology to
large-scale military combat use.[^15] At the Peenemunde experimental
site on the Baltic coast, Germany constructed the famous V-2
("Vergeltungswaffe Zwei") rocket.[^16] Making its first flight in
October of 1942,[^17] the rocket stood over 13 1/2 meters high, weighed
15,300 kg, had a range of 322 km,[^18] and was propelled by an engine
producing more than 800,000 horsepower.[^19] The rocket used a turbo
fuel pump generating pressure at 300 pounds per square inch while
pumping 50 gallons (189.5 liters) of fuel per second.[^20] For guidance
and control, the most difficult technical feat, the rocket relied on
gyros that only partially compensated for wind and other destabilizing
factors in flight. Nonetheless, the V-2 represented a fearsome weapon to
which there was no known defense. It also ushered in one of the most
significant revolutions in military weaponry.[^21]

Following the war, under "Operation Paperclip" the leading German rocket
scientists were captured for further work in the U.S. With their
expertise, the U.S. began reconstructing the essence of V-2 technology
for the development of more advanced rockets. This work, together with
experience gained from the 1930s and 1940s studies and experiments at
the California Institute of Technology under Dr. Theodore Von Kármán,
contributed to Project MX-774--later to become the Atlas missile, a
research and development effort aimed at creating a 5,000 mile range
intercontinental ballistic missile.[^22] General Henry Arnold, chief of
the U.S. Army Air Corps just prior to its establishment as the U.S. Air
Force in 1947, predicted that such a weapon "is ideally suited to
deliver atomic explosives, because effective defense against it would
prove extremely difficult."[^23] Little did General Arnold know that
such defenses would continue to prove extremely difficult through 2000
and beyond.[^24]

In the U.S., missile research and development competed directly for
precious funding with long range bombers. "As with satellite proposals,
initial postwar interest in long-range guided missiles soon succumbed to
an Air Force policy that relied on strategic bombers carrying
air-breathing missiles."[^25] Nonetheless, missile advocates kept
sufficient interest engaged to fund development of the Redstone,
Jupiter, and Juno missile programs at the U.S. Army's Redstone
Arsenal.[^26] In addition to various sounding rocket[^27] and cruise
missile programs,[^28] and the Thor Intermediate Range Ballistic Missile
(IRBM), improvements to the original V-2 design soon led to the first
operational U.S. Intercontinental Ballistic Missile (ICBM)--the
Atlas.[^29] Within a few years, the U.S. fielded the even larger and
more sophisticated Titan missile,[^30] evolved versions of which are
still widely in use today both as ICBMs and commercial space
boosters.[^31]

Following World War II, the Soviet Union captured its share of German
scientists as well. Using the V-2 as its point of departure, the
U.S.S.R. did more than simply build copies of the weapon, it put the
rocket back into production within the Soviet zone of occupation in
Germany.[^32] Unlike the U.S., the Soviet Union did not have a huge
fleet of long-range bombers, thus the prospect of ICBM development did
not have the same bureaucratic obstacles from a competing weapons
platform. What it did have were relatively primitive atomic weapons that
were bulky and required tremendous lift to propel them across an
intercontinental range. They proceeded to create just such heavy-lift
launch vehicles.[^33] The first Soviet ICBM, bearing the designation
"SS-6," was launched in August 1957, a full fifteen months before the
first Atlas launch. It was an SS-6 that carried the world's first
artificial satellite, Sputnik I, into orbit on October 4, 1957.[^34]

*2. Nuclear Devices*

Following the advent of rocketry, creating a weapon of ultimate
destructive capability was just a matter of time for the leading
scientific minds. The conventional explosives used by the V-2 rockets
simply mimicked the effects attainable by means of air-dropped bombs.
These contained the equivalent of one ton of TNT. By contrast, the
earliest nuclear weapons contained the equivalent of 20,000 tons (20
kilotons).[^35] Later versions would deliver the equivalent of
15,000,000 tons (15 megatons) of TNT and more.[^36] Putting the matter
plainly, U.S. President Truman would write in his personal diary, "we
'think' we have found a way to cause a disintegration of the atom."[^37]

These early devices weighed five tons and required a rocket of several
hundred tons to carry one weapon to Moscow--too heavy to be practically
effective.[^38] However, with the advance of the ICBM came the advance
of the nuclear device. It soon became small enough to launch inside the
nose-cone of a rocket.[^39] Thus, the lightening speed of the rocket was
mated to the overwhelming power of the nuclear weapon. And given its
desirability for military advantage, it also proliferated.

> Between 1945 and 1992, the United States went on to manufacture a
> total of 70,000 nuclear weapons, some 10,500 of which are still in
> service. The Soviet Union produced 55,000, of which 15,000 are
> currently active. Britain reportedly made 834 nuclear warheads, France
> 1,110 and China 600. According to various reports of unknown
> reliability, Israel may have made 200, India twenty, Pakistan between
> four and seven. South Africa admitted it had produced six devices
> before giving up its programme; North Korea may have one or two.[^40]

It was not until 1957 that the first nuclear detonations occurred in
space.[^41] Not only did this development become a catalyst for passage
of a treaty limiting nuclear weapons testing (Limited Nuclear Test Ban
Treaty),[^42] but it brought a plea from the Soviet Union that such
tests not endanger the safety of Soviet cosmonauts. The U.S. responded
to the Soviet concern with the assurance "that no activities were
contemplated which could have harmful effects upon the Soviet
spacemen."[^43] Following passage of the Limited Nuclear Test Ban Treaty
in 1963, such detonations in space were no longer lawful and simple
verification measures made them easily detected.[^44]

*3. Satellites*

In many ways, the evolution of satellite technology follows the
evolution of missile technology. Without the latter, the former had no
way of reaching outer space. Thus, the early battles for funding of
satellite technology in the DOD and in Congress often pitted satellite
and missile research against conventional weaponry.[^45] Once funding
for ICBMs came through however, it was soon realized that rockets more
powerful than an ICBM might succeed in launching satellites.[^46]

Though early scientists speculated on the possibility of artificial
satellites in earth orbit, Project Rand, under the Douglas aircraft
company,[^47] demonstrated the feasibility of such a feat in its report
of May 2, 1946. Report number SM-11827, "Preliminary Design of an
Experimental World-Circling Spaceship," not only provided 236 pages and
eight appendices of detailed technical theory, but it spawned numerous
subsequent reports on the feasibility of satellite design, launch, and
reentry. In simple terms, the report declared that "\[i\]f a vehicle can
be accelerated to a speed of about 17,000 m.p.h. and aimed properly, it
will revolve on a great circle path above the Earth's atmosphere as a
new satellite. The centrifugal force will just balance the pull of
gravity."[^48] The report subsequently predicted that "\[t\]he
achievement of a satellite craft by the United States would inflame the
imagination of mankind, and would probably produce repercussions in the
world comparable to the explosion of the atomic bomb."[^49]

The earliest military satellite program focused on a reconnaissance
mission. In time, the mission for reconnaissance satellites in the U.S.
would be shared between the military and the intelligence establishment.
Systems such as the venerable Corona series were launched in early 1959
amid great secrecy and were controlled by the U.S. Central Intelligence
Agency.[^50] Though the focus of public U.S. military space activity
remained in the Department of Defense, it was determined that
reconnaissance missions from space could not be publicized.

Indeed, the Corona program was so sensitive that it was given the
code-name "Discoverer" to establish a cover. The launches were said to
contain "a scientific project that conducted biomedical research and
other experiments in space."[^51] As Corona began collecting Soviet
imagery during the Eisenhower administration, the DOD established the
Office of Missile and Satellite Systems with oversight for all national
reconnaissance activities, later to become the National Reconnaissance
Office (NRO). President Eisenhower's successor, perpetuated these basic
organizational changes, including safeguarding the very existence of the
NRO as a State secret.[^52] Indeed, under the Kennedy administration
"the U.S. government no longer acknowledged that satellites were used
for reconnaissance--a policy that remained in effect until 1978."[^53]

Despite its continuing protection of national security matters, the NRO
has recently revealed some of its methods and assets, including a \$1.5
billion state-of-the-art Lacrosse imaging satellite.[^54] The fifteen
ton, school bus-sized satellite was developed in 1986 to track the
movement of Warsaw Pact weaponry. Producing images to resolutions of 1
meter, the system uses radar technology to obtain images through clouds,
foliage, or darkness.[^55] As of 1997, the NRO maintained two Lacrosse
satellites on-orbit with two more planned. In addition to these, the NRO
maintains the KH-11 ("Keyhole") satellite system which, using optical
sensors, is reported to produce resolutions of six to twelve inches (15
to 30 cm).[^56]

Reconnaissance was not the only military mission for early satellites.
Almost simultaneously with WS-117L, and indeed as an outgrowth of it,
the U.S. military was developing a missile warning system to monitor the
launch of Soviet ICBMs. The first such program, MIDAS ("missile
detection and alarm system"), was troubled with false alarms and overall
system unreliability virtually from its operational beginning in
1960.[^57] Despite some successful test detections, the system was
replaced in the early 1970s by geosynchronous satellites of the Defense
Support Program (DSP) which proved to be "highly successful," offering
the President notice of a missile attack within moments of launch.[^58]
Using an advanced infrared telescope mounted to the spacecraft's front
end, the DSP telescope remained focused on earth ready to generate an
electronic signal upon detection of a missile launch. Its use continues
today.[^59]

Beyond these, other significant satellite systems were developed to
carry military communications,[^60] to provide weather
intelligence,[^61] and to aid navigation. Though assets supporting all
three missions are indispensable to combat operations, the U.S.
space-based navigation system has now become perhaps the best-known of
all military space assets outside military circles. Developed in the
1970s, and declared fully operational on July 17, 1995,[^62] the Global
Positioning System (GPS) relies on twenty-four operational satellites
(with an additional three spares in orbit) in medium-earth orbits in six
orbital planes.[^63] The basic concept is simple though ingenious:

> \[The constellation of satellites flies\] in twelve-hour orbits at an
> altitude of 12,543 miles. Each of them carries an atomic clock for
> precise determination of time, while ground-based tracking permits
> each one to know its position with similar accuracy. A ground receiver
> then accepts signals from the spacecraft in view, learning their
> positions as well as the exact times when the signals were
> transmitted. The receiver has its own internal clock, which is not
> very accurate, but the data from space allows it to synchronize this
> clock with those of the satellites. The receiver then calculates the
> length of time each signal has been in transit, traveling at the speed
> of light. This translates into an accurate determination of distance
> to each satellite. Through triangulation, the receiver then determines
> its own location.[^64]

The system showed its great value during the 1991 Persian Gulf War by
providing for combatants answers to the age-old questions "where am I"
and "where am I going," to an accuracy of less than thirty feet.[^65] It
was also used to guide munitions launched from air, sea, and land-based
weapons to their targets providing three-dimensional position and
velocity data. This constantly-improving targeting capability will
likely be a significant law of war contribution made by GPS. As
discussed more fully in the next chapter, the ability to target
accurately implies the legal duty to do so. The better GPS accuracy
becomes, the higher the burden it will place on its users to distinguish
legitimate from illegitimate targets, and to minimize collateral damage.
Thus, it will no doubt "change the face of future warfare."[^66]
Operating on only sixteen satellites in the 1991 war,[^67] the system
nonetheless proved itself highly useful and will be indispensable to
space missions for future conflicts well into the twenty-first
century.[^68]

**B. Present and Potential Technologies Available for Space Combat**

To date, there has not been a single reported case of force used in
outer space by one nation against another.[^69] Nonetheless, given the
increasing global reliance on space systems, and increasing
militarization of space, its weaponization and evolution into a distinct
theater of military operations seems likely. Though technologies
applicable for space combat will include a wide variety of military
instrumentalities, the development of space weapons is the most obvious
choice. Such weapons can be grouped according to a variety of
criteria.[^70] They can be grouped by missions intended such as
"anti-satellite" and "missile defense," or by method of pursuit such as
"boost phase intercept" and "direct ascent."[^71] Depending on its
characteristics, a space weapon could fit within several different
categories at once. One of the most logical means of identification
focuses on the weapon's means of destruction as its distinguishing
feature. Most probable future space weaponry can be described using this
method of identification, including those representative samples
discussed in the six categories below.

*1. Electromagnetic and Radiation Weapons*

Perhaps the quintessential electromagnetic and radiation weapon is the
nuclear bomb. Recognizing this, the first anti-satellite (ASAT) weapon
system made operational by the U.S. involved a nuclear detonation in
space.[^72] Though the history and basic functioning of nuclear weapons
have been noted previously, it is appropriate to consider briefly their
effect as a weapon when detonated in outer space. Given the near-vacuum
conditions of space, the range of a nuclear blast in terms of spreading
radiation and heat is greatly diminished. In the absence of atmosphere,
radioactive fallout cannot occur.[^73] Further, the shock waves, violent
winds, and intense heat generated by a nuclear blast within the
atmosphere do not occur in space.[^74] As a result, the collateral
damage from the effects of heat and blast is fairly easy to
confine.[^75] Though the local effects in space from such a detonation
can be very destructive, the most significant military effect of nuclear
blasts in space relates to the creation of an electromagnetic pulse
(EMP) in near-earth space where the outer space vacuum contacts the
atmosphere.[^76]

An EMP is created when "a cascade of gamma rays from any nuclear
explosion in space collides with the upper atmosphere."[^77] As these
gamma rays race nearly instantaneously downward toward the top of
earth's atmosphere, resultant charge imbalances create an electrical
current that peaks 100 times faster than lightning, and is largely
unrelated to the size of the detonation for any yield over a few hundred
kilotons.[^78] Similar to a lightning strike, the EMP lasts only for a
millionth of a second but holds potential for devastation of sensitive
circuitry. Unshielded electronics within several hundred miles of the
epicenter may be disabled as every unshielded element in its path acts
as a conductor. The higher the burst, the larger the area affected in
the air and land beneath. A burst at a height of 300 miles (483 km)
would affect the entire continental U.S.[^79] "Poorly protected
satellites and solar power systems in orbit are particularly vulnerable,
because risk radii extend hundreds (sometimes thousands) of miles
farther in space than in absorbent air."[^80]

In addition to the effects of an EMP, "beta particles and gamma rays
respectively cause intensive and extensive alterations in the
ionosphere."[^81] These weaken both radio and radar waves. This can
result in high frequency blackouts over broad areas, followed by periods
of impaired radio and radar performance.[^82] Thus, the disruptive
capabilities of a nuclear blast in space hold distinct military
advantages.[^83] Nonetheless, in addition to legal hurdles, Peebles
notes that when first considered for its strategic value, the stationing
of a nuclear weapon in space "made no technical or military sense" for
at least four reasons, at least some of which are applicable today:

> First, an orbiting weapon required elaborate spacecraft systems, such
> as retro-rockets to deorbit it, others to guide it, and still others
> to arm it. Second, all of these integrated systems would have to
> perform reliably while on orbit for many months if not years, or the
> bomb became useless. . . . Third, if used in retaliation, such weapons
> could not be delivered at a moments \[sic\] notice, but would have to
> wait at least an orbit or two until the Earth turned beneath it and
> the intended target \[came\] into view. Finally, and perhaps most
> tellingly, if such a weapon were used for a first strike and a partial
> malfunction occurred as the nuclear bomb moved along its orbit, it
> might just as easily fall on Buenos Aires as on Washington D.C., or,
> worse yet, on Moscow.[^84]

For these and other reasons, and despite the unquestioned devastating
effects for any nation relying on sophisticated electronic
infrastructure, a nuclear-triggered EMP attack on the U.S. is deemed
unlikely. The Chairman of President Clinton's recent Commission on
Critical Infrastructure labeled it "the most remote part of the threat
spectrum."[^85]

Non-nuclear electromagnetic weapons have also been proposed. A study for
the U.S. Air Force analyzing the future of air and space power recently
reported that "\[t\]he technology of high RF \[radio frequency\] power
and large antennas is about to greatly expand."[^86] The report
concludes that when combined, these innovations will allow for the
projection of extremely high power densities, including electromagnetic
radiation, over extremely long distances to land, air, and space-based
targets.[^87] As an example, the report suggests that such a weapon in
the geosynchronous orbit could create a six mile footprint on a
battlefield which would "blank out" all radar receivers and would damage
all unprotected communication sets within that area. The tremendous
power envisioned would also allow injection of signals into even heavily
shielded communications networks, allowing for "information warfare to
be waged at will."[^88]

*2. Kinetic Energy and Hypervelocity Weapons*

Kinetic energy weapons, of which hypervelocity weapons are a subtype,
are historically the most common forms of space weaponry. As suggested
above, given the tremendous speeds at which objects travel in orbit, on
the order of 4.7 miles per second in low-earth orbit, just about
anything properly aimed could become a weapon even without the use of an
explosive warhead. This is true because such an object's speed,
including those of very small masses, gives it tremendous kinetic energy
for impact.[^89] One U.S. kinetic energy weapon, originally tested as a
missile interceptor, could equally serve as an ASAT. Known as the Homing
Overlay Experiment (HOE), the weapon, once boosted into space, unfurls a
4.5 meter radial "net" that is wrapped tightly behind the nose sensor.
The net increases the lethal radius of the homing and kill vehicle.
Successful testing in 1983 and 1984 showed the weapon capable of homing
in and destroying a dummy warhead in space using a long-wavelength
infrared sensor.[^90]

A program currently under development in the U.S. is simply called the
"KE ASAT" (kinetic energy ASAT). The system envisions using a large
Mylar "shroud" to impact the target object.[^91] Though it will disable
its target object by force of impact as will many other kinetic energy
ASATs, this system is unique in that the shroud is intended to minimize
the creation of a large quantity of resulting space debris normally
associated with kinetic energy weapon impacts.[^92]

The railgun is another type of kinetic energy weapon that accelerates a
projectile toward selected targets at hypervelocity speeds. Because the
railgun will use electromagnetic forces to accelerate its projectiles,
it is an "electromagnetic" weapon of sorts. However, it is distinct from
the electromagnetic weaponry discussed above in that the final method of
destruction is a kinetic impact rather than an electromagnetic force
itself. Testing in the U.S. has resulted in the electromagnetic
acceleration of tantalum discs to speeds of eleven kilometers per
second.[^93] Though not yet developed as a weapon, such railguns could
be stationed in outer space.

An additional space-based kinetic energy weapon has been proposed but
not yet developed. Though not an ASAT, the weapon has been conceived for
use against terrestrial targets. It would capitalize on the tremendous
speed of long rods made of depleted uranium orbiting in space. Remotely
commanded to reenter the atmosphere at hypersonic speeds, the rods could
be precision-guided to targets in the air or on the surface of the
earth. Their special shape and materials would allow for survival on
reentry into the atmosphere with little prospect for collateral damage
on impact. The ability to call down such objects from space at
hypervelocity speeds would allow them to penetrate hundreds of feet into
the earth. Strategically, it would also offer the attacker the "ultimate
stealth" and maximum surprise.[^94]

A final example in the kinetic energy category is the Gun Launch to
Space (GLTS) project. The project envisions a large artillery-type
structure capable of launching projectiles hundreds of miles. The most
notable example of rudimentary technology on which the GLTS might be
based is the Iraqi "supergun," employing a barrel 172 feet long and
capable of propelling 114 pound projectiles to distances of 465
miles.[^95] Although principally conceived as a system for boosting
operational payloads to orbit, the GLTS project has numerous potential
applications, including service as an ASAT.[^96]

*3. Laser Weapons*

"Laser" is an acronym for Light Amplification by Stimulated Emission of
Radiation and is a device that produces a narrow beam of radiation by
means of a physical emission. The light constituting the laser beam can
be produced by a variety of chemical means. Key components of such a
weapon include both the laser itself and the beam control subsystems
which aim the beam. Once created, the beam used in the proposed weapon's
laser is so concentrated that it can be projected for extremely long
distances with very little loss of energy. Study on laser weapons,
including those capable of disabling satellites, began in the early
1960s,[^97] and received increased attention as part of the Strategic
Defense Initiative. Despite tremendous technical problems, mostly still
unresolved, lasers could radically change warfare if ever fielded.[^98]

At present, the U.S. is developing space, air, and ground-based lasers
for possible use as weapons against enemy missiles and satellites. One
of the two principal U.S. ground-based lasers is the Mid-Infrared
Advanced Chemical Laser (MIRACL).[^99] As the name suggests, the laser
beam is generated by chemical reactions, produced by deuterium fluoride,
resulting in a focused beam that is fourteen cm square.[^100] It is the
largest laser developed in the U.S., undergoing numerous tests since
1985 when it destroyed a stationary ICBM on the ground. In the late
1980s, the Congress prohibited DOD from using the laser against space
objects.[^101] The prohibition expired in 1995, however, and Congress
failed to renew the ban. On Oct. 17, 1997, the MIRACL "illuminated" a
satellite in orbit constituting the first-ever U.S. use of a laser
against a satellite.[^102] Though it did not destroy the object, the
move was widely seen as a potential first step toward development of a
laser ASAT capability.[^103] No further tests against space objects are
scheduled.

The airborne laser (ABL) program under development calls for a much
smaller laser system housed within a modified 747 aircraft. The weapon
was conceived as a defense against missile threats but if the program
continues to prove as successful as its latest tests (tracking ballistic
missiles, overcoming atmospheric distortion), U.S. Air Force officials
are weighing expanding its role to reconnaissance, cruise missile
defense, and suppression of enemy air defenses.[^104] The laser, still
under development, will use an oxygen-iodine combustion process to
produce the intense light. The first airborne test firing of the laser
against a missile is scheduled for 2002.[^105] Although the ABL has not
been envisioned for an ASAT role, its anticipated 250 mile range would
make it capable of reaching missiles and satellites in low orbits.

Space-based laser systems (SBLs) that target other space objects have
the dual advantage of being less vulnerable to attack and avoiding the
distorting effects of earth's atmosphere. The laser currently envisioned
for the SBL system uses a hydrogen fluoride chemical reaction to create
its light beam. Unlike the MIRACL and ABL systems, it must be developed
to operate in the low pressure environment of space. The prototype Alpha
laser was successfully tested in 1991 under conditions simulating the
space environment. Results from the test showed that megawatt power
levels similar to the MIRACL but optimized for space can be built and
operated.[^106] However, as with all three laser weapons programs
several technical challenge remain for SBLs, including keeping the
satellites loaded with a sufficient quantity of chemicals necessary to
fuel the laser.[^107] Current estimates call for space-based laser
testing to begin sometime between 2005 and 2008.[^108]

*4. Particle Beam Weapons*

The first proposed use of particle beam weapons for satellite defense
occurred in 1965.[^109] Even more technically challenging than lasers,
both particle beam and laser weapons constitute "directed energy"
weapons--that is, weapons which destroy their targets by delivering
energy at or near the speed of light (approximately Mach 1,000,000).
This would be a considerable advantage during time-urgent military
engagements.[^110] In theory, a particle beam weapon could mimic the
effects achieved by an electron accelerator by transferring energy to
its target at nearly the speed of light. In so doing, it would transfer
thermal energy similar to the action of a lightning bolt.[^111] Unlike
the short attack of a nuclear (or other) blast-triggered EMP, a particle
beam weapon could keep its destructive beam focused on the target for
longer periods of time.

Particle beam weapons differ from lasers in several respects. The former
do not heat the surface of their targets as lasers do. Thus, the
particle beam weapon does not weaken the structure of its target, but
eats through the skin and damages its internal mechanisms.[^112] Because
it does not rely on light energy, the particle beam weapon would not be
affected by cloud cover or a reflective coating as would a laser.
However, despite their theoretical advantages, such weapons are
exceedingly difficult to produce because of the high-energy current and
repetition rates required.[^113]

*5. Explosive Proximity Weapons*

The category of space weapons characterized by an explosion in proximity
to its target is perhaps the most self-evident form of space weaponry.
This type of weapon simply steers close to its target and blows it up by
detonation in the target's vicinity. The best example is the Soviet ASAT
system, first tested in the late 1960s and fielded in the 1970s.[^114]
The explosive kill vehicle is rocket launched to coincide with the
period during which the earth's rotation will put the weapon into the
same orbital plane as the target satellite. Once the ASAT achieves
orbit, ground controllers maneuver the object for one to two revolutions
of the earth until it is close enough to the target for its own guidance
system to activate. "When in range an explosive charge aboard the
interceptor is detonated, sending a cloud of shrapnel at high speed to
destroy the target."[^115] Repeated testing has shown the system to be
marginally effective.[^116] Recent reports of Russian work on an EMP
ASAT may prove more effective.[^117]

Though not yet developed, "space mines" are another type of proximity
weapon that tracks down its target and detonates on impact or other
trigger event. Commentators suggest that the detonators for such mines
could be activated by command from earth, which could be triggered by,
for example, reaction to heat or mechanical action.[^118] Although
similar to kinetic energy weapons, the space mine's method of
destruction is not the force of impact but the detonation.

*6. 'Soft Kill' Weapons*

A final category includes those weapons designed to disable their
space-based targets, usually satellites, rather than destroy them.
Though never fielded, at least three types of systems in this category
have been considered, all of which rely on rendezvous with the target
satellite.[^119] First, weapons that spray paint onto the optics, solar
arrays, or radiators of the target would disrupt power supplies or
mission execution. Second, a target satellite could be nudged or tipped
out of its current orbit in order to exhaust its control fuel. Third,
electronic jamming could disrupt a satellite's proper functioning or
shut it down altogether. In each case, unless detected before the
"attack," disabling missions such as these could be undertaken covertly
and the true source never be detected or proven. Because the results of
these "soft kills" often mimic routine failures, detection would prove
difficult.[^120]

**III. THE LAW OF WAR**[^121]

\[The law of armed conflict\] is no longer a body of law designed to

ensure a fair fight between two opponents; . . .Today, the law of

armed conflict is designed primarily to minimize suffering and

prevent unnecessary destruction. This being so, belligerents are

held to the standards to which they are capable of rising.[^122]

> Lieutenant Colonel Michael N. Schmitt, USAF (1998)

Scholars have advanced numerous reasons for maintaining an international
law of armed conflict.[^123] At first glance, the creation of rules for
war--apparently the ultimate breakdown in order--seems ironic at
best.[^124] And yet although war is a breakdown with respect to peaceful
dispute resolution, it becomes the *ultimate* breakdown only if allowed
by its participants. War need not lead to anarchy or violent chaos, even
though it necessarily entails injury, killing, and death.[^125] Numerous
historical examples of military discipline displayed in combat show that
the participants in war can recognize order or, at the very least, a
chain of command.

It is tautological to assert that effective warfare requires application
of efficient, ordered methods. Indeed when that form of order
represented by the law of war breaks down, the military effects can be
disastrous. Colonel Charles Dunlap quotes Richard Overy on the effects
of Germany's disregard for the laws of war in its conflict against the
Soviets on the Eastern front.

> \[Such\] criminalization of warfare produced a growing indiscipline
> and demoralization among German forces themselves. The German army
> shot fifteen thousand of their own number, the equivalence \[sic\] of
> a whole division. . . . Desertion or refusal to obey orders increased
> as the war went on, and the law of the jungle seeped into the military
> structure itself.[^126]

Many factors contributed to the Nazi defeat, but the German way of war
on the Eastern front failed at least in part because it became
"disorderly." Thus, advocacy for an efficient, effective military force
can itself become an argument for the laws of war, which will have the
effect of reinforcing military discipline.[^127]

Whatever the reasons, warfare has attended the human race since the
beginning of recorded history. In reflecting on the phenomenon,
theorists and scholars have described the nature of warfare in a variety
of ways. Some see it as the logical and brutal extension of
politics;[^128] others view warfare as principally about deception and
avoidance of the enemy's physical strengths.[^129] However one conceives
warfare, all agree that armed combat is an event in which the
battlefield reality is much worse that its mere description might
suggest.[^130] Because of this, the principled warrior is the last to
desire war; when given the discretion, he reserves it as a last resort.
Nonetheless, warfare has been a permanent fixture of the human race. As
one source puts it, "\[a\]ccording to estimates based on the period from
3600 B.C. until 1960, mankind has known only 292 years of universal
peace, and in the remaining 5268 years has faced 14,513 armed conflicts
taking 1240 million human lives."[^131] These statistics highlight the
fact that for the sake of preserving human life and international public
order, one must accept, however cynically,[^132] both the importance and
relevance of the laws of war.

**A. Jus in Bello vs. Jus ad Bellum**

When speaking of the various international norms limiting the
prosecution of war, scholars have historically distinguished between the
*jus in bello*, or, the laws regulating the conduct of States once armed
conflict between them has begun,[^133] and the *jus ad bellum*
consisting of the law governing resort to armed conflict. The former law
applies to conflicts that the belligerents themselves may not regard as
"wars."[^134] The latter law is of relatively recent origin and is
expressed most authoritatively in Article 2(4), and Chapter VII of the
United Nations Charter.[^135] Based on this distinction, Michael Walzer
points out that the truly lawful war must satisfy requirements under
both legal regimes: "War is always judged twice, first with reference to
the reasons states have for fighting, secondly with reference to the
means they adopt."[^136] This two-part analysis leads another publicist
to distinguish between a war's "*just cause* and \[its\] *just
means*."[^137]

Some authors conceive a conceptual framework in which the law of war
concerns itself principally with the *jus in bello*. Thus, Kalshoven
writes "\[t\]he laws of war, or *jus in bello*, are those rules and
principles of international law which . . . govern the conduct of
war."[^138] This is both the majority view and the better view. By
contrast, others prefer to speak of the law of war as comprising *both*
aspects. "The term 'laws of war' can have different meanings and refers
to both the rules governing resort to armed conflict (*ius ad bellum*)
and the rules governing the actual conduct of armed conflict (*ius in
bello*)."[^139] Because the term *jus ad bellum* more properly coincides
with phrases such as "the right of self-defense" and "resort to the use
of force," it should therefore be distinguished from "laws *of* war."
Equating the *jus in bello* with the phrase "laws of war" is not only a
matter of historical convention,[^140] but of logical application of law
to war. Simply put, the *jus ad bellum* is to be regarded as separate
from the law of war because of the "cardinal principle that *jus in
bello* applies in cases of armed conflict whether the conflict is lawful
or unlawful in its inception under *jus ad bellum*."[^141]

**B. Customary Principles within the Law of War**

Given the misery left by warfare through the centuries, warring nations
have developed customary practices seeking to ameliorate its devastating
effects. As the customs of war have evolved into the customs *and laws*
of war, the dominant objective underlying the law as it relates to
military force has remained constant and can be summed up in one word:
restraint.[^142] This was perhaps best summarized for the fist time in
an international instrument by Article 22 of the Second Convention
adopted by the 1899 Hague Peace Conference: "The right of belligerents
to adopt means of injuring the enemy is not unlimited."[^143] As
discussed below, the dominant concepts distilled from the vast body of
customary international law amount to very few; military necessity,
discrimination, proportionality, and humanity.[^144] These principles,
recognized in subsequent treaty law, limit the means and methods
available to belligerents for conducting armed conflicts, and thus each
demands restraint of the belligerent State.[^145] Because there are no
treaties establishing specific *jus in bello* principles for space
combat, these customary principles provide the most authoritative
source, subject to the specific principles of space law discussed in
Chapters Four and Five, on which the analysis of a *jus in bello* for
space must proceed.

*1. Military Necessity*

Military necessity expresses the idea that for an attack to be lawful
belligerents must be able to show the connection between the attack, and
the suppression of the enemy's military capability. De Mulinen points
out that military necessity pertains to those measures: "(a) not
forbidden by the law of war; and (b) required to secure the overpowering
of the enemy."[^146] Implied in the restriction this principle imposes
is the requirement that attackers have identified the prospective target
in advance of attack as one that is militarily legitimate. Put
otherwise, the attacker must be convinced that attacking the target will
contribute to the victory of his military undertaking. As the quote at
the head of this chapter suggests, the more capable a belligerent is in
properly identifying these militarily necessary targets, the more
responsibility it has in doing so.

Taken to its logical extreme, the principle of necessity could be used
to justify the very sorts of activity the laws of war prohibit.[^147]
Any argument taking the principle to this extreme commits two legal
errors. First, it fundamentally misinterprets the principle by failing
to recognize the sovereign freedom States have in the absence of legal
prohibition.[^148] Legally speaking, a State does not need concepts like
military necessity to justify its behavior in war provided such behavior
is otherwise compliant with applicable *jus in bello* restrictions. As
Schmitt emphasizes, "\[m\]ilitary necessity operates within this
paradigm to prohibit acts that are not militarily necessary; it is a
principle of limitation, not authorization. In its legal sense, military
necessity justifies nothing."[^149] Second, as with all of the customary
principles underlying the law of war, but especially military necessity,
the concept must be balanced against the others. The U.S. Air Force
stresses this point in its manual on the law of war:

> The law of armed conflict has been shaped with a recognition of the
> concept of \"military necessity.\" Hence \"necessity\" cannot be
> claimed as a defense to violations of absolute prohibitions included
> in the law of armed conflict, for example, killing of prisoners of
> war. More importantly, various military doctrines, such as accuracy of
> targeting, concentration of effort, maximization of military
> advantage, conservation of resources, avoidance of excessive
> collateral damage, and economy of force are not only fully consistent
> with compliance with the law of armed conflict but reinforce its
> observance.[^150]

*2. Discrimination*

Discrimination,[^151] as the term suggests, stresses diligence in "the
selection of methods, of weaponry and of targets . . . it includes the
idea of the immunity of non-combatants and those *hors de combat*, that
is, the sick, wounded, and shipwrecked, but it is not only about that:
it can also refer to geographical and other limitations."[^152] This
description incorporates several concepts, one of the most significant
being the distinction between combatants and non-combatants. In general,
the law of war prohibits attack of any person deemed a "non-combatant."
This means that the lawfulness of the use of force against individuals
under the *jus in bello* presupposes attack of those qualifying as
combatants. Recognized at least since the nineteenth century,[^153] the
law of war establishes the category "combatants" in order to specify
those who may be attacked, but also to create a measure of protection
for those so categorized.[^154] The 1907 Regulations annexed to the
Hague Convention (IV) Respecting the Laws and Customs of War on Land
stated the general criteria for recognizing combatants: (a) commanded by
a person responsible for his subordinates; (b) have a fixed distinctive
emblem recognizable at a distance; (c) carry arms openly; and (d)
conduct operations in accord with the laws and customs of war.[^155]

The care required by the principle of discrimination to distinguish
between combatants and non-combatants rests on an even more fundamental
principle: military objective.[^156] This principle requires that a
belligerent's armed attacks be limited to targets that are military in
nature and the destruction of which advances the attacker's tactical,
operational, or strategic position. Such targets would certainly include
combatants in action, as well as inanimate objects deemed necessary for
the opponent's prosecution of the conflict. Thus, Article 48 of the 1977
Protocol I to the 1949 Geneva Conventions provides the clearest
statement of the customary principle, and assumes in its "basic rule"
concerning the general protection of civilians populations that
belligerents will recognize military objectives. "In order to ensure
respect for and protection of the civilian population and civilian
objects, the Parties to the conflict shall at all times distinguish
between the civilian population and combatants and between civilian
objects and military objectives and accordingly shall direct their
operations only against military objectives."[^157] Subsequently,
Protocol I defines "military objective" (relating to objects versus
noncombatants) as being "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."[^158]

The obligation created by the principle of distinction attends both the
attacker and the defender.[^159] Further, because the principle requires
attackers to exercise due care in the selection, engagement, and
destruction of targets, it imposes a duty commensurate with the
belligerent's ability to discriminate. Given the lack of precision
afforded by gravity-driven projectiles dropped from hot air balloons,
the outright prohibitions on such methods of war in 1899 and 1907 make
sense in light of the principle of discrimination.[^160] However, the
increasing capability of modern weaponry not only provides increased
tactical options, but potentially increased obligation as well. To the
extent that a laser-guided bomb can be used to effectuate an attack that
properly distinguishes legitimate from illegitimate targets, but a
conventional gravity bomb cannot, the attacker may be obligated to
either forego the attack or use the less common, more costly precision
munition.[^161] Of course, relevant to this targeting and weaponeering
analysis would be the attacker's overall campaign plan. The possibility
certainly exists that use of precision munitions early in a campaign
might produce less overall value under the proportionality analysis than
had the use been reserved for a later target in the campaign.

*3. Proportionality*

The customary rule of proportionality, more difficult to articulate than
necessity or discrimination, requires that the use of military force be
proportional to the legitimate military objective in view. This
represents more than simply the principle of war advocating only such
force as is necessary to attain the objective; it actually requires a
balancing of anticipated military advantage against anticipated damage
caused.[^162] It essentially prohibits the use of military force that
creates collateral damage to civilians or property, not otherwise
legitimate targets, that is disproportionate to the military value of
the objective.[^163] As Roberts and Guelff point out, this doctrine can
refer to two different situations: first, the proportionality of a
belligerent response to a grievance (in this sense proportionality
provides a link between the *jus ad bellum* and *jus in bello*); and
second, "proportionality in relation to the adversary's military actions
or to the anticipated military value of one's own actions, including
proportionality in reprisals."[^164]

In the former sense of proportionality posed by Roberts and Guelff, the
massive coalition military operation in the 1991 Persian Gulf War would
have been disproportionate to an unlawful border incursion and then an
immediate retreat by the Iraqis. Though unlawful, such incursion could
be remedied with far less force. In the latter sense of proportionality,
in response to the opponent's military actions, the destruction of a
hydroelectric dam in order to eliminate a sniper perched on top would
constitute an attack disproportionate to the legitimate objective of
eliminating the threat posed by the sniper. Though the dam may be its
own legitimate objective under certain circumstances, it is not made
legitimate simply as a means of achieving the destruction of a far less
significant target.

Because of the difficulty of applying the principle of proportionality
to specific contexts in modern warfare, scholars and practitioners have
devised tests to assist those engaging in target selection and military
operations planning. One useful formulation for aerial combat has been
advanced by Colonel Gómez of the Spanish Air Force: "an aerial attack
expected to cause civilian casualties would be acceptable should it have
the same degree of approval as a similar action taking place over a part
of the country's own territory under enemy occupation, in which case the
civilian casualties would be compatriots."[^165] This formulation
essentially asks the military planner to put himself in the position of
the enemy. Such an approach could be modified to apply the principle of
proportionality to space warfare. Gómez aptly attributes the difficulty
in applying the principle of proportionality to the subjectivity
involved in the application, and thus terms the principle the "Achilles
heel of the law of war."[^166]

*4. Humanity*

Finally, the concept of humanity incorporates several concepts,
including that which is still called "chivalry."[^167] In practice, this
principle may not pose the urgency it once did in limiting armed
conflict because of the way the other principles have matured taking it
into account. This is particularly true of necessity and
proportionality, as Colonel Schmitt observes: "to the extent suffering
is useless it is militarily unnecessary and, because it offers no direct
and concrete military advantage, disproportionate."[^168]

Nonetheless, the principle of humanity accounts for several efforts at
outlawing means and methods of warfare deemed to cause unnecessary
suffering. International law does not restrict belligerents from
wounding or killing opposing forces so that they will not fight back. It
follows from this that once a combatant is rendered *hors de combat*
("out of combat"), he is no longer a legitimate target for further
attack. Thus, while it is legitimate to wound a combatant so as to
render him *hors de combat*, means and methods of warfare having the
effect of exacerbating wounds that would render a combatant *hors de
combat*, are deemed "unnecessary." The principle has been applied over
the centuries to weapons from antiquity, and those developed more
recently that have been addressed through treaty instruments. These
include poisoned weapons,[^169] barbed weapons, small-caliber incendiary
or explosive bullets,[^170] expanding bullets,[^171] glass and other
nondetectable fragments,[^172] and most recently, blinding lasers.[^173]
In theory, prohibition of all of these weapons limits space war to the
extent that any of them might be delivered against human beings from or
within outer space.

As the principle of military necessity must be balanced by humanitarian
concerns, some legal commentators note that humanitarian concerns must
be balanced against legitimate military needs as well. The *jus in
bello* principles presuppose that their application occurs in the midst
of armed conflict--that is "*in bello*"--and that in some cases States
will accurately assert a legal right to militarily subdue the
other.[^174] This forces the law to assume a pragmatic posture with
respect to the goal that warfare remain humane. Thus, Professor Green
rightly observes,

> \[s\]ince the law of armed conflict rests upon a judicious balance
> between military operational needs and humanitarianism, and since the
> purpose of the Geneva Law is the preservation of humanitarianism
> accompanied by respect for civilians and the long-term interests of
> the parties to the conflict by reducing the possibility of sentiments
> of *revanchisme*, application of humanitarian principles does not
> override the needs of practical realism. Idealism and a belief in
> humanitarianism must not result in an automatic rejection of military
> needs or careless accusations of war crimes or crimes against
> humanity. However, the assessment of military needs must always be
> made in good faith.[^175]

This is not to say that military necessity ever provides an
authorization to act (as the following example might incorrectly
suggest: "the employment of military force was authorized because doing
so was militarily necessary"), but simply to say that each of the
customary law of war principles represent an important *limitation* on
means and methods of warfare while simultaneously recognizing that
warfare nonetheless persists in human experience. This fact affects the
content that the law invests into the term "humanity." This fact further
pragmatically presupposes that unless the law somehow accommodates
itself to such realities as the continued existence of war, States will
ignore it. One can recognize the existence of such accommodation by
observing the simple fact that unfettered humanitarianism does not
characterize the law of war. If it did, then not only would such "law"
never have achieved the force of law in the first place,[^176] but the
*jus in bello* would prohibit all means and methods of war for the
simple reason that any one of them are apt to produce suffering to some
extent. Pure humanitarianism would prohibit all suffering of any kind,
as the law of war plainly does not.[^177] The principles therefore
require constant balancing and readjustment. Each acts as a limit on
permissible military activity so that no one principle obliterates the
other.[^178]

**C. TREATY LAW**

Without doubt, the easiest means of determining international law is by
reference to the explicit will of States as expressed in treaties.
Though of minimal value for ascertaining specific principles applicable
to space warfare, the relevant treaties do provide the general
foundation from which a space law of war will emerge. And, the four
general principles of the law of war outlined above, reinforced within
this treaty law, will apply to armed conflict in any combat
environment.[^179]

A discussion of relevant treaty law restraining armed conflict would not
be complete without reference to several historical antecedents. The
diplomatic conferences producing the Hague and Geneva Conventions, and
their progeny, followed several modest attempts to codify the *jus in
bello*. One such attempt, reflected in the Lieber Code of 1863, so
called for its author, Columbia University professor Francis Lieber,
governed the prosecution of war for the Union Army during the American
Civil War. Promulgated by President Lincoln as General Order Number 100,
the Lieber Code's 157 articles set forth standards for the prosecution
of the war and treatment of Confederate troops.[^180]

Though developed in the United States, the Lieber Code became widely
read as expressing an emerging international law relating to
restrictions imposed on combatants in armed conflict,[^181] and it
"strongly influenced the further codification of the laws of war and the
adoption of similar regulations by other States."[^182] Thus, in
addition to influencing the codification of subsequent treaty law, it
became the model for other countries, including Prussia in 1870,[^183]
the Netherlands in 1871, France in 1877, Serbia in 1879, Spain in 1882,
Portugal in 1890, and Italy in 1896.[^184]

Eventually, the Geneva Convention of 1864,[^185] the Petersburg
Declaration of 1868,[^186] Protocol and Declaration of the Brussels
Conference of 1874,[^187] and the 1880 Oxford Manual of the Laws and
Customs of War[^188] took modest steps toward limiting the means and
methods of warfare as well as ameliorating the suffering they cause. In
each case, the restrictions on means and methods of war, as well as on
treatment of combatants and noncombatants, provided the foundation for
the international treaty norms still in force today.

*1. Hague Conventions of 1899 (I-IV) and 1907 (I-XIV)*

The conventions adopted in 1899 and 1907 at the Hague provide, to this
day, the backbone of international regulation governing the means and
methods of warfare. These eighteen treaties attempted to fulfil four
main purposes: first, they sought to identify those who may lawfully
participate in war, and define the duties and rights of those
individuals; second, they sought to regulate means and methods by which
States could lawfully conduct warfare; third, they sought to describe
the conditions and manner under which belligerents could bombard or
besiege; and fourth, they sought to regulate truces, capitulations and
armistices, and the military government of occupied territories.[^189]

Because the laws of war were among the earliest parts of international
law to be codified,[^190] it may seem that the original principles would
contribute little to the regulation of space combat. This is true only
in part. Though the Hague Conventions had nothing explicit to say about
aerial warfare, for example, several specific restrictions have been
applied by extension. It is no surprise that the Conventions contemplate
the means and methods of warfare then in existence. However, although
nothing in the 1907 texts is directed toward space operations,
articulation of the *jus in bello* for space warfare will require
examination of the Hague Conventions--an examination analogous to that
undertaken for aerial warfare. Just as principles from the Conventions
have been stretched to limit means and methods of air war, a slightly
broader reading of the primary texts could establish the emergence of a
generalized *jus in bello* for space.

Significant provisions for airpower, and thus possibly for spacepower,
are the restrictions on bombardment contained within the fourth
Convention regulating land warfare,[^191] and the ninth Convention
regulating bombardment by naval forces.[^192] As with most of the
documents adopted by the 1907 conference, the Convention on land warfare
was drafted using terms and concepts from its 1899 predecessor.[^193]
Both conferences sought to limit the permissible scope of artillery fire
and the "bombardment" resulting therefrom. Although the ninth Convention
only limited bombardment by "naval forces,"[^194] its second Article
provided a list of authorized targets, including "\[m\]ilitary works,
military or naval establishments, depots of arms or war *matériel*,
workshops or plant which could be utilized for the needs of the hostile
fleet or army, and the ships of war in the harbor. . . ."[^195] Because
these targets were specifically excluded from the Convention's
prohibitions on bombardment, including its application to "naval
forces," it appears that the Convention recognizes that these targets
could be attacked by any forces--naval, terrestrial, aerial, or even
space.

A second feature of significance, from the ninth Convention, relates to
its Article 2 and the concept of unavoidable collateral damage. After
requisite precautions have been taken by the attacker, including
ascertaining the status of the target, issuance of a summons followed by
a reasonable time of waiting, and failure by the local authorities to
destroy the targets themselves, the attacker is absolved of
responsibility for "unavoidable damage."[^196] Significantly, this
places a burden to minimize collateral damage not only on the attacker,
but on the defender as well. Although reflected in subsequent
international instruments, this aspect of the law of war is increasingly
forgotten. In 1907 it was simply "realized that collateral civilian
casualties were regarded as the cost of war to a nation rather than the
responsibility of the attacker."[^197] This general principle will apply
equally to space warfare. Thus, belligerents employing military space
assets that constitute legitimate targets will be obliged to separate
them from other space objects not supporting the armed conflict.

In contrast to the ninth Convention on naval forces, the prohibition on
bombardment in the regulations annexed to the fourth Convention did not
limit itself to land forces. Reflecting the principle previously
articulated in the second 1899 convention, the fourth convention's
general prohibition reads: "The attack or bombardment, by whatever
means, of towns, villages, dwellings, or buildings which are undefended
is prohibited."[^198] Although the drafters of the Convention did not
likely envision space warfare, this provision raises three potential
issues related to limitations on space warfare. First, the specified
targets require at a minimum that they be "defended" before making them
subject to attack. This was an early way of restating the principle of
military necessity. That is, unless a potential target was considered
significant enough to defend, it was not deemed significant enough to
attack as a legitimate objective.

A second issue raised by the bombardment prohibition relates to its
scope. Applicable to bombardment "by whatever means," the prohibition
against attack of undefended land targets restricts all bombardment of
such targets, however or wherever originated. Unless properly defended,
the enumerated targets were not to be engaged by land or sea forces.
Given the expansive terms used by the drafters, the prohibition could be
interpreted to apply by extension to air and space forces.[^199]

Finally, the prohibition implicitly recognizes that under proper
conditions certain targets are lawful. Thus, under the terms of the
convention, one could not state that towns, villages, dwellings, or
buildings may *never* be lawful targets. There were cases envisioned in
which even towns filled with civilians could be bombarded. Significantly
however, the Convention did not state that a potential target was
legitimate simply because it was defended, only that undefended targets
were off limits. As a result, even a defended target may still have been
protected if it did not otherwise qualify as a legitimate military
objective. Just because a town full of civilians possessed armed
protection, it was not thereby rendered a legitimate target unless it
sustained an industrial or other function contributing to the
prosecution of the conflict.

Chapter One of the regulations to the fourth Convention raises further
distinctions that would prove important to all subsequent law of war
rules.[^200] It defined the conditions under which one qualified as a
"belligerent" and thus protection as a "prisoner of war" if taken during
the course of hostilities. As listed previously, the regulations
establish four criteria defining a belligerent[^201] which designation
could apply not only to those in armies, but to militia members and
those of volunteer corps as well. Chapter One further specifies that the
category "belligerents" may include either combatants or
non-combatants.[^202] As the term suggests, combatants refer to those
participating directly in the hostilities. As a rule, members of a
State's armed forces are combatants, with the two basic exceptions being
religious and medical personnel. These two categories of military
members, though members of the armed forces and otherwise entitled to
protection as "belligerents" or "prisoners of war," are non-combatants
because they may not participate directly in the use of force.

Even more basic than the distinction between "combatants" and
"non-combatants" was that between "combatants" and "civilians."[^203]
Civilians were viewed as a special class of "non-combatants" (unable to
take part in the hostilities), who were not "belligerents" (susceptible
to capture and incarceration as prisoners of war) either. Neither they
nor their property could be targeted directly as long as they retained
their status as "civilians." However, a final important category,
"unlawful combatants" applies to those non-combatants and civilians who
are unauthorized to engage in hostilities, but do so nonetheless. These
individuals lose the protection they would otherwise enjoy under the
laws of war. As the 1977 Protocol (I) to the Geneva Convention
recognizes, unlawful combatants do not lose all humanitarian
protections,[^204] but they are not accorded "prisoner of war" status if
captured, and they face lawful penal consequences by the foreign
belligerent State for their unlawful participation in the
conflict.[^205]

One additional category recognized by the Hague regulations merits
attention--spies. This class of participants to the conflict would
include one who, "acting clandestinely or on false pretenses, . . .
obtains or endeavors to obtain information in the zone of operations of
a belligerent, with the intention of communicating it to the hostile
party."[^206] This does not include soldiers who have penetrated the
hostile force's zone of operations for the purpose of obtaining
information.[^207] As applied to space warfare, this might mean that a
combatant who enters an opposing spacecraft cannot be considered a spy
as long as his vessel bears its prescribed distinctive markings, and the
astronaut wears his military uniform. Because of potentially damaging,
serious effects that spies can have on a belligerent, spies enjoy the
least protection under international law and are the most vulnerable if
captured. Spies are not deemed prisoners of war and, subject to various
minimal due process protections, may be tried by hostile belligerents
for espionage.[^208] In the near future however, spying is unlikely to
become a significant issue for space warfare unless current trends
toward unmanned missions change course. For ground operations in support
of space warfare however, the traditional norms governing spying will
apply. Thus, the lawful disposition of a spy having infiltrated a
satellite control center will be no different than that for a spy
operating elsewhere.

*2. Geneva Conventions of 1949 (I-IV) and Protocols of 1977 (I-II)*

The 1949 Geneva Conventions serve primarily as protection for
individuals suffering as a result of armed conflict. Those employing the
term "humanitarian law" as the preferred reference for the law of war,
often seem to have the Geneva Conventions principally in view. This
follows from the simple observation that the 1949 Conventions highlight
the international interest in ensuring that warfare respects the human
person to the maximum possible extent.[^209]

During World War II, following numerous violations of the laws of
war,[^210] the world expressed great doubt that the laws of war would
ever truly protect either combatants or civilians.[^211] This sense was
expressed by Winston Churchill after the war: "The only direct measure
of defence on a great scale was to possess the power to inflict
simultaneously upon the enemy as much damage as he himself could
inflict."[^212] This is to say that the laws of war were no "defense"
against the indiscriminate use of force. Thus, to the extent that
Churchill spoke for the general temper of his time, compliance with the
laws of war was simply viewed as incidental to the prosecution of the
war. If an international rule were adhered to, it was not for respect of
the "law," but because doing so afforded some military advantage.

Out of this pessimistic environment emerged the diplomatic conference in
Geneva, charged with limiting the harsh effects of war. Primarily
concerned as they are with amelioration of the suffering of war victims,
the four Geneva Conventions are only tangentially related to regulating
the means and methods of war. They represent, as has been said, "Geneva
Law" related to victims, and not "Hague Law" related to means and
methods of warfare. Nonetheless, several provisions do limit means and
methods, specifically targeting options.

Article 19 of the Geneva Convention (I) for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field specifies
that "Fixed establishments and mobile medical units of the Medical
Service may in no circumstances be attacked, but shall at all times be
respected and protected by the Parties to the conflict."[^213] Under
Article 22, this protection for medical facilities applies even if the
unit's personnel are armed, the unit is protected by a fence or armed
sentries, small arms and ammunition taken from the wounded and sick
remain in the unit, the unit's services include veterinary care, or the
unit extends care to civilian wounded or sick.[^214] These provisions
clearly remove medical facilities from the list of permissible targets
that belligerents may lawfully destroy. The fact that the prohibition
contemplates "no circumstances" under which such targets may be
attacked, signifies the comprehensive nature of the protection and
forbids attack from any combat environment, including space.

A similar provision can be found in Article 18 of the Geneva Convention
(IV) Relative to the Protection of Civilian Persons in Time of War:
"Civilian hospitals organized to give care to the wounded and sick, the
infirm and maternity cases, may in no circumstances be the object of
attack, but shall at all times be respected and protected by the Parties
to the conflict."[^215] Though this provision would also apply to space
attacks, using the same absolute ("no circumstances") language of
convention (I), Article 18 goes a step further by requiring belligerents
to clearly mark civilian hospitals so that they are "clearly visible to
the enemy land, air, and naval forces in order to obviate the
possibility of any hostile action."[^216]

In addition to protection of medical facilities on the ground, Geneva
Law protects medical ships under the Geneva Convention (II) for the
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members
of Armed Forces at Sea. Thus, Article 22 provides that such ships,
"built or equipped by the Powers specially and solely with a view to
assisting the wounded, sick and shipwrecked, to treating them and to
transporting them, may in no circumstances be attacked. . . ."[^217]
Article 23 clarifies that such protection extends to such support
establishments ashore that may be protected under Convention (I),[^218]
and Article 28 protects the sick-bays aboard a warship, even where
fighting occurs on board the ship.[^219] These provisions further
restrict the potential methods of space warfare as all protected
facilities could in theory be attacked from space.[^220]

Motivated by continuing international conflicts, and particularly the
revitalized interest in the law of war following the Vietnam War,
nongovernmental organizations began arguing for a diplomatic conference
to update the law of war. This followed moves immediately after WWII by
the International Committee of the Red Cross (ICRC) attempting to
restrict aerial bombardment. This emphasis on the need to update the law
of war continued through the 1950s and 1960s. Following two significant
U.N.G.A. Resolutions,[^221] a diplomatic conference was convened in 1974
to draft new protocols.

The first of the two Protocols adopted by the conference pertained to
international armed conflicts and is, to the extent that any law of war
treaties will be relevant, more important for regulation of means and
methods of space warfare. Protocol II limits itself to the regulation of
armed force in "non-international armed conflicts," relates to the
protection of victims of "internal" or "civil" wars, and governs the
protection of the victims of such conflicts.[^222] Substantively, the
provisions of Protocol II, which are significantly fewer and "far less
restrictive"[^223] than those of Protocol I, supplement the provisions
of common Article 3 of the Geneva Conventions--the latter requiring that
minimal protections be accorded the victims of armed conflicts "not of
an international character."[^224] Traditionally, the customary law of
war applied to non-international conflicts only if the government of a
country in which the insurrection occurred, or some third State, chose
to recognize the legal status of the insurgent group.[^225] Because
Protocol II, Article 1(2), excludes application of its terms for
"situations of internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence and other acts of a similar
nature. . ."[^226] and such exclusions in the Geneva Conventions have
been the basis for governments routinely denying the application of
common Article 3,[^227] it is doubtful that Protocol II will have much
impact on the amelioration of human suffering caused by
non-international armed conflicts.

Potentially more important for the regulation of means and method of
space warfare are the provisions of Protocol I. Though formally a
protocol to the Geneva Conventions, Protocol I includes regulation of
military activity previously governed by "Hague Law." Despite the
innovations worked by Protocol I's positions on insurgents and
reprisals,[^228] the United States found its greatest difficulty with
the general thrust of provisions relating directly the conduct of
military operations--Articles 48 to 58.[^229] Those articles define,
among other things, the basic rule of distinction,[^230] the meaning of
"attack,"[^231] the meaning of "civilians" and "civilian
population,"[^232] the rule protecting civilian populations,[^233] the
rule protecting civilian objects,[^234] the rule protecting cultural
objects and places of worship,[^235] the rule protecting objects
indispensable to the survival of the civilian population,[^236] the rule
protecting the natural environment,[^237] the rule protecting works and
installations containing dangerous forces,[^238] the rule establishing
necessary precautions to be taken in the event of attack,[^239] and the
rule establishing precautions to be taken against the effects of
attack.[^240] As may now be obvious, all of these provisions affect the
conduct of space warfare insofar as each limits potential targets and
restricts options otherwise available to military space forces.

Perhaps the biggest concern raised by these provisions was the attempt
to return warfare to restricted means and methods of warfare "that
\[have\] not been seen in this century."[^241] Specifically, the
cumulative effect of these provisions worked to "shift the
responsibility for the protection of the civilian population away from
the host nation (which has custody over its civilian population, and
which traditionally has borne the principal responsibility for the
safety of the civilian population) almost exclusively onto the
attacker."[^242] Two problems with this attempt at burden-shifting
arise. The first concerns the threat to State sovereignty in cases
amounting to self-defense. As the statement of France indicated in the
ICRC commentary to Article 48, had there been a separate vote on Article
48, "France would have abstained inasmuch as it considered the article
to have 'direct implications as regards a State's organization and
conduct of defense against an invader."[^243]

A second concern raised by the formulations of Protocol I is its
apparent failure to acknowledge that attacks are often taken as a reply
to previous aggression.[^244] In this regard, Allied strategic air
operations over Nazi Germany and the multinational march into North
Korea in 1950 would have been rendered militarily impotent had the
restrictions of Protocol I applied. The conduct of military operations
against Iraq during the 1991 Gulf War provides an additional example.

For these and other reasons as well, the Protocol attempts to restrict
means and methods of warfare, including aerial warfare, to an extent not
acceptable to a number of nations, without whose support the law of war
can not properly function.[^245] Given the denunciations by France and
the United States, the Protocol did not serve to limit warfare in either
the 1991 Gulf War, or the 1999 NATO air war against Yugoslavia, except
to the extent it was viewed as declaratory, in part, of customary law.
Given the strongly-held conviction of these two major airpower States,
it is difficult to see Protocol I serving as a meaningful formal
limitation on aerial warfare, and thus space warfare, for the
foreseeable future. It will however, continue to raise political issues
for the U.S. as it engages in coalition warfare with allies having
ratified the Protocol.

*3. Additional Conventions Adopted Since 1972 Affecting the Jus in
Bello*

Since the close of the diplomatic conference which adopted the Protocols
to the Geneva Conventions, additional conferences have adopted six
principal treaties (in some cases designated protocols to other
treaties) affecting the *jus in bello*. These include, in chronological
order, treaties on Biological Weapons,[^246] Environmental
Modification,[^247] Conventional Weapons,[^248] Chemical Weapons,[^249]
Blinding Lasers,[^250] and Anti-Personnel Mines.[^251] Of these, the
most likely to effect potential means and methods of space warfare is
the Environmental Modification Treaty.

This Treaty does not restrict the use of environmental modification
techniques for "peaceful purposes,"[^252] but does proscribe the
"military or any other hostile use of environmental modification
techniques having widespread, long-lasting or severe effects as the
means of destruction, damage or injury to any other State Party."[^253]
The Treaty is of particular importance to space warfare in that
"environmental modification techniques" are defined to include "any
technique for changing -- through the deliberate manipulation of natural
processes -- the dynamics, composition or structure of the earth,
including its biota, lithosphere, hydrosphere and atmosphere, *or of
outer space*."[^254]

The Treaty's provisions make clear that its purpose is not so much
environmental protection, as a restriction against States making or
attempting changes to environmental processes as an instrument of
warfare. The means of warfare prohibited by the Treaty need not
adversely affect the environment itself because the prohibitions of
Article I apply only to the use of the environment as a weapon.[^255]
Further, though not incorporated into the convention itself, the Parties
attached a series of "Understandings" to the Treaty, which, as part of
the negotiating record, clarify terms used in the text. The
"Understanding Relating to Article II" includes a non-exhaustive list of
illustrative phenomena that could be caused by environmental
modification techniques. In addition to earthquakes, tsunamis, changes
in weather patterns, climate patterns, and ocean currents, these include
*changes in the state of the ozone layer and changes in the state of the
ionosphere*.[^256] Although all of these effects could be attempted from
space, the latter two seem the most likely possibilities. However, the
restrictions established by this Treaty do not seem applicable to any
major weapons programs publicly reported to be now in development. So
long as space weapons do not change the outer space environment "through
the deliberate manipulation of natural processes," the treaty is not
likely to serve as a bar to the deployment or use of space
weapons.[^257]

In addition to the Environmental Modification Treaty, the four protocols
to the Conventional Weapons Treaty limit the combat use of
non-detectable fragments; mines, booby-traps, and other devices;
incendiary weapons; and anti-optic lasers. The restriction on "mines,
booby-traps, and other devices" will not apply to space warfare as its
terms apply only to those devices "on land."[^258] Though of possible
significance, the protocol restricting use of incendiary devices seems
unlikely to affect the development of means and methods of space warfare
unless States Parties develop such weapons to be delivered from space.
The protocol limiting use of blinding lasers will possibly become
relevant as the U.S. could employ such devices in space.[^259] There is
increasing interest in the use of lasers in combat, even those which may
cause incidental eye injury.[^260] However, rather than applying these
four rather specific provisions to space warfare, the more likely course
will entail development of further protocols to this Convention
effecting specific limits on conventional space weaponry.

*4. Jus Ad Bellum Under the United Nations Charter*

The Charter of the United Nations governs the very legitimacy of States'
use of force in the first place. As such, it is not formally part of the
law of war but rather forms part of the *jus ad bellum*. Nonetheless,
because the Charter governs the lawful use of force, its provisions are
necessarily related to considerations of how that force is used under
the *jus in bello*.[^261]

The Charter is "two-faced," serving both as the constitutional document
for the United Nations organization itself, as well as providing
substantive principles of international law.[^262] The substantive
provisions are intended to advance the goals articulated in the Preamble
of the Charter, including among others, the creation of conditions for
the maintenance of international peace and security.[^263] This
objective rests on the proscription of the aggressive use of force,
which finds expression in two portions of the Charter, paragraph 2(4)
and Chapter 7.[^264] In this respect, the principal contribution of the
U.N. Charter to the use of military force is its authoritative
articulation of the *jus ad bellum*.[^265]

The oft-cited provision of paragraph 2(4) enunciates the
well-established international legal principle[^266] prohibiting the use
of force: "All Members shall refrain in their international relations
from the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner inconsistent
with the Purposes of the United Nations."[^267] Balancing this general
proscription is the exception for "self-defense" found in Article 51:
"Nothing in the present Charter shall impair the inherent right of
individual or collective self-defense if an armed attack occurs against
a Member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security. . .
."[^268] Article 51 goes on to require member States to notify the
Security Council of any actions taken pursuant to this right of
self-defense.

Of the many legal issues these two provisions raise, two of the most
obvious affect the use of force in outer space. First, what is the
meaning of "threat or use of force" in relation to outer space as
contained in Article 2(4)? And second, what is the meaning of "if an
armed attack occurs" in Article 51? These issues have been widely
discussed in the scholarly literature and will be only briefly addressed
here.

Under Article 2(4), States may neither *use* force in the course of
their international relations, nor *threaten* it. Though widely ignored
in State practice, the Charter makes no distinction between the
illegality of using force and of threatening it. Ordinarily, the use of
force follows a threat of it. In such cases, the use of force gets all
the legal analysis, and the threat, if noticed at all, does not attract
separate consideration as an independent violation.[^269] In cases where
the use of force does not accompany a threat, the threat is not
generally considered sufficient reason to take action. Indeed, not only
has the mere threat of force seldom led a State to protest the matter
under Article 2(4), but "state practice reveals a relatively high degree
of tolerance towards mere threats of force."[^270] Nonetheless, the
Charter's proscription remains. Given the fact that space warfare will
require new application of existing legal regimes, if not new regimes
altogether, new means and methods of using force will also give rise to
new means of making threats, including those from space.

Significantly, the Charter's focus on force rather than war reflects a
contemplated decision to outlaw all manner of armed conflict. Force is a
broader category than war. Thus the Charter prohibits all cases of armed
force whether or not the parties recognize a formal state of war between
them. How States make this formal recognition also varies from situation
to situation and can be difficult to ascertain. It ultimately depends
upon either the issuance of a declaration or ultimatum, or the
occurrence of an "act of aggression." And yet even what might constitute
an act of aggression does not always initiate war. As professor Green
puts it, "whether the armed conflict amounts to a war in the
international legal sense of the term depends upon the reactions of the
victim of the attack and also, to some extent, upon the attitude of
non-parties to the conflict."[^271]

Even more difficult historically than defining a state of war, has been
the attempt to determine what "force" the Charter prohibits given the
many sources of pressure nations may use in their relations with each
other. It is now widely agreed that such force does not include
political or economic force, as well as most forms of non-military
physical force.[^272] Included in the prohibition however, not only are
cases of direct military force but indirect force as well. Thus, the use
of irregular forces, mercenaries, or the arming or training of
indigenous rebel forces against their own government would constitute
cases of indirect aggression prohibited by the Charter.[^273] Regarding
the latter however, the International Court of Justice clarified in the
*Nicaragua v. United States* judgment that not all forms of aid violate
the rule of Article 2(4), noting for example that the supply of funds to
a rebel force does not constitute "force."[^274] The potential
implications of this distinction for space support are far reaching as
it will allow spacefaring States to argue that the provision of
*information* to insurgents, a principal benefit of space assets,[^275]
is more akin to the provision of money than of arms.

Perhaps the biggest question with respect to the self-defense principle
embodied in Article 51 relates to the meaning of the phrase "if an armed
attack occurs." This seems to preclude the right to defend with arms,
until an actual armed attack has triggered the right. Thus, the phrase
appears to rule out "anticipatory" self-defense.[^276] As with the
application of Article 2(4), nothing in Article 51 restricts the
inherent right of self-defense,[^277] to the use of force within earth's
atmosphere. Although the delegates to the diplomatic conference adopting
the Charter in 1945 did not likely have in mind the application of force
from outer space, we have subsequently learned that its rudimentary
possibility was then under review by the United States and Soviet Union.
Nonetheless, as with the application of numerous international
instruments to new situations and technological realities, there is no
reason to exclude the terms of Articles 2(4) and 51 from application in
outer space. As discussed in the next chapter, the most significant
treaty on outer space specifically references the U.N. Charter.

One consequence of the right of self-defense is that the law does not
absolutely prohibit war; defensive wars that are undertaken pursuant to
Article 51 are not illegal.[^278] However, recognizing the abstract rule
is relatively simple, applying it to a specific conflict is not.
Nonetheless, international law must assess the relative legal positions
of competing belligerents in order to sort out what relations exists
between the parties to the conflict, and to third party States. For
example, although parties to a conflict increasingly ignore the
distinction between "war" and other forms of armed conflict,[^279] the
law does recognize that a formal state of war[^280] will entail certain
consequences that mere armed conflict will not.[^281]

**IV. Space Warfare Under the *Corpus Juris Spatialis***

Even in the vast expanse of space it can be expected, further, that

the host of participants who will in the future seek to enjoy the

many different potential uses of this great resource will in

countless ways, whether deliberately or inadvertently,

interfere with each other.[^282]

> M.S. McDougal, H.D. Laswell & I.A. Vlasic (1963)

With the exception of environmental protection, no major category of
international law is of more recent origin than that devoted to outer
space.[^283] Given its recent origin, and the fact that it is
predominantly driven by technological advances in the exploration and
use of space, space law is a discipline in transition--additional norms
continue to emerge as space technology advances. 'Space law' is defined
as that comprising "all international and national legal rules and
principles which govern the exploration and use of outer space by
States, international organizations, private persons and
companies."[^284] Significantly, this broad definition reflects the rise
of national legislation governing outer space activity, as well as of
non-State actors in the increasingly commercialized and privatized space
industry.

Despite its relative recency, literally "\[t\]housands of articles,
studies, and books have been published on the subject of space
law."[^285] Indeed, several of these appeared before 1957, the year
human activity within outer space began.[^286] Thus, while it is a
recent phenomenon, space law today is a firmly established discipline
resting essentially on five multilateral treaties. As used here, these
five treaties comprise the "*corpus juris spatialis*" while "space law"
includes prescriptive norms from other treaties as well, including those
discussed in Chapter Five. Before analyzing the textual bases of space
law it is important to note its several distinctive features. These are
important to the application of existing space law to armed conflict in
space.

One notable feature in the continuing development of international space
law is its use, by analogy, of norms drawn from other branches of
international law. Because this feature of space law is explained more
fully below, only a brief reference to it will be made here.[^287] The
progressive development of space law has not emerged in a legal vacuum.
"\[T\]here is, in certain respects, a catena of notions which justifies
a comparison between the concepts applicable to outer space with those
of other environments."[^288] Specifically, in establishing an early
framework for space activities, "lawmakers were able to borrow from
existing principles of international law, including analogies from
international maritime law, the Antarctic Treaty, and the Partial Test
Ban Treaty."[^289] From use of these analogies space law is able to draw
specific conclusions. For example, one commentator cites the legal
propriety of spying from space as having emerged by reference to the law
of the sea. "\[S\]ince outer space is beyond State sovereignty, as are
the high seas, and as espionage from (or over) the latter is generally
accepted as being a legal activity, it has been concluded that espionage
from outer space is also legal."[^290] Others have accurately speculated
on this basis that military spacecraft will be allowed to enter the
territory of other States only upon special authorization, just as is
the case with military aircraft.[^291] As it has for over forty years,
the principle of analogy will continue to play an important role in the
evolution of space law.

Another important feature of space law derives from the permissive
nature of public international law in general.[^292] A specific example
illustrates the point. Because space law prohibits only the stationing
of weapons of mass destruction in orbit around the earth, States may
orbit weapons of lesser destructive capability for the simple reason
that no specific prohibition exists.[^293] In addition, States are free
to make full use of military reconnaissance satellites given the absence
of international prohibitions on such activity.

A third feature of international space law also flows from the general
nature of public international law as well. International space law
regulates the conduct of *States*. As distinguished from
"Astrolaw,"[^294] space law is limited to "the regulation of those
activities by States in outer space which are, by nature, essentially
international."[^295] This remains true despite the rise of both public
and private efforts at commercialization of space. While international
agreements will increasingly recognize the presence of private interests
in space, the dominant actors, with respect to international legal
rights and obligations, will continue to be States.[^296]

**A. Customary Law**

To the extent customary law exists for space law at all, it binds all
States whether their consent be express or implied by silence in the
face of emerging legal norms.[^297] Yet what little customary law for
space there is has been derived from the activity of very few
States.[^298] Because of this, and because of the increasing role of
treaties both in international law in general and space law in
particular, "\[c\]ustomary law is of far lesser importance and its
significance for outer space activities has, in many respects, not been
secured."[^299] This is perhaps yet another function of the youth of
space law relative to more established branches of international
law--there simply has not been sufficient time and widespread uniformity
for customary law to crystallize.

This consideration of customary space law raises two issues regarding
the necessary preconditions for its creation. These merit some
discussion here because the formation of limits to means and methods of
space warfare will likely emerge via customary international law.[^300]
First, the time needed for a custom to evolve into law may be very
short, leading some to minimize the importance of widespread State
practice. Although space research and development had gone on for over a
decade, it was not until the launch of Sputnik I in 1957 that
international agreement emerged on basic principles that should govern
outer space activity. With respect to the principle of freedom of use
and exploration of space, that agreement came almost immediately
following the launch of Sputnik I. Because the agreement was largely
based on the practice of only two States,[^301] Professor Cheng went so
far as to suggest the emergence of "instant" customary law.[^302]

However, while it is no longer true that a rule of customary law may be
established only after decades of uniform practice by States, at a
minimum customary law requires the existence of a *custom* if only to
retain a semantic integrity for the term "customary law." More
substantively, international law still requires that customary law
involve the passage of *some* time. Thus, writing after the appearance
of Professor Cheng's 1965 article, the International Court of Justice
enunciated in a 1969 case that, though the time element may be short, it
is nonetheless "indispensable" to the formation of customary law.[^303]
Later still, in the 1986 *Nicaragua* (Merits) case, the Court implicitly
rejected the notion of instant customary law by employing the following
reasoning:

> The mere fact States declare their recognition of certain rules is not
> sufficient for the court to consider these as being part of customary
> international law. . . . Bound as it is by Article 38 of the Statute .
> . . the Court must satisfy itself that the existence of the rule in
> the *opinio iuris* of States is confirmed by practice.[^304]

By extension, this means there can be no customary law without
confirmation of the rule in State practice. As the Court observed, such
confirmation cannot come simply by means of declaration, devoid of State
practice in space and *time*. The fact that customary law cannot
crystallize without the passage of time underscores the preeminent place
that treaties will play, at least for the foreseeable future, in the
articulation of space law.

A second issue related to customary space law pertains to the status of
States "specially affected" by an emerging norm under consideration.
International law requires that for the norm to crystallize into
customary law, its status as law must enjoy, at minimum, the
acquiescence, if not the outright consent, of States specially affected
by the norm in question. Again, the International Court of Justice
addressed this requirement in its *North Sea Continental Shelf*
judgments,

> \[w\]ith respect to the other elements usually regarded as necessary
> before a conventional rule can be considered to have become a general
> rule of international law, it might be that, even without the passage
> of any considerable period of time, a very widespread and
> representative participation in the convention might suffice of
> itself, *provided it included that of States whose interests were
> specially affected.*[^305] (emphasis added)

Although not adopted universally as a condition *sine qua non* for the
crystallization of customary norms, the idea was emerging even before
the 1969 *North Sea Continental Shelf* judgments that specially affected
States must act consistent with an emerging custom for it to become law.
Thus Lauterpacht writes:

> assuming here that we are confronted with the creation of new
> international law by custom, what matters is not so much the number of
> states participating in its creation and the length of the period
> within which that change takes place, as the relative importance, in
> any particular sphere, of states inaugurating the change.[^306]

Today, although a mere paper protest would not appear to obstruct the
formation of customary law, an interested State's continuous and
resolute actual practice to the contrary would. In this way, a
persistent objector, if "specially affected" by the norm under
development, could frustrate the crystallization of such norm.[^307]
And, difficult as it may be to ascertain State practice for such
analyses, the *North Sea* cases showed that this process of discovery
requires examination of factual circumstances in great detail.

The number of States actively engaged in space activities is steadily
growing. However, for now the total number likely to be deemed
"specially affected" remains small, perhaps six to ten.[^308] This
interest makes these spacefaring States important bellwethers for the
development of customary law related to space warfare. To the extent
these States persistently object to a would-be space norm, it cannot
become customary law.[^309]

Though custom does not appear to be of great importance presently, the
consensus has developed that a few principles of customary international
law apply to space activities. These include the "essential principles
of the Outer Space Treaty which have been accepted by all States active
in outer space by practice and with *opinio juris* after ratification,
and where no evidence of dissenting practice on the part of
non-ratifying States is available."[^310] Specifically, these principles
include the freedom of exploration and use of outer space by all States,
and the prohibition on national appropriation of outer space.[^311]

Because these customary principles are codified in the Outer Space
Treaty,[^312] and the treaty has been ratified by all States currently
active in space, customary international law seems less important in
ascertaining principles applicable to future space warfare. Customary
law pertaining to outer space activities is for the most part a subset
of treaty law.[^313] However, the body of customary law pertaining to
space will assume much greater importance as non-parties to the relevant
space treaties become active in space activities. For example, should
Colombia, Iran, Indonesia, or Yugoslavia acquire the means of space
launch in the coming years, all four being non-parties to the Outer
Space Treaty, any restrictions on such States' space activity that do
not come from obligations imposed by other space treaties[^314] will
occur largely by operation of customary international law. Should any of
these States later ratify the Treaty, the binding effect of that
customary law reflected in the Treaty would become far less important.

**B. Treaty Law**

In terms of certainty and specificity, treaties form the core of modern
international law. This is especially true of space law in general and
the *corpus juris spatialis* in particular, neither of which, as
discussed above, has existed long enough to provide consensus on any but
the most basic principles of customary law. Though in some cases
restatements of customary international law,[^315] outer space treaties
have largely created new law. Of the treaties discussed below, agreement
came as a direct result of the United Nations Committee on the Peaceful
Uses of Outer Space (hereinafter COPUOS).[^316] Comprising the *corpus
juris spatialis*, these treaties deal specifically and directly with the
legal regime governing outer space.

*1. Treaty on Principles Governing the Activities of States in the
Exploration and Use of Outer Space, Including the Moon and Other
Celestial Bodies (Outer Space Treaty)--1967*

It is difficult to overstate the preeminent place in space law enjoyed
by the first international treaty governing outer space, commonly known
as the Outer Space Treaty.[^317] Drawn principally from three previous
United Nations General Assembly (U.N.G.A.) Resolutions,[^318] the Outer
Space Treaty is termed everything from "an ideological charter for the
space age"[^319] to the "*Magna Carta* of outer space law."[^320] Of the
five multilateral treaties dealing specifically with outer space
activities, it is the most important "by far."[^321] As a result, it is
the legal source of first resort for the analysis of any space law
topic.

Other than establishing what can only be called the "constitution" of
outer space,[^322] the Outer Space Treaty specifies that "Outer space,
including the moon and other celestial bodies, is not subject to
national appropriation by claim of sovereignty, by means of use or
occupation, or by any other means."[^323] Of the many activities this
provision clearly prohibits, it has generated some debate relating to
its scope. For example, commentators are divided over its application to
private, non-governmental claims of ownership over celestial
bodies.[^324] Increasing private investment in space makes this a live
issue that military users of space must understand.

In addition to its "no sovereignty" provision, the Treaty established a
few innovations in international law. One significant innovation
pertains to the provision of Article VI requiring that States bear
"international responsibility for national activities in outer space . .
. whether such activities are carried on by governmental agencies or by
non-governmental entities."[^325] This departure from the general rule
of international law, namely, that States bear responsibility only for
State activity, makes the contracting State liable for the offenses (or
any other activity) of its citizens or private organizations with
respect to space activity.[^326] This provision marks the first time
that such an extension of State liability had occurred in a legally
binding document.[^327] Although this provision appears unlikely to
affect significantly the ability of States to wage space warfare given
the State-controlled nature of military forces, it could impact the
research and development of weapons systems. For example, to the extent
that a military space contractor pursues testing of space weaponry in
outer space, the host State will bear "international responsibility" for
the activity.

Further, the novel principle of State responsibility for "national
activities in outer space" could render the home State liable for the
unauthorized hostile space activities of its citizens, even if carried
out from a foreign country. Despite the great difficulty in regulating
such activity, this could mean that the U.S., for example, would bear
responsibility to the Chinese, should a U.S. citizen manage to destroy a
Chinese satellite in space, even if construction, launch, and control of
the attacking object or method of destruction occurred entirely outside
the U.S., and without its authorization.

An additional provision could be applied to space combat in a variety of
respects. Article IX of the Outer Space Treaty provides in part:

> States Parties to the Treaty shall be guided by the principle of
> co-operation and mutual assistance and shall 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. States Parties to the Treaty shall
> pursue studies of outer space, including the moon and other celestial
> bodies, and conduct exploration of them so as to *avoid their harmful
> contamination and also adverse changes in the environment of the
> Earth* resulting from the introduction of extraterrestrial matter and,
> where necessary, shall adopt appropriate measures for this purpose. If
> a State party to the Treaty has reason to believe that an activity or
> experiment planned by it or its nationals in outer space, including
> the moon and other celestial bodies, would cause *potentially harmful
> interference with activities of other States Parties* in the peaceful
> exploration and use of outer space, including the moon and other
> celestial bodies, it shall undertake appropriate international
> consultations before proceeding with any such activity or
> experiment.[^328] (emphasis added)

At the outset, one observes that Article IX, like most space law
provisions, makes no distinction between military and civilian
activities. Thus, ordinarily the requirements of Article IX apply fully
to military operations in space.[^329]

One possible limitation for space warfare is suggested by the language
prohibiting "harmful contamination" of outer space, the moon, and
celestial bodies. Significantly, the provision applies only to "studies
of outer space, including the moon and other celestial bodies" and to
the "exploration of them."[^330] Thus, while "studies" and "exploration"
would likely apply to the testing and development of space weaponry, the
restriction does not seem logically applicable to the actual conduct of
warfare. Unless by some tenuous definition "warfare" could be brought
within the modifying terms "studies" and "exploration," it appears that
State activities in support of warfare, whether within space or in
support of earth-based hostilities, are not prohibited from causing
"harmful contamination" under Article IX.[^331] It also bears noting
that activities triggering the prohibition on harmful contamination,
namely "studies" and "exploration," would also have to avoid "adverse
changes in the environment of the Earth resulting from the introduction
of extraterrestrial matter."[^332]

A potentially more significant point from Article IX relates to a
State's duty to engage in "international consultations" prior to
engaging in activities which the State "has reason to believe . . .
would cause potentially harmful interference with activities of other
States Parties in the peaceful exploration and use of outer space, . .
." It is not difficult to conceive scenarios in which the use of armed
force in space would potentially cause "harmful interference" with other
States Parties in their peaceful exploration and use of space. Assuming
the hostile act were lawfully directed at an asset in conformity with
the *jus ad bellum*, this requirement would not require consultation
with the opposing belligerent State as it would not be engaged in the
"peaceful exploration and use of outer space." However, it would require
consultations with any third party (neutral) State owning space assets
that might foreseeably be interfered with "harmfully." To the extent
that a hostile act in space, whether lawful or not, could harmfully
interfere with a third party State's asset, Article IX appears to
require that the State must be consulted. Further, unlike other space
treaties and U.N. resolutions that leave the timing of such
consultations unclear, Article IX specifies that it must occur "before
proceeding with any such activity or experiment." This could create a
disincentive to carrying out an act of armed conflict as prior
consultations with a third party State could, by public dissemination or
otherwise, constitute a de facto notification to the opposing
belligerent State of the anticipated attack. Nonetheless, the Article IX
does not stand in the way of carrying through with such hostile acts
once "consultations" have occurred, even if the third-party State
objects to the anticipated activity or experiment. As a practical
matter, though the Treaty requires it, one wonders whether the
international community even takes this consultation provision seriously
given that so far as is publicly known, no such consultation has ever
been undertaken since the adoption of the Outer Space Treaty in
1967.[^333]

With respect to military forces in space, the most significant provision
from the Outer Space Treaty appears in Article IV, which directly
addresses the militarization of outer space:

> States Parties to the Treaty undertake not to place in orbit around
> the earth any objects carrying nuclear weapons or any other kinds of
> weapons of mass destruction, install such weapons on celestial bodies,
> or station such weapons in outer space in any other manner.
>
> The moon and other celestial bodies shall be used by all States
> Parties to the Treaty exclusively for peaceful purposes. The
> establishment of military bases, installations and fortifications, the
> testing of any type of weapons and the conduct of military maneuvers
> on celestial bodies shall be forbidden. The use of military personnel
> for scientific research or for any other peaceful purposes shall not
> be prohibited. The use of any equipment or facility necessary for
> peaceful exploration of the moon and other celestial bodies shall also
> not be prohibited.[^334]

Among the myriad issues raised by this section, a perennial debate has
centered on the meaning of "peaceful purposes," the ambiguous term
operating as one of several limitations on State uses of outer space.
Because of the centrality of the phrase to questions of military uses of
space, a historical sense of its use in international parlance is
necessary. When first used by the U.S. in 1957, the "peaceful and
scientific purposes" of outer space activities soon became the official
goal of the United Nations. By vote of 56 to 9 (15 abstentions), the
U.N. adopted Resolution 1148 (XII) on November 14, 1957, which advocated
an inspection system to ensure the peaceful uses of space. "This was a
landmark document not only because it represented the first General
Assembly resolution on outer space but also because it introduced the
phrase 'exclusively for peaceful purposes' in an authoritative U.N.
text."[^335]

Of course, simply using the term without definition does not fix its
meaning. Professor Vlasic reports that although the first wide-ranging
debate on the peaceful uses of outer space at the 13th session of the
U.N.G.A. in 1958 saw virtually all participants using the term
"peaceful" as an antonym for "military," the resolutions this session
produced did not attempt "to interpret or clarify the term 'peaceful' so
commonly used in the context of contemporary space activities."[^336]
Significantly, although U.S. President Eisenhower proposed by letter to
Soviet Premier Bulganin in 1958 that the U.S. and U.S.S.R. use outer
space "only for peaceful purposes" and not for "testing of missiles
designed for military purposes,"[^337] the proposal was never
consummated by agreement.

As discussed above, while the world community was debating the meaning
of terms such as "peaceful purposes," the U.S. and U.S.S.R. were
secretly developing satellite systems with clear military capabilities.
Thus in the period from late 1958 to 1959, the U.S. adopted the view
that "'peaceful' in relation to outer space activities was interpreted .
. . to mean 'non-aggressive' rather than non-military. . . . By
contrast, the Soviet Union publicly took the view, despite its own
military uses of space, that 'peaceful' meant 'non-military' and that in
consequence all military activities in outer space were 'non-peaceful'
and possibly illegal."[^338] This background forms the context for use
of the phrase in the Outer Space Treaty. Though the Soviet Union and a
number of other States consistently maintained the view that "peaceful"
means "non-military," the majority of the international community has
failed to agree. Consequently, the view "which today has gained general
acceptance, is that non-aggressive military uses are peaceful. Thus,
'peaceful' has come to mean general space activity that is beneficial to
and in the interests of all countries."[^339] This is essentially the
view maintained by the U.S., which stresses that all States possess the
inherent right to defend against foreign aggression in outer space, as
well as within earth's atmosphere.[^340] Despite the long debate over
the term "peaceful" as used in the Outer Space Treaty, its meaning has
been well-settled through the practice of States and certainly includes
military activities.[^341]

When assessing the meaning of a term in one treaty, it is instructive to
examine its meaning as used in other treaties as well. Other than the
"peaceful purposes" language contained in the Antarctic Treaty,
discussed below,[^342] the phrase appears more recently in the treaty
governing the International Space Station (ISS). Consistent with the
Outer Space Treaty, Article 1(1) of the ISS Agreement requires that uses
of the ISS be reserved for peaceful purposes.[^343] Interestingly, the
ISS Agreement seems to recognize the divergent interpretations of the
phrase "peaceful purposes." Article 9, paragraph 3(b) provides that "the
Partner providing an element shall determine whether a contemplated use
of that element is for peaceful purposes."[^344] In so agreeing, the
Partners reasonably concede that the likelihood of disagreement over the
meaning of the term justifies a provision stipulating who should
determine its meaning. In this case, each Partner decides for itself
whether its proposed use constitutes a peaceful purpose.

This comes as no surprise. Absent cases referred to the International
Court of Justice, international obligations have often been subject to
unilateral interpretation. Using the ISS Agreement as a reference, it
appears safe to assert that unless an interpretation is so tenuous as to
amount to bad faith, the decision regarding a proper interpretation of
"peaceful purposes" under the Outer Space Treaty continues to rest with
the party proposing the action. Legally speaking, because "peaceful
purposes" in the Outer Space Treaty is not specifically defined it
therefore may not mean the same thing as the identical phrase in the ISS
Agreement. Further, the self-interpretation provision of the ISS
Agreement applies only to the handful of States Parties to the ISS
Agreement, which are but a fraction of those States who are parties to
the Outer Space Treaty. Nonetheless, the meaning of a phrase in an
international instrument becomes most clear in light of action by its
States Parties. With the exception of China, the States most active in
space are all members of the ISS Agreement. How these States behave
under their "peaceful purposes" obligations in the ISS agreement will
continue to illuminate the meaning of the phrase elsewhere.

A further point from Article IV regards the location to which the
"peaceful purposes" restriction applies. The second paragraph limits use
of "celestial bodies," including the moon, to peaceful purposes. This
raises the question whether the "peaceful purposes" limitation, whatever
its meaning, applies away from celestial bodies. Christol points out
that though the Treaty uses "outer space," "moon," and "celestial
bodies" at numerous points and in various combinations throughout the
substantive articles, the omission of "outer space" in Article IV,
paragraph 2 was "clearly intentional."[^345] While the term "outer
space" as used in the Outer Space Treaty includes the moon and
"celestial bodies,"[^346] the latter terms do not include within them
the meaning conveyed by "outer space." Christol articulates the
negotiating history of the Treaty and points out that though several
States within COPUOS objected to the omission of "outer space" from
Article IV, paragraph 2, given the clear implication that this would
permit non-peaceful purposes for outer space, the view of the U.S. and
U.S.S.R. that the term "peaceful purposes" should apply only to the moon
and celestial bodies won the day.[^347] As such, the restriction does
not formally apply to space activities away from celestial bodies.[^348]

Nonetheless, though Article IV, paragraph 2 does not prohibit the
non-peaceful use of outer space away from celestial bodies, such uses
are nonetheless implicitly prohibited by other provisions. For example,
at least to the extent that "non-peaceful" means the aggressive use of
force, such uses are prohibited by the U.N. Charter's provision to the
contrary.[^349] Because the Outer Space Treaty restricts State
activities in space to those "in accordance with international law,
including the Charter of the United Nations,"[^350] an aggressive use of
force forbidden on earth is equally forbidden in space. Further, some
States such as the U.S. have made the "peaceful" uses of outer space a
tenet of national policy. Thus, the 1958 National Aeronautics and Space
Act maintains that "activities in space should be devoted to peaceful
purposes for the benefit of all mankind."[^351] This was reiterated
recently in the President's National Space Policy wherein the White
House declared "The United States is committed to the exploration and
use of outer space by all nations for peaceful purposes and for the
benefit of all humanity."[^352]

A further point under Article IV relates to the legal permissibility of
satellite interceptors or anti-satellite (ASATs) satellites. ASATs
deviate from the non-aggressive character of virtually all other
satellites, and in so doing may appear to violate the non-aggressive
mandate required of all space activities under the "peaceful purposes"
restriction. However, regardless of their putative "destabilizing"
character for international peace and security,[^353] the Outer Space
Treaty does not prohibit the transiting, or even the orbiting, of
conventional weaponry in space, including ASATs. The prohibition on
orbiting of weapons of mass destruction, including nuclear
weapons,[^354] strongly suggests the distinction between those weapons,
and conventional weapons of lesser destructive power, including those
directed at satellites. Though Article IV(1) could easily be modified to
effect the de-weaponization of space,[^355] conventional weapons are not
proscribed.[^356]

A final point from the Outer Space Treaty relates to the prohibition on
the establishment of "military bases, installations and fortifications,
the testing of any type of weapons and the conduct of military maneuvers
on celestial bodies." Though this clause does not include the "moon" as
does the one immediately preceding it, it is clear that the Outer Space
Treaty uses "celestial bodies" as a phrase which includes the moon. Thus
the first sentence of Article IV(2) speaks of the moon "and *other*
celestial bodies." (emphasis added) As a result, Article IV can
reasonably be read to prohibit both the creation of permanent military
structures on the moon or other celestial bodies, as well as the testing
of weapons there. Though non-nuclear weapons testing is not prohibited
in outer space,[^357] it cannot occur on celestial bodies. Such
prohibition could well have been in response to published reports of the
U.S. moon base program. In a January 21, 1958 speech about a planned
military outpost on the far side of the moon, Brigadier General Homer A.
Boushey explained:

> The moon provides a retaliation base of unequaled advantage. If we had
> a base on the moon, the Soviets must launch an overwhelming nuclear
> attack toward the moon from Russia two to two-and-one-half days prior
> to attacking the continental U.S.--and such launchings could not
> escape detection--or Russia could attack the continental U.S. first,
> only and inevitably to receive, from the moon--some 48 hours
> later--sure and massive destruction.[^358]

Whatever its strategic value, such a proposal today would be clearly
prohibited by the Outer Space Treaty.

*2. Agreement on the Rescue of Astronauts, the Return of Astronauts and
the Return of Objects Launched into Outer Space (Rescue and Return*

*Agreement)--1968*

Adopted in time for the imminent manned moon launchings of the United
States, the so-called "Rescue and Return Agreement"[^359] sought to
clarify the duties of States relating to astronauts and objects launched
into space.[^360] Though it appears that space warfare in the
foreseeable future will rely primarily on unmanned space activities, the
Agreement's provisions on objects as well as those on astronauts will be
relevant as a limitation on means and methods of space warfare. The
Agreement is essentially an expansion of Article V of the Outer Space
Treaty which required States Parties to regard astronauts as "envoys of
mankind" entitled to "all possible assistance." Divided into provisions
dealing with the return of Astronauts (Articles 1-4) and the return of
space objects (Article 5), the treaty had been adopted by ratification,
accession, or succession by eighty-four States as of 1997, including the
U.S. and U.S.S.R.[^361]

Regarding astronauts, the Agreement requires a State Party to make two
notifications. It must either notify the launching authority or make a
public announcement, *and* notify the U.N. Secretary General[^362] under
three conditions: when it receives information or discovers that the
personnel of a spacecraft have (1) suffered accident; (2) experienced
conditions of distress; or (3) made an emergency or intended landing on
territory under its jurisdiction, on the high seas, or on any other
place not under any State's jurisdiction.[^363] Further, the Agreement
requires the provision of "rescue" and "all necessary assistance" by
States Parties in cases where astronauts land in their territory by
reason of "accident, distress, emergency, or unintended landing."[^364]
This assistance is equally mandatory for landings on the high seas or
other places not under the jurisdiction of any States, but only for
those Contracting States "in a position to do so ... if
necessary."[^365]

With respect to "space objects," a term undefined by this or any other
space treaty,[^366] the Agreement requires that notification be made to
the launching authority following discovery of any space object within
the territory of a contracting party, on the high seas, or any other
place not under the jurisdiction of any State.[^367] The treaty further
requires that upon furnishing "identifying data," States Parties "shall"
return space objects found beyond the territorial limits of the
launching state.[^368] However, while this provision would certainly
require the return of space weaponry or satellites having landed back on
earth, it does not specify *when* such return must take place or in
exactly what condition. Presumably, the treaty requires return within a
reasonable time, though that could perhaps occur *after* a thorough
inspection and analysis of the space object by the State possessing it.
Because the treaty makes no distinction between civil and military
astronauts or launchings, its terms apply equally to astronauts and
space objects used for both purposes.

A significant issue arose in 1978 pertaining to the reentry of a
nuclear-powered ocean reconnaissance satellite owned and operated by the
Soviet Union--Cosmos 954.[^369] On January 24, 1978 the satellite
crashed in Canada's Northwest Territories. According to the diplomatic
exchanges following the incident, the U.S. offered assistance "within 15
minutes."[^370] After some delay, Canada accepted the U.S. offer of
assistance but declined the Soviet offer.[^371] Instrumental in the
exchanges was the language of Article 5(2). Though it required Canada to
"take such steps as it finds practicable to recover the object or
component parts," the treaty allowed for Soviet assistance only "if
requested."[^372] Because Canada never made the request, the Soviet
Union had no right to search for its property on Canadian soil (and thus
protect it from discovery by the West).

Though intended as a clarification of the Outer Space Treaty, the Rescue
and Return Agreement raises as many questions as it answers. One
commonly raised question pertains the possibility that an astronaut
landing in the territory of another State Party may wish to request
political asylum. Though Article 4 does not seem to allow for this
possibility, ("shall be safely and promptly returned"),[^373] other
principles of international law contained in the U.N. Charter and
Universal Declaration of Human Rights do. Though a few States took the
position that the treaty did not extinguish the right to request asylum
in connection with an unintended landing from space,[^374] most States,
including the U.S., rejected this position and maintained that the
treaty created a specific exception to the asylum rules.[^375]

Other questions raised by ambiguities in the Agreement include the
following: "How should rescue expenses be treated? Is the launching
state obligated to reimburse the rescuing state? What if a rescue
attempt is bungled--will the rescuing state be liable, or does some sort
of Good Samaritan principle apply? Should there be such a principle,
since rescue is mandatory?"[^376] Though the treaty requires rescues for
astronauts, it does not specify who pays for the rescue operation or in
what proportion, unlike the case respecting searches for space objects
under Article 5, and the subsequent Liability Convention.[^377] The
answers to each of these questions could affect the evolution of space
warfare as States make wartime decisions in light of possible liability.
The potentially significant issue of whether the Rescue and Return
Agreement mandates return of astronauts in time of war is discussed in
Part VI.[^378]

*3. Convention on the International Liability for Damage Caused by Space
Objects (Liability Convention)--1972*

The longest of the space treaties at 28 articles, the Liability
Convention takes as its goal an elaboration of "effective international
rules and procedures concerning liability for damage caused by space
objects and to ensure, in particular, the prompt payment under the terms
of this Convention of a full and equitable measure of compensation to
victims of such damage."[^379] As with the Rescue and Return Agreement,
the Liability Convention undertook an expansion of the Outer Space
Treaty, in this case Article VII, which made a launching State
"internationally liable for damage to another State Party to the Treaty
or to its natural or juridical persons" for damage caused by its space
objects.[^380] With a few exceptions, the Liability Convention is likely
to have only a tangential relationship to the regulation of space
warfare.

The Convention sets up a two-tiered structure of liability. For damage
caused by a space object on the surface of the earth or to an aircraft
in flight, the launching State[^381] is "absolutely liable."[^382]
Otherwise, the Convention provides fault-based liability "\[i\]n the
event of damage being caused elsewhere than on the surface of the earth
to a space object of one launching State or to persons or property on
board such a space object by a space object of another launching State
..."[^383] As with all other space treaties, the Liability Convention
makes no distinction between civilian and military space objects which
could form the basis of a claim. Thus, not only military operations
short of armed conflict, but space operations during war itself could
form the basis of monetary claims under the Convention, provided the
space object[^384] of the launching State caused "damage." Because the
Convention defines the term broadly, to include "loss of life, personal
injury or other impairment of health; or loss of or damage to property
of States or of persons, natural or juridical, or property of
international intergovernmental organizations,"[^385] just about any
damage directly caused by the space object will be compensable.

Other provisions establish the principle of joint and several
liability;[^386] apportionment of liability for joint launchings;[^387]
conditions under which a launching State may be exonerated from absolute
liability;[^388] exclusions of liability;[^389] priority of presenting
claims between a State on behalf of itself or national, territorial
States on behalf of non-nationals, and State of residency of
victims;[^390] a one-year statute of limitations from the date of
occurrence, identification of the launching state, or acquisition of
facts by the injured State putting it on notice of the damage;[^391] and
the availability of domestic remedies.[^392] Following this, the
Convention provides seven articles on the establishment, compositions,
and procedure of a "claims commission" for the adjudication of claims
made under the convention.[^393] Though widely hailed as creating an
equitable procedure for the resolution of liability claims, one of the
Convention's "most publicized" defects was the failure to require that
Claims Commission decisions would automatically bind litigants.[^394]

Whether the Liability Convention has succeeded in achieving its goals
remains to be seen. Though the Convention has specified a liability
regime, it has never been used and thus cannot be judged "effective."
The Cosmos 954 incident would have provided the first case study.
However though it paid \$3,000,000 of the Canadian \$6,000,000 claim,
the Soviet Union refused to engage in legal argumentation over the
Convention's terms. Though the Convention does establish the
international standard for compensation, and fixes the level of
liability based on the spatial area in which the damage occurred, it is
unlikely to affect a State's decision to use of force in space, or the
selection of means and methods thereto.

*4. Convention on Registration of Objects Launched into Outer Space
(Registration Convention)--1975*

The Registration Convention establishes a mandatory system of
registration for space objects launched into orbit and beyond.[^395]
With reference to the Convention's preamble, one commentator cites two
essential functions served by an international registration requirement:
"(1) a well-ordered, complete and informative register would minimize
the likelihood and even the suspicion of weapons of mass destruction
being furtively put into orbit; (2) it is not possible to identify a
spacecraft that has caused damage without an international system of
registration."[^396] Though the conclusion stated in the first point
above seems overly optimistic, especially given the late reporting
allowed under the Registration Convention, the second appears to be
beyond question.

As with the previous two treaties discussed, the Registration Convention
also clarifies a provision from the Outer Space Treaty. When
establishing the principle that a launching State maintains jurisdiction
and control in space over its launched objects, the Outer Space Treaty
makes reference to the "registry" of States Parties.[^397] Only in the
1975 Registration Convention did space law formally specify the
requirement that States maintain a registry,[^398] and the nature of its
contents.

After defining "launching state," "space object," and "State of
registry,"[^399] the Convention provides that each State will maintain
an "appropriate registry" that contains an entry for all space objects
"launched into earth orbit or beyond."[^400] The Convention allows each
State to determine the specific contents of its registry and the
conditions under which it is maintained,[^401] however certain
information must be provided for the registry kept by the United Nations
Secretary General. Thus, the "heart" of the Convention, Article IV,
specifies that launching States must provide the following information:

(a) name of launching State or States;

(b) an appropriate designator of the space object or its registration

> number;[^402]

(c) date and territory or location of launch;

(d) basic orbital parameters, including:

```{=html}
<!-- -->
```
(i) nodal period,[^403]

(ii) inclination,[^404]

(iii) apogee,[^405]

(iv) perigee;[^406]

```{=html}
<!-- -->
```
(e) general function of the space object.[^407]

With respect to military launches, the Convention allows registry
notifications to be sufficiently ambiguous so as to mask the true nature
of the mission. The following two provisions of Article IV make this
especially so: First, the fact that the information need only be
provided "as soon as practicable," which launching States may and do
interpret as weeks or months following the launch;[^408] and second, the
fact that only the "general function" of the space object need be
disclosed -- a phrase interpreted, again, by the launching State. The
room for ambiguity afforded by the Convention allows States to protect
the identity of their military satellites, which perform an entirely
legitimate function under the law.[^409] Writing euphemistically,
Professor Diederiks-Verschoor observes that "\[t\]he underlying reason
for the reluctance \[to provide specific information on reconnaissance
satellites\] is that States do not trust each other."[^410] She opines
that a State's disclosure of spy satellite data to "the fullest
possible" extent, with due regard to its national security interests,
will perhaps allow registration to "overcome the suspicion
barrier."[^411] The problem with this understandably hopeful analysis,
is that it overlooks the central point of a spy satellite--acquisition
of information without the subject State's knowledge. Once its existence
and characteristics are published, its effectiveness as a instrument for
spying diminishes. What Diederiks-Verschoor and other authors seem to be
suggesting with this type of analysis is that space reconnaissance
activities should simply be outlawed. Though that is a question beyond
the scope of this review, it suffices to say that such activities have
been recognized as lawful for decades and likely will for the
foreseeable future.[^412]

*5. Agreement Governing the Activities of States on the Moon and other
Celestial Bodies (Moon Agreement)--1979*

Of the five multilateral treaties devoted entirely to space, the Moon
Agreement[^413] is the most recent and enjoys the least support.[^414]
Additionally, the Agreement sheds little light on the international
legal regime restricting space warfare beyond that contained in previous
treaties. As a result, the Agreement is marginally relevant for
international space law in general, and the military uses of space in
particular. Nonetheless, the Agreement does contain provisions that
could impact space warfare as persuasive authority for the creation of
future international legal obligations on non-parties.

The Agreement reiterates for the moon many of the principles found in
the Outer Space Treaty including the notions of "province of all
mankind,"[^415] exploration and use carried out for the "benefit and
interests of all countries,"[^416] the fact that the moon is "not
subject to national appropriation by any claim of sovereignty, by means
of use or occupation, or by any other means,"[^417] and retention by
States Parties of "jurisdiction and control" over their personnel and
space vehicles.[^418] Further, as with the Outer Space Treaty, the Moon
Agreement requires that all activities on the moon be carried out in
accord with "international law,"[^419] and that States bear
"international responsibility for national activity" on the moon.[^420]
Finally, both treaties specify that all stations, installations,
equipment, and space vehicles "shall be open" to the other States
Parties.[^421]

The Agreement applies not only to the moon, but to "other celestial
bodies within the solar system, other than the earth."[^422] Though
"celestial bodies" is nowhere defined in any of the space conventions,
it would presumably include all planets, asteroids, and comets found
within earth's solar system. This is suggested by the Agreement's
exclusion from its scope of any "extraterrestrial materials which reach
the surface of the earth by natural means."[^423] Significantly, the
Agreement authorizes removal from the moon of "samples" of "mineral and
other substances."[^424] Though debate continues on the permissibility
and propriety of harvesting lunar resources, there is no moratorium on
doing so given the lack of support for the Moon Agreement.[^425]

Regarding military activity, the Agreement forbids the placement of
weapons of mass destruction, including nuclear weapons, on the moon
itself, in orbit around the moon, or on trajectories to and around the
moon, and on other celestial bodies.[^426] Further, the Agreement's
military provisions do not prohibit the placement of weapons in outer
space in general, only weapons of mass destruction. The Agreement's
language pertaining to military usage does however largely mirror
Article IV of the Outer Space Treaty. Requiring that the use of the moon
be "exclusively for peaceful purposes," the Moon Agreement continues
"any threat or use of force or any other hostile act or threat of
hostile act on the moon is prohibited."[^427] Given the fact that the
Agreement already specified that activity on the moon must occur
pursuant to international law, and the provision on the "threat or use
of force" simply parrots the language of Article 2(4) under the U.N.
Charter, one wonders why this language was necessary. The reference to
"any other hostile act or threat of hostile act" was new in 1979,
suggesting that under the Moon Agreement a "peaceful" use will be a
non-hostile use.

Perhaps the most significant feature of the Agreement of an enduring
character is its articulation of the "common heritage of mankind"
concept. Article 11 begins: "The moon and its natural resources are the
common heritage of mankind."[^428] Though articulated within the U.N. in
the 1960s,[^429] the common heritage of mankind (hereinafter CHM)
principle found its first expression of a legally binding character in
the Moon Agreement. Though not equivalent to the "province of mankind"
language found in the Outer Space Treaty,[^430] the CHM principle bears
some similarities. According to Jasentuliyana, the CHM theory has a
specific meaning when applied to the Moon Agreement and identifies five
characteristics for territory designated as such: (1) it is not subject
to State appropriation; (2) it is jointly managed by all States; (3) all
States should equitably share in the benefits reaped from the
exploitation of the resources of the areas; (4) the areas must be
dedicated exclusively to peaceful purposes; and (5) the CHM should be
conserved for future generations.[^431]

Throughout its history, the CHM principle in international law has
proven controversial. For the developing States, the concept as applied
to space is an important protection against the
"first-come-first-served" approach taken by the spacefaring States. For
those States active in space, particularly Western States desirous of
stimulating private investment, the concept is a threat to the
economical exploitation of space resources. The attempt to institute a
legal regime based on an (undefined) "equitable sharing" of the moon's
natural resources creates uncertainty, which, in turn, stifles
commercial interest. This problem is particularly acute given the
Agreement's specification that the proposed international regime to
govern exploitation of the moon's resources[^432] is to be established
"as such exploitation is about to become feasible."[^433] Uncertainty
over the terms of an international regime was largely responsible for
the U.S. decision not to sign the Moon Agreement.[^434] Ultimately, the
conclusion reaches by Reynolds & Merges appears plausible: "\[a\]bsent
adoption by the major space powers, the Moon treaty is unlikely to play
a major role in the future."[^435]

**V. SPACE WARFARE UNDER RELATED TREATIES AND**

**OTHER AUTHORITATIVE SOURCES**

No one can predict with certainty what the ultimate

meaning will be of the mastery of space.[^436]

President John F. Kennedy (1961)

In addition to the treaties and customary law dealing specifically with
outer space, a few other treaties not previously discussed contain
provisions relevant to the prospect of warfare in space. Also, several
U.N.G.A. resolutions have, in some cases quite specifically, revealed
the opinion of States on permissible activities in space. These sources
are the focus of this chapter, which, though not formally part of the
*corpus juris spatialis*, play a significant role in explicating the
full range of international norms relevant to space warfare.

**A. Treaties**

*1. Treaty Banning Nuclear Weapons in the Atmosphere, In Outer*

*Space and Under Water (Limited Test Ban Treaty)--1963*

Adopted before any of the "space" treaties, the "Limited Test Ban
Treaty"[^437] nonetheless provided the first treaty provision governing
the use of outer space. Despite being the subject of numerous U.N.G.A.
resolutions renouncing the use or testing of nuclear weapons, until the
Treaty entered force in late 1963 any of the nuclear weapons-capable
States were legally free to detonate their warheads anywhere they
wished.[^438] The Treaty forbids

> nuclear weapon test explosion\[s\], or any other nuclear
> explosion\[s\] . . . (a) in the atmosphere; beyond its limits,
> *including outer space*; or underwater, including territorial waters
> or high seas; or (b) in any other environment if such explosion causes
> radioactive debris to be present outside the territorial limits of the
> State under whose jurisdiction or control such explosion is
> conducted.[^439]

The Treaty went on to express hope that the parties would conclude a
comprehensive treaty permanently banning all nuclear test explosions,
"including all such explosions underground."[^440]

While of great military significance the Treaty was essentially aimed at
the prevention of global nuclear contamination.[^441] Thus, although
having the effect of an arms control agreement, the Limited Test Ban
Treaty can "be viewed primarily as an environmental agreement rather
than a military one."[^442] This primary aim of the drafters comes into
perspective when one considers the scope of nuclear testing that had
gone on previously.[^443] Between them, the United States and Soviet
Union conducted 212 nuclear explosions from 1945 to 1958. With the
exception of eighteen detonations, all occurred in the atmosphere.[^444]

The Treaty establishes three significant implications for space warfare.
First, while the treaty prohibits all nuclear detonations in space, even
those that may have value for peaceful military or scientific purposes,
it does not regulate detonations of a non-nuclear nature such as those
pertaining to conventional, biological, chemical, or high energy laser
weapons.[^445] Second, because the treaty outlaws "any nuclear weapon
test explosion, *or any other nuclear explosion*" (emphasis added), it
may prohibit the use of nuclear fission as a means of space
propulsion.[^446] To the extent nuclear power sources operate by means
other than "explosion," the Treaty does not prohibit their use. Finally,
the Treaty also prohibits the use of nuclear explosions for non-testing
purposes as well. Thus, although, for example, the creation of an
electromagnetic pulse in space by means of a nuclear detonation may
present strategic military advantage, particularly in an anti-satellite
role, such activity is forbidden by the treaty.[^447]

*2. Anti-Ballistic Missile (ABM) Treaty--1972*

The ABM Treaty severely limits the deployment, testing, and use of
missile systems designed to intercept incoming strategic ballistic
missiles.[^448] At the time of its adoption in 1972, the U.S.S.R. and
the U.S. believed that the best way to avert the possibility of a
nuclear exchange, as well as to curb the urge to continue a nuclear arms
buildup, was to render each side defenseless to a nuclear attack. The
two States agreed that just as the actual ability to defend with an ABM
system would create strategic instability, even the perception that the
other has the ability would be destabilizing.[^449] Thus, with one
exception, the two sides agreed to outlaw the testing, development,
deployment, and use of ABM systems.[^450] The exception allows each side
to maintain one ABM system either around its national capital, or at an
ICBM site.[^451] Although the Preamble to the treaty cites a desire to
decrease "the risk of outbreak of war involving nuclear weapons,"[^452]
the Treaty applies to defenses guarding against conventional weaponry
carried by ballistic missiles as well.

The two primary provisions impacting space activity come from Articles V
and XII. Article V(1) provides that "\[e\]ach party undertakes not to
develop, test, or deploy ABM systems or components which are sea-based,
air-based, space-based, or mobile land-based."[^453] Though there were
no space-based ABM systems in existence in 1972 when the Treaty was
adopted, the space program of each Party was highly advanced and each
could foresee the use of space-based ABM systems.[^454] Article XII is
perhaps even more significant to the long-term use of space by military
systems beyond the more narrow question of ABM systems:

> 1\. For the purpose of providing assurance of compliance with the
> provisions of this Treaty, each Party shall use national technical
> means of verification at its disposal in a manner consistent with
> generally recognized principles of international law.
>
> 2\. Each Party undertakes not to interfere with the national technical
> means of verification of the other Party operating in accordance with
> paragraph 1 of this Article.
>
> 3\. Each Party undertakes not to use deliberate concealment measures
> which impede verification by national technical means of compliance
> with the provisions of this Treaty. This obligation shall not require
> changes in current construction, assembly, conversion or overhaul
> practices.[^455]

Paragraph 1 is significant in numerous respects, not least of which is
the codification of the "open skies" principle. With this provision, not
only was the legality of space-based surveillance via satellite formally
acknowledged, but such satellites "became an essential component of the
international arms-control regime."[^456] The legality of military
surveillance activity from space was established in international law
previous to the ABM Treaty, however the Treaty certainly gave formal
sanction to the practice by the two leading spacefaring States.

The requirement under Article XII(2) that the Parties not interfere with
the "national technical means" of the other Party can be viewed in part
as a specification of the "peaceful purposes" limitation of the Outer
Space Treaty. That is, any proposed destruction of a Party's national
technical means, including surveillance satellites,[^457] by the other,
except pursuant to self-defense or U.N. Security Council resolution on
the use of force,[^458] would certainly constitute an "interference"
with that system as well as a violation of the "peaceful purposes"
mandate. In this way, the ABM Treaty acts as a partial limitation on the
uses of anti-satellite capability maintained either by the U.S. or
Russia.

Those following debates on missile defense in the United States will
immediately recognize that the ABM Treaty has been widely
criticized.[^459] The Secretary of Defense recently announced that if
Russia[^460] fails to agree to modifications to the Treaty to allow for
a minimal missile defense system, the U.S. reserves the right to
withdraw from the Treaty altogether. Significantly, the treaty provides
that

> \[e\]ach Party shall, in exercising its national sovereignty, have the
> right to withdraw from this Treaty if it decides that extraordinary
> events related to the subject matter of this Treaty have jeopardized
> its supreme interests. It shall give notice of its decision to the
> other Party six months prior to withdrawal from the Treaty. Such
> notice shall include a statement of the extraordinary events the
> notifying Party regards as having jeopardized its supreme
> interests.[^461]

Certainly, in case of war with the other Party or any other State, the
Parties' "supreme interests" would be jeopardized, allowing for
withdrawal. Whether the proliferation of ICBMs to States hostile to the
U.S. jeopardizes its supreme interests is now under intense
debate.[^462]

Last year, both houses of Congress overwhelmingly passed a bill that
enshrined into U.S. national security policy the fielding of a national
missile defense system.[^463] On July 23, 1999, President Clinton signed
the National Missile Defense Act of 1999 which commits the United States
to fielding a national missile defense system "as soon as is technically
feasible."[^464] The move represents a dramatic move in the U.S. quest
for missile defense -- a quest formally begun by President Reagan in
1983 with the announcement of preliminary research into a "peace shield"
to guard against foreign missile threats.[^465] Despite criticism, after
decades of failures missile defense technology has reached "an historic
phase in its favor." [^466] Pressure to renegotiate or withdraw from the
Treaty will continue to mount, in part because such renegotiation or
withdrawal will be absolutely necessary if the U.S. is to field a
national missile defense system, while remaining compliant with its
international legal obligations.

*3. Antarctic Treaty--1959, and the United Nations*

*Convention on the Law of the Sea--1982*

Those looking for analogous legal regimes to that contemplated for outer
space, often cite the regimes established for the continent of
Antarctica and for the high seas. Of the two, the high seas receive
particular attention. Not too long ago, the high seas seemed as vast to
explorers as outer space does today. But in addition to their vastness,
the freedom of movement thereon mirrors the freedom of movement reserved
in law for outer space. Thus, one commentator notes the "maritime
antecedents" of the freedoms of outer space.[^467]

With respect to the status of the high seas, the United Nations
Convention on the Law of the Sea (LOS Convention), the most
comprehensive treaty ever created, largely mirrors customary
international law.[^468] Among its other numerous categories, it
establishes the legal status for the high seas--the vast majority of the
world's oceans which are free of any territorial claims or superior
rights or interests by any one State. As with the legal status for outer
space, the LOS Convention articulated the "freedom" of all States to
traverse the high seas unimpeded.[^469] Thus, under international law
the high seas constitute an area that is *res communis
omnium*--territory free for equal use by all States.

By contrast, Antarctica constitutes territory that could be likened to
*terra nullius*.[^470] Previous to the 1959 Antarctic Treaty, several
States laid claim to portions of Antarctica.[^471] This meant that for a
period of time, those portions were no longer *terra nullius*. However,
the Treaty's Parties, including all States that previously made
territorial claims, froze all of those claims. The Parties also
contracted that no new claims to sovereignty over any portion of
Antarctica would be permitted--a situation strikingly similar to that
established for the whole of outer space by Article 2 of the Outer Space
Treaty.

Especially significant is the dissimilarity between the terms "peaceful
purposes" as used in the Outer Space Treaty and that in the Antarctic
Treaty. As used in the latter treaty, the phrase "peaceful purposes"
specifically operates to create a demilitarized zone. Thus, Article 1
specifies that "Antarctica shall be used for peaceful purposes. There
shall be prohibited, *inter alia*, *any measures of a military nature*,
such as the establishment of military bases and fortifications, the
carrying out of military maneuvers as well as the testing of any type of
weapons."[^472] (emphasis added) Not only does this sweeping language
rule out the possibility of "any" activity of a "military nature," but
it clarifies the meaning of peaceful purposes as used in the
Treaty.[^473] For the Antarctic Treaty, peaceful purposes functionally
excludes virtually any military activity. Thus, by law, Antarctica has
become not only demilitarized, but weapons-free. Not so for outer space.
Though the Outer Space Treaty does specifically restrict military
activity in Article IV, it conspicuously omits the broad language
modifying the phrase "peaceful purposes" as contained in the Antarctic
Treaty. This use of the phrase in the Antarctic Treaty was undoubtedly
evident to the drafters of the Outer Space Treaty, and provides further,
albeit indirect, evidence that "peaceful purposes" under the Outer Space
Treaty cannot simply mean non-military.[^474]

Whether these two treaty regimes provide helpful analogies to outer
space depends on the space activity contemplated. When applying the
issue to military space combat, the high seas, though perhaps not
necessarily the legal regime governing the high seas, appears a much
better analogy than the territory of Antarctica. For example, while
space affords tremendous tactical and strategic military advantage,
Antarctica does not.[^475] Further, although Article 2 of the Outer
Space Treaty prohibits claims of national appropriation and sovereignty
in space, the Outer Space Treaty also implies the legitimacy of weapons
in space,[^476] a possibility the Antarctic Treaty forecloses[^477] for
Antarctica, but the LOS Convention for the high seas does not.[^478]

**B. United Nations General Assembly Resolutions**

The U.N. Charter invites the General Assembly to make "recommendations"
on issues within its competence.[^479] Further, the seminal Article
38(1) of the Statute of the International Court of Justice articulates
the three formal sources of international law, none of which include
U.N. resolutions: (1) treaties; (2) international custom; and (3)
general principles of law recognized by civilized nations.[^480] From
this basis, the consensus has emerged that U.N.G.A. resolutions do not
in and of themselves bind States.[^481] Nonetheless, the space
resolutions have proven significant to the formation of space law.
Indeed, as becomes evident below, such resolutions not only predated the
subsequent space treaties, but have for a variety of reasons become the
vehicle of choice for expressing international opinion on various
space-related topics.[^482]

*1. Declaration of Legal Principles Governing State Activity*

*in the Exploration and Use of Outer Space--1963*

The space resolution adopted in late 1963 by the United Nations General
Assembly is of interest today largely for tracing the negotiating
history of the Outer Space Treaty. Certainly a diplomatic breakthrough
when it emerged from the bilateral U.S./Soviet negotiations, the
"Declaration of Legal Principles"[^483] found itself incorporated almost
entirely into the 1967 Outer Space Treaty.[^484] In many regards, it was
the "first significant step in the development of space law."[^485]

The importance of the Resolution can be seen by the use of two terms in
its title, "Declaration" and "Legal Principles." Because of the lengthy
negotiating and drafting history predating the resolution, and its
unanimous support, it practically amounted to a treaty when adopted.
Though not binding on any State,[^486] the Resolution does not read like
a traditional resolution. Rather, it declares and announces legal
principles instead of merely recommending a course of action. The
considerable authority of its pronouncements were cemented in law just
four years later with adoption of the Outer Space Treaty.

*2. Principles Relating to Remote Sensing of*

*the Earth from Outer Space--1986*

In contrast to the "Declaration of Legal Principles" of 1963, the 1986
Resolution on remote sensing activities addresses a specific form of
outer space activity. The Resolution defines remote sensing as follows
in Principle I: "the sensing of the Earth's surface from space by making
use of the properties of electromagnetic waves emitted, reflected or
diffracted by the sensed objects, for the purpose of improving natural
resources management, land use and protection of the environment."[^487]
Given the absence of any governing treaty,[^488] the Remote Sensing
Resolution is the most authoritative international document to provide
not only a general definition, but also the basic parameters of
permissible State activity. Passed unanimously by the General Assembly,
the Resolution was the culmination of previous efforts from 1968 through
1985.[^489] Although related to the activity of military reconnaissance
satellites, the Remote Sensing Resolution aims rather at formulating
norms for civilian and commercial users.[^490] Nonetheless, the biggest
users of civil and commercial remote sensing data are the military and
intelligence agencies.[^491] Thus, the Resolution could become relevant
to space warfare to the extent that a belligerent uses commercially
available data in support of its military operations.[^492]

Of the fifteen principles contained in the Resolution, the most
important include the fourth, twelfth, and thirteenth. Principle IV
specifically links remote sensing activities to Article I of the Outer
Space Treaty, and encourages that remote sensing activities occur "on
the basis of respect for the principle of full and permanent sovereignty
of all States and peoples over their own wealth and natural
resources."[^493] Widely viewed as a provision in favor of developing
nations, this Principle further protects the "legitimate rights and
interests of the sensed State."[^494] The practical effect of these
protections are unclear as the Resolution does not define several key
terms, such as "legitimate."

Central to the Resolution's system of principles is the distinction
between "primary data,"[^495] "processed data,"[^496] and "analysed
\[sic\] information."[^497] While the first two categories should be
made available to a "sensed State," the latter need not. Thus, Principle
XII specifies that as soon as primary and processed data are produced,
the sensed State will have access to such data on "a non-discriminatory
basis and on reasonable cost terms."[^498] While perhaps appearing to be
a victory for the interests of sensed States, many of which are in the
process of development and have no indigenous remote sensing capability,
this "access" provision amounts to a victory for the liberty of the few
States most active in space.[^499] Principle XII does not call on
sensing States to offer prior notification to sensed States of its
activities, and it certainly does not require prior permission for
remote sensing from space--two issues creating lively debate as the
State delegations negotiated the Resolution's final text.

Finally, Principle XIII exhorts sensing States, upon request, to "enter
into consultations with a State whose territory is sensed in order to
make available opportunities for participation and enhance the mutual
benefits to be derived therefrom."[^500] Here the Principle assumes that
the sensing is already occurring ("is sensed") before the consultations
are to begin. Further, consultations is an unspecified term that appears
not to bind States to much of anything in actual practice.[^501] Still,
the provision is of some value as it encourages sensing States to reveal
their activity to the sensed State. In cases where the sensed State
would not otherwise know of the remote sensing activity over its
territory, this appears to be a logical prerequisite for the sensed
State to take advantage of access to the data encouraged under Principle
XII.

As Professor Christol notes, though unanimity on the resolution was in
some cases grudging, there have been no formal departures from the terms
of the Resolution.[^502] As is generally true for U.N. resolutions, the
longer they are used as the international standard, the stronger their
authority becomes.

*3. Principles Relevant to the Use of Nuclear*

*Power Sources in Outer Space--1992*

Beginning around the time of the 1978 crash of the Soviet Cosmos 954
satellite in Canada's Northwest Territories,[^503] COPUOS began working
on an international technical framework for the regulation of nuclear
power sources in space. Despite earlier resolutions touching on nuclear
power,[^504] the project came to full fruition on December 14, 1992 with
adoption by the U.N.G.A. of the "Principles Relating to the Use of
Nuclear Power Sources in Outer Space."[^505] Because the NPS Resolution
deals with the politically sensitive subject of nuclear power, its
adoption is significant; this is particularly so given the specificity
of its terms. To the extent that State practice consistent with the
Resolution creates customary international law, the framework set forth
could significantly affect space warfare--at least as to those nuclear
power sources used in space warfare fitting within the scope of the
Resolution.[^506]

The NPS Resolution provides in the Preamble that its terms apply to
"nuclear power sources in outer space devoted to the generation of
electric power on board space objects for *non-propulsive
purposes*."[^507] Thus, any application to space weaponry that the
Resolution may have relates only to those means of warfare using a
nuclear power source to sustain electrical systems for the object.[^508]
Following this initial qualification, the Resolution's eleven Principles
contain guidelines and criteria for safe use (Principle 3), safety
assessments (Principle 4), and notification of re-entry (Principle 5).
The Resolution also makes reference to the Outer Space Treaty in its
assertions regarding State responsibility (Principle 8), and to the
Liability Convention regarding State liability and compensation
(Principle 9).

The heart of the Resolution is to be found in Principle 3. In
establishing conditions for the safe use of nuclear power in space, it
exhorts States to use an NPS only for missions "which cannot be operated
by non-nuclear energy sources in a reasonable way."[^509] Thus, without
defining "reasonable," the Resolution attempts to limit State use of an
NPS while recognizing that for certain missions, such power sources are
appropriate. Indeed the Resolution continues by establishing the three
cases in which nuclear reactors may be used: (1) on interplanetary
missions; (2) in "sufficiently high orbits";[^510] and (3) in low-earth
orbits if they are stored in sufficiently high orbits after the
operational part of their mission.[^511] Further, Principle 3 specifies
that nuclear reactors for space missions must only use enriched uranium
235 as fuel,[^512] and that design and construction of the nuclear
reactor "shall ensure that it cannot become critical before reaching the
operating orbit during all possible events."[^513]

Significantly, Principle 5 states what may well be a rule of customary
international law: "Any State launching a space object with nuclear
power sources on board shall in a timely fashion inform States concerned
in the event this space object is malfunctioning with a risk of re-entry
of radioactive materials to the earth."[^514] This general statement
would certainly affect space combat as to cases in which malfunctioning
weapons, containing nuclear power sources, appear likely to reenter
earth's atmosphere and impact on foreign soil. The existence of an
ongoing state of hostilities would render the duty to warn less certain
as between the belligerents, though it would probably apply to
dangerous, radioactive space objects likely to impact neutral States,
even if pursuant to accidents occurring in military operations.

According to an unofficial report, States appear to be following the
recommendations contained in the NPS Resolution.[^515] As an example,
the Russian report to the U.N. Secretary General of its anticipated
launch of the Mars 96 satellite powered by plutonium-238 is cited.[^516]
When the satellite malfunctioned and reentered the atmosphere, the
Russians made notification of that event as well, in accord with
Principle 5. Similarly, the U.S. notified the Secretary General of its
launch of the Cassini space probe, containing about 35 kg of
plutonium-238 dioxide.[^517] These instances of "compliance" are
important. To the extent that spacefaring States behave in accord with
the U.N. Resolution as though doing so represents a legal norm, the
behavior will slowly come to *be* a legal norm in the form of customary
international law--if it isn't already.

**C. International Telecommunication Union**

The growth of the telecommunications industry predates the space age.
Nonetheless, since the advent of satellite telecommunications the
industry's rate of growth has increased tremendously. The International
Telecommunication Union (ITU), through its Radio Regulations Board (RRB)
coordinates the international use of the radio spectrum.[^518] As a
limited natural resource, the spectrum will support only a finite number
of users among the radio frequencies before signal interference begins
to occur. As a result, a coordinated global effort to deconflict use of
the spectrum becomes the *sine qua non* of the world-wide
telecommunications capability. The RRB is the forum for such
coordination and its radio regulations specify with great detail the
international standards for coordinating use of radio frequencies.

As suggested above, the U.S. military maintains its own military
satellite telecommunications network.[^519] However, because of the
potential for interference, it must pay careful attention to the
regulations issued by the ITU in order to avoid harmful signal
interference. Although not applicable to the military or other national
security functions,[^520] the ITU regulations govern the majority of
telecommunications systems in space. During military operations, and
especially during armed conflict, the military must operate its
telecommunication networks, or lease the capability from civilian
providers, so as to avoid radio interference. This obligation comes not
as the result of legal mandate, but military necessity. Because armed
forces heavily rely on telecommunications for efficient command and
control,[^521] including commercially operated telecommunications
systems,[^522] their use of the radio spectrum must be done taking into
account other users with the potential for harmful interference. Failing
to do so risks losing the critical ability to communicate. Armed
conflict creates numerous unforeseen challenges for military forces;
these have been termed the "friction" of war.[^523] Interference-free
communications provides one of the best lubricants against that
friction, and therefore becomes an indispensable component in the
successful prosecution of war.

**VI. THE LAW OF WAR IN OUTER SPACE**

\[The humanitarian law of armed conflict\] applies to all forms of
warfare

and to all kinds of weapons, those of the past, those of the

present and those of the future.[^524]

> International Court of Justice (1996)

A review of current scholarship analyzing the application of the law of
war to outer space warfare yields little information. While many authors
have written on space militarization and weaponization, and some on
space warfare, almost none have undertaken an analysis of space warfare
in the context of the law of war.[^525] Indeed, it would seem that
popular culture in the form of science fiction movies has taken a
greater interest in the subject than have legal scholars and
practitioners.[^526] For at least two reasons, this must change. First,
use of the space environment in warfare is not just a matter of
speculative planning for future conflicts, it has already occurred. As
the conflicts in the Persian Gulf and Kosovo made clear, space assets
were decisive in battle planning and execution. Second, failure to
analyze one's legal obligations raises the very real specter of
violating obligations that do in fact exist. Given that the U.S.
contemplates armed conflict within the space environment, it must not
proceed oblivious to norms establishing permissible and impermissible
means and methods of warfare. For example, the increasing use of
high-technology wargames using space combat scenarios is uncovering
knotty legal issues.[^527] It is also giving added urgency to questions
that become increasingly "real world" such as the following: "\[d\]oes
intentional interference with a U.S.-owned satellite orbiting 600 mi.
above the Earth constitute an act of war?"[^528]

Given the numerous previous uses of space assets for combat support, the
evolution from passive, defensive support systems to active, offensive,
weaponized systems seems only a matter of time. Professor Spires
provides the following instructive review of space assets used in
combat:

> As early as the Vietnam conflict, weather and communications
> satellites furnished useful data and imagery to commanders in
> Southeast Asia and linked them with Washington, D.C. More recently,
> satellite communications had proven important in the British Falkland
> Islands campaign and in Urgent Fury, the Grenada invasion of 1983. In
> 1986, during Operation Eldorado Canyon, space systems provided a vital
> communications link and supplied important mission planning data to
> aircrews that bombed targets in Libya. In 1988, Operation Earnest Will
> witnessed the first use of GPS test satellites to support ships and
> helicopters during mine sweeping operations in the Persian Gulf.
> During Operation Just Cause in Panama in 1989, DSCS satellites
> provided long-haul communications links and DMSP supplied important
> weather data.
>
> These operations, however, involved only portions of the military
> space community for a relatively brief period of time, and the
> contribution of space systems was not widely understood or
> appreciated. Desert Storm, by contrast, involved the full arsenal of
> military space systems. Nearly sixty military and civilian satellites
> influenced the course of the war.[^529]

To these military uses can be added the extensive use of space assets in
the 1999 Operation Allied Force campaign in Yugoslavia.[^530] What this
review demonstrates is that the military use of space for combat
continues toward more robust, integrated systems. The increasing
reliance on space assets strongly suggests that the space environment
will eventually become a distinct theater of military operations.[^531]

**A. Bases on Which the Law of War Applies to Outer Space**

To those familiar with international law, it may seem strange to
undertake a separate discussion of the bases on which the law of war
applies to outer space conflicts. As a general proposition of
international law, a State's legal obligations are not conditioned
geographically unless otherwise specifically noted or unless the
circumstances of the obligation make such conditions obvious. As a
result, it may appear self-evident that the law of war will apply, to
the extent it has relevance, to future space conflicts.[^532] But this
is not necessarily accurate for the simple reason that the specific
legal norms governing space warfare, with very few exceptions,[^533]
have yet to emerge. Thus, to provide the basis for further development,
the conclusion that the principles of the law of war apply to outer
space should prevail only on the basis of reasoned legal argumentation.
At least three methods of argument, discussed below, appear to sustain
the conclusion that the existing law of war does apply to space warfare:
argumentation by analogy, argumentation based on specific reference to
the terms of the Outer Space Treaty, and argumentation based on the
Martens' clause.

*1. Analogy*

As discussed earlier, development of the *corpus juris spatialis* has
occurred in part by use of legal analogies.[^534] Analogy has been used
in two senses. First, the environment to be regulated--outer space--is
compared to other environments, such as the high seas and Antarctica. On
this basis, the international community has developed the legal regime
governing outer space after drawing from legal norms governing these
other environments. Second, the use of analogy occurs after a legal norm
within the *corpus juris spatialis* has already been established. In
this sense a principle of law is interpreted by means of analogy with a
specific principle from another legal regime. This could be termed
argumentation by micro-analogy, while the other constitutes
argumentation by macro-analogy.

Both types of argumentation will be useful with respect to developing a
*jus in bello* for space. On the macro-level, the *jus in bello*
governing means and methods of combat on land, sea, or air, provides
potential similarities to means and methods of space combat made
possible by the existing and proposed technologies discussed in Chapter
Two. The closer the factual similarity, the more likely it is that the
existing norm will undergird the developing legal regime for space.
Similarly, given the relative youth of space law, argumentation by
micro-analogy is just about the only means of interpreting the general
*corpus juris spatialis* to fit specific legal issues relating to the
military use of outer space. Though use of analogies in any sense can be
misleading if it amounts to misrepresentation of the existing norm used
as the analogy, it will undoubtedly guide the quest for articulating the
current *jus in bello* for space, as well as the development of the many
further norms likely to emerge in the context of State practice.[^535]

*a. Parallels to Sea Warfare*

Given the general jurisdictional parallels and legal analogies drawn
between outer space and the high seas,[^536] a similar comparative
approach is natural in attempting to establish the status of outer space
in conditions of armed conflict. The sovereign rights of all States on
the high seas are equal. So too in outer space. Once armed conflict has
begun however, with the exception of avoiding the territory and property
of neutral States,[^537] the legal status of the place in which combat
occurs becomes less important. Thus, if State A launches an "armed
attack" against State B, the latter may respond in self-defense either
in State A's territory, State B's territory, the high seas,
international airspace, or outer space. As a result, though space law
has made significant use of analogies from the law of the sea, a unique
analogy between warfare in space and warfare on the high seas appears
inapposite, at least as distinguished from analogies with international
airspace and the territory of opposing belligerents.

*b. Previous Application of the Law of War to Aerial Warfare*

In addition to the use of analogies drawn by the *corpus juris
spatialis* from the law of the sea, it is likely that the *jus in bello*
for space will draw on the developmental patterns characterizing
evolution of the *jus in bello* for aerial warfare.[^538] When the Hague
conferences met in 1907, aviation was a fledgling industry. There were
profound uncertainties about how or even if aviation could be
effectively used in war. Thus, the 1907 Conventions do not specifically
address limits on aerial warfare.[^539] As aeronautical technology
developed, the international community never adopted a binding legal
regime restricting means and methods of aerial warfare. Though the 1923
Hague Rules of Aerial Warfare are thought to reflect customary law in
some respects, not a single nation ever ratified this agreement. What
does exist by way of restriction, exists in piecemeal form through an
array of instruments comprising the laws of war. This evolutionary,
piecemeal approach to restrictions on aerial warfare is likely to
characterize the evolutionary growth of international restrictions on
space warfare as well.

Military roles and missions for space assets in the U.S. have developed
along lines similar to those of airpower during the beginning of this
century.[^540] In both cases, intelligence-gathering and support
operations came first, followed by each respective medium used as a
means of transportation. Finally, offensive and defensive combat roles
followed. As USSPACECOM plans for offensive and defensive combat
capabilities in space, the comparison with airpower appears complete. Of
course, the possibility always exists that space combat will be outlawed
by international agreement. However, "the odds are poor. . . .
Deep-seated \[human\] traits create tremendous temptations for
aggressors to take all, unless probable costs of such action exceed
anticipated gains."[^541]

As a result of the parallel development of air and space military
missions, and of the piecemeal recognition of international limits on
means and methods for prosecuting aerial war, it is reasonable to
predict that the *jus in bello* for outer space will evolve as did the
*jus in bello* for airspace: incrementally, by analogy to former means
and methods of warfare, and in the absence of a comprehensive
treaty-based system of prohibitions.

*2. Outer Space Treaty*

Article III of the Outer Space Treaty provides perhaps the clearest
indication that the international law of war will apply to space
warfare:

> States Parties to the Treaty shall carry on activities in the
> exploration and use of outer space, including the moon and other
> celestial bodies, in accordance with international law, including the
> Charter of the United Nations, in the interest of maintaining
> international peace and security and promoting international
> co-operation and understanding.[^542]

Two significant observations arise from this provision. First, Article
III applies the restrictions of all international law to outer space
activities ("in accordance with"). As products of "international law,"
this surely includes both the *jus ad bellum*, made obvious by Article
III's specific reference to the U.N. Charter, and the *jus in bello*.
This observation provides the strongest evidence that as far as its
principles will apply to future technologies, the law of war has been
incorporated into military space operations by virtue of the Outer Space
Treaty.

A second observation relates to the requirement that a State's
exploration and use of outer space be "in the interest of maintaining
international peace and security." This well-worn phrase in
international law comes directly from, among others, the U.N.
Charter.[^543] As historically used, the phrase assumes that military
force will be available to the international community to ensure
international order.[^544] As international law has limited the means
and methods States may use in employing military force in combat, those
limits form a part of the context in which the maintenance of
international peace and security, including the use of force in space,
must occur.

*3. Martens' Clause*

A final observation regarding the application of the laws of war to
military space operations relates to what became known at the Hague
diplomatic conferences as the "Martens' Clause." This clause, so named
for the Russian delegate proposing its inclusion, was inserted into the
preamble of the 1899 Second Convention and the 1907 Fourth Convention.
The clause was intended to supplement the prohibitory rules adopted at
both conferences. The clause appears in several law of war documents,
and reads as follows in its 1907 iteration:

> Until a more complete code of the laws of war has been issued, the
> high contracting parties deem it expedient to declare that, in cases
> not included in the Regulations adopted by them, the inhabitants and
> the belligerents remain under the protection and the rule of the
> principles of the law of nations, as they result from the usages
> established among civilized peoples, from the laws of humanity, and
> the dictates of the public conscience.[^545]

The clause reminds States Parties that explicit prohibitions within the
Treaty do not supercede general, implicit prohibitions operating in the
background by way of "principles of the law of nations."[^546] In this
way, the clause covers not only customary international law but also
incorporates all rules and principles of the general law of
nations.[^547] As a result, it does more than simply claim that
customary international law fills in the gaps left by conventional law.

The further influence of the clause can be seen by its inclusion into
successive law of war documents throughout the twentieth century. Thus,
versions of the principle quoted above have appeared in each of the four
1949 Geneva Conventions,[^548] the 1977 Protocol (I) to the Geneva
Conventions governing international armed conflicts,[^549] and the 1980
Convention on Conventional Weapons.[^550] This widespread incorporation
of the principle, adopted by the vast majority of States, strongly
suggests that the Martens' Clause itself may have become a principle of
customary international law.[^551]

The continuing vitality of the doctrine expressed in the Martens' Clause
will be particularly important for space warfare, often thought to be
the most technologically innovative form of warfare. Because the
doctrine is phrased "dynamically,"[^552] implicitly anticipating the
need to regulate means and methods of warfare developed through
technological advances, it will always operate to limit the lawful
prosecution of space warfare. No matter what new means or methods are
developed, they will remain subject to "the principles of international
law derived from established custom, from the principles of humanity and
from the dictates of public conscience."[^553]

**B. Problems of Legal Definition and the Use of Force in Space**

As is the case with domestic law, international law depends for its
coherence and consistency on clear definitions of key terms. The quest
to further develop a *jus in bello* for space will be plagued with the
conspicuous absence of authoritative definitions of several significant
terms and concepts. In addition to the difficulty of applying existing
law, this situation holds important lessons for the future drafting of
space treaties, including the importance of avoiding terms and phrases
open to more than one reasonable interpretation.[^554] Though the lack
of definition or use of ambiguous terms often reflects the presence of
irreconcilable difference among the drafters, such devices can work to
utterly frustrate the aims of the treaties in which they appear. It
certainly will complicate the emergence of a distinct *jus in bello* for
space.

*1. Militarization of Space*

The militarization of outer space does not necessarily entail its
weaponization.[^555] Many of the legal issues arising from the
militarization of space do so in part because of the absence of clear
definitions for terms used in the relevant space treaties. For example,
aside from peaceful purposes[^556] and outer space,[^557] the law lacks
basic authoritative definitions of other terms including space object,
and space debris. As noted previously, the Liability Convention defines
"space object," but its general circularity leaves the definition
unhelpful.[^558] Functionally, the "space object" as used in
international parlance includes "space debris." As it is generally
conceived, a space object includes any artifact, manned or unmanned,
that is launched into orbit. This includes objects that have ceased to
function and have become debris. The lack of legal definition for these
basic terms makes the already difficult task of applying two distinct
branches of international law to space combat that much more difficult.

*2. Weaponization of Space*

Beyond terms relevant to the militarization of space are those related
to the more controversial prospect of space weaponization. Not only has
the U.S. historically eschewed the prospect of fielding space weapons,
but even as their use has recently attracted renewed attention, some
officers within the military publicly advocate a space sanctuary policy
-- that is, no weapons in space.[^559] Many others, including the
current Chief of Staff of the U.S. Air Force, view the ultimate
weaponization of space as "inevitable."[^560] Whatever policy the U.S.
adopts, one must immediately confront the question "what constitutes a
weapon?" As one example, the meaning of nuclear weapon as used in the
Outer Space Treaty may become less and less evident in future decades
witnessing an evolution of space weaponry.[^561] While some hearing the
term nuclear weapon may immediately equate it with thermonuclear devices
designed for detonation under controlled circumstances, it is certainly
correct to observe that "nuclear energy may be used in different ways
and may be a potential weapon even if not so designed."[^562] As a
result, in the absence of clear definition, one could argue that
following its malfunction, the Chernobyl nuclear reactor, for example,
became a "nuclear weapon."

Further complicating any legal analysis of the permissible scope of the
weaponization of space one confronts a further definitional vacuum.
Despite the heavy militarization of space, the basic term "space weapon"
lacks definition in international law. As a result, the concept it
represents, which broadly speaking includes any implements of warfare in
space, is difficult to isolate for purposes of analysis. And, without
this foundational definition, one cannot define phrases on which it
logically relies, such as nuclear weapon and weapon of mass destruction.
The difficulty arises in that any comprehensive definition of space
weapon will include space systems equally used for non-military,
non-destructive, and non-aggressive purposes. Though space weapons may
seem to include only a discrete class of armaments with easily definable
characteristics, a closer examination "reveals a less obvious and more
inclusive set of systems."[^563]

One proposed definition illustrates this challenge:

> A space weapon is a device stationed in outer space (including the
> moon and other celestial bodies) or in the earth environment designed
> to destroy, damage, or otherwise interfere with the normal functioning
> of an object or being in outer space, or a device stationed in outer
> space designed to destroy, damage, or otherwise interfere with the
> normal functioning of an object or being in the earth environment. Any
> other device with the inherent capability to be used as defined above
> will be considered as a space weapon.[^564]

Of particular interest is the second sentence. While it acknowledges
that space objects not designed as weapons may *become* weapons if they
can "be used" as such, it arguably leaves the definition so broad as to
include just about any object at all.

Objects in orbit travel at roughly 17,000 miles per hour. This fact
alone gives them the "inherent capability" to destroy or interfere with
an object or being in space or in the earth environment. This is equally
true of functioning satellites, dead satellites, and space debris.
Similarly, under this definition commercial telecommunications
satellites are space weapons as they have the inherent capability to
interfere with the normal functioning of other telecommunications
satellites. Indeed a rifle, a hunting knife, or even any sharp object on
earth possesses the capability to destroy and/or interfere with a ground
station, making impossible the normal functioning of the satellite it
supports. These observations are not intended to suggest "space
weaponry" should not be defined. They are simply intended to illustrate
the difficulty of creating a definition that will distinguish space
weapons from the larger categories weapons, space objects, or even
objects.

Put another way, should the developing law of war ever proceed to
restrict the use of existing or potential space weapons, the definition
of space weapons will have to confront the difficult problem of what to
do about "non-dedicated systems"--that is, those space systems not
designed as weapons.[^565] It will also have to elucidate whether the
restriction applies to the weapon's subcomponents as well.[^566] A
consensus among States on such a definition will facilitate application
of the law of war to armed conflict in space.

In the meantime, consideration of technologies useful for space combat
will proceed under the principle that State action is permitted in the
absence of clear legal prohibition.[^567] Though regularly denounced by
a large segment of the international community as destabilizing for the
use and exploration of outer space,[^568] in principle none of the
potential means and methods of space warfare discussed previously in
Chapter Two, with the exception of nuclear weapons, violate
international law.[^569] Of course, the use to which these weapons are
put could render them unlawful for a specific objective if, for example,
their use rendered them disproportionate (or indiscriminate or inhumane)
under the law of war as judged against the military objective in view.
But this is an inherent possibility for any weapon, which, by itself,
does not render the weapon unlawful.

*3. Use of Force in Space*

Beyond definitional limitations, a thorough articulation of legal
standards applicable to space warfare should account for the ways most
likely to trigger *jus ad bellum* restrictions on the resort to the use
of armed force. One commentator has observed that space law, including
the Limited Test Ban Treaty, Outer Space Treaty, Anti-Ballistic Missile
Treaty, and the Moon Agreement, was developed to "permit, indeed to
endorse, the arms race, including the militarization of space."[^570]
Though speaking with a sense of irony and regret, this scholar's
comments raise the twin questions of the law's tolerance of one State's
infliction of intentional damage on another's assets, and of the capture
of foreign space assets. Though the U.N. Charter forbids the "threat or
use of force against the territorial integrity or political independence
of any state, or in any other manner inconsistent with the Purposes of
the United Nations,"[^571] the meaning of this prohibition remains hotly
contested. The prevailing view is that this provision is an absolute bar
to the use of force with the sole exceptions being self-defense and
authorization by the Security Council. The other view, greatly bolstered
by the recent NATO air war in Kosovo, asserts that the prohibition
pertains only to the use of force for purposes inconsistent with the
Charter such as the subjugation of another State, or annexation of its
territory.[^572] A State's interpretation of the general prohibition on
the use of force will obviously greatly impact its decision whether or
not to use it. For example, if a State finds in the Charter no
prohibition on individual or collective "humanitarian intervention," it
will expand to the uses of force it deems lawful in any of the combat
environments, including space.[^573]

Beyond general principles under the *jus ad bellum*, one can find
reference to the intentional use of force within space law itself. A
careful reading of the Liability Convention discloses that the *corpus
juris spatialis* implicitly recognizes that under certain circumstances
the intentional destruction of space objects might occur.[^574] As
previously discussed, the Liability Convention subjects States Parties
to absolute liability for damage caused by its space objects on the
earth's surface, or to aircraft in flight,[^575] and to liability based
on fault for damage by its space object to the space object of another
State "being caused elsewhere than on the surface of the earth."[^576]
However, Article VI provides exoneration from absolute liability in
cases where either the claimant State, or the natural or juridical
persons it represents, caused the damage wholly or partially by gross
negligence, or an act or omission done with intent to cause
damage.[^577] A proper understanding of the phrase "intent to cause
damage" provides insight into the Convention's foresight as to the
possibility of uses of force against space objects.

Under Article VI, the scope of the exoneration applies only as to
"absolute liability" under Article II, and therefore exoneration from
liability for damage by space objects done on the surface of the earth
or to aircraft in flight. Given the purpose of space objects, that is,
launch into space, this provision for exoneration would certainly
include intentional acts taken against space objects *while in space*
that later cause damage on the earth or in the air. Obviously, the
exoneration for intentional damage caused by a claimant State
presupposes the possibility that such intentional damage will occur.
Thus, despite the provisions of the Outer Space Treaty prescribing the
"peaceful" use and exploration of space, the Liability Convention
recognizes the distinct possibility that States may engage in
intentional damage to space objects. While this does not imply the
Convention's sanction for such events,[^578] it does suggest that the
international community realistically expected that a claimant State
might take action amounting to the intentional damaging of a space
object.[^579]

Legally speaking, the capture of a foreign space object is related to
the question of intentional uses of force. Under the Outer Space Treaty
a State Party to the Treaty "on whose registry an object launched into
outer space is carried shall retain jurisdiction and control over such
object."[^580] At face value, this means that a satellite, for example,
registered by State X belongs to State X for purposes of jurisdiction
and control. Nonetheless, when State X uses its satellite to
intentionally and wrongfully disable State Y's satellite, assuming that
doing so amounts to an "armed attack" under the U.N. Charter, State Y
may in self defense disable State X's satellite.[^581] In such
circumstances, State X has violated one of the conditions assumed to
exist by the Outer Space Treaty--the peaceful use of outer space. Having
properly acted in self-defense, may State Y capture State X's aggressor
satellite for intelligence or other purposes? It certainly seems that
the law of war authorizes belligerents not only to kill opposing
belligerents but to destroy their weaponry. If State Y can lawfully
destroy State X's satellite, it can certainly capture it, Article VIII
of the Outer Space Treaty notwithstanding. Put otherwise, the only way a
State may be assured the protection of its space assets, is to ensure
that its activities remain compliant with international law, including
space law and the *jus ad bellum*.

**C. National Policy, Military Space Doctrine, and Law of War Manuals**

A review of the U.S. space policies at the Presidential and DOD levels
reveals that the leadership invariably reserves a place for national
security and military activity within its space policy statements. In
fact, current U.S. national space policy directs the DOD to assume
certain space missions that, when implemented, will have the effect of
preparing the U.S. for armed conflict in space. As a result, U.S. space
policy precipitates the need for an examination of the laws of war.
Increasingly, prominent observers are calling for full implementation of
U.S. military space policy which would result in a robust combat
capability.[^582] Taking the argument a step further, others argue for a
fourth military department devoted to space.[^583] Nonetheless, as one
military commentator observes, "\[a\]lthough the idea of space warfare
is becoming prominent in Air Force thinking, little effort has been made
to flesh out what it means."[^584] It also appears that little thought
has been given to the question "how will the law of war limit a State's
ability to prosecute warfare in space?"

In establishing the current national space policy in 1996, President
Clinton reiterated the requirement to use space for "peaceful
purposes."[^585] Consistent with the forty-year U.S. interpretation of
the term, it does not exclude military activity such as
intelligence-gathering or even armed defense: "'Peaceful purposes' allow
defense and intelligence-related activities in pursuit of national
security and other goals."[^586] More recently, the President's National
Security Strategy states that "our policy is to promote development of
the full range of space-based capabilities in a manner that protects our
vital national security interests."[^587]

The U.S. National Space Policy directs U.S. space activity under several
substantive areas comprising "Civil Space Guidelines," "National
Security Space Guidelines," "Commercial Space Guidelines," and
"Intersector Guidelines." The DOD is directed, *inter alia*, to
"maintain the capability to execute the mission areas of space support,
force enhancement, space control, and force application."[^588] These
four mission areas form the backbone of the DOD's military space
activity, as executed by its unified command for space, USSPACECOM.

With respect to the law of war, the DOD explicitly states that it is
U.S. defense policy to ensure that "\[t\]he law of war obligations of
the United States are observed and enforced by the DOD
Components."[^589] Further, the heads of DOD Components are directed to
ensure that "\[t\]he members of their Components comply with the law of
war during all armed conflicts, however such conflicts are
characterized, and with the principles and spirit of the law of war
during all other operations."[^590] At a minimum, these provisions mean
that to the extent the law of war applies to space combat at all, and
the U.S. develops the means for conducting space combat, the law of war
will apply to U.S. forces in such combat.

As the titles to USSPACECOM's four major mission areas suggest, the
first two, "space support" and "force enhancement," ensure that space
assets facilitate the operations of combat forces on land, sea, and air.
These missions are evolving rapidly and are leading to the
"operationalization" of U.S. space forces.[^591] The latter two
missions, "space control," and "force application," are more
controversial as they suggest the weaponization of space, and are most
closely related to combat in a future theater of military space
operations.

The notion of military "space control" strikes many observers as
antithetical to the fundamental tenet of the Outer Space Treaty: that
outer space is an environment free for use and exploration by all
States. However, the current U.S. policy does not purport to establish
areas of exclusive control by U.S. forces, but simply attempts to negate
threats to U.S. assets. U.S. Deputy Secretary of Defense, John J. Hamre,
recently explained that the space control mission is defensive in
nature: "We fully believe that 'negation' in space--preventing the bad
guys from using space against us--is fully authorized under
international law, but we do want to take steps and actions that don't
create instability in the world."[^592]

The U.S. space control policy is based on a five-pronged approach which
includes: "(1) assured access to space and operation once there; (2)
surveillance of the space environment and space-based objects; (3)
protection of spacecraft, ground stations and data links; (4) prevention
of damage and interference to U.S. space infrastructure; and (5)
negation of hostile space systems that place U.S. and allied assets at
risk."[^593] This translates to the following definition of space
control, as articulated in USSPACECOM's long-range plan: "Control of
Space is the ability to ensure un-interrupted access to space for U.S.
forces and our allies, freedom of operations within the space medium and
an ability to deny others the use of space, if required."[^594]
Translated into legal terms, attempts to "ensure un-interrupted access
to space" and to maintain "an ability to deny others the use of
space,"[^595] are simply expressions in the military space context of
the right to self-defense in response to hostile action. As these policy
goals are gradually implemented through practice they will require
clarification as to the means and methods used.

Space force application contemplates the use of armed force originating
from outer space. While the U.S. maintains limited space control
options, it has no acknowledged space force application
capabilities--this is to say it has no operational space-based
weaponry.[^596] The USSPACECOM Long Range Plan does not elaborate on
this mission in nearly the detail it does for space control. According
to General Richard B. Meyers, then-Commander, USSPACECOM, this is due in
part to the fact that there is no national policy to weaponize space.
While the President has assigned USSPACECOM the space force application
mission, "\[t\]here's been no national action on this. . . . \[O\]ur
focus now is looking at the concepts \[of operation\] and some of the
basic technologies that would enable us to do that someday--*if* we're
tasked by the national command authority to go do that. . . . Today
there is relative harmony in space."[^597] If the U.S. ever does proceed
to the fielding of space force application options, it will most likely
focus on missile defense.

Given the evolution of its national military doctrine, the U.S. may soon
be positioned to begin a preliminary incorporation of combat space
operations into its law of war manuals. The obvious starting point would
be its manual on air warfare.[^598] Not only would this course of action
reflect the military's institutional acceptance of the law of war for
space warfare, but it would allow the U.S. to encourage the progressive
development of that law. Military manuals serve not only as evidence of
State *opinio juris*, but can also serve a limited lawmaking role as
well.

> Because international law notoriously lacks its own enforcement
> system, national implementation is often a critical factor in
> successful international lawmaking. . . . Certainly, both the absence
> of a manual or the use of manuals whose content does not include the
> relevant norms would strongly suggest that those norms have not been
> adopted.[^599]

In addition, given sufficient uniformity, principles of law articulated
in law of war manuals could be viewed as "general principles of law
recognized by civilized nations," and thus a formal source of
international law as articulated by the Statute of the International
Court of Justice.[^600] The role of law of war manuals in making
international law could be especially helpful for space warfare at its
advent. A consensus among the leading States regarding acceptable limits
on space warfare, as reflected in their law of war manuals, could prove
as authoritative as a treaty. Meanwhile, incorporating existing norms
for space warfare into a law of war manual, as well as defining the U.S.
understanding of means and methods of space combat that are compliant
with the law, would likely influence other States to adopt and act on
them as well.

**D. Information Warfare**

As the technological information revolution that has characterized late
twentieth and early twenty-first century life finds increasing military
applications, military strategists are recognizing in new ways the
age-old importance of information as a component of warfare.[^601]
Though it is a subject raising difficult legal questions well beyond the
scope of this article, information warfare merits attention given its
natural connection with space telecommunications systems. Because of
heavy U.S. reliance on technology for its military effectiveness,
potential threats to the information infrastructure will significantly
affect combat readiness.[^602] This fact led a recent Air Force study
examining future concepts, capabilities, and technologies to conclude
that "influence increasingly will be exerted by information more than by
bombs."[^603]

In conceptualizing its categories of activity, the U.S. military
distinguishes between information operations, those actions taken to
affect an adversary's information and information systems while
defending one's own information and information systems,[^604] and
information warfare, which are information operations conducted during
time of crises or conflict to achieve or promote specific objectives
over a specific adversary or adversaries.[^605] Because the narrower
concept of information *warfare* applies during time of armed conflicts,
it will be the more relevant of the two concepts as analyzed in the
context of space warfare.

Examination of emerging principles of information warfare will benefit
the analysis of space warfare under the law of war in two respects.
First, because the tactics of information warfare rely heavily on space
assets, information warfare can be loosely conceived as being a
component of space warfare.[^606] Whether classified as an active or
passive manipulation of information, a State's information operations in
war certainly qualify as a "means" or "method" of warfare. In this
respect, information warfare is subject to regulation under the *jus in
bello*. To the extent information operations involve the use of force in
an armed conflict, such operations must be necessary,[^607]
proportional,[^608] discriminate,[^609] and humane.[^610] They must also
comply with applicable conventional restrictions imposed under the Hague
and Geneva systems.[^611]

In his 1998 Annual Report to the President and Congress, U.S. Secretary
of Defense William S. Cohen highlighted this relationship between
military space assets, and the acquisition and manipulation of
information for strategic superiority.

> DOD is moving into the information age and toward a totally integrated
> battlespace, where communications and intelligence space systems are
> no longer viewed as solely supporting capabilities to the warfighter,
> but *as instruments of combat*. The space force structure represents a
> major component of the information infrastructure and will become
> increasingly important in deterring conflict and conducting future
> military operations. Space forces provide the sole means to access
> otherwise denied areas of foreign countries without violating their
> sovereignty.[^612] (emphasis added)

A second reason for examining information warfare relates to the
scholarly commentary suggesting means of applying established legal
categories to this new way of waging war. As with information warfare,
space warfare will require legal analyses that either convincingly
demonstrate how current international law will regulate anticipated
space operations, or conclude that international law is currently
insufficient to the task. The increasing appearance of innovative
analyses applying traditional legal categories to developing information
warfare tactics could contribute greatly to the clarification of the
*jus in bello* for space.[^613]

**E. Other Selected Issues**

After considering the general application of the law of war to military
space activities, several problems related to space warfare remain. The
following are simply representative of many others that have been raised
(and will be raised) as the prospect of space warfare moves from theory
into the fielding of forces.

*1. Military Interaction With Intergovernmental*

*Agencies and "Dual Use" Assets*

Because space warfare will be very hardware-intensive,[^614] the status
of the assets used in combat will become all-important. In isolating the
legal status of a space system to be used in combat, the answers to two
preliminary questions can assist in clarifying an otherwise complicated
analysis. First, who owns the asset? And second, is the asset used
solely for military purposes, or *both* civilian and military
purposes?[^615]

When ownership of a space asset is shared among several States, the use
of the asset becomes subject to the international agreement creating the
joint ownership. The complexity of the analysis increases in part
because there are more decision-makers with a voice in the decision as
to how the asset will be used. When it comes to the use of a space asset
in an armed conflict, the status of the owner largely determines the
status of the asset. For example, the telecommunication network known as
INTELSAT[^616] is jointly owned by over one hundred sovereign States.
Each of these States has a weighted vote in determining the future of
the organization and the uses to which its assets are put.

Similarly, the former International Mobile Satellite Organization
(INMARSAT, previously the International Maritime Satellite Organization)
was an intergovernmental body owning a network of satellites supporting
mobile telecommunications. Now privatized, INMARSAT had been used in
support of several previous armed conflicts though its use among
coalition forces during Operation Desert Storm in 1991 was the most
widely publicized. This might not have been significant but for the
"peaceful purposes" objective mandated by the INMARSAT Convention.[^617]
Unlike the term in the Outer Space Treaty, Moon Agreement, and other
selected international instruments, the term in the INMARSAT convention
has been widely interpreted outside the U.S. to mean those purposes
unrelated to armed conflict.[^618] Attempting a position that was
"overly careful and conservative," States making up the former INMARSAT
organization, which included NATO, former Warsaw Pact, and developing
nations, took the view that while "peaceful purposes" as used in the
Convention did not exclude "military uses" *per se*, it did exclude uses
in armed conflict even if conducted in self-defense.[^619] As reported
by INMARSAT's General Counsel during the 1991 Persian Gulf War, when
INMARSAT notified the U.S. of its concerns related to use of the
Organization's assets in furtherance of armed conflict, the State
Department responded by assuring INMARSAT "that appropriate steps have
been taken to avoid recurrence of such publicity."[^620] Without so
stating, the distinct impression left by this and other
commentators[^621] is that uses of the network during armed conflicts
were inconsistent with the Convention's terms.

Because privately-owned global mobile personal telecommunications
systems (such as the former Iridium system, as well as ICO, Teledesic,
Odyssey, and SkyBridge networks) are rapidly proliferating, it is
doubtful military forces will need to rely heavily on intergovernmental
organizations such as INTELSAT for communication support in future
conflicts. Despite numerous new legal issues they are creating,
commercial satellite systems are increasingly servicing military
communications needs.[^622] However, to the extent military forces
continue to use intergovernmental assets, an equally difficult question
relates to the status of those owner States that are not party to the
armed conflict. As occurred with "neutral"[^623] INMARSAT States in
Operation Desert Storm, use of the system by belligerent States meant
that neutral (co-owner) States risked loss of their rights as neutral
States under the law of war, at least as to their investment in the
INMARSAT system if it had been lawfully targeted by enemy forces.

Reference to a specific law of war analogy may prove helpful in the
analysis of the use and targeting of assets jointly owned by
belligerents and neutrals alike. Under the law of war, an otherwise
inviolable object or person, such as a church or non-combatant, may
become a legitimate target for attack if used for military ends. Thus,
the storage of weapons or the housing of soldiers in a church, or
engagement in active combat by a non-combatant, renders both subject to
attack. Similarly, an object owned by a neutral, which would be
otherwise inviolable as neutral property, becomes properly subject to
attack if used by a co-owner for belligerent purposes. With one
exception, this analogy would seem to apply to the vast majority of
space assets co-owned by intergovernmental organizations, particularly
telecommunications satellites.

A possible limitation of this analogy arises with reference to Hague
Conventions V and XIII respecting the rights and duties of neutral
powers and persons in case of war on land and sea, respectively.[^624]
Although the titles suggest that each Treaty's scope is specifically
limited to warfare on land or sea, such apparent limitations have not
hindered application of *jus in bello* principles from the Hague
Conventions to aerial warfare.[^625] Similarly, the provisions of both
Treaties could logically be applied to space warfare. Article 8 of
Convention V allows that neutral States need not "forbid or restrict the
use on behalf of the belligerents of telegraph or telephone cables or of
wireless telegraphy apparatus belonging to it or to companies or private
individuals."[^626] Nonetheless, while the neutral State need not
restrict the use of its assets to only non-belligerent States for
"telegraph or telephone cables," Article 9 requires that any allowance
by the neutral State for belligerent use be "impartially applied by it
to both belligerents."[^627] Thus, in keeping with customary principles
of State neutrality, the Treaty forbids a neutral to give preferential
treatment to one belligerent if it allows access to any. By clear
inference, this means that to the extent the neutral State does give
preference, the preferential access to the asset for one belligerent
renders the "neutral's" property non-neutral, and thus subject to
attack.

An additional issue arises under Hague Convention V's "general
participation clause." Article 20 provides that "\[t\]he provisions of
the present Convention do not apply except between contracting Powers,
and then only if all the belligerents are parties to the
Convention."[^628] Because, for example, the United Kingdom is not a
party to the Convention, Article 20 operated to render its specific
provisions inapplicable to the Persian Gulf War conflict.[^629]
Nonetheless, when drafted, Hague Convention V, as well as Hague
Convention XIII, were viewed as declaratory of customary international
law. Thus, without asserting that the Hague conventions on neutrality do
in fact amount to restatements of customary law, Roberts and Guelff
accurately point out that "\[t\]o the extent that \[ \] Convention \[V\]
may be considered customary international law, it would be binding on
all States and its 'general participation clause' . . . would cease to
be relevant. In hostilities since 1907, including both world wars, the
Convention was frequently referred to by both neutrals and
belligerents."[^630] Among other things, this simply illustrates that
the law is unspecific on this point. How the Hague Conventions on
neutrality or the principles of customary international law would
restrict targeting of jointly-owned satellites in space warfare is as
yet unclear. While this problem of "neutral" ownership of implements of
war is not unique to space assets, it is an issue widely applicable to
space assets given widespread intergovernmental cooperation in space,
and is thus likely to become a concern in space warfare.

A second major problem related to the status of space assets in combat
is the use to which they are put. In many cases, implements of space
warfare can be converted fairly easily to valuable non-military
uses.[^631] For example, remote sensing satellites are functionally
equivalent to military reconnaissance satellites. While the former do
not require the same precision, the process of acquiring earth-based
data is roughly the same.[^632] Even more closely related are the uses
put to weather and telecommunications satellites. The military may use
such a satellite to support the prosecution of its wartime objectives
while the same satellite is being used *simultaneously* for non-military
purposes.[^633] This raises the question whether such an asset may be
lawfully targeted by an opposing belligerent.[^634]

The general rule provided by the law of war allows destruction of
targets that are military objectives when doing so is not
disproportionate to the military objective sought by the destruction. On
this basis, major infrastructure targets were lawfully destroyed during
the 1991 Persian Gulf War that provided, for example, electricity both
to the civilian populations and to the command and control functions of
the Iraqi military.[^635] A similar rationale applies equally to
dual-use satellites. To the extent a satellite is used for the support
of a military purpose, be it communications, weather, early warning of
missile launch, or reconnaissance, it becomes a military objective and
is lawfully subject to attack. This of course assumes that the space
asset is actually used for such military purpose and is not merely
targeted for having the potential to be so used.[^636]

*2. The Status of Astronauts as Both "Envoys of Mankind" and Combatants*

The trend for the past few decades suggests that military manned space
missions will not carry the significance of unmanned missions in the
near term. Nonetheless, there will undoubtedly be some role for military
astronauts in space combat. This raises a few obvious questions in light
of language used by the Outer Space Treaty and the Rescue and Return
Agreement. In his account of the reception he received following the
Apollo 11 manned mission to the surface of the moon, command module
pilot Michael Collins made the following observations:

> Travelling around the world several months after the flight, I was
> continually impressed by the fact that no matter where we were, the
> reaction was the same and, to me, unexpected. Never did I hear, 'Well,
> you Americans finally did it.' Always it was 'we,' we human beings
> drawn together for one fleeting moment watching two of us walk that
> alien surface.[^637]

This reception correlates with the status astronauts bear under
international law: "envoys of mankind."[^638] The lofty phrase reserved
for astronauts appears to suggest that they are given the legal status
of diplomats.[^639] However, a significant tension will arise as
military astronauts move from activities that are scientific in nature,
to those that are warlike. Interestingly, the language immediately
preceding the "envoys" phrase from the Outer Space Treaty states the
permissibility of military personnel in space for scientific or other
peaceful purposes.[^640] This juxtaposition suggests, along with the
fact that the term "astronaut" applies to all humans in space[^641] and
that the term envoy makes no distinction between military and civilian
astronauts, that the term envoy as used in the Outer Space Treaty
certainly applies to military personnel in space. However, the Outer
Space Treaty does not countenance armed conflict in space.

Under the law of war there is no reason the term combatant could not
apply to military personnel in space just as it does to individuals on
land, sea, and air if authorized to engage in armed conflict.[^642]
Formally speaking, in order to be accorded all legal protections under
the *jus in bello* as belligerents, it seems that such combatant
astronauts would be required to adhere to the requirements set forth
under Article 1 of the annexed regulations to Hague Convention (IV),
namely, (a) commanded by a person responsible for his subordinates; (b)
have a fixed distinctive emblem recognizable at a distance; (c) carry
arms openly; and (d) conduct operations in accord with the laws and
customs of war.[^643] Under such conditions, the legal tension between a
person being accorded a quasi-diplomatic status, as well as being given
the right to use force might appear to be acute. Because the term
"combatant" is fairly well established under the law of war, full
resolution of this potential tension requires placement of the term
envoy in its proper context within the Outer Space Treaty.

The term as used requires an interpretation that is consistent with
relevant assumptions made elsewhere in the Treaty and with its object
and purpose. Indeed, this is a requirement imposed on the interpretation
of any treaty.[^644] The same treaty that designates astronauts as
envoys also presupposes that States will abide by their obligation to
limit national activity to peaceful purposes. A necessary precondition
for any astronaut claiming combatant status will be some violation of
the "peaceful purposes" injunction. That being the case, it is
implausible to assert that any astronaut qualifying as a combatant,
whether acting in an aggressive, non-peaceful role, or a defensive,
peaceful role, will be accorded the diplomatic status due an envoy. This
conclusion is further supported by the fact that those accorded
diplomatic immunity may not engage in armed hostilities.[^645] From
this, two commentators have helpfully pointed out that "\[a\] military
astronaut \[who\] participates in hostile acts does not exercise
diplomatic functions."[^646] It would simply be incongruous for one
person to simultaneously constitute a combatant and an "envoy of
mankind."[^647] The practical interpretation of the Outer Space Treaty
then becomes this: States Parties "shall regard astronauts as envoys of
mankind" only when engaged in "peaceful" activities, as the Outer Space
Treaty assumes them to. When such conditions do not exist, it makes no
logical or textual sense for astronauts to be regarded as "envoys" by
opposing belligerent States.

*3. Return of Astronauts Engaged in Combatant Activities*

At least two treaties within the *corpus juris spatialis* require the
prompt return of astronauts. In the event of accident, distress, or
emergency landing on the territory of another State Party or on the high
seas, the Outer Space Treaty requires that astronauts be "safely and
promptly returned to the State of registry of their space
vehicle."[^648] The Rescue and Return Agreement makes the duty even more
expansive, applying even to cases of unintended landing. Article 4 uses
language suggesting that the duty to return is unconditional:

> If, owing to accident, distress, emergency or unintended landing, the
> personnel of a spacecraft land in territory under the jurisdiction of
> a Contracting Party or have been found on the high seas or in any
> other place not under the jurisdiction of any State, they shall be
> safely and promptly returned to representatives of the launching
> authority.[^649]

These provisions precipitate the question: "must combatant astronauts be
returned in time of war?"

The answer is plainly "no" for reasons similar to those justifying the
conclusion that astronauts engaged in armed conflict will not be
accorded diplomatic immunity. In both cases, the terms of the Rescue and
Return Agreement assume that the space activities of astronauts, even if
military in nature, will be scientific and non-aggressive--that is,
peaceful. Once the outbreak of armed hostilities occurs in space, at
least one of the States involved will have violated the peaceful
purposes limitation. Whatever else the astronaut-combatants may be at
that point, they most certainly will be prisoners of war if captured by
virtue of accident, distress, emergency or unintended landing. The
opposing belligerent will owe no greater duty to return the prisoner of
war from space than it would the prisoner of war from the land, sea, or
air.

*4. Innocent Passage through Airspace for*

*Destinations to and Return from Space*

Beyond the question of where airspace ends and outer space begins, lies
a problem many States face related to space access. States such as the
U.S., with great land masses bounded by vast expanses of the oceans,
have a certain degree of independence in the launch and recovery of
their space objects. Because many States are entirely landlocked, or
possess territory too small to launch objects into space using only
their own airspace or that over the high seas, a question arises as to
the possibility of incorporating into space law another feature from the
law of the sea--innocent passage. In this case, several commentators
have been proposing that for some States to truly enjoy the free
exploration and use of outer space guaranteed by the Outer Space Treaty,
they must be accorded a right of innocent passage through the national
airspace of other States. Some have gone even further to suggest that
such a right exists in customary international law.[^650]

As suggested previously, such a right does not exist in the law and is
not likely to emerge in the near future given traditional State
interests in territorial sovereignty.[^651] However, even if it did, it
would not serve the ends of belligerent States in the midst of armed
conflict during which passage would not be innocent. For passage to be
"innocent" under the Law of the Sea Convention, it cannot be
"prejudicial to the peace, good order or security of the coastal
State."[^652] It is self-evident that foreign military activity in
support of armed conflict in the territory of the host State (whether
territorial seas or superjacent national airspace), absent explicit
permission, will be prejudicial to the peace of that State. States may
always attempt to secure prior permission before entering the national
airspace of another State. This could certainly occur during an armed
conflict. However, as long as the law of the sea remains the controlling
analogy, any future recognition of rights to innocent passage into
foreign national airspace for space objects, will not apply to
belligerents during armed conflict.

**VII. CONCLUSION**

\[I\]f there was ever a threat to our national security \[in space\],

the best--the only--way to solve the problem

is to take weapons into space.[^653]

General Howell M. Estes, III

> USAF (1997)

Before examining how the law of war will restrict means and methods of
space warfare, it is necessary to determine whether it applies to
military space operations in the first place. Given the evolution of
aerial warfare--gradual restrictions on means and methods applied from
the existing law of war--and the apparent similarity of certain aspects
of the maritime environment to that of outer space, one can apply the
traditional set of norms known as the law of war to space warfare by
employing a process of analogical reasoning. The conclusion that the
existing law of war will apply to space warfare is further supported by
treaty bases in the Outer Space Treaty and the law of war's Martens'
clause.

That said, when it comes to outlining permissible military activity
during the course of space combat, it appears equally clear that the
near-total atmospheric vacuum characterizing outer space is matched by a
similar legal vacuum with respect to the *jus in bello* for space
warfare. Academicians and practitioners are left to making educated but
uncertain guesses based on analogies with other legal regimes. As with
any attempt to predict the application of current (though insufficient)
legal regimes to future phenomena, it is extremely difficult to
articulate with any precision how this application should occur. The
difficulty is largely a function of developing warfare technologies that
continue to outpace the progressive development of international law.
Ideally however, the task should fall to diplomats and international
legislators having the authority to negotiate clarifications to
international law before the relevant issues are unilaterally decided by
States in the context of actual combat.[^654]

The prospect of space warfare requires the formulation of a new
perspective on the law of war. The law of war contains prescriptive
norms derived from a wide variety of sources. With respect to space
warfare, the *corpus juris spatialis*, in addition to a variety of arms
control treaties, contributes additional restrictions to the existing
law of war. Having concluded that the traditional law of war will apply
to space warfare, and employing the most widely accepted understandings
of the terms "peaceful" and "space weapon," an examination of relevant
legal sources demonstrates that the following military activities are
prohibited at this time:

-   Interference with space-based "national technical means" (space
    based sensors) for arms control verification as between the U.S. and
    Russian Federation;

-   Placement of nuclear weapons and other weapons of mass destruction
    in orbit around the earth and on celestial bodies or in orbit around
    them;

-   Testing or other detonation of nuclear weapons in outer space;

-   Placement of military bases and conduct of military tests or
    maneuvers on celestial bodies and in orbits around them;

-   Destruction of targets that are not military objects or militarily
    necessary, and are specifically prohibited such as hospitals,
    churches, and non-combatants;

-   Use of space weapons or tactics that are "inhumane,"
    "disproportionate" to the militarily necessary objective sought, or
    are incapable of use so as to "distinguish" between legitimate and
    illegitimate targets (as the terms are used under the traditional
    *jus in bello*);

-   Development, testing, and deployment of space-based or other
    anti-ballistic missile systems and components (with a single limited
    exception);

-   Military or hostile use of environmental modification techniques in
    outer space.

By contrast, an examination of the same sources discloses that, at a
minimum, the following military activities in outer space are not
prohibited:[^655]

-   The use of military personnel;

-   The use of space-based remote sensors in support of combat or other
    military purposes;

-   The use of space-based communication, navigation, and meteorological
    systems for combat or other military purposes;

-   The deployment and non-aggressive use of conventional space weapons;
    and

-   The transiting of nuclear and other weapons of mass destruction in
    non-orbital trajectories.[^656]

Despite nearly forty years of research into space weaponry there is no
binding international instrument limiting the use of such weapons. With
two isolated examples, such weapons have not been fielded, contributing
to State reluctance to foreclose further study into effective
deterrents.[^657] However there will come a day when a treaty governing
means and methods of space warfare will be desirable. In addition to the
certainty written law brings to the legal structures governing human
conduct, formal agreements most clearly evince the consent of the
governed. Of course, any treaty developments for space warfare must
strike a pragmatic balance between national security, international
legal order, and human rights--a balance for which the *jus in bello*
has striven for at least 100 years.

To a certain degree, this review of the law of war and its application
to space warfare serves as a call for further analysis of the topic.
Though armed conflicts apparently have not occurred in space to date,
the rudimentary means for engaging in such conflicts now exist. As each
armed conflict since Vietnam makes greater use of space assets, it is
undoubtedly only a matter of time before a future conflict witnesses the
application of force both from and within the space environment. When it
does, and in the absence of specific international norms restricting the
use of means of methods of war in space, State practice will provide the
first insights into how the law will be applied.

As this article has argued, the lawful scope of such warfare will be
limited by the customary principles of proportionality, necessity,
discrimination, humanity, and an array of treaty-based norms affecting
the targeting of individuals and objects. To this extent, the existing
law of war restricts the scope of space warfare today. How the law will
evolve into the future law of war will largely depend upon the nature
and scope of such warfare, and upon the new customary principles that
may emerge thereby. However, it is doubtful that the international
community will have any greater success in codifying the law governing
space warfare than it has had with respect to aerial warfare.

[^1]: ^\*^ *Major Ramey (B.A., Wheaton College; J.D., Seattle
    University; LL.M., McGill University) is an instructor,
    International and Operations Law Division, The Air Force Judge
    Advocate General School, Maxwell AFB, Alabama. He is a member of the
    Bar in the state of Washington.*

[^2]: [John Keegan, A History of Warfare]{.smallcaps} 5 (1993).

[^3]: Professor Matte argues that "airspace" is a misnomer, and that the
    proper term is "air medium." He makes this distinction in arguing
    against "any kind of arbitrary demarcation between 'air space' and
    'outer space.'" [N.M. Matte, Aerospace Law: Telecommunications
    Satellites]{.smallcaps} 11 n.31 (1982). Professor Matte further
    observed that the two environments are "*at present* governed by two
    different legal regimes," *id*. (emphasis added), but that the more
    logical approach is to speak of an aerospace continuum. On this
    approach, "the rules and norms of aeronautical law, on the one hand,
    and of aerospace law, on the other hand, should be applied according
    to functional criteria, i.e., the type of activity being carried
    out." *Id*. This contrasts with the "traditional view" of crafting
    and applying law to the medium in which the activity is carried out,
    either air or space. Though insightfully recognizing the great
    difficulty of establishing a non-arbitrary boundary between air
    space and outer space, this view, if applied to armed conflict,
    would identify applicable norms limiting weaponry and methods of
    warfare based on a functional approach, rather than on where the
    combat occurs. The difficulty with this from a military point of
    view lies in the conceptual challenge of creating warfare policy,
    doctrine, and operating plans without a clear demarcation of the
    theater of operations. *See*, *e.g.*, W.B. Scott, *Pentagon
    Considers Space As New Area of Responsibility*, 146:12 [Av. Wk. &
    Space Tech]{.smallcaps}., Mar. 24, 1997, at 54 \[hereinafter Scott,
    *Space as New Area of Responsibility*\].

[^4]: One author aptly terms the difference "significant." [R.D.
    Newberry, Space Doctrine for the Twenty-first Century]{.smallcaps}
    10 (1998) \[hereinafter [Newberry]{.smallcaps}\]. The difference is
    helpfully illustrated by three representative schools of thought on
    the relationship between military activity and outer space: (1)
    space as a demilitarized sanctuary; (2) space as the high ground;
    and (3) space as a theater of operations. J.E. Justin, *Space: A
    Sanctuary, the High Ground, or a Military Theater*?, *in*
    [International Security Dimensions of Space]{.smallcaps} (U. Ra'anan
    & R.L. Pfaltzgraff, Jr., eds., 1984) 102-09 \[hereinafter Justin\].
    The first view recognizes a minimal role for the military use of
    space but not its weaponization. Two thoughtful, moderated accounts
    representing this view were recently provided by two USAF officers.
    One aims at "opening the debate" on the space sanctuary view. B.M.
    DeBlois, *Space Sanctuary: A Viable National Strategy* 12:4
    [Airpower J]{.smallcaps}. 41 (Winter 1998) \[hereinafter DeBlois\].
    The other claims to present the "strongest possible argument for a
    space sanctuary today." [D.W. Ziegler, Safe Heavens: Military
    Strategy and Space Sanctuary Thought]{.smallcaps} (1998)
    \[hereinafter [Ziegler]{.smallcaps}\]. The second of the three
    schools of thought, sees the role of military activity in space as
    principally supportive of terrestrial combat and could include the
    use of weapons from space. This view stresses the inseparability of
    the air and space media, and makes heavy use of the term
    "aerospace," a term coined in 1958 by USAF Chief of Staff General
    Thomas White. Justin at 107; *see also* [D.N. Spires, Beyond
    Horizons: A Half Century of Air Force Space Leadership]{.smallcaps}
    54 (rev'd ed., 1998) \[hereinafter [Spires]{.smallcaps}\]. The third
    view represents the most complete use of space for military
    purposes. This view sees space not merely as another medium in which
    to augment existing military roles, but as an emerging combat
    environment, or military mission, in its own right. The present
    author's analysis rests on the conclusion that international law
    does not prohibit the use of outer space as a complete military
    theater of operations per se. This assumes that any force used as
    part of military operations in space is compliant under the *jus ad
    bellum*. For a discussion of the *jus ad bellum*, *see* *infra*
    notes Error: Reference source not found through Error: Reference
    source not found and accompanying text.

[^5]: The unmanned assets used in outer space are obvious--satellites
    and missiles. Unmanned assets used within airspace include unmanned
    aerial vehicles (UAVs), currently used for surveillance, as well as
    missiles either headed for or from space or used entirely within
    airspace. *See generally* [Jeffrey N. Renehan, Unmanned Aerial
    Vehicles and Weapons of Mass Destruction: A Lethal
    Combination?]{.smallcaps} 5-13 (1997) (provides helpful discussion
    of UAVs and remotely piloted vehicle technologies).

[^6]: This is to say that as long as space warfare is prosecuted through
    unmanned missions against assets wholly within the space
    environment, that portion of the law of war traditionally known as
    "Hague Law" will govern space warfare more readily than that portion
    known as "Geneva Law." For a discussion of "Hague Law," *see*
    *infra* notes Error: Reference source not found through Error:
    Reference source not found and accompanying text. For a discussion
    of "Geneva Law," *see* *infra* notes Error: Reference source not
    found through Error: Reference source not found and accompanying
    text.

[^7]: Professor Schmitt has pointed out that on rare occasions,
    international law has sought to outlaw the deleterious effects of
    certain anticipated technologies. In this regard he cites the ban on
    blinding laser weapons, adopted before such weapons had ever been
    used in military operations. "Much more frequently, however, law has
    proven *reactive*. Indeed, in the twentieth century, codification
    efforts have followed major wars in almost lock-step fashion."
    Michael N. Schmitt, *Bellum Americanum: The U.S. View of
    Twenty-First-Century War and Its Possible Implications for the Law
    of Armed Conflict*, *in* [71 International Law Studies, The Law of
    Armed Conflict: Into the Next Millenium]{.smallcaps} 389 (Michael N.
    Schmitt & Leslie C. Green, eds., 1998), *reprinted in* 19 [Mich. J.
    Int'l L]{.smallcaps}. 1051 (1998) \[hereinafter Schmitt, *Bellum
    Americanum*\].

[^8]: As Geoffrey Best puts it, "there was no international law on
    aerial warfare before the turn of our century. The Hague Conferences
    \[1899 and 1907\] gingerly laid a few foundations. . . . but the
    terms used were soon discovered to be archaic, and vital questions
    had been begged." [G. Best, War and Law Since 1945]{.smallcaps} 199
    (1994). It will be difficult to avoid similar mistakes as States
    contemplate moving into uncharted legal territory once again. Any
    attempt to depict the future in plausible terms is fraught with many
    challenges. The following three challenges, taken from a fascinating
    Air Force study on future concepts, capabilities, and technologies
    in the year 2025, certainly apply to any attempt to envision a
    future law of war and the conditions necessitating it:

    > First, one runs the risk of assuming that because we *can* do
    > something, we *will*. In this case technology drives planning, not
    > the reverse. Second, we straight-jacket the future with today's
    > assumptions. That is, we focus on an array of problems and
    > possibilities that are too narrow compared to the array we
    > actually will encounter. A third problem is the reverse of the
    > previous one. Here, we are too expansive and imagine far more than
    > we or the world are in fact capable of accomplishing in the time
    > frame under review.

    J.W. Kelly, *Executive Summary,* *in* [Air Force 2025]{.smallcaps} 6
    (1996) \[hereinafter [Air Force 2025]{.smallcaps}\].

[^9]: Schmitt, *Bellum Americanum*, *supra* note Error: Reference source
    not found, at 390. Numerous commentators, including senior military
    officers, have widely termed Operation Desert Storm the first space
    war. *See, e.g.,* R. Saltus, *Air Force says it Might Have Won the
    War in 2 More Weeks*, [Boston Globe,]{.smallcaps} Apr. 5, 1991, at
    10; C. Covoult, *DESERT STORM Reinforces Military Space Directions*,
    134:14 [Av. Wk. & Space Tech]{.smallcaps}., Apr. 8, 1991, at 42.

[^10]: Though several interesting studies consider the possibility of
    warfare with extra-terrestrial forms of intelligent life, such
    consideration is far beyond the scope of this article. Such analyses
    also exceed the scope of international law proper. Nonetheless,
    these works often make useful observations about future space
    weaponry and the difficulty of scientific prediction. For example,
    one sober, scientifically-respectable work, considering the
    technological preconditions for successfully defending against alien
    attack, distinguishes this project from that of mere science
    fiction, and points out the importance of allowing authors free rein
    in speculating about future technologies.

    > Suppose an observer of the Wright brothers' \[sic\] memorable
    > first flight at Kitty Hawk had been given the assignment of
    > foretelling what aviation would be like seventy or so years later.
    > Had he envisaged the wide-bodied jet or the supersonic transport
    > he would have been absolutely correct. He would also have been
    > laughed to scorn by his contemporaries at the time. Had he merely
    > enlarged the Wright brothers' \[sic\] frail biplane into some
    > bigger, stronger thing with umpteen engines and several sets of
    > wings, chances are he would have been considered a true visionary
    > even though his projected creation might be more akin to a flying
    > bird-cage.

    [J.W. Macvey, Space Weapons Space War]{.smallcaps} 80 (1979). *See
    also* [D. Langford, War in 2080: The Future of Military
    Technology]{.smallcaps} (1979) \[hereinafter
    [Langford]{.smallcaps}\].

[^11]: W.B. Scott, *USSC Prepares for Future Combat Missions in Space*,
    145:5 [Av. Wk. & Space Tech]{.smallcaps}., Aug. 5, 1996, at 51.
    General Ashy served as the Commander, United States Space Command
    \[hereinafter USSPACECOM\], Air Force Space Command, and the North
    American Aerospace Defense Command from September 1994 to August
    1996.

    Providing another in a series of observations on the military
    "operationalization" of outer space, General Ashy later predicted
    that "the relatively high percentage of space force capabilities
    devoted to a supporting role will change to a 'supported' role. In
    other words, future military operations will be supported not only
    *from* space (as in the first stages of airplane use), but also
    within and to space." J.W. Ashy, *Space Operations and Organization:
    Some Thoughts About the Future*, 146:16 [Av. Wk. & Space
    Tech]{.smallcaps}., Apr. 16, 1997, at 56.

[^12]: The term "militarization," as applied to outer space, should not
    be confused with "weaponization." Though there are no authoritative
    international definitions of either term, the former refers to "the
    use of outer space by a significant number of military spacecraft."
    I.A. Vlasic, *Space Law and the Military Applications of Space
    Technology,* *in* [Perspectives on International Law]{.smallcaps}
    386 n.6 (N. Jasentuliyana, ed., 1995) \[hereinafter Vlasic, *Space
    Law and Military Applications*\]. Such activity may be
    non-aggressive and scientific in nature, or aggressive and hostile.
    It may or may not involve the use of weapons, though the contrasting
    term weaponization is meant to suggest that by itself, the term
    militarization as applied to space does not necessarily include the
    presence of weapons. The term weaponization "refers to the placing
    in outer space for any length of time any device designed to attack
    man-made targets in outer space and/or in the terrestrial
    environment." *Id.* Though not necessarily so, the term implies the
    maintenance and use of such weapons by military forces. Thus, though
    conceptually distinct, weaponization should generally be conceived
    as a form of militarization.

[^13]: Rockets can be distinguished from missiles essentially in that
    the latter possess superior navigational technology, making them
    more accurate for striking targets. Otherwise, the following
    definition of rocket could apply to both: "A vehicle that can
    operate outside Earth's atmosphere, because it carries its own
    oxidizer, as well as fuel." [John M. Collins, Military Space Forces:
    The Next 50 Years]{.smallcaps} 159-60 (1989) \[hereinafter [Collins,
    Military Space Forces\]]{.smallcaps}.

[^14]: [N.M. Matte, Space Activities and Emerging International
    Law]{.smallcaps} 13 (1984) \[hereinafter [Matte, Space
    Activities]{.smallcaps}\]. Matte further observes that "\[m\]ilitary
    use has given the greatest impetus to modern rocket technology."
    *Id*. Durch and Wilkening trace the rocket's history as follows:

    > The military rocket is a device whose pedigree is obscure. Though
    > many credit the Chinese with their first use in the thirteenth
    > century, there is some indication that the formulae for the
    > propellants used in those rockets may have come to China from
    > Europe. On the other hand, the Mongol expansion of the middle
    > thirteenth century may have transported Chinese technology
    > westward. That same expansion brought rocketry to India, where it
    > was encountered by the British as early as 1750. Indian war
    > rockets were used primarily to spook cavalry (in effect, as early
    > jamming devices), and at that they were apparently effective.

    W.J. Durch & D.A. Wilkening, *Steps Into Space,* *in* [National
    Interests and the Military Use of Space]{.smallcaps} 17 (W.J. Durch,
    ed., 1984) \[hereinafter Durch & Wilkening\].

[^15]: David Spires points out that following World War I, Germany was
    interested in bombardment rockets for its army that was "sorely
    constrained by the Versailles Treaty." [Spires]{.smallcaps}, *supra*
    note Error: Reference source not found, at 5. Although the Treaty of
    Versailles effectively disarmed Germany by forbidding the
    development of heavy artillery and poison gas, it did not constrain
    all potential weapons such as the rocket. In 1919, few thought of it
    as practical weapon of war. Durch & Wilkening, *supra* note Error:
    Reference source not found at 17. Following the Nazi rise to power
    in the early 1930s the Treaty was repudiated outright. However, the
    research into military rocketry continued as the merits of the
    potential weaponry became clearer.

[^16]: In popular parlance, the "V" stood for "vengeance" and the "2"
    represented the second rocket-type fielded by the German army. The
    first model, the much smaller V-1, was produced by the German
    Luftwaffe as an aerodynamic pulse-jet "cruise" missile. Although the
    big rocket was known to technical specialists as the A-4, V-2 is the
    more common designation that is familiar to most observers of the
    German rocket program (the "Wehrmacht" program). The V-2's three
    predecessor models began in 1933 with the A-1 and ended in 1936 with
    the A-3. German scientist von Braun would later describe the A-1 as
    taking 1 1/2 years to build and 1/2 second to blow up. [T.A.
    Heppenheimer, Countdown: A History of Space Flight]{.smallcaps} 15
    (1997) \[hereinafter [Heppenheimer]{.smallcaps}\].

[^17]: *Id*. at 4

[^18]: [Spires]{.smallcaps}, *supra* note Error: Reference source not
    found, at 5.

[^19]: [Heppenheimer]{.smallcaps}, *supra* note Error: Reference source
    not found, at 22.

[^20]: *Id.* at 23. For this purpose, the German scientists used
    modified firefighter's pumps which also required simple
    construction, fast action, very high flow rate, and constant
    delivery pressure.

[^21]: Indeed, Wernher von Braun termed its capture by the U.S. "one of
    the greatest technical prizes in history." [W. von Braun & F. Ordway
    III, History of Rocketry and Space Travel]{.smallcaps} 117 (3rd ed.,
    1975) \[hereinafter [von Braun & Ordway]{.smallcaps}\].

[^22]: I [M.J. Muolo, Space Handbook: A War Fighter's Guide to
    Space]{.smallcaps} 3 (1993) at 3 \[hereinafter
    [Muolo]{.smallcaps}\]. Although the U.S. cancelled the project in
    1947, it was reinstated in 1951 and has "changed little in over 40
    years. . . . Significant advances in its capability and adaptability
    are reasons the Atlas has become the 'DC-3' of space launch
    vehicles." *Id.* at 126-27.

[^23]: Quoted in [Spires]{.smallcaps}, *supra* note Error: Reference
    source not found, at 10.

[^24]: For a discussion of missile defense and the legal regime
    regulating it, see *infra* notes Error: Reference source not
    found--Error: Reference source not found and accompanying text.

[^25]: [Spires]{.smallcaps}, *supra* note Error: Reference source not
    found, at 17. Until the early 1950s, the early missile advocates
    were forced into a form of circular reasoning:

    > missiles seemed too challenging technologically, but no funds
    > could be spent on solving the technological dilemmas; so the
    > problems would go unresolved and the missile would remain
    > 'impossible.' To questions about the logic of budgeting for
    > missile programs, the answer always seemed to be the dogmatic
    > response: 'the time is not right' for an expanded program.

    *Id.* at 21.

[^26]: At least four factors account for the change in attitude by the
    U.S.: first, news that the Soviets had successfully detonated an
    atomic bomb in August 1949; second, communism's triumph in China;
    third, reports of Soviet advances in missile technology; and fourth,
    the outbreak of the Korean war in June 1950. *Id.* at 22, 23.

[^27]: Examples include the WAC Corporal, Aerobee, and Viking. Of these,
    the WAC Corporal became "the first man-made object to enter
    extra-terrestrial space" having been launched as a second stage from
    a V-2 to a height of 250 miles. *Id.* (quoting F. Malina's paper
    "Origins and First Decade of the Jet Propulsion Laboratory" at 60).

[^28]: Early cruise missiles included the Snark, the first
    intercontinental cruise missile, and the Navaho. The latter traveled
    to its target under "ramjet" power, achieving speeds in excess of
    Mach 3. Ramjet technology utilizes a process of "ram" compression at
    supersonic speeds in order to avoid the need for jet turbines. The
    U.S. has used ramjet technology since the 1940s for its Navaho
    missiles. [Spires]{.smallcaps}, *supra* note Error: Reference source
    not found, at 21. In addition, the U.S. has used the technology
    since 1959 for its A-11 and A-12 (later SR-71) reconnaissance
    aircraft. W.E. Burrows, *The Oxcart Cometh, And Goeth at Mach 3.2*,
    13:6 [Air & Space,]{.smallcaps} Feb./Mar. 1999, at 68.

    In the years following WWII, the threat of nuclear exchange made the
    small, slow cruise missiles ineffective as an intercontinental
    delivery system as compared to ballistic missiles.

    > The ICBM's can travel thousands of miles along arcs that take them
    > hundreds of miles out into space; their trajectories, once
    > determined during the interval that the motors are in operation,
    > are thence affected only by gravitational forces and by air
    > resistance during their exit from and re-entry into the
    > atmosphere.

    [von Braun & Ordway]{.smallcaps}, *supra* note Error: Reference
    source not found, at 121. Cruise missiles could not compete with
    this capability for intercontinental application.

[^29]: The Atlas contained significant performance enhancements that
    allowed for it to leave earth's atmosphere and then send an
    independent warhead back to earth. These included housing its liquid
    fuel within the rocket's skin, and making the warhead separable from
    the rocket so the latter could avoid the design features requiring
    survivability upon reentry.

[^30]: The Titan was originally conceived as a backup program to the
    Atlas. The two programs were developed simultaneously in order to
    save time in countering the increasing perception of Soviet missile
    superiority. In 1953, Assistant Secretary of the Air Force for
    Research and Development, Trevor Gardner, became the champion of
    ICBM development in the U.S. having "made it his mission in public
    life to convince the government that the nation must pursue a crash
    program to develop an operational Air Force ICBM or face nuclear
    disaster." [Spires]{.smallcaps}, *supra* note Error: Reference
    source not found, at 31. Gardner's technological evangelism proved
    so successful, that by the fall of 1955, President Eisenhower
    designated the Atlas ICBM the "highest national priority" weapons
    system. *Id.* at 35. Management for the crash missile program fell
    to Gardner protégé Brigadier General Bernard Schriever, a man who
    "used his intelligence, patience, and superb negotiating skills with
    military, government and private industry leaders to become an
    effective advocate for missile and space systems causes." *Id.* at
    33.

[^31]: The complete family of Titan missiles includes several versions:
    I (1959); II (1962); Gemini (1965); IIIA (1964); IIIB (1966); IIIC
    (1965); IIID (1971); IIIE (1974); 34B (1975); 34D (1982); IISLV
    (1988); III (1989); IV (1989). [P. Clark, Jane's Space
    Directory]{.smallcaps}, 1997-1998 277 (13th ed., 1997) \[hereinafter
    [Jane's]{.smallcaps}\]. In addition to the Atlas and Titan missiles,
    the Department of Defense uses a variety of other missile systems,
    principally as spacelifters rather than weapons systems, including
    the SCOUT, Pegasus, Delta, and Space Transportation System ("Space
    Shuttle"). [Muolo]{.smallcaps}, *supra* note Error: Reference source
    not found, at 121-34. Additional missiles developed since World War
    II for weapons use include the Polaris and Poseidon (both
    sea-launched), Pershing, and the Minuteman.

[^32]: [Heppenheimer]{.smallcaps}, *supra* note Error: Reference source
    not found, at 60. Though the U.S. got to Germany first, the Soviets
    were first to Peenemunde. By the time the Soviets got there, most of
    the documents and personnel had been removed by the Germans.
    Nonetheless, there was enough left for the Soviets to use
    productively, including middle and lower-level staffers familiar
    with the V-2 rocket research and development. Though the codename
    "Operation Paperclip" for the U.S. roundup of German scientists,
    documents, and hardware was revealed after the war, as was the
    British "Operation Backtrack," the Soviet codename was never made
    public. [M. Stoiko, Soviet Rocketry: Past, Present, and
    Future]{.smallcaps} 71 (Holt, Rinehart & Winston, 1970).

[^33]: The implications from this early Soviet resolve were enormous. As
    von Braun later observed, "\[t\]he decision \[to proceed with the
    ICBM before the U.S.\] not only gave \[the Soviets\] a significant
    edge in ballistic missile technology for years, but was also a great
    factor in their leadership in space exploration." [von Braun &
    Ordway]{.smallcaps}, *supra* note Error: Reference source not found,
    at 140.

[^34]: The first U.S. satellite, Explorer 1, was launched atop a Juno 1
    on Jan. 31, 1958. *See* *id.* at 160.

[^35]: [Langford]{.smallcaps}, *supra* note Error: Reference source not
    found, at 45. The first large-production nuclear weapon utilized a
    chain-reaction process known as fission, by which the mass of a
    uranium or plutonium atom is converted to energy. Langford notes
    that as between uranium and plutonium, the latter is easier to use
    for fission weaponry. *Id.* at 47. The nuclear weapon dropped on
    Hiroshima on Aug. 6, 1945 ("Little Boy") was a uranium bomb that was
    remotely detonated at a height of 570 meters over the city.
    "Detonation height determined how large an area would be damaged. .
    . . A bomb detonated too high would expend its energy blasting thin
    air; a bomb detonated too low would expend its energy excavating a
    crater. It was better to be low than high." [R. Rhodes, The Making
    of the Atomic Bomb]{.smallcaps} 631 (1986) \[hereinafter
    [Rhodes]{.smallcaps}\]. On Aug. 9, 1945, a plutonium bomb ("Fat
    Man") was dropped on Nagasaki with an estimated 22 kiloton yield.

[^36]: [Langford]{.smallcaps}, *supra* note Error: Reference source not
    found, at 49. It bears noting that nuclear weapons are those
    characterized by the unique interaction of particles within an
    element's nucleus. Whereas the fission chain-reaction begins with
    the acquisition of a stray neutron particle which then spreads from
    nucleus to nucleus, the fusion reaction requires the fusing of two
    nuclei. Because of the natural magnetic repulsion of hydrogen
    nuclei, the two must be forcibly fused to begin the fusion reaction.
    This is accomplished by heating the nuclei to such a degree that
    their resulting speed yields collisions of sufficient force to
    achieve the fusion. Thus the term "thermonuclear" weapons. The
    triggering element used to generate the tremendous heat needed for
    fusion is a fission reaction. Once the fusion begins, it creates its
    own chain-reaction. By surrounding the entire explosive core with
    U-238, scientists discovered that the neutrons lost in the fusion
    reaction could be used to fuel a second fission reaction. Thus, the
    nuclear weapons most widely stockpiled make use of a
    fission-fusion-fission process. *Id.* at 49. The first thermonuclear
    device, carrying an explosive force of 10 megatons of TNT was
    detonated at the Eniwetok atoll in 1952 (also spelled Enewetak). In
    1954, a 15 megaton device was detonated at the Bikini atoll. *Id.*

[^37]: [Rhodes,]{.smallcaps} *supra* note Error: Reference source not
    found, at 690

[^38]: [Heppenheimer]{.smallcaps}, *supra* note Error: Reference source
    not found, at 47. By contrast, the V-2 weighed a mere 14 tons.

[^39]: One Minuteman III ICBM is armed with the equivalent of 84
    first-generation nuclear weapons. Rhodes, *supra* note Error:
    Reference source not found, at photograph 106 (caption).

[^40]: [D. Shukman, Tomorrow's War: The Threat of High-Technology
    Weapons]{.smallcaps} 25 (1996) \[hereinafter
    [Shukman]{.smallcaps}\].

[^41]: A Tass news agency announcement of Aug. 27, 1957 which reported
    the successful test of the Soviet ICBM also included reference to "a
    series of explosions of nuclear and thermonuclear (hydrogen) weapons
    ... set off at great altitudes." [M.S. McDougal, et al., Law and
    Public Order in Space]{.smallcaps} 389 n.7 (1963) \[hereinafter
    [McDougal, et al.]{.smallcaps}\]. Between Aug. 27, 1957 and Sept. 7,
    1958, the U.S. exploded three atomic bombs over the South Atlantic
    at a reported altitude of between 200 and 300 miles. During the
    summer of 1962 in the Pacific at similar altitudes, the U.S.
    exploded weapons "in the hydrogen bomb range." *Id.* In a Nov. 3,
    1958 report to the U.S. President, three possible military uses of a
    high-altitude nuclear detonation were identified: "The high energy
    radiation including particles from the explosion produces effects on
    space; the whirling high energy electrons generate radio noise; and
    the delayed radiation from the fission products can affect radio
    transmission." [P.B. Stares, The Militarization of Space: U.S.
    Policy, 1945-1984]{.smallcaps} 108 (1985) \[hereinafter [Stares, The
    Militarization of Space]{.smallcaps}\].

[^42]: *See* *infra* notes Error: Reference source not found--Error:
    Reference source not found and accompanying text.

[^43]: [McDougal, et al]{.smallcaps}., *supra* note Error: Reference
    source not found, at 45. The Soviet note and U.S. reply are
    reprinted in [N.Y. Times,]{.smallcaps} Aug. 12, 1962, at 22.

[^44]: The U.S. "Vela Hotel" series of satellites were launched in 1963
    and 1964 to scan above the horizon and detect nuclear tests in
    space. They were, in the view of one military space historian, "one
    of the most successful Air Force space projects." [Curtis Peebles,
    High Frontier: The U.S. Air Force and the Military Space Program
    41]{.smallcaps} (1997) \[hereinafter [Peebles, High
    Frontier]{.smallcaps}\].

[^45]: [Spires]{.smallcaps}, *supra* note Error: Reference source not
    found, at 35. In time, "the relationship between satellites and
    missiles had become better understood as rockets with sufficient
    thrust soon would be able to launch the heavier satellites. ..."

[^46]: [Heppenheimer]{.smallcaps}, *supra* note Error: Reference source
    not found, at 90.

[^47]: Project Rand later became the Rand Corporation, a federally
    funded research and development corporation serving as the primary
    technical consultant to the U.S. Air Force.

[^48]: [RAND Corporation, Preliminary Design of an Experimental
    World-Circling Spaceship]{.smallcaps} (1998) (from the abstact;
    Report Number SM-11827, May 2, 1946).

[^49]: *Id.* at 2.

[^50]: Launched as a stop-gap measure for strategic reconnaissance
    between the termination of U-2 high altitude reconnaissance aircraft
    and the WS-117L system, the Corona system remained operational from
    its first flight on Feb. 28, 1959 through June 1972. The Air Force
    was nominally deemed a joint venture partner of the Corona program,
    which required mid-air recovery of film imagery taken by the
    orbiting camera. For a thorough account of the recently-declassified
    Corona program, see [Curtis Peebles, The Corona Project: America's
    First Spy Satellites]{.smallcaps} (1997) \[hereinafter [Peebles, The
    Corona Project]{.smallcaps}\]. The WS-117L program, standing for
    "Weapon System 117L," led to development of the first military
    satellite, the Advanced Reconnaissance System. The system used an
    electro-optical television-type imaging system for its
    reconnaissance capability. The Air Force established the requirement
    for such a system on Nov. 27, 1954, followed by a formal General
    Operational Requirement in March 1955 which called for a system
    providing an image resolution of no larger than 20 feet.
    [Spires,]{.smallcaps} *supra* note Error: Reference source not
    found, at 36-37

[^51]: [Peebles, High Frontier]{.smallcaps}, *supra* note Error:
    Reference source not found, at 13.

[^52]: The National Reconnaissance Office was considered so secret

    > that even in classified documents outside the special security
    > controls established for satellite photos and data, the words
    > 'National Reconnaissance Office' and 'National Reconnaissance
    > Program' were not to be used. Instead, the phrase 'Matters under
    > the purview of DOD TS 5105.23' would be given. (This was the
    > directive which established the NRO.) It would be thirty-two years
    > before the initials 'NRO' were spoken in public by a U.S.
    > government official.

    [Peebles, The Corona Project]{.smallcaps}, *supra* note Error:
    Reference source not found, at 96.

[^53]: [Peebles, High Frontier]{.smallcaps}, *supra* note Error:
    Reference source not found, at 14.

[^54]: Upon release of videotape depicting the satellite, [Aviation Week
    & Space Technology]{.smallcaps} declared that it used "the most
    advanced technology employed by any U.S. military or civilian
    unmanned spacecraft." C. Couvalt, *Secret Relay, Lacrosse NRO
    Spacecraft Revealed*, 148:12 [Av. Wk. & Space Tech]{.smallcaps}*.*,
    Mar. 23, 1997, at 27.

[^55]: *Id.* With its solar array and still-secret radar antenna, the
    satellite is actually much larger than a bus.

[^56]: *Id.* at 28. For obvious reasons, the capability of military
    technology exceeds that which is commercially available. This
    continues to challenge military research and development however
    with ever-increasing improvements to commercial remote sensing
    capability. In April 1999, the Space Imaging Corporation aspired to
    exceed Russia's Spin-2 capability of two meters. The Ikonos 1
    satellite boasted digital black and white images to resolutions of
    one meter. M. Mecham, *Commercial Imaging to Enter 1-Meter Era*,
    150:17 [Av. Wk. & Space Tech]{.smallcaps}*.*, Apr. 26, 1999, at 84.
    After launch on Apr. 27, 1999, the satellite was lost when an
    electrical malfunction prevented the satellite from separating from
    its booster. *Athena/Ikonos Loss Caused by Open Circuit*, 150:24
    [Av. Wk. & Space Tech]{.smallcaps}*.*, June 14, 1999, at 82; C.
    Covault*, Reviews Advance As New Satellite Fails*, 150:21 [Av. Wk. &
    Space Tech]{.smallcaps}*.*, May 24, 1999, at 61. The subsequent
    launch of a successor satellite on Sept. 3, 1999 now makes one meter
    resolution from space available to any purchaser.

[^57]: MIDAS was originally designated "Subsystem G" in the WS-117L
    program before becoming its own separate system. [Peebles, High
    Frontier]{.smallcaps}, *supra* note Error: Reference source not
    found, at 33. Previously, there were U.S. systems used to track
    space objects, however none were focused on the distinctive heat
    signature left by an ICBM or IRBM.

[^58]: *Id.* at 38. In 1991, DSP satellites alerted coalition forces to
    the launch of Iraqi Scud missiles--the first use of U.S. missile
    warning satellites in combat. *Id.* at 39.

[^59]: Currently in development is the Space Based Infrared System
    (SBIRS) which will incorporate the current DSP system. The SBIRS
    will include much more than an early warning capability. Its
    operational requirements call for four mission areas: missile
    warning, missile defense, technical intelligence, and battlespace
    characterization. Federation of American Scientists, *Space Based
    Infrared System*, Federation of American Scientists,
    http://www.fas.org/spp/military/program/warning/sbir.htm (last
    visited June 28, 2000) (on file with the *Air Force Law Review*).
    The program originally entailed development of four satellites in
    GEO and two more in highly elliptical orbits (SBIRS-High), and a
    constellation of 24 additional satellites in low-earth orbit
    (SBIRS-Low). The U.S. Air Force recently cancelled a demonstrator
    project for the SBIRS-Low program citing costs and delays in the
    SBIRS-High program, which is now scheduled for launch in 2004.
    Launch of the SBIRS-Low system is set for 2006. R. Wall, *USAF
    Cancels SBIRS-Low Satellite Demonstrations*, 150:6 [Av. Wk. & Space
    Tech.]{.smallcaps}, Feb. 8, 1999, at 66; R. Wall, *Pentagon Delays
    SBIRS Launch*, 150:3 [Av. Wk. & Space Tech]{.smallcaps}*.*, Jan. 18,
    1999, at 26.

[^60]: Though the early emphasis for military satellites was on
    scientific exploration and reconnaissance, interest in a space-based
    telecommunications network for the military began at least as early
    as Arthur C. Clarke's 1945 proposal to position three satellites in
    equidistant geosynchronous orbit (22,500 miles) for near-global
    communications coverage. Because Clarke first proposed use of the
    GEO for communications satellites, it is also sometime referred to
    as the Clarke orbit. [G.H. Reynolds & R.P. Merges, Outer Space:
    Problems of Law and Policy]{.smallcaps} 15 (2nd ed., 1997)
    \[hereinafter [Reynolds & Merges]{.smallcaps}\]. The first
    communications satellite, Project Score, was launched on Dec. 18,
    1958 and carried a tape-recorded Christmas message from President
    Eisenhower. [Peebles, High Frontier]{.smallcaps}, *supra* note
    Error: Reference source not found, at 44. A subsequent effort,
    dubbed Project West Ford, relied upon the release of 400 million
    copper dipoles of 0.7 inch length at an altitude of 2000 miles. The
    "needles" were to form a 25 to 30 mile wide ring around the earth
    off of which communications signals could be reflected. After a
    successful test, the military terminated the program in the face of
    vigorous scientific and environmental protests. *Id.* at 45. *See
    also* [Delbert R. Terrill, Jr., The Air Force Role in Developing
    International Law]{.smallcaps} 63-66 (1999). Other systems were used
    in the 1960s until the Interim Defense Communications Satellite
    Program (IDCSP), later renamed the Defense Satellite Communications
    System (DSCS) became operational in 1967. These were followed by
    second and third generation satellites (DSCS II and DSCS III)
    providing strategic communications from fixed military
    installations. These systems have been updated by the MILSTAR
    system, "a totally secure, jam free system; its terminals can be
    carried in a suitcase and set up in two and one-half minutes."
    Donald J. Kutyna, *Indispensable: Space Systems in the Persian Gulf
    War*, *in* [The U.S. Air Force in Space 1945 to the Twenty-first
    Century]{.smallcaps} 103, 117 (R. Cargill Hall & Jacob Neufeld,
    eds., 1995). For mobile (tactical) communications, the DOD has used
    systems such as the Lincoln Experimental Satellite (LES), the
    Tactical Communications Satellite (TACSAT I), and the Navy's Fleet
    Satellite Communications System (FLTSATCOM). [Peebles, High
    Frontier]{.smallcaps}, *supra* note Error: Reference source not
    found, at 47-50. For a discussion of the legal issues raised by
    military use of the former International Mobile Satellite
    Organization's INMARSAT system, see *infra* Part VI, § E.1. The
    growth of military dependence on commercial communications systems
    will only increase the legal and operational issues during times of
    armed conflict. By 1999, approximately 60% of U.S. military
    satellite communications traveled over commercial systems. W.B.
    Scott, *Space Chief Warns of Threats to U.S. Commercial Satellites*,
    150:15 [Av. Wk. & Space Tech.,]{.smallcaps} Apr. 12, 1999, at 51
    \[hereinafter Scott, *Threats to U.S. Satellites*\].

[^61]: NASA's Tiros I satellite, launched on Apr. 1, 1960, created a
    revolution in weather forecasting. However, it could not satisfy
    military needs for coverage, readout locations, or timeliness.
    Scott, *Threats to U.S. Satellites*, *supra* note Error: Reference
    source not found at 52. DOD developed a series of satellites in the
    1960s placed in 450 mile polar orbits that became the Defense
    Meteorological Satellite Program (DMSP). During the Vietnam war,
    cloud cover imagery from DMSP satellites became the basis of target
    selection and mission planning. *Id.* at 53. The program's existence
    was not publicly revealed until 1973. The DMSP has undergone
    numerous upgrades since its inception, to include sensors detecting
    temperature, atmospheric moisture, soil moisture, sea state, and ice
    cover. The DMSP has supported all major U.S. military operations
    since the Vietnam War. *Id.* at 55.

[^62]: *Id.* at 59.

[^63]: *Id.* at 57. *See also* Air Force News Service, U.S. Discontinues
    Selective Availability of GPS to Public, May 2, 2000 (on file with
    author).

[^64]: [Heppenheimer]{.smallcaps}, *supra* note Error: Reference source
    not found, at 348-49.

[^65]: [W.J. Boyne, Beyond the Wild Blue: A History of the U.S. Air
    Force]{.smallcaps} 274 (1998). Because the U.S. made use of the
    system available to commercial and civil users shortly after the
    destruction of Korean Airlines Flight 007 by the Soviet Union in
    1983, it opened a possible security risk from a military point of
    view. One nightmare scenario for security analysts is the specter of
    a "poor man's cruise missile" in the hands of hostile States or
    terrorists -- that is, an old weapon suddenly made extremely
    accurate by use of GPS. [Shukman]{.smallcaps}, *supra* note Error:
    Reference source not found, at 166. As a result, the U.S. initially
    degraded the accuracy of the primary signal, establishing the
    difference between a "coarse acquisition code" and the encrypted
    "precise code," to protect the military advantage the system offers
    its military and that of its allies. Recent developments associated
    with the U.S. military's Joint Direct Attack Munition (JDAM) put the
    required military position accuracy of the system at 3 meters. With
    growing reliance on the system by foreign and domestic non-military
    users as well, the potential liability to the U.S. has increased
    proportionately. B.D. Nordwall, *World Pressure Grows for Regional
    GPS Augmentations*, 147:22 [Av. Wk. & Space Tech]{.smallcaps}*.*,
    Dec. 1, 1997, at 66. As of May 1, 2000, President Clinton directed
    that the DOD provide the undegraded signal for public use. In
    discontinuing "selective availability," the President stated that
    future threats could be dealt with by applying selective
    availability on a regional basis as needed. Air Force News Service,
    U.S. Discontinues Selective Availability of GPS to Public, May 2,
    2000 (on file with author). For a thorough analysis of potential
    U.S. liability both under domestic and international law, see
    Jeffrey A. Rockwell, Liability of the United States Arising Out of
    the Civilian Use of the Global Positioning System (1996)
    (unpublished LL.M. thesis, McGill University) (on file with author,
    and the Nahum Gelber Law Library, McGill University).

[^66]: [Shukman]{.smallcaps}, *supra* note Error: Reference source not
    found, at 163 (from a classified Pentagon assessment of the
    performance of GPS in the Gulf War).

[^67]: *Id.* at 163.

[^68]: In Operation Allied Force, the NATO allies made heavy use of GPS
    for navigation and precision-guided targeting. C. Covault, *Recon,
    GPS Operations Critical to NATO Strikes*, 150:17 [Av. Wk. & Space
    Tech.,]{.smallcaps} Apr. 26, 1999, at 35. However, heavy military
    reliance on GPS is a double-edged sword because the system is still
    extremely vulnerable to jamming. Interference by electronic jamming,
    or even destruction of part of the system by anti-satellite
    weaponry, might cripple a military force having abandoned its skills
    in other forms of navigation. [Shukman]{.smallcaps}, *supra* note
    Error: Reference source not found, at 164-65.

[^69]: Vlasic, *Space Law and Military Applications*, *supra* note
    Error: Reference source not found, at 397, 398.

[^70]: For a discussion of the problem of defining "space weapon," see
    notes Error: Reference source not found--Error: Reference source not
    found and accompanying text.

[^71]: An example of the latter is the U.S. ASAT Air-Launched Miniature
    Vehicle (ALMV). First tested against a functioning satellite on
    Sept. 13, 1985, the ASAT "kill vehicle" was launched aboard a
    missile from an F-15 for ascent to the target satellite and
    destruction by impact. "The warhead, or Miniature Vehicle (MV), is
    an extremely complex and sophisticated device consisting of eight
    cryogenically cooled infrared telescopes, a laser gyro, and
    sixty-four small computer-controlled rockets used for final course
    adjustments before colliding with the target. All this is packed
    into a 12-by-13 inch casing. After being guided to and released near
    the target, the Miniature Vehicle homes in on the heat emitted by
    the satellite and rams into it with sufficient force to destroy it."
    [Paul B. Stares, Space and National Security]{.smallcaps} 99 (1987)
    \[hereinafter [Stares, Space and National Security]{.smallcaps}\].
    *See also* C. Covault, *Antisatellite Weapon Design Advances*,
    112:24 [Av. Wk. & Space Tech.,]{.smallcaps} June 16, 1980, at 243.
    In terms of destructive classification, the ALMV is a kinetic energy
    weapon.

[^72]: Though the previous SAINT ("satellite interceptor") system had
    been developed, it was never fielded. The latter system, known
    simply as Program 437, utilized a nuclear warhead launched atop a
    Thor IRBM from Johnson Island in the South Pacific. With a yield of
    1 megaton, the warhead had a kill radius of 5 miles. The U.S.
    declared the system fully operational on June 10, 1964, and it
    remained in service or available for speedy redeployment until it
    was terminated on Apr. 1, 1975. *See* [Peebles, High
    Frontier]{.smallcaps}, *supra* note Error: Reference source not
    found, at 62-65.

[^73]: [Collins, Military Space Forces,]{.smallcaps} *supra* note Error:
    Reference source not found, at 28.

[^74]: In a vacuum, winds do not blow and shock waves cannot develop
    where no medium such as air, water, or earth resists compression. As
    for heat, the fireballs normally associated with nuclear blasts in
    the air do not occur above 65 miles (approximately 100 km). *Id.* at
    29.

[^75]: By contrast, collateral damage from initial nuclear radiation
    "regardless of type, is indiscriminate, ... \[and\] would be
    difficult to predict and expensive to control." *Id.* at 31.

[^76]: Such an event was portrayed in the James Bond Hollywood
    production *Goldeneye*.

[^77]: [Collins]{.smallcaps}, [Military Space Forces]{.smallcaps},
    *supra* note Error: Reference source not found, at 29.

[^78]: *Id.* at 31.

[^79]: *Id.* at 30.

[^80]: *Id.*

[^81]: *Id.* The ionosphere exists from 30 to 500 miles (approximately
    48 to 805 km) above the earth's surface. *Id.* at 9.

[^82]: During a detonation at 48 miles (77 km) altitude on Aug. 1, 1958
    over Johnson Island, the U.S. observed the degradation of high
    frequency radio traffic throughout a region several thousand miles
    in diameter for a period of approximately six hours. *Id.* at 29.

[^83]: Indeed the Soviet Union used an array of 64 nuclear tipped
    anti-ballistic missiles around Moscow as a small-area missile
    defense system. Code named "Galosh," the system undoubtedly could be
    converted into an ASAT system. [Stares, Space and National
    Security]{.smallcaps}, *supra* note Error: Reference source not
    found, at 96.

[^84]: [Peebles, High Frontier]{.smallcaps}, *supra* note Error:
    Reference source not found, at 59.

[^85]: J.C. Anselmo, *U.S. Seen More Vulnerable to Electromagnetic
    Attack*, 147:4 [Av. Wk. & Space Tech.]{.smallcaps}, July 28, 1997,
    at 67.

[^86]: Ivan Bekey, *Force Projection from Space*, *in* (unnumbered Space
    Applications Volume) [New World Vistas: Air and Space Power for the
    21st Century]{.smallcaps}, at 83, 84 (1995) \[hereinafter Bekey\].

[^87]: *Id.*

[^88]: *Id.* at 85. With respect to information warfare, the report
    gives a number of examples: network viruses, disinformation, memory
    erasures, and false signals. For a brief discussion of information
    warfare and its relation to space combat, *see* *infra* Part VI, §
    D.

[^89]: For example, a 4,000 pound automobile would have to travel almost
    270 miles per hour to equal the kinetic energy of a one-pound
    projectile traveling at 4.7 miles per second. [David E. Lupton, On
    Space Warfare: A Space Power Doctrine]{.smallcaps} 22 (1988).

[^90]: B. Jasani, *Space Weapons and International Security--An
    Overview*, *in* [Space Weapons and International
    Security]{.smallcaps} 22 (B. Jasani, ed., 1987) \[hereinafter
    Jasani, *Space Weapons*\].

[^91]: Federation of American Scientists, *Kinetic Energy
    Anti-Satellite*, Federation of American Scientists,
    http://www.fas.org/spp/military/program/asat/ke_asat.htm (last
    visited June 29, 2000) (on file with the *Air Force Law Review*).

[^92]: *Id.*

[^93]: *Id.*

[^94]: Bekey, *supra* note Error: Reference source not found, at 83.

[^95]: M. Potter, *Gun Launch to Space: International Policy and Legal
    Considerations*, *in* [Proceedings of the Thirty-Fourth Colloquium
    on the Law of Outer Space]{.smallcaps} 305 (1992).

[^96]: *Id.* at 306.

[^97]: [Stares, The Militarization of Space]{.smallcaps}, *supra* note
    Error: Reference source not found, at 111.

[^98]: During the height of research on the Strategic Defense Initiative
    many scientists openly questioned that a missile defense project
    involving space-based lasers could ever work. The Union of Concerned
    Scientists declared that an effective defense of the U.S. against a
    Soviet missile defense was unattainable. A report from the
    Congressional Office of Technology Assessment claimed the likelihood
    that such a system could protect the U.S. from Soviet missile attack
    "so remote that it should not serve as the basis for public
    expectations or national policy[." L.B. Taylor, Jr., Space:
    Battleground of the Future?]{.smallcaps} 24 (rev. ed., 1988)
    (quoting Edward Edelson, *Space Weapons: The Science Behind the Big
    Debate*, [Popular Science]{.smallcaps} (July 1994)) \[hereinafter
    [Taylor]{.smallcaps}\]. Partly because of the tremendous technical
    difficulties, the program began to refocus on earth-based lasers.

[^99]: The other ground-based program is a free-electron laser designed
    to reflect its high-energy beam off orbiting space mirrors for
    redirection back to ground targets.

[^100]: Federation of American Scientists, *Mid-Infrared Advanced
    Chemical Laser*, Federation of American Scientists,
    http://www.fas.org/spp/military/program/asat/miracl.htm (last
    visited June 29, 2000) (on file with the *Air Force Law Review*).
    The beam is created via chemical reaction.

    > Just downstream from the combustor, deuterium and helium are
    > injected into the exhaust. Deuterium combines with the excited
    > fluorine to give excited deuterium fluoride molecules, while the
    > helium stabilizes the reaction and controls the temperature. The
    > laser's resonator mirrors are wrapped around the excited exhaust
    > gas and optical energy is extracted. The cavity is actively cooled
    > and can be run until the fuel supply is exhausted. The laser's
    > output power can be varied over a wide range by altering the fuel
    > flow rates and mixture.

    *Id.*

[^101]: Sami Fournier, *U.S. Test-Fires 'MIRACL' at Satellite Reigniting
    ASAT Weapons Debate*, (Oct. 1997) Arms Control Association,
    http://www.armscontrol.org/ACT/oct97/miracloct.htm (on file with the
    *Air Force Law Review*) \[hereinafter Fournier\].

[^102]: M.A. Dornheim, *Laser Engages Satellite, With Questionable
    Results*, 147:17 [Av. Wk. & Space Tech]{.smallcaps}*.*, Oct. 27,
    1997, at 27. The test was not intended to destroy the satellite but
    merely examine what various MIRACL power levels could do to the
    target satellite's sensors. An official reported that the
    anticipated data gathering from the satellite was unsuccessful.

[^103]: Following the test, the Russian Foreign Ministry issued a
    statement saying that the laser "may become a step toward creating
    an anti satellite potential." Fournier, *supra* note Error:
    Reference source not found. Even before the test, several U.S.
    lawmakers sent President Clinton a letter stating "\[w\]e are deeply
    troubled that a test of a ground based laser system with such
    obvious ASAT warfare capabilities would proceed ahead of any debate
    or deliberate policy development." *Id*.

[^104]: D.A. Fulghum, *Airborne Laser Aimed At New Defense Roles*,
    149:14 [Av. Wk. & Space Tech.,]{.smallcaps} Oct. 5, 1998, at 111;
    D.A. Fulghum, *Airborne Laser Tested, Weighed for New Missions*,
    147:17 [Av. Wk. & Space Tech.,]{.smallcaps} Oct. 27, 1997, at 26.
    The ABL program manager, Colonel Michael Booen, stated that
    "\[t\]his \[laser's success\] is going to break the door down for
    directed energy weapons." *Id.*

[^105]: W. Matthews, *Laser Faces 'Challenges,' Report Says*, [A.F.
    Times,]{.smallcaps} Jan. 19, 1998, at 24.

[^106]: Federation of American Scientists, *Space Based Laser*,
    Federation of American Scientists,
    http://www.fas.org/spp/starwars/program/sbl.htm (last visited June
    29, 2000) (on file with the *Air Force Law Review*).

[^107]: J.R. Asker, *Washington Outlook*, 150:21 [Av. Wk. & Space
    Tech]{.smallcaps}*.*, May 24, 1999, at 27.

[^108]: M.A. Dornheim, *Pentagon Mulls Space Laser Test*, 148:12 [Av.
    Wk. & Space Tech]{.smallcaps}*.*, Mar. 23, 1998, at 32.

[^109]: [Stares, The Militarization of Space]{.smallcaps}, *supra* note
    Error: Reference source not found, at 111.

[^110]: Another theorized advantage of directed energy (DE) weapons will
    be the range of employment options offered. These could fill the gap
    between diplomacy and bombs by allowing for an escalating scale of
    destructive from minor disruption to the target to total
    destruction. *See* W.B. Scott, *'Beam' Weapons Edging Into Arsenal*,
    151:1 [Av. Wk. & Space Tech.]{.smallcaps} July 5, 1999, at 53.

[^111]: [Taylor]{.smallcaps}, *supra* note Error: Reference source not
    found, at 33. Because of its great speed and capacity for repeat
    firing, Taylor suggests that particle beams "would do to the
    ballistic missile virtually what the machine gun did to the infantry
    charge." *Id.* at 34.

[^112]: *Id.* at 33.

[^113]: *Id.* at 35.

[^114]: Some conceive this ASAT as a kinetic energy weapon. "The Soviet
    ASAT system could be categorized as a rocket-propelled KEW \[kinetic
    energy weapon\]." Jasani, *Space Weapons*, *supra* note Error:
    Reference source not found, at 19. However, as its title suggest, a
    kinetic energy weapon derives its value as a weapon not from an
    explosive capacity, if any, but its kinetic energy. The design of
    the Soviet System relies heavily on its explosive charge; the ASAT
    need not even physically impact its target vehicle.

[^115]: [Stares, Space and National Security]{.smallcaps}, *supra* note
    Error: Reference source not found, at 87. The average wait before
    launch can occur in order to attack a specific satellite is six
    hours. *Id.* at 88.

[^116]: *Id.* at 86.

[^117]: Reportedly, the Russians resumed ASAT testing in April of 1999
    with a design that will utilize an EMP. As reported, the Pentagon
    considers this a "serious development" given that satellites are the
    "Achilles\' heel of the U.S. military\'s high-technology force used
    for sending orders to forces around the world as well as
    communicating with troops and organizing logistics." B. Gertz & R.
    Scarborough, *Russian ASAT*, [Wash. Times,]{.smallcaps} June 18,
    1999, at 9.

[^118]: A.A. Kokoshin, et al., *Measures for Counteracting Space Strike
    Weapons*, *in* [Space Weapons and International
    Security]{.smallcaps} 92 (B. Jasani, ed., 1987).

[^119]: See Bekey, *supra* note Error: Reference source not found, at
    87.

[^120]: *Id.*

[^121]: This article uses the phrases "law of war," "law of armed
    conflict," and "humanitarian law" as being essentially synonymous.
    Historically, "law of war" has been used, although "law of armed
    conflict" is more accurate given that such law applies in cases of
    conflict not amounting to war. "Law of war" will generally be used
    in order to highlight the connection between the relevant treaty
    regimes, rooted in the first five decades of the twentieth century,
    and current State practice. Some scholars articulate distinctions
    among the three phrases noting for example that humanitarian law is
    that subset of the law of war that concerns itself specifically with
    the reduction of human suffering. However, because the reduction of
    suffering is ultimately the goal of *all* restrictions on the means
    and methods of warfare, such distinctions seem overly technical.
    Others, such as the International Court of Justice (ICJ), prefer the
    term "international humanitarian law" which it describes as the
    synthesis of "Hague Law," governing means and methods of warfare,
    and "Geneva Law," governing the protection of the victims of war.
    *See* The Legality of the Threat or Use of Nuclear Weapons, 1996
    I.C.J. 1, at 27 \[hereinafter ICJ Advisory Opinion on Nuclear
    Weapons\]. This definitional framework is ultimately helpful as it
    attempts to contain the full range of law governing the use of force
    in combat to a single category of international law. However, use of
    terms like "humanitarian" when applied to limits on war's means and
    methods risks merely equating the law of war with human rights law.
    On the dangers associated with doing so, *see* *infra* notes Error:
    Reference source not found and Error: Reference source not found. On
    the connection between human rights law and the law of war, *see*
    Howard Levie, *Violations of Human Rights in Time of War As War
    Crimes*, *in* [70 International Law Studies, Levie on the Law of
    War]{.smallcaps} 373 (Michael N. Schmitt & Leslie C. Green, eds.,
    1998); Rene Provost, *Reciprocity in Human Rights and Humanitarian
    Law*, 1994 [Brit. Y.B. Int'l L]{.smallcaps}. 383 (1995).

[^122]: Schmitt, *Bellum Americanum*, *supra* note Error: Reference
    source not found, at 412.

[^123]: Reasons commonly include: diminishing suffering, diminishing the
    moral depravation of the soldiers, lessening the dangers that
    threaten the survival of our civilization, lessening the dangers
    that threaten the survival of mankind, favorably impacting the
    peacetime creation of doctrines and weapons, and furthering the
    cause of disarmament to the extent specific weapons are prohibited.
    B.V.A. Röling, *The Significance of the Laws of War*, *in* [Current
    Problems in International Law: Essays on U.N. Law and on the Law of
    Armed Conflict]{.smallcaps} 133 (A. Cassese, ed., 1975). To these
    six might be added a seventh and eighth -- increased chances for the
    restoration of peace following armed hostilities, and, somewhat
    paradoxically, increased military efficiency by requiring the
    focused application of force.

[^124]: For some, "ironic" is the gentle way of putting it. Some authors
    express outright cynicism that the project of regulating warfare can
    ever succeed. Others provide examples leading to a measured
    skepticism over various aspects of the law of war. This skepticism
    can take the form either that military forces and their civilian
    leaders cannot be trusted to follow the law when war begins, or that
    the law simply does not regulate consistently. An example of the
    former relates to action at the First Hague Peace Conference to
    phrase principles of warfare restrictively subject to exceptions,
    rather than permissively subject to restrictions. As Hays Parks
    notes, "\[t\]his is a manifestation of the fundamental distrust
    international lawyers have for things military, and a reluctance to
    permit battlefield commanders any latitude in situations that
    require a judgment call." W. Hays Parks, *Air War and the Law of
    War* 32:1 [A.F. L. Rev]{.smallcaps}. 1, 14 n.54 (1990) \[hereinafter
    Parks\]. Regarding the latter form of skepticism, Doswald-Beck
    claims that the law's prohibition of certain forms of bullets
    without an unambiguous prohibition of nuclear weapons "creates
    skepticism regarding the seriousness of any of the law of war." L.
    Doswald-Beck*, Implementation of International Humanitarian Law in
    Future Wars*, *in* [71 International Law Studies The Law of Armed
    Conflict: Into the Next Millennium]{.smallcaps}, 39 at 43 (Michael
    N. Schmitt & Leslie C. Green, eds., 1998).

[^125]: Those viewing war as necessarily barbaric, for reasons of
    strategy or otherwise, react coolly to the whole notion of rules, or
    moderation in war. Thus, British Vice Admiral Sir John Fisher
    declared at the 1899 Hague Peace Conference that humanizing war was
    tantamount to humanizing hell. His suspicion at the law of war
    flowed from his view of the very nature of war:

    > \[w\]hat you call my truculence is all for peace. If you rub it
    > in, both at home and abroad, that you are ready for instant war
    > with every unit of your strength in the first line, and intend to
    > be first in, and hit your enemy in the belly, and kick him when he
    > is down, and boil your prisoners in oil (if you take any!), and
    > torture his women and children, then people will keep clear of
    > you.

    Parks, *supra* note Error: Reference source not found, at 13 n.50.

[^126]: Charles Dunlap, *A Virtuous Warrior in a Savage World*, 8 [A.F.
    Acad. J. Legal Stud.]{.smallcaps} 71, 89 (1997-1998) (quoting
    Richard Overy, [Why the Allies Won]{.smallcaps} 302-05 (1995)).

[^127]: Such an argument assumes a certain form of warfare that values
    and benefits from order. Theoretically, guerilla or terrorist
    tactics could eschew the type of "order" discussed here. But even
    these methods of warfare assume a certain level of coordination,
    planning, and thus order.

[^128]: Carl von Clausewitz famously wrote that,

    > war is not merely an act of policy but a true political
    > instrument, a continuation of political intercourse, carried on
    > with other means. What remains peculiar to war is simply the
    > peculiar nature of its means. . . . The political object is the
    > goal, war is the means of reaching it, and means can never be
    > considered in isolation from their purpose.

    [Carl von Clausewitz, On War]{.smallcaps}, 87 (M. Howard, & P.
    Paret, trans. & eds., 1976) \[hereinafter
    [Clausewitz]{.smallcaps}\]. Elsewhere, Clausewitz describes how ugly
    those "other means" really are:

    > If one side uses force without compunction, undeterred by the
    > bloodshed it involves, while the other side refrains, the first
    > will gain the upper hand. That side will force the other to follow
    > suit; each will drive its opponent toward extremes, and the only
    > limiting factors are the counterpoises inherent in war. . . . It
    > would be futile--even wrong--to try and shut one's eyes to what
    > war really is from sheer distress at its brutality.

    *Id.* at 75-76.

[^129]: Thus ancient Chinese strategist Sun Tzu "did not conceive the
    object of military action to be the annihilation of the enemy's
    army, the destruction of his cities, and the wastage of his
    countryside. 'Weapons are ominous tools to be used only when there
    is no alternative.'" Samuel B. Griffith, *Introduction* to [Sun Tzu,
    The Art of War]{.smallcaps}, 1, 40 (S.B. Griffith, trans., 1963).
    The dichotomy between the approaches of Clausewitz and of Sun Tzu
    led B.H. Liddell Hart to write

    > Civilization might have been spared much of the damage suffered in
    > the world wars of this century if the influence of Clausewitz's
    > monumental tome *On War*, which moulded European military thought
    > in the era preceding the First World War, had been blended with
    > and balanced by a knowledge of Sun Tzu's exposition on 'The Art of
    > War.'

    B.H. Liddell Hart, *Forward* to [Sun Tzu, The Art of
    War]{.smallcaps} v (S.B. Griffith, trans., 1963).

[^130]: One need only view two recent Hollywood productions, *Saving
    Private Ryan* and *The Thin Red Line*, to experience the horrors of
    war beyond the written word. In both cases, the films vividly
    portray the existential horrors of warfare (violent death,
    mutilation, betrayal, savagery, terror) through realistic
    reenactment. Yet even the film medium, powerful as it is, cannot
    reproduce the feelings experienced in war either by the combatant or
    the noncombatant. Beyond this, *Saving Private Ryan*, in particular,
    included reenactment of several violations of the law of war. In one
    case toward the end of the film, a young American soldier is shown
    killing a German soldier who had his hands in the air and had
    surrendered his weapon and intent to resist, thus entitling himself
    to protection as a prisoner of war. Though the 1949 Geneva
    Convention (III) Relative to the Treatment of Prisoners of War had
    not yet come into existence at the time of this depiction, the 1907
    regulations annexed to the Hague Convention (IV) on land warfare
    had. These regulations, which governed military conduct during WWII,
    unambiguously required humane treatment for prisoners of war. The
    young American is portrayed as being the underdog having impotently
    witnessed another German lawfully, though agonizingly, killing an
    American compatriot just moments before. Perhaps the most troubling
    aspect of this scene is the unfortunate effect it likely has on most
    American audiences. Rather than producing feelings of distaste at
    having witnessed a war crime, the screenplay appears designed to
    elicit a sense of euphoria that the younger, weaker American finally
    got the enemy. To the extent that the popular media manipulates
    public opinion in ways such as this, respect for the law of war is
    not engendered, but diminished. This is not to disparage this
    particular movie. The Secretary of Defense rightly honored director
    Steven Spielberg on Aug. 11, 1999 at a ceremony during which the
    Secretary awarded him the DOD Distinguished Civilian Public Service
    Award for successfully honoring the memory of a past generation that
    made the ultimate sacrifice in a just cause. The example is simply
    intended to highlight dangers that may exist for the law of war in
    the popular mind coming out of even magnificent works such as
    *Saving Private Ryan*.

[^131]: E.J. Osmanczyk, *War*, *in* [The Encyclopedia of The United
    Nations and International Relations]{.smallcaps}, 1018 (2nd ed.,
    1990). Horrible as it is, Malanczuk notes that war has not always
    been perceived as it is today.

    > It is hard to realize that during the eighteenth and nineteenth
    > centuries most people (except for a few pacifists) regarded war in
    > much the same way as they regarded a hard winter -- uncomfortable,
    > certainly, but part of the settled order of things, and providing
    > excellent opportunities for exhilarating sport; even the wounded
    > soldier did not regard war as wrong, any more than the skier with
    > a broken leg regards skiing as wrong.

    [Peter Malanczuk, Akehurst's Modern Introduction to International
    Law]{.smallcaps} 308 (7th ed., 1997) \[hereinafter [Malanczuk,
    Introduction to International Law]{.smallcaps}\].

[^132]: Despite some vigorous dissent, the law of war has influenced the
    conduct of armed forces in many ways. As examples to the contrary,
    consider Cicero's oft-quoted maxim *inter arma silent leges* (lit.
    "in war the law is silent"), and professor Fenwick's pessimistic
    candor, "it is futile to attempt to revive \[the laws of war\]. . .
    . Let's face the facts. War has got beyond the control of law. . . .
    The sooner every man, woman and child old enough to think realizes
    that he will be a party to the next war, the better." C.G. Fenwick,
    43 [Proc. Am. Soc'y Int'l L]{.smallcaps}. 110 (1949) (transcript of
    oral response to W. Downey, Jr., *Revision of the Rules of
    Warfare*). Roberts and Guelff cite several international norms that
    have been observed principally because of the law of war including,
    humane treatment of prisoners, a state's entitlement to neutral
    status, illegitimacy of certain targets, and that persons not active
    in the conflict should be spared from the consequences of the
    fighting to the extent possible. Adam Roberts & Richard Guelff,
    *Introduction* to [Documents on the Laws of War]{.smallcaps}, 1, 14
    (Adam Roberts & Richard Guelff, eds., 1989) \[hereinafter Roberts &
    Guelff\].

[^133]: Because the law of war is a matter of public international law,
    and regulates the conduct of States relative to each other, it does
    not ordinarily regulate purely internal, civil wars. Nonetheless,
    certain regional agreements relate to internal conflicts. Further,
    Roberts and Guelff note that,

    > customary international law provided that the laws of war might
    > become applicable to a non-international conflict through the
    > doctrine of 'recognition of belligerency' . . . \[by which\] the
    > government of a state in which an insurrection existed could
    > recognize the belligerency of the insurgent faction, and the laws
    > of war would thereby become applicable.

    Roberts & Guelff, *supra* note Error: Reference source not found, at
    12. The authors further note that the doctrine of recognition of
    belligerency has fallen into decline, and that the surer basis for
    application of certain fundamental humanitarian provisions in
    non-international conflicts is Common Article 3 of the four 1949
    Geneva Conventions. *Id.* at 13. Finally, while the 1977 Geneva
    Protocol II is intended to expand the provisions of Common Article
    3, it too applies only during the existence of an "armed conflict."

[^134]: "\[T\]oday humanitarian law is applicable in any international
    armed conflict, even if the parties to that conflict have not
    declared war and do not recognize that they are in a formal state of
    war." Christopher Greenwood, *Historical Development and Legal
    Basis*, *in* [The Handbook of Humanitarian Law in Armed Conflict 1,
    10]{.smallcaps} (Dieter Fleck, ed., 1995). As Greenwood uses the
    term, "international humanitarian law" is synonymous with the older
    phrase "law of war" (with the exception of the law of neutrality),
    the former including all rules designed to regulate the treatment of
    the individual--civilian or military, wounded or active--as well as
    rules governing the means and methods of warfare. *Id.* at 9.

[^135]: *See* *infra*, Part III, § C.4*.*

[^136]: [Michael Walzer, Just and Unjust Wars: A Moral Argument with
    Historical Illustrations]{.smallcaps} 21 (2d. ed., 1977).

[^137]: [Thomas Franck, Fairness in International Law and
    Institutions]{.smallcaps} 246 (1995). Though Franck frames the
    distinction in moral categories (i.e. "just"), the context makes
    clear he is asserting that the early development of international
    *legal* norms mirrored those of the "just war" tradition--an ethical
    as well as a legal theory of warfare. Franck claims that this
    tradition held sway in Western societies as both a legal and ethical
    theory until the 1648 Peace of Westphalia ushered in an
    international order based on "a balance of power among sovereign
    nations \[rather than\] the ideal of a unified empire under God and
    right reason. This Westphalian system remained in place until the
    outbreak of war in 1914. Positivism largely banished notions of just
    war from the realm of law to the outer marches of moral philosophy."
    *Id.* at 252.

[^138]: Fritz Kalshoven, *Laws of War*, *in* [4 Encyclopedia of Public
    International Law]{.smallcaps} 316 (Bernhardt, ed., 1982).

[^139]: [Malanczuk, Introduction to International Law]{.smallcaps},
    *supra* note Error: Reference source not found, at 306.

[^140]: Arguably, prior to 1928 and execution of the Treaty of Paris
    (Kellogg-Briand Pact) which purported to outlaw warfare as a
    legitimate means of dispute resolution, there was no such thing as a
    *jus ad bellum*. While there were ethical principles relating to
    conditions for a "just war" and for self-defense, nothing approached
    the level of international *law*. Even the Treaty of Versailles,
    which took initial steps toward conditioning the use of force (e.g.
    Article 16 which made acts of war against any member of the League
    of Nations acts of war against all members), did not explicitly ban
    war itself. Treaty of Versailles, art. 16, (1919 Supp.) 13 [Am. J.
    Int'l L.]{.smallcaps} 2.

[^141]: Roberts & Guelff, *supra* note Error: Reference source not
    found, at 1.

[^142]: This is subject to the clarification that while the law of war
    as a body of legal principles does work to *limit* the means and
    methods of warfare, those principles recognize that in the world of
    fact (versus legal principle) acts of combat exist and may even
    appear to be *allowed* by reference to the relevant legal principle.
    Some may view this reference to legal principles as *authorization*,
    as for example in this reference to the principle of military
    necessity: "I did X, an otherwise prohibited act, because it was
    militarily necessary." For a discussion of military necessity, *see
    infra*, Part III, § B.1. But to view the law of war as *authorizing*
    or *enabling* behavior, misses a fundamental principle of
    international law. Professor Schmitt, author of the foregoing
    military necessity example, puts it best: "To exist as a principle
    of law, military necessity must have independent legal valence. That
    can, by definition, only occur when it is characterized as a
    limitation, for, as a general rule, all that is not prohibited in
    international law is permitted." Michael N. Schmitt, *Book Review:
    Law on the Battlefield* 8 [A.F. Acad. J. L. Stud]{.smallcaps}. 255,
    257 (1997-1998) (reviewing [A.P.V. Rogers, Law on the
    Battlefield]{.smallcaps} (1996)) \[hereinafter Schmitt, *Book
    Review*\]. This analysis applies to all principles and tenets of the
    law of war--thus all are restrictions on behavior. As for the
    general proposition in international law that all that is not
    forbidden is permitted, the International Court of Justice recently
    quoted from two previous cases, as it recounted the position of
    several States leading up to its advisory opinion on the threat or
    use of Nuclear Weapons. *See* ICJ Advisory Opinion on Nuclear
    Weapons, *supra* note Error: Reference source not found (referencing
    the *Steamship Lotus* and *Nicaragua* cases). In the *Steamship
    Lotus* case, the Permanent Court of International Justice (P.C.I.J.)
    stated that "restrictions upon the independence of States cannot . .
    . be presumed" and that international law leaves to States "a wide
    measure of discretion which is only limited in certain cases by
    prohibitive rules." P.C.I.J. (ser. A) No. 10, at 18-19. Then more
    recently, the International Court of Justice stated that "in
    international law there are no rules, other than such rules as may
    be accepted by the State concerned, by treaty or otherwise, whereby
    the level of armaments of a sovereign state can be limited."
    Military and Paramilitary Activities (Nicar. v. U.S.) 1986 I.C.J. 4,
    135. Though the latter language specifically addressed armaments, it
    rests on the rationale from the *Steamship Lotus* case--unless
    prohibited, an action is allowed.

[^143]: Convention (II) with Respect to the Laws and Customs of War on
    Land, July 29, 1899, (1907 Supp.) 1 [Am. J. Int'l L]{.smallcaps}.
    129.

[^144]: These four principles are generally viewed as summarizing the
    customary law of war, though this enumeration is not accepted
    universally. Thus, Hays Parks describes the concept of
    proportionality as subordinate to, and an expression of,
    discrimination. He argues that discrimination is attended today with
    some confusion "because of the attempted injection of the concept of
    *proportionality* into the law of war." Parks, *supra* note Error:
    Reference source not found, at 5 n.18. By contrast, Professor
    Schmitt subordinates distinction to proportionality, and recognizes
    chivalry as a forth distinct customary principle. *See* Michael N.
    Schmitt*, Green War: An Assessment of the Environmental Law of
    International Armed Conflict* 22:1 [Yale J. Int'l L]{.smallcaps}. 1,
    52 (1997) \[hereinafter Schmitt, *Green War*\]. Whatever the
    formulation however, each approach includes the relevant
    prescriptive norms as developed in customary law, while giving
    special emphasis to some but not others.

[^145]: As the subsequent analysis shows, the law demands such restraint
    whether the operation in question is offensive or defensive in
    nature.

[^146]: [Frederic De Mulinen, Handbook on the Law of War for Armed
    Forces]{.smallcaps} 82-83 (Int'l Committee of the Red Cross 1987)
    \[hereinafter [De Mulinen\]]{.smallcaps}. Perhaps subpart (b) of
    this formulation is the more important as subpart (a), simply
    invoking that which is not forbidden by the law of war, could apply
    to *any* principle of the law of war and says nothing unique about
    the restrictions imposed by military necessity.

[^147]: Such was the case in nineteenth century Germany as expressed
    through the doctrine of Kriegsraison. This concept, an
    interpretation of the traditional notion of military necessity,
    asserted that military necessity "could justify any measures -- even
    in violation of the laws of war -- when the necessities of the
    situation purportedly justified it." Air Force Pamphlet 110-31, The
    Conduct of Armed Conflict and Air Operations ¶ 1-3(a)(1) (Nov. 19,
    1976) (reissue pending as AFPAM 51-710) \[hereinafter AFP 110-31\].
    Abuse of the principle continued into the twentieth century as
    Carnahan notes: "The modern denigration of military necessity goes
    back at least to the Nuremberg trials after World War II, where some
    defendants argued that military necessity justified their atrocities
    against civilian populations." He continues that "military necessity
    is widely regarded today as an insidious doctrine invoked to justify
    almost any outrage. As a result, the principle has not been allowed
    to play the creative role that it is capable of playing." Bruce M.
    Carnahan, *Lincoln, Lieber and the Laws of War: The Origins and
    Limits of the Principle of Military Necessity* 92 [Am. J. Int'l
    L]{.smallcaps}. 213, 230 (1998) \[hereinafter Carnahan, *Lincoln,
    Lieber and the Laws of War*\].

[^148]: For a discussion addressing this error, *see supra* note Error:
    Reference source not found.

[^149]: Schmitt, *Green War*, *supra* note Error: Reference source not
    found, at 54.

[^150]: AFP 110-31, *supra* note Error: Reference source not found, at ¶
    1-6(b).

[^151]: Also termed "distinction."

[^152]: Roberts & Guelff, *supra* note Error: Reference source not
    found, at 5.

[^153]: Professor Green, quoting from a treatise dating to 1802, states
    that "\[i\]t is only with the writers of the nineteenth century that
    either a clear definition or the rights of soldiers or the first
    usage of the term 'combatants' is found[." Leslie C. Green, The
    Contemporary Law of Armed Conflict 101]{.smallcaps} (1993)
    \[hereinafter [Green]{.smallcaps}\].

[^154]: Thus, the law protects those combatants who are captured,
    wounded, sick, or shipwrecked. The combatant category also does not
    include every member of the military force, for example chaplains
    and medical personnel.

[^155]: Annex to the Convention, Regulations Respecting the Laws and
    Customs of War on Land, Oct. 18, 1907, art. 1, (1908 Supp.) 2 [Am.
    J. Int'l L.]{.smallcaps} 90 (entered into force Jan. 26, 1910)
    \[hereinafter Hague Convention (IV) Annex\]. Those military members
    who should ordinarily fit this category but do not for failure to
    comply with one of its terms, such as soldiers not wearing a uniform
    or concealing their weapons, become "unlawful combatants" and risk
    loss of protections afforded to lawful combatants.

[^156]: Admiral Robertson notes the fundamental character of the
    principle of discrimination, and thus of military objective, by
    reference to the International Court of Justice Advisory Opinion on
    Nuclear Weapons. There the court opined that military objective is
    one of the two "cardinal principles" of the law of armed conflict
    (the other being the prohibition on the use of weapons causing
    unnecessary suffering to combatants). H.B. Robertson, *The Principle
    of the Military Objective in the Law of Armed Conflict*, 8 [A.F.
    Acad. J. Legal Stud]{.smallcaps}. 35 (1997-1998) (citing ICJ
    Advisory Opinion on Nuclear Weapons, *supra* note Error: Reference
    source not found, at 28) \[hereinafter Robertson\].

[^157]: Protocol Additional to the Geneva Conventions of Aug. 12, 1949,
    and Relating to the Protection of Victims of International Armed
    Conflicts (Protocol I), Dec. 12, 1977, art. 48, 1125 U.N.T.S. 3.
    (entered into force Dec. 7, 1978) \[hereinafter Protocol I\].

[^158]: *Id.*, art. 52(2). Though not adopted universally as a treaty
    rule, Admiral Robertson notes that Protocol I's provisions on
    military objective from Articles 48 and 52 are widely incorporated
    into military manuals and are "recognized as a norm of customary
    international law." Robertson, *supra* note Error: Reference source
    not found, at 44.

[^159]: For further discussion of this point, *see infra* note Error:
    Reference source not found.

[^160]: *See* Declaration (XIV) Prohibiting the Discharge of Projectiles
    and Explosives from Balloons, Oct. 18, 1907, 36 Stat. 2439;
    Declaration (IV, 1) To Prohibit for the Term of Five Years the
    Launching of Projectiles and Explosives from Balloons, and Other
    Methods of a Similar Nature, July 29, 1899, 32 Stat. 1839.

[^161]: Schmitt's observation bears repeating.

    > \[The law of armed conflict\] is no longer a body of law designed
    > to ensure a fair fight between two opponents . . . . Today, the
    > law of armed conflict is designed primarily to minimize suffering
    > and prevent unnecessary destruction. This being so, belligerents
    > are held to the standards to which they are capable of rising.

    Schmitt, *Bellum Americanum*, *supra* note Error: Reference source
    not found, at 412. Schmitt's implication is that technological
    advancement comes at some cost with respect to the law of war; the
    more effectively weapons can avoid unnecessary destruction, the less
    ability belligerents legally have in allowing for the possibility of
    such destruction.

[^162]: In this way, proportionality differs from the principle "economy
    of force." Schmitt, *Green War*, *supra* note Error: Reference
    source not found, at 55 n.267.

[^163]: This principle not only governs the use of force during the
    ongoing operations of armed conflict, but during an act of
    self-defense under Article 51 of the Charter of the United Nations
    as well. *See infra* note Error: Reference source not found. Thus,
    it is a "rule well established in customary international law" that
    in exercising its right to self-defense, a State may only use
    "measures which are proportional to the armed attack and necessary
    to respond to it." Military and Paramilitary Activities (Nicar. v.
    U.S.), 1986 I.C.J. 4, 94. The U.S. took the position that the
    lawfulness of an act of self-defense depends in part on the
    necessity and the proportionality of the measures taken. *Id.* at
    103.

[^164]: Roberts & Guelff, *supra* note Error: Reference source not
    found, at 5. The concept of reprisals has proven controversial in
    international law. In 1977, Protocol I to the Geneva Conventions
    sought to eliminate a form of reprisal taken against civilians or
    the civilian population. Professor Green explains that reprisals are
    "otherwise illegal measures taken in response to prior illegal
    measures of the adverse party and which are intended to cause the
    adverse party to cease its illegal activities and comply with the
    law. They are not measures taken simply by way of retaliation."
    [Green]{.smallcaps}, *supra* note Error: Reference source not found,
    at 331, 332. Abraham Sofaer points out that the U.S. decision not to
    ratify the Geneva Protocol I came, in part, because it narrowed the
    right of reprisal. He further states that this factor was of concern
    to the U.S. Joint Chiefs of Staff, and that it "would hamper the
    ability of the United States to respond to an enemy's intentional
    disregard of the limitations established in the Geneva Conventions
    of 1949 or Protocol I." Abraham Sofaer, *Agora: The U.S. Decision
    Not to Ratify Protocol I to the Geneva Conventions on the Protection
    of War Victims*, 82 [Am. J. Int'l L]{.smallcaps}. 784, 785 (1988).
    Interestingly, Parks attributes the failure of the diplomatic
    conference to produce fundamental agreement among the delegations to
    the "cultural and philosophical differences that were substantially
    greater than they had been \[at the Hague in 1907 and Geneva in
    1949\]." He further points out that many delegations were led by
    international lawyers lacking subject-matter expertise; "no
    delegation had a military officer of the stature of a Mahan, Fisher,
    or Rodgers." Parks, *supra* note Error: Reference source not found,
    at 76.

[^165]: F.J.S. Gómez, *The Law of Air Warfare* 323 [Int. Rev. Red
    Cross]{.smallcaps} 347, 354 (1998) \[hereinafter Gómez\].

[^166]: *Id.*

[^167]: In some formulations, chivalry receives attention as a separate
    customary principle. As it has developed in the law of war, chivalry
    distinguishes between acts of deception that undermine the goodwill
    of the enemy, and those that do not. Thus, acts of perfidy are
    always prohibited. As enumerated in Article 37 of Protocol I to the
    Geneva Conventions, these prohibited acts include feigning an intent
    to negotiate under a flag of truce or of a surrender, feigning an
    incapacitation by wounds or sickness, feigning civilian or
    non-combatant status (such as marking of combat aircraft with the
    international symbols affording protection as medical aircraft), and
    feigning protected status by the use of signs, emblems, or uniforms
    of the United Nations or of neutral States. By contrast, the law
    does not prohibit "ruses," such as the use of camouflage, decoys,
    mock operations, and misinformation, which deceive the opponent yet
    do not betray his confidence in measures requiring his goodwill and
    which are intended to ameliorate the effects of war. Protocol I,
    *supra* note Error: Reference source not found, art. 37.

[^168]: Schmitt, *Bellum Americanum*, *supra* note Error: Reference
    source not found, at 409.

[^169]: As Carnahan notes, "\[t\]he ban on poisoned weapons is one of
    the oldest continuing prohibitions in the law of war." Burrus M.
    Carnahan, *Unnecessary Suffering, The Red Cross and Tactical Laser
    Weapons* 18 [Loy. L.A. Int'l & Comp. L.J]{.smallcaps}. 705, 714
    (1996) \[hereinafter Carnahan, *Unnecessary Suffering*\]. It
    predates any attempts at codification by centuries.

[^170]: Declaration Renouncing the Use, in Time of War, of Explosive
    Projectiles Under 400 Grams Weight, Dec. 11, 1868, (1907 Supplement)
    1 [Am. J. Int'l L]{.smallcaps}. 95.

[^171]: These munitions have soft or hollow points so as to flatten on
    impact. Also called "dum-dum" bullets after the munitions factory
    near Calcutta India where first developed, they are outlawed for
    over 30 States Parties to a Hague Declaration of 1899. Hague
    Declaration (IV, 3) Concerning Expanding Bullets, July 29, 1899,
    (1907 supp.) 1 [Am. J. Int'l L]{.smallcaps}. 155. The declaration
    explicitly applied to bullets "which expand or flatten easily in the
    human body, such as bullets with a hard envelope which does not
    entirely cover the core or is pierced with incisions." *Id.* Though
    not a party to the Declaration, the United States has acknowledged
    that it will abide by the terms of the agreement. Carnahan,
    *Unnecessary Suffering*, *supra* note Error: Reference source not
    found, at 720.

[^172]: Protocol \[to the Convention on Conventional Weapons\] on
    Non-Detectable Fragments (Protocol I), Apr. 10, 1981, 1342 U.N.T.S.
    7 (entered into force Dec. 2, 1983). This Protocol to the 1980
    Convention on Conventional Weapons prohibits the use of "any weapon
    the primary effect of which is to injure by fragments which in the
    human body escape detection by X-rays." *Id*.

[^173]: Protocol \[to the Convention on Conventional Weapons\] on
    Blinding Laser Weapons (Protocol IV), Oct. 13, 1995, 35
    [I.L.M.]{.smallcaps} 1218 (1996) (entered into force July 30, 1998)
    \[hereinafter Protocol on Blinding Lasers\]. The International
    Committee of the Red Cross (ICRC) takes the prohibition of Protocol
    IV a step further in its 1995 pamphlet *Blinding Weapons*, and
    declares all "blinding as a method of warfare" to be a violation of
    international humanitarian law. Carnahan, distinguishing the ICRC's
    denunciation of poison gas in 1925, notes that this "striking policy
    departure" marks the first time in history that the ICRC has
    "publicly denounced a specific method of warfare as a violation of
    international law." Carnahan, *Unnecessary Suffering*, *supra* note
    Error: Reference source not found, at 705. Carnahan concludes that
    by declaring the

    > undefined concept of 'blinding as a method of warfare' unlawful
    > and making exaggerated claims for the destructiveness of lasers,
    > the ICRC has helped to lay the basis for false war crime charges
    > against any soldier captured with a portable laser. The ICRC may
    > have compromised its own ability to prevent abuse of prisoners of
    > war subjected to such charges.

    *Id.* at 731. Although itself bordering on exaggeration, at least
    one important reminder can be taken from this conclusion--a very
    possible consequence of crusading against a means of warfare in the
    interest of soldiers may make the very soldiers in view more
    vulnerable. A final observation regarding this protocol lasers
    relates to its prospective nature vis-à-vis the weapons at issue.
    This is one of the only attempts in the law of war to prohibit the
    use of a weapons system before it has been deployed in combat, or
    even fielded for training purposes prior to combat.

[^174]: For example, under Article 51 of the United Nations Charter,
    States have the "inherent right" to use armed force in self-defense.
    *See* discussion *infra* notes Error: Reference source not found and
    Error: Reference source not found. This raises two fundamental
    issues. First, because the right is inherent, and has been
    recognized by customary international law long prior to the
    appearance of the United Nations Charter, the right existed *before*
    the law prohibited warfare as an instrument of national policy. This
    right has been widely recognized at least since the Caroline
    incident of 1837. *See* [D.J. Harris, Cases and Materials on
    International Law]{.smallcaps} 894 (5th ed., 1998) \[hereinafter
    [Harris\]]{.smallcaps}. Second, because the United Nations Charter
    speaks of this prerogative toward self defense as a "right," it
    appears to be an explicit *authorization* to act in certain
    circumstances. Taken as an authorization, and coupled with the *jus
    in bello*, the reasonable implication of this understanding of
    Article 51 is that States not only have the right to self defense,
    but have the right to use armed force in self defense, and have the
    right to attack militarily necessary targets in proportionate,
    "humane" ways as long as such attacks are otherwise predicated on
    compliance with the *jus ad bellum*. Though this understanding
    borders on repudiation of the principle articulated in the
    *Steamship Lotus* case, that is, States may act as they please
    unless prohibited by law, by suggesting that with respect to self
    defense the law plays an *authorizing* rather than merely
    prohibitive role, it is better seen as merely a limited exception to
    the *Lotus* rule rather than a direct challenge to it. For a
    discussion of the *Steamship Lotus* case, *see supra* note Error:
    Reference source not found.

[^175]: [Green]{.smallcaps}, *supra* note Error: Reference source not
    found, at 333.

[^176]: Given the development of international law in this century, it
    is highly doubtful States would ever completely restrict themselves
    from resort to the use of force under any circumstances -- the
    ultimate extension of pure humanity.

[^177]: It is for this reason that there is some danger of confusion in
    referring to the law of armed conflict as humanitarian law. To the
    extent that the latter title evokes images of human rights law, the
    term humanitarian, and the legal content it suggests, could be
    transposed improperly from the one subset of public international
    law to the other. This would fail to accord the term its rightful
    and more limited place as it functions within the law of armed
    conflict. Put simply, humanitarian as used in human rights law does
    not necessarily mean "humanitarian" as used in the law of armed
    conflict. This does not mean the two bodies of law are strictly
    distinct. *See*, *e.g.*, Levie and Provost cites at *supra* note
    Error: Reference source not found. It also does not at all mean that
    humanity in the law of war is a narrow principle of customary
    international law. As Schmitt observes, as applied to protection of
    the environment in armed conflict, humanity assumes an
    extra-anthropocentric quality. In this way it can be seen as a
    broader concept than "humanitarian" as used in human rights law, and
    includes prohibition of "activities that are not so much inhumane as
    *inhuman*. They are acts we intuitively recognize as inherently
    wrongful regardless of the context in which they occur. In a sense,
    they are violative of the 'dictates of public conscience.'" Schmitt,
    *Green War*, *supra* note Error: Reference source not found, at 61.

[^178]: Schmitt articulates a sequential analysis in determining whether
    a military course of conduct comports with the law.

    > 1\. Means: Do the methods or means selected to execute the attack
    > violate the principles of distinction, humanity, or any specific
    > prohibition of the law of armed conflict? 2. Target: Is the target
    > a military objective? If so, is attack on this type of target
    > specifically forbidden? If not, is the destruction of the target
    > militarily necessary? 3. Result: Does the concrete and direct
    > military advantage anticipated outweigh the collateral damage and
    > incidental injury likely to result?

    Schmitt, *Book Review*, *supra* note Error: Reference source not
    found, at 276 n.24. This approach helpfully clarifies that each
    principle acts as a filter to weed out impermissible military acts
    while at the same time recognizing that these principles are not
    authorizations to act, but limitations on acts which might otherwise
    be lawful.

[^179]: It should be remembered that the two basic treaty regimes
    represented by the Hague Conventions and the Geneva Conventions, do
    not purport to be the exhaustive sources for law of war
    restrictions. Though they are, to a large extent, codifications of
    customary law, customary international law remains as a viable
    source not only for circumstances unaddressed in the treaty law, but
    to govern the conduct of non-parties to the treaties.

[^180]: *Instructions for the Government of Armies of the United States
    in the Field*, General Order No. 100, Apr. 23, 1863, [The Laws of
    Armed Conflicts: A Collection of Conventions, Resolutions and Other
    Documents 3]{.smallcaps} (Dietrich Schindler & Jiri Toman, eds.,
    1988) \[hereinafter Schindler & Toman\].

[^181]: Fritz Münch, *War, Laws of, History*, *in* [4 Encyclopedia of
    Public International Law 327 (]{.smallcaps}Bernhardt, ed., 1982).

[^182]: Schindler & Toman, *supra* note Error: Reference source not
    found, at 3 (introductory note).

[^183]: Carnahan, *Lincoln, Lieber and the Laws of War*, *supra* note
    Error: Reference source not found, at 215.

[^184]: Roberts & Guelff, *supra* note Error: Reference source not
    found, at 7.

[^185]: Conditions for the Amelioration of the Condition of the Wounded
    in Armies in the Field, Aug. 22, 1864, Schindler & Toman, *supra*
    note Error: Reference source not found, at 279. This convention has
    been superceded by the 1949 Geneva Conventions.

[^186]: Declaration Renouncing the Use, in Time of War, of Explosive
    Projectiles Under 400 Grammes Weight, Dec. 11, 1868, (1907 Supp.) 1
    [Am. J. Int'l L]{.smallcaps}. 95. This declaration is the first
    agreement among States prohibiting the use of specific weaponry in
    time of war. The provisions of the declaration were later
    incorporated into the 1899 and 1907 Hague Regulations.

[^187]: Final Protocol and Project of an International Declaration
    Concerning the Laws and Customs of War, Aug. 27, 1874, Schindler &
    Toman, *supra* note Error: Reference source not found, at 25. The
    provisions of the protocol, and the international declaration have
    been incorporated into the 1899 and 1907 Hague Conventions and
    Regulations.

[^188]: The Laws of War on Land, Sept. 9, 1880, Schindler & Toman,
    *supra* note Error: Reference source not found, at 35 (originally
    published by the Institute of International Law). Again, the
    influences of the Oxford Manual on the 1899 and 1907 Hague
    Conventions and Regulations are clear.

[^189]: P.J. Cameron, *The Limitations on Methods and Means of Warfare*,
    1984 [Australian Y.B. Int'l L.]{.smallcaps} 252 (1985).

[^190]: Schindler & Toman, *supra* note Error: Reference source not
    found, at vii (from the Introduction).

[^191]: Convention (IV) Respecting the Laws and Customs of War on Land,
    Oct. 18, 1907, (1908 Supp.) 2 [Am. J. Int'l L]{.smallcaps}. 90
    (entered into force Jan. 26, 1910) \[hereinafter Hague Convention
    (IV)\].

[^192]: Convention (IX) Concerning Bombardment by Naval Forces in Time
    of War, Oct. 18, 1907, (1908 Supp.) 2 [Am. J. Int'l L]{.smallcaps}.
    146 (entered into force Jan. 26, 1910) \[hereinafter Hague
    Convention (IX)\].

[^193]: Though still in force today, the fourth convention of 1907 lost
    the support of eighteen States which were parties to the 1899 second
    convention. These eighteen States or their successors (e.g.
    Yugoslavia) remain formally bound by the 1899 convention.

[^194]: *Id.* at art. 1.

[^195]: *Id.* Perhaps the most significant aspect of this list is its
    inclusion of industrial targets with military value. For the first
    time, this was explicitly recognized by an international instrument.
    Nonetheless, the entire list was regarded by the head of the U.S.
    delegation as simply declaratory of customary international law.
    Parks, *supra* note Error: Reference source not found, at 18.

[^196]: Hague Convention (IX) Annex, *supra* note Error: Reference
    source not found, at art. 2.

[^197]: Parks, *supra* note Error: Reference source not found, at 18.
    Parks further concludes that the rule of Article 2, was declaratory
    of customary law. Thus, however provocative such a claim may sound
    today, its roots go back to the codified foundations of the law of
    war, and beyond. This point about the legal obligations of the
    defender is a theme Parks sustains throughout his monumental,
    book-length article. The piece provides an excellent scholarly
    argument, citing to the provisions of both Hague and Geneva law, for
    the proposition that defenders bear as heavy an obligation to
    ameliorate the possibility and effects of collateral damage from air
    warfare as do attackers.

[^198]: Hague Convention (IV), *supra* note Error: Reference source not
    found, at art. 25.

[^199]: Though the drafters of the convention could not have
    specifically foreseen the technological revolution in military
    affairs that would come later in this century, the absolute terms
    "whatever means" would seem to include means of bombardment from
    unanticipated new combat environments such as outer space. As for
    targeting from the air, the Greco-German Mixed Arbitral Tribunal
    held that the Convention IV rules relating to bombardment
    specifically applied to air warfare. [Green]{.smallcaps}, *supra*
    note Error: Reference source not found, at 173 (citing Coenca Bros.
    v. Germany, 7 M.A.T. 683 (1927)).

[^200]: As with most provisions of the fourth 1907 convention, this one
    came substantially from the second 1899 convention. *See* Schindler
    & Toman, *supra* note Error: Reference source not found, at 75.

[^201]: *See* Hague Convention (IV) Annex, *supra* note Error: Reference
    source not found and accompanying text.

[^202]: *Id*. at art. 3.

[^203]: Knut Ipsen, *Combatants and Non-Combatants*, *in* [The Handbook
    of Humanitarian Law in Armed Conflict 65, 66]{.smallcaps} (Dieter
    Fleck, ed., 1995).

[^204]: Article 75(1) of Protocol (I) specifies that

    > persons who are in the power of a Party to the conflict and who do
    > not benefit from more favorable treatment under the Conventions or
    > under this Protocol \[i.e. prisoners of war; refugees and
    > stateless persons\] shall be treated humanely in all circumstances
    > and shall enjoy, as a minimum, the protection provided by this
    > Article without any adverse distinction based upon race, color,
    > sex, language, religion or belief, political or other opinion,
    > national or social origin, wealth, birth or other status, or on
    > any other similar criteria.

    Protocol I, *supra* note Error: Reference source not found, at art.
    75(1).

[^205]: The category "unlawful combatants" does not include those
    combatants who use means and methods of armed conflict that are
    violative of the *jus in bello*. These offenders may be war
    criminals, and they may be prosecuted under international law or the
    domestic law of the opposing belligerent, but they are not what has
    traditionally been known as unlawful combatants. Further, contrary
    to the impression left by some in the television and print media
    following the abduction of three U.S. soldiers in Macedonia during
    Operation Allied Force, prisoners of war may be tried under certain
    conditions. However, as Article 99 of the third 1949 Geneva
    Convention specifies, this cannot be for any "act which is not
    forbidden by the law of the Detaining Power or by international law,
    in force at the time the said act was committed." Geneva Convention
    Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6
    U.S.T. 3316 (entered into force Oct. 21, 1950) \[hereinafter Geneva
    Convention III\].

[^206]: Hague Convention (IV), *supra* note Error: Reference source not
    found, at art. 29.

[^207]: *Id.* at 54.

[^208]: For a relatively recently formulation of the principle, *see*
    Protocol I, *supra* note Error: Reference source not found, at art.
    46.

[^209]: Of course, the rules embodied in Hague Law are equally
    humanitarian and equally concerned with protection of the person.
    However, because Geneva Law explicitly provides for the sick,
    wounded, shipwrecked, and prisoners it is more often thought of as
    the fullest expression of humanitarian law.

[^210]: Two examples include the saturation bombing of civilian
    populations centers, and certain indiscriminate naval bombardments.
    Roberts & Guelff, *supra* note Error: Reference source not found, at
    93.

[^211]: Hays Parks suggests that international lawyers of that era even
    doubted the *applicability* of the law of war to modern warfare, and
    particularly to aerial bombardment. Parks, *supra* note Error:
    Reference source not found, at 50.

[^212]: *Id.* (quoting [M. Gilbert, Winston S. Churchill: The Prophet of
    Truth, 1922-1939]{.smallcaps} 573 (1976)).

[^213]: Geneva Convention for the Amelioration of the Condition of
    Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, art.
    19, 6 U.S.T. 3114 (entered into force Oct. 21, 1950) \[hereinafter
    Geneva Convention I\].

[^214]: *Id.* at art. 22. Because the convention by its title purports
    to protect "armed forces in the field," the inclusion of the last
    circumstance seems particularly odd. Not only are civilians
    non-combatants, they are non-belligerents. Positing that a protected
    facility does not lose its protection merely by virtue of the
    presence of a *wounded* civilian, seems to state the obvious.

[^215]: Geneva Convention Relative to the Protection of Civilian Persons
    in Time of War, Aug. 12, 1949, art. 18, 6 U.S.T. 3516 (entered into
    force Oct. 21, 1950) \[hereinafter Geneva Convention IV\].

[^216]: *Id.* The reference to "land, air, and naval forces" appears
    intended to highlight that the prohibition applies to all combat
    environments.

[^217]: Geneva Convention for the Amelioration of the Condition of
    Wounded, Sick and Shipwrecked Members of Armed Forces at Sea*,* Aug.
    12, 1949, art. 22, 6 U.S.T. 3316, (entered into force Oct. 21, 1950)
    \[hereinafter Geneva Convention II\].

[^218]: *Id.* at art. 23.

[^219]: *Id.* at art. 28.

[^220]: Indeed, protected persons are also potentially subject to
    attacks from space. Thus, to the extent that the Geneva Conventions
    protect individuals from attack, they restrict space warfare. One
    example pertains to the prohibitions on taking reprisals against
    prisoners of war. *See* Geneva Convention III, *supra* note Error:
    Reference source not found, at art. 13. Similarly, belligerents may
    not take reprisals against civilians. *See* Geneva Convention IV,
    *supra* note Error: Reference source not found, at art. 33.

[^221]: These Resolutions not only further empowered the ICRC to justify
    the need for a diplomatic conference, but represented the early
    disposition of the majority of States to the conference on several
    subjects that would later become controversial. The first
    resolution, *Respect for Human Rights in Armed Conflicts*, invited
    the U.N. Secretary-General, in conjunction with the ICRC, to study
    steps for better application of existing humanitarian conventions
    and to study the need for additional conventions. *See* *Respect for
    Human Rights in Armed Conflicts*, Dec. 19, 1968, G.A. Res. 2444,
    U.N. GAOR, 23rd Sess., Supp. No. 18, at 50, U.N. Doc. A/7218 (1969).
    The General Assembly adopted the Resolution by a unanimous vote of
    111 to none. More importantly, this Resolution affirmed three
    principles, stated in a prior ICRC Resolution

    > \(a\) That the right of the parties to a conflict to adopt means
    > of injuring the enemy is not unlimited; (b) That it is prohibited
    > to launch attacks against the civilian population as such; (c)
    > That distinction must be made at all times between persons taking
    > part in the hostilities and members of the civilian population to
    > the effect that the latter be spared as much as possible.

    *Id.* As displayed by the vote, these principles were not
    controversial and indeed were taken as a restatement of customary
    international law. The larger issue raised by the Resolution was the
    use of human rights language to describe what were historically law
    of war restrictions. Although the identification of human rights
    with humanitarian law has become increasingly prevalent in the
    scholarly literature following publication of documents such as
    Resolution 2444, it remains to be seen whether this is good for the
    law of war. While human rights law has traditionally been rooted in
    philosophy and politics, the law of war is rooted in military
    exigency. As a consensus grows for centralized punishment of
    violations within both bodies of law, as envisaged by the
    International Criminal Court, one sincerely hopes that the unseemly
    politicization often characterizing State rhetoric regarding human
    rights concerns does not infect the quest for a robust, enforced law
    of war. If the latter succumbs to petty world politics, it may be
    largely due to the blurring of the humanitarian law of war, aimed at
    the focused restricting of suffering during armed conflict, with
    human rights law, aimed at far broader issues and concerns.

    Following Resolution 2444 by two years, the U.N.G.A. adopted
    Resolution 2675 by a vote of 109 votes to none, with 18 States
    abstaining or absent. *Basic Principles for the Protection of
    Civilian Populations in Armed Conflicts*, Dec. 9, 1970, G.A. Res.
    2675, U.N. GAOR, 25th Sess., Supp. No. 28, at 76, U.N. Doc. A/8028
    (1971) \[hereinafter Resolution 2675\]. In two cases, the eight
    provisions of Resolution 2675 restated the substance of provisions
    already stated in Resolution 2444. Otherwise, Resolution 2675
    exhorted States to respect civilian populations and property by
    exempting them from attack, and reemphasizes the human rights
    rationale for such protections. In some cases the provisions
    restated concepts existing in the Geneva Conventions, and in all
    cases, the Resolution "restates rules of international law."
    Schindler & Toman, *supra* note Error: Reference source not found,
    at 267. Interestingly, regarding civilian property, the Resolution
    states that "\[d\]wellings and other installations that are used
    only by civilian populations should not be the object of military
    operations." Resolution 2675, U.N. GAOR, 25th Sess., Supp. No. 28,
    at 77. Implicitly, this affirms that unless such property is used
    exclusively by civilians ("only by"), it may be subject to attack if
    not otherwise protected on some other ground.

[^222]: Protocol Additional to the Geneva Conventions of Aug. 12, 1949,
    and Relating to the Protection of Victims of Non-International Armed
    Conflicts (Protocol II), Dec. 12, 1977, art. 48, 1125 U.N.T.S. 609
    (entered into force Dec. 7, 1978) \[hereinafter Protocol II\].

[^223]: Roberts & Guelff, *supra* note Error: Reference source not
    found, at 448.

[^224]: Geneva Convention I, *supra* note Error: Reference source not
    found, at art. 3; Geneva Convention II, *supra* note Error:
    Reference source not found, at art. 3; Geneva Convention III,
    *supra* note Error: Reference source not found, at art. 3; Geneva
    Convention IV, *supra* note Error: Reference source not found, at
    art. 3.

[^225]: Robert & Guelff, *supra* note Error: Reference source not found,
    at 447.

[^226]: Protocol II, *supra* note Error: Reference source not found, at
    art. 1(2).

[^227]: Robert & Guelff, *supra* note Error: Reference source not found,
    at 448.

[^228]: Protocol I, *supra* note Error: Reference source not found, at
    art. 1(4). Addressing the "General Principles and Scope of
    Application" of the entire Protocol, Article 1(4) proclaims that

    > \[t\]he situations referred to in the preceding paragraph include
    > armed conflicts in which peoples are fighting against colonial
    > domination and alien occupation and against racist regimes in the
    > exercise of their right of self-determination, as enshrined in the
    > Charter of the United Nations and the \[United Nations General
    > Assembly\] *Declaration on Principles of International Law
    > concerning Friendly Relations and Co-operation among States in
    > accordance with the Charter of the United Nations*.

    *Id*. This means that insurgents opposing "colonial domination and
    alien occupation and . . . racist regimes in the exercise of their
    *right* of self-determination" were to be accorded the full
    protections of the *jus in bello*, including limits on the state's
    means and methods of subduing the insurgents militarily. *Id*.
    (emphasis added) This provision alone proved too difficult
    politically for some States to accept. (States *not* having ratified
    the Protocol as of 1999 include: Afghanistan, Andorra, Azerbaijan,
    Bhutan, Fiji, France, Haiti, India, Indonesia, Iran, Iraq, Ireland,
    Israel, Japan, Kiribati, Lithuania, Malaysia, Monaco, Morocco,
    Myanmar, Nepal, Nicaragua, Pakistan, Papua New Guinea, Philippines,
    Singapore, Somalia, Sri Lanka, Sudan, Thailand, Tonga, Trinidad and
    Tobago, Turkey, Tuvalu, and the U.S.)

    Another provision difficult to accept for some States, including the
    U.S., related to the concept of reprisals. Articles 51(6), 52(1),
    and 54(4), prohibit reprisals under any circumstances against the
    civilian population, against civilian objects, and against objects
    indispensable to the survival of the civilian population,
    respectively. *Id*. at art. 51(6), 52(1), 54(4). Parks claims that
    the first two provisions were not a codification of customary law,
    but a reversal of it. *See* Parks, *supra* note Error: Reference
    source not found, at 94. He further states that flawed legal
    analysis of the doctrine of reprisals often results from confusion
    of the concept with others such as retaliation, revenge, or
    legitimate acts of self-defense. *Id.* Customarily, civilian
    individuals and property could be threatened and attacked as a
    lesser evil in order to avoid a greater evil, and to promote respect
    for the law of war. Though reprisals are politically sensitive
    because they entail commission of an otherwise illegal act in order
    to suppress other illegal acts, they have proven effective
    historically in deterring violations of the *jus in bello*. *Id.* at
    95. Parks cites as an example the threat by President Franklin
    Roosevelt to use chemical weapons as sufficient warning to deter
    German use of such weapons. *Id.*

[^229]: Parks, *supra* note Error: Reference source not found, at 112.

[^230]: Protocol I, *supra* note Error: Reference source not found, at
    art. 48.

[^231]: *Id*. at art. 49*.*

[^232]: *Id.* at art. 50.

[^233]: *Id.* at art. 51*.*

[^234]: *Id*. at art. 52.

[^235]: *Id.* at art. 53.

[^236]: *Id*. at art. 54*.*

[^237]: *Id*. at art. 55.

[^238]: *Id*. at art. 56*.*

[^239]: *Id*. at art. 57.

[^240]: *Id*. at art. 58.

[^241]: Parks, *supra* note Error: Reference source not found, at 112.

[^242]: *Id.* Just as significant an issue as is the burden shifting, is
    the legal effect of violations by the defender vis-à-vis the
    attacker. A common view of Protocol I, Article 58, which requires
    that "the parties" (including both attacker and defender) take
    precautions against the effects of attacks "to the maximum extent
    feasible," is that violation by the defender in its obligations
    toward its own civilians does not absolve the attacker of its
    obligations when considering attacks that put such civilians at
    risk. Protocol I, *supra* note Error: Reference source not found, at
    art. 58. This appears to conflict with the position taken by the
    U.S. Air Force law of war manual: "\[a\] party to a conflict which
    places its own citizens in positions of danger by failing to carry
    out the separation of military activities from civilian activities
    necessarily accepts, under international law, the results of
    otherwise lawful attacks upon the valid military objectives in their
    territory." AFP 110-31, *supra* note Error: Reference source not
    found, at ¶ 5-4b. For an interesting resolution of this apparent
    conflict, see Schmitt, *Book Review*, *supra* note Error: Reference
    source not found, at 267. Key to the resolution is the clause
    "otherwise lawful attacks." Ultimately, the best view conceives
    violations by the defender to take precautions as "merely a factor
    in mitigation should the attacker violate its own." *Id.* It should
    also be noted that although AFP 110-31 presents a view from the
    United States Air Force, the document's preamble specifies that it
    "does not promulgate official U.S. Government policy."

[^243]: Parks, *supra* note Error: Reference source not found, at 112
    n.351. Parks notes further that the French position was not
    isolated, but representative. *Id*.

[^244]: *Id.*

[^245]: For additional perspectives, see G.H. Aldrich, *Prospects for
    United States Ratification of Additional Protocol I to the 1949
    Geneva Convention*, 85 [Am. J. Int'l L]{.smallcaps}. 1 (1991);
    Burrus M. Carnahan, *Protecting Civilians Under the Draft Geneva
    Protocol: A Preliminary Inquiry*, 18 [A.F. L. Rev]{.smallcaps}. 32
    (Winter 1976).

[^246]: Convention on the Prohibition of the Development, Production and
    Stockpiling of Bacteriological (Biological) and Toxin Weapons and on
    Their Destruction, Apr. 10, 1972, 26 U.S.T. 583 (entered into force
    26 March 1975).

[^247]: Convention on the Prohibition of Military or Any Other Hostile
    Use of Environmental Modification Techniques, May 18, 1977, 31
    U.S.T. 333 (entered into force 5 October 1978) \[hereinafter
    Environmental Modification Treaty\].

[^248]: Convention on Prohibitions or Restrictions on the Use of Certain
    Conventional Weapons which May be Deemed to be Excessively Injurious
    or to Have Indiscriminate Effects, Oct. 10, 1980, 1342 U.N.T.S. 7
    (entered into force Dec. 2, 1983) \[hereinafter Conventional Weapons
    Treaty\]. The treaty contained protocols on (1) fragments not
    detectable by X-rays; (2) mines, booby traps, and other devices; and
    (3) incendiary weapons. All three protocols went into force with the
    treaty in 1983. A fourth Protocol on Blinding Laser Weapons went
    into force on July 30, 1998. *See* Protocol on Blinding Lasers,
    *supra* note Error: Reference source not found.

[^249]: Convention on the Prohibition of the Development, Production,
    Stockpiling and Use of Chemical Weapons and on Their Destruction,
    Jan. 13, 1993, [S. Treaty Doc. No. 21]{.smallcaps}, 103d Cong.
    (1993), *reprinted in* 32 [I.L.M.]{.smallcaps} 800 (1993) (entered
    into force Apr. 29, 1997).

[^250]: Protocol on Blinding Lasers, *supra* note Error: Reference
    source not found.

[^251]: Convention on the Prohibition of the Use, Stockpiling,
    Production and Transfer of Anti-Personnel Mines and on their
    Destruction, Sept. 18, 1997, 36 [I.L.M.]{.smallcaps} 1507 (1997)
    (entered into force Mar. 1, 1999).

[^252]: Environmental Modification Treaty, *supra* note Error: Reference
    source not found, at art. III(1).

[^253]: *Id.* at art. I(1).

[^254]: *Id*. at art. II (emphasis added).

[^255]: Schmitt, *Green War*, *supra* note Error: Reference source not
    found, at 82.

[^256]: *Report of the Conference of the Committee on Disarmament*, U.N.
    GAOR, 31st Sess., Supp. No. 27, at 91, 92, U.N. Doc. A/31/27 (1976).

[^257]: Given its narrow scope, the Treaty "affects only a very narrow
    band of possible operations." Schmitt, *Green War*, *supra* note
    Error: Reference source not found, at 85.

[^258]: Protocol II (as amended), Environmental Modification Treaty,
    *supra* note Error: Reference source not found, at art. 1, 35
    [I.L.M.]{.smallcaps} 1206 (1996) (amended May 3, 1996) (entered into
    force Dec. 3, 1998).

[^259]: A recent controversy raises the question whether such weapons
    have ever been used against U.S. military personnel. An Apr. 4, 1997
    incident suggested the possible Russian use of such a weapon against
    a Naval aviator. The aviator reported severe eye pain and headaches
    after seeing a distinct dot of red light emanating from the Russian
    ship *Kapitan Man* in U.S. waters. Despite Russian denials, and a
    subsequent search of the ship by U.S. authorities which discovered
    no laser, suspicions have continued given the several day delay in
    executing the search and medical reports showing the aviator's
    injury consistent with a laser attack. Associated Press, *Navy
    Officer Blames Russian Laser*, [N.Y. Times,]{.smallcaps} Feb. 11,
    1999, at 1; B. Gertz, *Clinton Won't Back Navy Officer After Laser
    Attack*, [Wash. Times,]{.smallcaps} May 17, 1999, at 1.

[^260]: Interestingly, the Protocol on Blinding Lasers implicitly
    recognizes that lasers are not prohibited as a weapon system so long
    as they are not "specifically designed" to cause blindness. Protocol
    on Blinding Lasers, *supra* note Error: Reference source not found,
    at art. 1. Article 2 states: "In the employment of laser systems,
    the High Contracting Parties shall take all feasible precautions to
    avoid the incidence of permanent blindness to unenhanced vision.
    Such precautions shall include training of their armed forces and
    other practical measures." *Id.* at art. 2. This restriction
    presupposes that laser systems might in fact be used ("in the
    employment"), and that they might be used by military forces whose
    use will necessitate training for proper use so as to avoid
    functioning as a blinding weapon. Among others, the U.S. military is
    studying the use of an "Anti-Personnel Beam Weapon" that would
    likely cause slight skin or eye irritation by carrying an electrical
    charge through a lazed stream of ionized air. D. Mulholland, *Laser
    Device May Provide U.S. Military NonLethal Option*, [Defense
    News,]{.smallcaps} June 14, 1999, at 6.

[^261]: But note that the law of war applies whether a use of force is
    lawful or not. *See* *supra* note Error: Reference source not found,
    and accompanying text.

[^262]: A third function of the Charter is to provide the constitutive
    features of the International Court of Justice, established under
    Article 92 of the Charter, by means of the Statute of the
    International Court of Justice appended to the Charter and
    consisting of seventy separate articles. [Stat. of the Int'l Ct. of
    J.]{.smallcaps}, June 26, 1945, 59 Stat. 1031 (entered into force
    Oct. 24, 1945) \[hereinafter [Stat. of the ICJ]{.smallcaps}\].

[^263]: [U.N. Charter]{.smallcaps} (entered into force Oct. 24, 1945)
    \[hereinafter [U.N. Charter]{.smallcaps}\]. Article 1, paragraph 1,
    states the first purpose of the United Nations: "To maintain
    international peace and security, and to that end: to take effective
    collective measures for the prevention and removal of threats to the
    peace, and for the suppression of acts of aggression or other
    breaches of the peace . . ." The Charter states this principle
    against the backdrop of its preamble which decries the "untold
    sorrow" of the world wars of the twentieth century and calls war a
    "scourge." *Id*.

[^264]: Chapter 7, containing articles 39 through 51, applies to "Action
    with Respect to Threats to the Peace, Breaches of the Peace, and
    Acts of Aggression."

[^265]: While a thorough exposition of the *jus ad bellum* is beyond the
    scope of this article, some understanding of the field, and of its
    principal source, could work to eliminate confusion in legal
    analysis. For example, one might misidentify an issue as requiring
    analysis under the *jus in bello* which actually requires analysis
    under the *jus ad bellum*. Such confusion could lead to errant legal
    conclusions under the law of war.

[^266]: Malanczuk goes even further: "The prevailing view is that the
    Charter has enacted a comprehensive rule on the prohibition of the
    use of force, which has become recognized as *jus cogens* . . ."
    [Malanczuk, Introduction to International Law]{.smallcaps}, *supra*
    note Error: Reference source not found, at 311. The International
    Law Commission agrees: "the law of the Charter concerning the
    prohibition of the use of force in itself constitutes a conspicuous
    example of a rule in international law having the character of *ius
    cogens*." [Harris,]{.smallcaps} *supra* note Error: Reference source
    not found, at 835 (quoting International Law Commission, *Commentary
    on the Vienna Convention on the Law of Treaties*, 1966 [Y.B. Int'l
    L. Commission]{.smallcaps} 247-48). This is the view of the United
    States as well, as quoted from its pleadings at the International
    Court of Justice in the *Nicaragua* case. Military and Paramilitary
    Activities (Nicar. v. U.S.), 1986 I.C.J. 4. Taken from Article 53 of
    the 1969 Vienna Convention on the Law of Treaties, the concept of
    *jus cogens* constitutes "peremptory norm\[s\] of general
    international law," which become the most basic ordering concepts in
    international law. They are principles from which no treaty may
    derogate. Vienna Convention on the Law of Treaties, May 23, 1969,
    art. 53, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980)
    \[hereinafter Vienna Convention\]. In this way, *jus cogens* is the
    international legal norm that norms all other norms. Examples that
    are widely acknowledged by scholars include the rules against
    genocide and slavery.

[^267]: [U.N. Charter]{.smallcaps}, *supra* note Error: Reference source
    not found, at art. 2(4).

[^268]: *Id*. at art. 51.

[^269]: Several reasons may account for this. Chiefly, the negative
    effects of a threat are thought to pale in comparison to the effects
    of actual force. And, as Sadurska notes, there may actually be
    occasions in which the threat of force "far from precipitating
    fighting, may be an effective mechanism for dissuading international
    actors from using violence." R. Sadurska, *Threats of Force*, 82
    [Am. J. Int'l L.]{.smallcaps} 239, 247 (1988). In this way, the
    threat may actually work as a substitute for the use of force.

[^270]: A. Randelzhofer, *Article 2(4)*, *in* [The Charter of the United
    Nations: A Commentary]{.smallcaps} 118 (B. Simma, et al., eds.,
    1994) \[hereinafter Randelzhofer\].

[^271]: [Green]{.smallcaps}, *supra* note Error: Reference source not
    found, at 70.

[^272]: Randelzhofer, *supra* note Error: Reference source not found, at
    112, 113. The author points out that while these forms of coercion
    may not constitute "force" under Article 2(4), their use may violate
    the general principle of non-intervention.

[^273]: *Id.* at 113, 114.

[^274]: Military and Paramilitary Activities (Nicar. v. U.S.), 1986
    I.C.J. 4, 119.

[^275]: *See* discussion of information warfare, *infra* Part VI, § D.

[^276]: Such forms of self-defense occur when a State uses armed force
    to repel an "imminent" attack before it actually occurs.

[^277]: In its lengthy review of customary international law related to
    the use of force in the *Nicaragua* case, the International Court of
    Justice stated that the right of self-defense referenced in the
    Charter at Article 51, as an "inherent right," is firmly rooted in
    customary international law. This explicit provision in the Charter
    therefore provides parallel authority for the assertion of the
    right.

[^278]: In addition to wars of a defensive character, the U.N. Charter
    also authorizes armed force pursuant to authority by the Security
    Council. "Should the Security Council consider that measures
    provided for in Article 41 would be inadequate or have proved
    inadequate, it may take such action by air, sea or land forces as
    may be necessary to maintain or restore international peace and
    security." [U.N. Charter,]{.smallcaps} *supra* note Error: Reference
    source not found, at art. 42. Presumably, the enumeration of "air,
    sea or land forces" is meant to suggest that the Security Council
    may use *any* form of force it deems necessary, these three being
    the exhaustive means then in existence in 1945. On this
    interpretation, the list is not exclusive, but indicative of the
    scope of Security Council authority. Though not specifically
    mentioned, the use of space forces would be a legitimate exercise of
    authority as well.

[^279]: In addition to the fact that Article 2(4) applies to conflicts
    not formally constituting wars, Professor Harris points out an
    additional reason for this--the terms of the 1949 Geneva Conventions
    and the 1977 Protocols apply to "all cases of declared war or of any
    other armed conflict." Harris, *supra* note Error: Reference source
    not found, at 860 n.3.

[^280]: The laws of war have evolved with State practice regarding
    initiation of hostilities. De Mulinen points out that historically
    an armed conflict commenced with a previous warning either in the
    form of a declaration of war or an ultimatum containing a
    conditional state of war. *See* [De Mulinen]{.smallcaps}, *supra*
    note Error: Reference source not found, at 30. Subsequently, as such
    declarations and warnings fell out of use, the laws of war continued
    to apply to conflicts short of war. Thus, the common Article 2 to
    each of the four Geneva Conventions of 1949 applies the provisions
    of each convention to "all cases of declared war or of any other
    armed conflict which may arise between two or more of the High
    Contracting Parties. . . ." Geneva Convention I, *supra* note Error:
    Reference source not found, at art. 2; Geneva Convention II, *supra*
    note Error: Reference source not found, at art. 2; Geneva Convention
    III, *supra* note Error: Reference source not found, at art. 2;
    Geneva Convention IV, *supra* note Error: Reference source not
    found, at art. 2. The Conventions do not specify what constitutes an
    armed conflict, thus De Mulinen appears correct in asserting that
    "no minimum of intensity of violence or fighting, no minimum of
    military organization and no minimum of control of territory is
    required." [De Mulinen,]{.smallcaps} *supra* note Error: Reference
    source not found, at 31. Any armed violence between the
    representatives of one State and those of another will trigger
    application of the laws of war, whether the conflict amounts to
    "war" or not.

[^281]: Of the legal effects created by a formal state of war, perhaps
    the most interesting for purposes of the law of war is the
    termination of certain categories of treaties between the
    belligerent States. *See* J. Delbrück, *War, Effect on Treaties*,
    *in* [4 Encyclopedia of Public International Law 310
    (]{.smallcaps}Bernhardt, ed., 1982). Delbrück notes that the effect
    of war on treaty obligation is nowhere specifically enumerated. The
    older consensus was that war terminated all treaty relations and
    obligations as between the belligerents. The newer approach in
    international law takes a more flexible approach, preferring to
    preserve international order and to see war as simply suspending the
    execution of certain treaties. Thus Justice Benjamin Cardozo,
    writing as a judge on the Court of Appeals of New York anticipated
    the current trend, "international law today does not \[in cases of
    war\] preserve treaties or annul them regardless of the effects
    produced. It deals with such problems pragmatically, preserving or
    annulling as the necessities of war exact. It establishes standards,
    but it does not fetter itself with rules." *Id.* (quoting from
    *Techt* v*. Hughes*, 229 N.Y. 222, 241 (1920)). Delbrück continues,
    "\[w\]ar may now be illegal, but it has not thereby become a
    phenomenon outside the realm of law." *Id.* at 311. In this way, the
    law prefers to give effect to treaties to the maximum extent
    possible. Those treaties that must be suspended during war include
    multilateral treaties with which the belligerents are unable to
    comply due to the impact of the war. Those that will be terminated
    include political treaties that depend for their existence and
    proper functioning on normal political and social relations between
    the belligerents -- relations that are terminated by war.
    Significantly, though the Vienna Convention on the Law of Treaties
    provides that the severance of diplomatic relations between the
    parties to a treaty does not normally affect the legal relations
    between them as established by the treaty, the Convention does not
    specify how war effects the operation of treaties. Vienna
    Convention, *supra* note Error: Reference source not found, at art.
    63.

[^282]: [McDougal, et al]{.smallcaps}., *supra* note Error: Reference
    source not found, at 514.

[^283]: Space law is "a newcomer to the family of legal disciplines." I
    [United States Space Law: National & International Regulation
    17]{.smallcaps}, Release 98-2 (1998). That space law rightfully
    takes its place as a major branch of international law is now beyond
    question. Jennings notes seventeen categories of international law:
    (1) the position of States in international law, (2) the law
    relating to international peace and security, (3) the law relating
    to economic development, (4) State responsibility, (5) succession of
    States and governments, (6) diplomatic and consular law, (7) the law
    of treaties, (8) unilateral acts, (9) the law relating to
    international watercourses, (10) the law of the sea, (11) the law of
    the air, (12) the law of outer space, (13) the law relating to the
    environment, (14) the law relating to international organizations,
    (15) international law relating to individuals (including
    nationality, extradition, right of asylum and human rights), (16)
    the law relating to armed conflicts, and (17) international criminal
    law. *See* R.Y. Jennings, *International Law*, *in* 11 [Encyclopedia
    of Public International Law 278 (]{.smallcaps}Bernhardt, ed., 1982).

[^284]: P. Malanczuk, *Space Law as a Branch of International Law*, 1994
    [Neth. Y.B. Int'l L]{.smallcaps}. 143, 147 (1995) \[hereinafter
    Malanczuk, *Space Law*\].

[^285]: V. Kopal, *Evolution of the Doctrine of Space Law*, *in* [Space
    Law: Development and Scope]{.smallcaps} 17 (N. Jasentuliyana, ed.,
    1992).

[^286]: Although the U.S. had placed a man-made object in outer space
    prior to this, 1957 is considered the watershed year in which the
    "Space Age" is most often said to have begun. On October 4 of that
    year, the Soviet Union launched Sputnik I, the world's first
    man-made satellite. *See* [Heppenheimer]{.smallcaps}, *supra* note
    Error: Reference source not found, at 122.

[^287]: *See infra*, Part VI, § A.1.

[^288]: [Matte, Space Activities]{.smallcaps}, *supra* note Error:
    Reference source not found, at 175, 176.

[^289]: N. Jasentuliyana, *The Lawmaking Process in the United Nations*,
    in [Space Law: Development and Scope]{.smallcaps} 41 (N.
    Jasentuliyana, ed., 1992).

[^290]: [B.M. Hurwitz, The Legality of Space Militarization]{.smallcaps}
    29, 30 (1986) \[hereinafter [Hurwitz]{.smallcaps}\].

[^291]: *See* [McDougal, et al.,]{.smallcaps} *supra* note Error:
    Reference source not found, at 729.

[^292]: *See supra* note Error: Reference source not found.

[^293]: Of course, prohibitions could come from a variety of sources
    other than space treaties. Customary international law could also
    supply the requisite prohibition on State action. In the case cited
    however, as will be argued further below, no such prohibitions
    exist.

[^294]: As one source puts it, "Astrolaw contemplates the practice of
    law *in* outer space. . . . The direct subjects of Space Law are
    sovereign nations; the direct subjects of Astrolaw are natural and
    legal persons in space. . . . Astrolaw focuses not upon space as a
    legal regime, but upon space as a place." [G.S. Robinson & H.M.
    White, Jr., Envoys of Mankind: A Declaration of First Principles for
    the Governance of Space Societies]{.smallcaps} 147 (1986)
    \[hereinafter [Robinson & White]{.smallcaps}\]. Others refer to
    Astrolaw as a necessary supplement to the space law treaty system,
    and as a "common law of outer space." D. O'Donnell & N.C. Goldman,
    *Astro Law as Lex Communis Spatialis*, *in* [Proceedings of the
    Fortieth Colloquium on the Law of Outer Space 322]{.smallcaps}
    (1998).

[^295]: C.J. Cheng, *New Sources of International Space Law*, *in* [The
    Use of Air and Outer Space Cooperation and Competition]{.smallcaps}
    209 (C.J. Cheng, ed., 1998). Cheng further notes that although
    different titles for this body of law such as "Aerospace Law,"
    "International Law of Outer Space," "International Space Law,"
    "Space Law," and "The Law of Outer Space," "provide notional
    concepts about the scope of international space law . . . \[i\]n its
    inception, this new branch of law was defined as a corpus of rules
    which govern the space activity of *States*." *Id.* at 208 n.1, 209
    (emphasis added).

[^296]: Though this is true generally as a basic tenet of international
    law, it is especially true of space law which makes States
    internationally responsible for all national activity, whether
    public or private. *See* *infra* note Error: Reference source not
    found and accompanying text.

[^297]: In classical international legal theory, customary international
    law serves as a formal source of law. Thus, Article 38 of the
    Statute of the International Court of Justice charges the Court with
    resolving disputes in accord with international law by applying,
    inter alia, "international custom, as evidence of a general practice
    accepted as law." [Stat. of the ICJ,]{.smallcaps} *supra* note
    Error: Reference source not found, at art. 38.

[^298]: The two factors generally regarded as necessary for the
    crystallization of an emerging norm into customary law are the
    practice of States and general opinion that the norm under
    consideration bears the force of law. Thus Malanczuk writes,

    > \[w\]hen inferring rules of customary law from the conduct of
    > States, it is necessary to examine not only what States do, but
    > also why they do it. . . . State practice alone does not suffice;
    > it must be shown that it is accompanied by the conviction that it
    > reflects a legal obligation. . . . The technical name given to
    > this psychological element is *opinio iuris sive necessitatis*
    > (*opinio iuris* for short). It is usually defined as a conviction
    > felt by States that a certain form of conduct is required by
    > international law.

    [Malanczuk, Introduction to International Law]{.smallcaps}, *supra*
    note Error: Reference source not found, at 44. The author continues
    by pointing out the difficulty of ascertaining a state's *opinio
    juris* and the modern tendency to "infer *opinio iuris* indirectly
    from the actual behavior of States." *Id.*

[^299]: Malanczuk, *Space Law*, *supra* note Error: Reference source not
    found, at 159. *But see* opinion of Professor Diederiks-Verschoor,
    "customary law is already playing a significant role in space law,
    and . . . States have evidently found it necessary, if not
    expedient, to abide by its rules." [I.H.Ph. Diederiks-Verschoor, An
    Introduction to Space Law 12]{.smallcaps} (1993) \[hereinafter
    [Diederiks-Verschoor]{.smallcaps}\].

[^300]: As suggested in Part VI, § A.1.b., *infra*, the development of a
    *jus in bello* for space will likely track the method by which the
    *jus in bello* for aerial combat evolved. In the latter case, after
    over seventy years of aerial combat, the international community has
    yet to witness a treaty dedicated to means and methods of aerial
    warfare. The incremental, customary development of an aerial *jus in
    bello* will likely be the pattern for space warfare.

[^301]: Although a minority view, some scholars denied the existence of
    *any* customary law for outer space in the early days of space
    flight. Thus, as late as 1961, Professor Cooper wrote

    > it is quite impossible to apply international legal principles in
    > a satisfactory manner in any geographic area whose legal status is
    > unknown. Today the legal status of outer space is as vague and
    > uncertain as was the legal status of the high seas in the
    > centuries before Grotius, in the *Mare Liberum*, focused attention
    > on the need of the world to accept the doctrine of the freedom of
    > the seas. . . . \[N\]o general customary international law exists
    > covering the legal status of outer space.

    J.C. Cooper, *The Rule of Law in Outer Space*, 47 [Am. Bar Ass'n
    J.]{.smallcaps} 23 (1961) (quoted in [Matte, Space
    Activities]{.smallcaps}, *supra* note Error: Reference source not
    found, at 83).

[^302]: B. Cheng, *United Nations Resolutions on Outer Space: 'Instant'
    International Customary Law?*, 5 [Indian J. Int'l L]{.smallcaps}. 23
    (1965) \[hereinafter Cheng, *'Instant' Customary Law*\]. In his
    fascinating article, Professor Cheng challenged the orthodox view of
    customary law. Placing greater stress on the requirement that States
    express acceptance of a general practice (*opinio juris*), Cheng
    continued by noting that

    > it may be permissible to go further and say that the role of usage
    > in the establishment of rules of international customary law is
    > purely evidentiary: it provides evidence on the one hand of the
    > contents of the rule in question and on the other hand of the
    > *opinio juris* of the States concerned. Not only is it unnecessary
    > that the usage should be prolonged, but there need also be no
    > usage at all in the sense of repeated practice, provided that the
    > *opinio juris* of the States concerned can be clearly established.
    > Consequently, international customary law has in reality only one
    > constitutive element, the *opinio juris*. Where there is *opinio
    > juris*, there is a rule of international customary law.

    *Id.* at 36. Though this attenuated view of customary law is widely
    disputed, Cheng's watershed 1965 article largely framed the debate.
    Indeed, no less a distinguished scholar than R. Bernhardt regards
    the notion of instant custom a distinct possibility under
    exceptional cases (though not under "traditional concepts") in which
    such instant law is useful or necessary "at least if a new rule is
    accepted without exception and the conduct of States conforms to it
    and no measures contrary to the rule are taken." Malanczuk, *Space
    Law*, *supra* note Error: Reference source not found, at 160-61.
    *See* R. Bernhardt, *Customary Law*, *in* 7 [Encyclopedia of Public
    International Law]{.smallcaps} 61, 64-65 [(]{.smallcaps}Bernhardt,
    ed., 1982). Perceptively, Malanczuk notes that the exceptional cases
    about which Bernhardt allows under the rubric "customary law" are
    nothing of the sort. "There may indeed be a need for this, but then
    it is not custom but some other (new) source of international law."
    [Malanczuk, Introduction to International Law]{.smallcaps}, *supra*
    note Error: Reference source not found, at 46.

[^303]: North Sea Continental Shelf Cases (F.R.G. v. Den.; F.R.G. v.
    Neth.), 1969 I.C.J. Rep. 4, 43 \[hereinafter North Sea Continental
    Shelf Cases\]. Specifically, the Court stated that "an indispensable
    requirement would be that within the period in question, short
    though it might be, State practice, including that of States whose
    interests are specially affected, should have been both extensive
    and virtually uniform in the sense of the provision invoked." *Id*.
    This cautionary approach requires that to the extent the time
    element is shortened, State agreement on the emerging norm must
    increase. Yet, nowhere does the Court allow that the requirement for
    the passage of time may be dispensed with, even in cases of perfect
    unanimity.

[^304]: Military and Paramilitary Activities (Nicar. v. U.S.), 1986
    I.C.J. 4, 97.

[^305]: North Sea Continental Shelf Cases, *supra* note Error: Reference
    source not found, at 42.

[^306]: H. Lauterpacht, *Sovereignty Over Submarine Areas*, 1950 [Brit.
    Y.B. Int'l L.]{.smallcaps} 376, 394. The author went on to point
    out, by way of example, the special importance of maritime powers
    such as the U.S. and U.K. for matters pertaining to the seas. To
    this perspective can be added the view of Virally, writing on the
    eve of the *North Sea* decisions: "\[f\]irm opposition of a number
    of states, especially if they constitute an appreciable section of
    the international community *or comprehend one or more of the great
    powers*, may no doubt obstruct the formation of a general customary
    rule." M. Virally, *The Sources of International Law*, *in* [Manual
    of Public International Law]{.smallcaps} 137 (M. Sørensen, ed.,
    1986) (emphasis added).

[^307]: J.I. Charney, *The Persistent Objector Rule and The Development
    of Customary International Law*, 1985 [Brit. Y.B. Int'l
    L]{.smallcaps}. 1 (1986) \[hereinafter Charney\]. In those cases
    involving persistent objectors not "specially affected,"
    international law allows that although the customary norm under
    development may fully ripen into customary international law, the
    objecting State is not bound. Thus held the International Court of
    Justice in both the *Anglo-Norwegian Fisheries* and *Asylum* cases.
    In the former, the Court stated "\[i\]n any event the ten-mile rule
    would appear to be inapplicable as against Norway inasmuch as she
    has always opposed any attempt to apply it to the Norwegian coast."
    Fisheries Case (U.K. v. Nor.) 1951 I.C.J. 116, 131. In the *Asylum*
    case, the Court stated that "even if it could be supposed that such
    a custom existed between certain Latin-American States only, it
    could not be invoked against Peru which, far from having by its
    attitude adhered to it, has, on the contrary, repudiated it." Asylum
    Case (Colom. v. Peru) \[1950\] I.C.J. 266, 277-78. "In both
    \[cases\], the Court had previously found that the substantive rule
    of law did not exist in the first place. The Court then went on to
    allow that even if the rule were international law, the objecting
    States in these cases would not legally be obligated to abide by the
    rule." Charney, *id*. at 9. *Accord* [I Restatement (Third) of
    Foreign Relations Law of the United States]{.smallcaps}, § 102 cmt.
    d (1987) (stating, "in principle a dissenting state which indicates
    its dissent from a practice while the law is still in the process of
    development is not bound by that rule of law even after it
    matures.") This is not to say that a State must express its
    affirmative *consent* in order to be bound by customary law, just
    that its objection can work to remove its obligation to comply with
    the subsequent customary norm that crystallized over its objection.

[^308]: Among this number would certainly include the United States,
    Russia, the United Kingdom, France, China, India, and Japan.

[^309]: This examination of interested State practice appears to be the
    method employed consistently by the International Court of Justice
    in its examination of customary law, and comports with the opinion
    expressed by numerous scholars today. Thus, in the *Nicaragua* case,
    the Court undertook to establish the customary legal basis for the
    principle of nonintervention as it analyzed the dispute between the
    United States and Nicaragua. In so doing, the Court pointed out that
    although the U.S. expressed its opinion that U.N. General Assembly
    Resolution 2131 was not a formulation of law but only a statement of
    political intention, the U.S. later accepted resolution 2625 which
    purported to declare law on the same point as resolution 2131.
    Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J.
    4, 107. The Court's exercise in resolving the apparent U.S.
    reservation to the principle of nonintervention is instructive, and
    makes the most sense when viewed as an attempt to show that the U.S.
    was not a persistent objector to the principle. In this light, the
    Court has employed a method logically flowing from its prior
    assertion as to the required acceptance of "specially affected"
    States in the formation of customary international law. Given this
    disposition of the court, and apparently of international law in
    general, the emerging practice of the United States with respect to
    the recognition (or nonrecognition) of restrictions on space
    warfare, becomes most important.

[^310]: Malanczuk, *Space Law*, *supra* note Error: Reference source not
    found, at 159.

[^311]: *See* *id.*

[^312]: *See infra*, Part IV, § B.1.

[^313]: This is subject to the observation that debate now exists as the
    to status of *potential* customary norms not otherwise addressed by
    treaty law. These include the notion that international law
    recognizes a right of space objects, headed either to or from outer
    space, to freely transit the sovereign airspace of other States.
    Although some have pointed to the lack of objection by certain
    States in the case of occasional violations of its airspace by space
    objects as evidence that the "norm" has crystallized, this view is
    highly suspect. At a minimum these anecdotal occasions assume that
    the violated state was aware of the intrusion--unlikely in most
    cases usually cited. Thus Malanczuk observes that

    > the contention can hardly be sustained that the practice of space
    > powers to launch their space objects into outer space after 1957
    > by crossing the air space under the sovereignty of other countries
    > developed into custom by the acquiescence of those States. The
    > countries affected simply often lacked the technological
    > capacities to find out.

    [Malanczuk, Introduction to International Law]{.smallcaps}, *supra*
    note Error: Reference source not found, at 43. Beyond this, even if
    a State knew about the violation, isolated instances of an intrusion
    followed by a mere failure to protest is hardly sufficient to
    establish a customary norm binding the entire international
    community. More than this would be necessary to evince the requisite
    *opinio juris*. Thus Professor Wassenberg writes

    > There is no a \[sic\] right of (instant?) *customary*
    > international law that space objects can 'freely' transit through
    > foreign airspace. The fact that in practice so far no objections
    > have been raised against transit through a State's airspace by a
    > foreign space object, is not an argument to refer to a customary
    > right of transit, as too few States have considered to be
    > confronted with such transit (and none have been), and no *opinio
    > juris* with respect to such practice has been pronounced as yet.

    [H.A. Wassenbergh, Principles of Outer Space Law in
    Hindsight]{.smallcaps} 36 (1991). By contrast, the widespread
    recognition of the principle of freedom of space, though it came
    rather quickly following the Soviet launch of Sputnik I, was
    accompanied not only by the lack of objection in the face of orbital
    overflights, but affirmative acquiescence by most States in the form
    of United Nations resolutions. An additional customary norm pertains
    to the right of space surveillance. In this instance a much stronger
    case can be made that international law contains a customary norm to
    freely observe other States. As Professor Diederiks-Verschoor notes
    "\[i\]t is important to bear in mind that there is as yet no
    statutory obligation on States, in U.N. Resolutions or elsewhere, to
    ask for prior consent . . ." [Diederiks-Verschoor]{.smallcaps},
    *supra* note Error: Reference source not found, at 11. Given this,
    and given the general international legal principle that in the
    absence of prohibition States are free to act as they please, it is
    perhaps better to see the right of space surveillance not so much as
    requiring specific authorization by an explicit customary norm but
    as the natural prerogative of a State flowing from its sovereignty
    and from the principle that space is free.

[^314]: For example, as of 1993, Colombia and Indonesia had not ratified
    any of the multilateral space treaties; Iran had ratified the Rescue
    & Return Agreement, and Liability Convention; and Yugoslavia had
    ratified the Rescue & Return Agreement, Liability Convention, and
    Registration Convention. Resolution of the difficult question of the
    Federal Republic of Yugoslavia's uncertain status within
    international law and its succession to treaties ratified by the
    Socialist Federal Republic of Yugoslavia is to some extent ongoing
    as of this writing (July 2000). For discussion of the international
    legal implication of the dissolution of the former Yugoslavia, *see*
    [Harris]{.smallcaps}, *supra* note Error: Reference source not
    found, at 120-31.

[^315]: For example, in addition to the two principles cited above,
    namely, the freedom of space for use and exploration, and the
    prohibition on national appropriation of space or celestial bodies,
    a third customary principle provides for the rescue of astronauts in
    distress. Regarding the first two cited principles, see *supra* note
    Error: Reference source not found and accompanying text.

[^316]: Established by resolution of the U.N.G.A. in 1958, COPUOS has
    served as a central forum for international negotiations toward the
    development of space law. Although made up of only 61 members, less
    than one-third of the United Nations membership, and unable to adopt
    rules and regulations binding on State parties (unlike the
    International Civil Aviation Organization for example), COPUOS has
    nonetheless played a remarkably effective role in the early
    development of space law. Of the five treaties now in force under
    the *corpus juris spatialis*, all five originated within COPUOS.
    With only one exception in 1982, COPUOS has acted on the basis of
    consensus. "In other words, every member of the Committee . . . was
    given a veto." Cheng, *'Instant' Customary Law*, *supra* note Error:
    Reference source not found, at 27. As might be expected, this makes
    the negotiation and drafting process "detailed, laborious, and
    time-consuming." N. Jasentuliyana, *The Lawmaking Process in the
    United Nations*, *in* [Space Law: Development and Scope]{.smallcaps}
    34 (N. Jasentuliyana, ed., 1992). This principle of
    action-by-consensus also increases the commitment to the legal
    regimes created as well.

    This is not to suggest that COPUOS is the only international body
    concerned with space law. The scope of COPUOS' mandate in the
    progressive development of space law excludes consideration of
    military uses, which the major space powers relegate to "fora
    dealing with disarmament and arms control issues." Malanczuk, *Space
    Law*, *supra* note Error: Reference source not found, at 150. The
    most notable such forum is the U.N. Conference on Disarmament. As of
    2000, there were sixty-one member States of COPUOS (unchanged from
    1995): Albania, Argentina, Australia, Austria, Belgium, Benin,
    Brazil, Bulgaria, Burkina Faso, Cameroon, Canada, Chad, Chile,
    China, Colombia, Cuba, Czech Republic, Ecuador, Egypt, France,
    Germany, Greece, Hungary, India, Indonesia, the Islamic Republic of
    Iran, Iraq, Italy, Japan, Kazakhstan, Kenya, Lebanon, Mexico,
    Mongolia, Morocco, Netherlands, Nicaragua, Niger, Nigeria, Pakistan,
    Philippines, Poland, Portugal, Republic of Korea, Romania, Russian
    Federation, Senegal, Sierra Leone, South Africa, Spain, Sudan,
    Sweden, Syrian Arab Republic, Turkey, Ukraine, the United Kingdom,
    the United States, Uruguay, Venezuela, Viet Nam, and Yugoslavia.
    COPUOS, *Membership of the Committee on the Peaceful Uses of Outer
    Space*, U.N. Doc. A/AC.105/602 1 (1995).

[^317]: Treaty on Principles Governing the Activities of States in the
    Exploration and Use of Outer Space in the Exploration and Use of
    Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27,
    1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 (entered into force Oct. 10,
    1967) \[hereinafter Outer Space Treaty\].

[^318]: Namely, Resolution 1772, Jan. 3, 1962, *International
    Co-operation in the Peaceful Uses of Outer Space*; Resolution 1962
    (XVIII), Dec. 13, 1963, *Declaration of Legal Principles Governing
    Activities of States in the Exploration and Use of Outer Space*, and
    Resolution 1963 (XVIII), Dec. 13, 1963, *International Co-operation
    in the Peaceful Uses of Outer Space.* For a discussion of the
    second, and most important of these resolutions, see *infra* notes
    Error: Reference source not found--Error: Reference source not found
    and accompanying text.

[^319]: [Robinson & White]{.smallcaps}, *supra* note Error: Reference
    source not found, at 181.

[^320]: N. Jasentuliyana, *The Role of Developing Countries in the
    Formation of Space Law*, XX:II [Annals Air & Space L]{.smallcaps}.
    95, 97 (1995) \[hereinafter Jasentuliyana, *Developing Countries*\].

[^321]: I.A. Vlasic, *A Survey of the Space Law Treaties and Principles
    Developed Through the United Nations*, *in* [Proceedings of the
    Thirty-Eighth Colloquium on The Law of Outer Space]{.smallcaps} 324
    (1996).

[^322]: "\[The Outer Space Treaty\] represents *de facto* and *de jure*
    the constitution of outer space." I.A. Vlasic, *Some Thoughts on
    Negotiating and Drafting Arms Control and Disarmament Agreements
    Relating to Outer Space*, *in* IV [Arms Control and Disarmament in
    Outer Space: Towards a New Order of Survival]{.smallcaps} 203, 212
    (M.N. Matte, ed., 1991) \[hereinafter Vlasic, *Negotiating and
    Drafting Agreements Relating to Outer Space*\]. Subsequent
    multilateral space law treaties serve primarily as commentaries and
    clarifications of the Outer Space Treaty.

[^323]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at art. II.

[^324]: Private entrepreneurs are now declaring their intent to make
    claims of ownership over asteroids. *See*, *e.g.*, P. Landesman,
    *Starship Private Enterprise*, [The New Yorker,]{.smallcaps} Oct.
    26, 1998, at 178. As a matter of law, the possibility of private
    appropriation has been widely rejected as an implicit violation of
    the Outer Space Treaty's "no-sovereignty-in-outer-space" provision.
    However, growing privatization of space activities, recognition of
    the economic benefits of commercialization, differentiation of space
    resources from ocean resources, and hesitation among venture
    capitalists to invest short of security interests backed by
    ownership may lead to a gradual change in practice and law. The
    positions of Wassenberg and Gorove that private appropriation does
    not violate the Outer Space Treaty, while a minority view today, may
    became the majority view in the twenty-first century. *See* H.
    Wassenbergh, *Responsibility and Liability for Non-Governmental
    Activities in Outer Space,* *in* [ECSL Summer Course on Space Law
    and Policy: Basic Materials]{.smallcaps} 197 (1994); S. Gorove,
    *Interpreting Article II of the Outer Space Treaty*, 37 [Fordham L.
    Rev.]{.smallcaps} 349, 351 (1969). Indeed, "some scholars writing in
    the wake of the Outer Space Treaty's ratification took the position
    that Article 2's no-sovereignty provisions bar *any* property rights
    in outer space resources. That position has lost its popularity over
    time, however, and is no longer held by many scholars." [Reynolds &
    Merges,]{.smallcaps} *supra* note Error: Reference source not found,
    at 82. As an example, some business interests have begun planning to
    construct space resorts. "The Space Transportation Association, an
    industry lobbying group, recently created a division devoted to
    promoting space tourism, which it sees as a viable way to spur
    economic development beyond earth." T. Beardsley, *The Way to Go in
    Space*, 280:2 [Scientific American,]{.smallcaps} Feb. 1999, at 81.
    *See also* W.B. Scott, *Studies Claim Space Tourism Feasible*,
    146:14 [Av. Wk. & Space Tech]{.smallcaps}*.*, Apr. 7, 1997, at 58.

[^325]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at art. VI.

[^326]: As State responsibility for national space activity has been a
    cornerstone of the *corpus juris spatialis* since 1967, it may well
    be a principle of customary international law binding
    non-contracting States as well.

[^327]: The idea appeared previously in Principle 5 of U.N.G.A.
    Resolution 1962 (XVIII). However, this Resolution did not legally
    bind any State. *See* discussion *infra* note Error: Reference
    source not found.

[^328]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at art. IX.

[^329]: The entire body of international space law as it applies to
    space warfare is subject to the limitations effected by a state of
    war between belligerents. The difficult question of how an armed
    conflict terminates or modifies obligations otherwise binding on
    belligerents in peacetime cannot be avoided with respect to space
    warfare. For an example, see *supra* note Error: Reference source
    not found and accompanying text.

[^330]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at art. IX.

[^331]: Though Article IX also requires States to "conduct all their
    activities in outer space . . . with due regard to the corresponding
    interests of all other States Parties to the Treaty," this vague
    exhortation could just as likely apply to the activities of States
    on earth as well. Outer Space Treaty, *supra* note Error: Reference
    source not found, at art. IX. Certainly as a general proposition the
    intentional creation of harmful contamination would run counter to
    various principles of international law. However, as is often the
    case with armed conflict, the law recognizes that as a matter of
    brute reality, certain activities illegitimate in peace will be
    tolerated in war. Thus, in analyzing space warfare, the *corpus
    juris spatialis* cannot be read in isolation from the law of war. In
    the context of armed conflict, Article IX seems to create no greater
    duty for States with respect to the space environment than that
    which exists for the terrestrial environment. *But see* Professor
    Vlasic, "\[a\]lthough these provisions apparently are not aimed at
    hostile uses of outer space, they could nonetheless be invoked
    against military activities not otherwise banned by the Treaty."
    Vlasic, *Space Law and Military Applications*, *supra* note Error:
    Reference source not found, at 397.

[^332]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at art. IX.

[^333]: [B. Reijnen, The United Nations Space Treaties
    Analysed]{.smallcaps} 130-31 (1992) \[hereinafter
    [Reijnen]{.smallcaps}\].

[^334]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at art. IV.

[^335]: I.A. Vlasic, *The Legal Aspects of Peaceful and Non-Peaceful
    Uses of Outer Space*, *in* [Peaceful and Non-Peaceful Uses of Space:
    Problems of Definition for the Prevention of an Arms
    Race]{.smallcaps} 37, 39 (B. Jasani, ed., 1991) \[hereinafter
    Vlasic, *Peaceful and Non-Peaceful Uses of Outer Space*\].

[^336]: *Id.*

[^337]: *Id.* (quoting text of letter as contained in [McDougal, et
    al]{.smallcaps}., *supra* note Error: Reference source not found, at
    395).

[^338]: *Id.* at 40.

[^339]: [C.Q. Christol, The Modern International Law of Outer
    Space]{.smallcaps} 22 (1982) \[hereinafter [Christol, Modern
    International Law of Outer Space]{.smallcaps}\]. In addition to the
    textual problems associated with equating the terms peaceful and
    non-military, (indeed Article IV itself contemplates the military
    use of space for scientific research) the interpretation suffers
    from a practical difficulty. Just about any use of space can support
    a military purpose. Thus, even if a satellite were developed,
    tested, launched, and controlled by a "civilian" organ of State
    government, the information it provided could be useful for military
    purposes. Weather, navigation, communications, and remote sensing
    are just a few applications of space capabilities of great use to
    military forces. To say that the Outer Space Treaty forbids this
    activity seems highly dubious. Yet this is the logical extension of
    the claim that all uses of space must scrupulously avoid any
    military uses and thereby remain peaceful.

[^340]: *See* *id.* at 29.

[^341]: Indeed the term includes the prospect of space weapons as well.

    > If one chooses to ignore the controversy concerning the 'true'
    > meaning of 'peaceful' in the Outer Space Treaty, it is safe to
    > conclude that the Treaty permits the deployment in outer space of
    > anti-satellite weapons, directed energy weapons, or any other kind
    > of weapon, as long as these weapons are not in conflict with the
    > prohibitions of Article IV \[such as weapons of mass destruction
    > in orbit\] of the Outer Space Treaty, or some other international
    > agreement.

    Vlasic, *Space Law and Military Applications*, *supra* note Error:
    Reference source not found, at 397. As a linguistic matter, though
    the true meaning of peaceful can just as accurately mean
    "non-aggressive," (in part evidenced by the fact that Article IV
    forbids military bases, installations, fortifications, and
    maneuvers--a meaningless partial demilitarization if "peaceful"
    simply means "non-military") the relevant issue is this: what does
    the term allow and what does it prohibit under the law? On this, the
    *corpus juris spatialis* is clear.

[^342]: *See infra* notes Error: Reference source not found, Error:
    Reference source not found and accompanying text. Though none go so
    far as the Antarctic Treaty in divorcing "military" activities from
    "peaceful purposes," other treaties specifically suggest that
    "peaceful," as used therein, means non-military. Thus,

    > \[a\]n examination of agreements which use the term
    > 'peaceful'--namely, the Statute of the International Atomic Energy
    > Agency; the Antarctic Treaty; the Treaty for the Prohibition of
    > Nuclear Weapons in Latin America; the Convention on the
    > Prohibition of the Development, production and Stockpiling of
    > Bacteriological (Biological) and Toxic Weapons and Their
    > Destruction; and the Convention on the Prohibition of Military or
    > Any Other Hostile Use of the Environmental Modification
    > Techniques--shows that in all these treaties the term 'peaceful'
    > is used in contradistinction to 'military.'

    Vlasic, *Negotiating and Drafting Agreements Relating to Outer
    Space*, *supra* note Error: Reference source not found, at 215.
    Assuming for the sake of argument that this interpretation is
    accepted for each treaty cited, the exercise simply demonstrates
    that when the drafters of a treaty intend for "peaceful" to mean
    non-military, they so state. In the absence of doing so, one cannot
    simply assume it. For example, Article 88 of the United Nations
    Convention on the Law of the Sea specifies that "the high seas shall
    be reserved for peaceful purposes." United Nations Convention on the
    Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397, *reprinted in* 21
    I.L.M. 1261 (entered into force Nov. 16, 1994). Given the history of
    State practice on the high seas, no one assumed that this article
    turned the high seas into a demilitarized zone. This provision "most
    certainly cannot be interpreted to mean that military uses of the
    high seas are prohibited. Both customary law and the uniform
    practice of States, before 1982 and after, are crystal clear on this
    point." Vlasic, *Negotiating and Drafting Agreements Relating to
    Outer Space*, *supra* note Error: Reference source not found, at
    215. Unless the treaty specifies that "peaceful" means non-military,
    or its negotiating history makes it obvious, it cannot be assumed.

[^343]: Agreement Among the Government of Canada, Governments of Member
    States of the European Space Agency, The Government of Japan, The
    Government of the Russian Federation, and The Government of the
    United States of America Concerning Cooperation on the Civil
    International Space Station, Jan. 29, 1998, art. 1(1), [IV United
    States Space Law: National & International Regulation]{.smallcaps}
    98-1 (S. Gorove, ed., 1998) \[hereinafter ISS Agreement\].

[^344]: *Id.* at art. 9 ¶ 3(b).

[^345]: [Christol, Modern International Law of Outer Space]{.smallcaps},
    *supra* note Error: Reference source not found, at 20.

[^346]: Christol quotes the principal U.S. negotiator of the treaty,
    Ambassador Arthur Goldberg, for this proposition: "'obviously
    whatever the definition of outer space, the Moon and other celestial
    bodies are in outer space.'" *Id.* at 21.

[^347]: *Id.* at 24.

[^348]: Professor Vlasic provides one insight as to why the U.S.
    preferred to restrict the application of "peaceful purposes" to the
    moon and celestial bodies: "According to \[a\] former Legal Advisor
    in the U.S. Department of State, the "language of Article IV was
    carefully chosen to ensure that general principle of 'peaceful uses'
    would not interfere with the testing" of weapons such as nuclear
    ballistic missiles." Vlasic, *Peaceful and Non-Peaceful Uses of
    Outer Space*, *supra* note Error: Reference source not found, at 42.
    Of course, on the widely-accepted view that peaceful means
    non-aggressive, such testing would not have been a problem. Indeed,
    on this understanding, the actual use of weapons in space can be
    peaceful if compliant with the *jus ad bellum*. Thus, Professor
    Christol's pragmatic recognition that

    > \[i\]t is a fact that \[Article 4(2)\] says that the moon and
    > celestial bodies *full stop* shall be used exclusively for
    > peaceful purposes; and by that I take it to mean that this
    > inhibition or restriction does not apply to outer space today.
    > Though I do realize that there are many who make arguments which
    > sometimes are a little overreaching, and whereas my sympathies go
    > with them, my legal training tells me that we had better not read
    > it that way . . .

    C. Christol, *Discussion*, in [M. Cohen & M.E. Gouin, Lawyers and
    the Nuclear Debate]{.smallcaps} 233 (1988).

[^349]: *See supra* notes Error: Reference source not found-Error:
    Reference source not found and accompanying text.

[^350]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at art. III.

[^351]: National Aeronautics and Space Act of 1958, 42 U.S.C. § 2451(a)
    (1994).

[^352]: The White House, National Science and Technology Council,
    *National Space Policy*, Sept. 19, 1996 (from the Introduction). The
    policy statement articulates the long-held U.S. position on the
    meaning of peaceful purposes by stating that "'Peaceful purposes'
    allow defense and intelligence-related activities in pursuit of
    national security and other goals." *Id.* ¶ 3.

[^353]: "In the case of weapons systems, there is a much broader feeling
    \[beyond that for military support systems\] that they are
    destabilizing and should be banned." P. Jankowitsch, *Legal Aspects
    of Military Space Activities*, *in* [Space Law: Development and
    Scope]{.smallcaps} 143, 150 (N. Jasentuliyana, ed., 1992). Further,
    in a fascinating recent article, Lieutenant Colonel Bruce DeBlois
    argued that for reasons of national policy, the U.S. should resist
    the urge to weaponize space with ASATs. He boldly proclaims the U.S.
    National Space Policy "weak and ambiguous" with "no clear vision"
    and no one "in charge," and that for space matters "few people would
    argue" that the U.S. is "fumbling around in an ad hoc manner."
    DeBlois, *supra* note Error: Reference source not found, at 52. Yet
    even this advocate of the "space sanctuary" school recognizes that
    "except for \[weapons of mass destruction\] and \[anti-ballistic
    missile systems for the U.S. and Russia\], no international
    prohibition on space weapons exists." *Id.* at 46.

    It is beyond the scope of this article to fully consider the policy
    merits of weaponizing space. However, the debate that Lieutenant
    Colonel DeBlois invites is sure to yield a flood of comment, much of
    which will no doubt take issue with his central premise that space
    weapons are ultimately destabilizing. With respect to ASATs in the
    context of the cold war, Stares helpfully summarizes the opposing
    positions, portions of which still carry some currency in the
    post-cold war era:

    > \[The pro-ASAT school\] starts from the belief that space is just
    > another military arena where satellites will have to adapt to new
    > threats with new countermeasures in the same way that their
    > counterparts on earth have adapted. . . . \[Proponents believe the
    > U.S. can\] deny the Soviets the use of their space assets in
    > wartime while simultaneously preserving the security of U.S. space
    > systems. Moreover, they argue that any attempt to constrain the
    > development of antisatellite systems is illogical and unfeasible;
    > illogical because there are no such limitations on weapons capable
    > of attacking, say, high-flying reconnaissance aircraft or early
    > warning radars, and unfeasible because of the unavoidable presence
    > of the residual antisatellite systems . . . . The second school .
    > . . starts from the belief that the United States is more
    > dependent on the service of military satellites than the Soviet
    > Union is and therefore has more to lose in the event of
    > hostilities in space. The proponents of this view remain highly
    > skeptical of the United States' ability to defend its vital space
    > assets in the face of unconstrained antisatellite development by
    > the Soviet Union. In addition to stimulating an expensive and in
    > the end fruitless competition, they believe an ASAT arms race
    > could seriously erode superpower stability during a severe crisis.
    > Specifically, the knowledge that the other side had a highly
    > effective ASAT weapon system capable of crippling one's own vital
    > early warning and strategic communication satellites could become
    > an overwhelming incentive to strike first in a major superpower
    > crisis.

    [Stares, Space and National Security]{.smallcaps}, *supra* note
    Error: Reference source not found, at 5.

[^354]: Because the Outer Space Treaty does not define nuclear weapon
    its prohibition has stimulated debate over newer technologies such
    as the X-ray laser which is powered by a nuclear explosion. Whether
    a nuclear-powered laser is a nuclear weapon will mean the difference
    between its lawful orbiting of earth or not. P. Jankowitsch, *Legal
    Aspects of Military Space Activities*, *in* [Space Law: Development
    and Scope]{.smallcaps} 147 (N. Jasentuliyana, ed., 1992). Given its
    destructive power, the military significance of such a laser will be
    tremendous. For example, the intense X-rays emitted as a result of
    the initial nuclear blast lead some to speculate that one X-ray
    laser no larger than a packing crate would be able to destroy the
    entire Russian ICBM arsenal if they were launched at one time in a
    massive attack. [Taylor]{.smallcaps}, *supra* note Error: Reference
    source not found, at 36. In addition to the possibility that such
    weapons may be nuclear weapons under the Outer Space Treaty, their
    immense destructive capability may otherwise render them weapons of
    mass destruction.

[^355]: Professor Stojak points out that though it is unlikely to
    happen, the change could occur without a new treaty were Article
    IV(1) modified to read:

    > States Parties to the Treaty undertake not to place *in outer
    > space* \[instead of "in orbit around the earth"\] any objects
    > carrying nuclear weapons or any other kinds of weapons of mass
    > destruction, install such weapons on *the moon or* on celestial
    > bodies, or station *weapons* \[instead of "such weapons"\] in
    > outer space in any other manner.

    M.L. Stojak, *Recent Developments in Space Law*, *in* [Arms Control
    and the Rule of Law: A Framework for Peace and Security in Outer
    Space]{.smallcaps} 62 (J.M. Beier & S. Mataija, eds., 1998)
    \[hereinafter Stojak\].

[^356]: The exception to this applies only to the U.S. and Russia under
    the Anti-Ballistic Missile Treaty, which prohibits interference with
    "national technical means" of arms control verification. See *infra*
    Part V, § A.2. With respect to the ban on orbiting of nuclear or
    other weapons of mass destruction, it has been widely observed that
    the proscription does not extend to partial orbits.

    > To be 'in orbit,' an object must circumnavigate the planet at
    > least one full time. When, on Nov. 3, 1967, U.S. Secretary of
    > Defense McNamara announced that the U.S.S.R. had been testing a
    > Fractional Orbiting Bombing System (FOBS), that could become
    > operational in 1968, he hastened to add that as such an object,
    > while entering outer space, does not completely circle the globe,
    > it, like an intercontinental ballistic missile, was not in
    > violation of the 1967 treaty.

    [Hurwitz]{.smallcaps}, *supra* note Error: Reference source not
    found, at 111.

[^357]: For discussion of the prohibition on nuclear weapons tests in
    space, see *infra* notes Error: Reference source not found-Error:
    Reference source not found and accompanying text.

[^358]: W.E. Burrows, *The Military in Space: Securing the High Ground*,
    *in* [Space: Discovery and Exploration]{.smallcaps} 142 (M.J.
    Collins & S.K. Kraemer, eds., 1993) (quoting speech by Brigadier
    General Homer A. Boushey).

[^359]: Agreement on the Rescue of Astronauts, the Return of Astronauts,
    and the Return of Objects Launched into Outer Space, Apr. 22, 1968,
    672 U.N.T.S. 119, 19 U.S.T. 7570, T.I.A.S. No. 6599, (entered into
    force Dec. 3, 1968) \[hereinafter Rescue & Return Agreement\].
    Although widely used, the shorthand "astronaut agreement" is
    unfortunate because it masks the treaty's application to return of
    *objects* as well as astronauts. A better shorthand reference would
    be the "rescue and return agreement." [Christol, Modern
    International Law of Outer Space]{.smallcaps}, *supra* note Error:
    Reference source not found, at 152.

[^360]: Though never defined, it seems best to think of a space object
    as something distinct from astronauts. However, when international
    law finally settles on a definition of space object it may include
    astronauts. *See* *infra* note Error: Reference source not found.

[^361]: Other than the Moon Agreement, the U.S. and Russia are parties
    to four of the five multilateral treaties under the *corpus juris
    spatialis*. For discussion of the Moon Agreement, see *infra*, Part
    IV, § B.5.

[^362]: Though the treaty does not specify whether the notifications to
    the launching authority and the U.N. Secretary General are
    conjunctive or disjunctive, the language of Article 2 requiring
    similar notifications is conjunctive.

[^363]: Rescue & Return Agreement, *supra* note Error: Reference source
    not found, at art. 1.

[^364]: *Id.* at art. 2. Article 2 further specifies that if assistance
    by the launching authority would "effect a prompt rescue or would
    contribute substantially to the effectiveness of search and rescue
    operations" it *shall* cooperate with the State Party in whose
    territory the astronaut has landed. *Id*. This raises two
    observations. First, if the conditions for cooperation are
    satisfied, the launching authority must assist. Second, because
    Article 6 defines launch authority, in part, as "the State
    responsible for launching," it could constitute a State other than
    the astronaut's home state. For example, when the U.S. launches
    Canadian, French, or Spanish astronauts on its Space Shuttle, if the
    occupants were to land in the territory of another contracting party
    by reason of "accident, distress, emergency, or unintended landing,"
    the U.S. as "launching authority" could be required under Article 2
    to assist in any recovery efforts. *Id.* Such efforts would then be
    "subject to the direction and control of the Contracting Party,
    which shall act in close and continuing consultation with the
    launching authority." *Id.* With respect to the treaty, its
    provisions, including the duty to rescue and assist, formally apply
    only to States Parties. However, by analogy with Maritime Law, it
    seems likely that this duty to assist astronauts in distress is
    rooted in customary international law. The duty to assist mariners
    on the sea has long been established both by treaty (e.g. 1910
    Brussels Treaty) and custom, and likely applies equally to
    astronauts.

[^365]: *Id.* at art. 3.

[^366]: The Liability Convention, does define space object as including
    the "component parts of a space object as well as its launch vehicle
    and parts thereof." Convention on International Liability for Damage
    Caused by Space Objects, Mar. 29, 1972, art. 1(d), 24 U.S.T. 2389,
    961 U.N.T.S. 187 (entered into force Sept. 1, 1972) \[hereinafter
    Liability Convention\]. However in using the very term to be defined
    within the definition itself, the definition is so hopelessly
    circular that it amounts to no definition at all.

[^367]: Rescue & Return Agreement, *supra* note Error: Reference source
    not found, at art. 5(1).

[^368]: *Id.* at art. 5(3).

[^369]: The satellite was designed for ocean reconnaissance and was
    powered by a "nuclear reactor working on uranium enriched with
    isotope of uranium-235." [Space Law and Institutions: Documents and
    Materials]{.smallcaps} 295 (I. Vlasic, ed., 1997) (containing
    Statement of Claim by Canada, Jan. 23, 1979). The Cosmos 954 crash
    was the first instance "in the history of space exploration where a
    claim was made by one sovereign state against another on account of
    damage caused by a falling space object." B. Schwartz & M.L. Berlin,
    *After the Fall: An Analysis of Canadian Legal Claims for Damage
    Caused by Cosmos 954*, 27 [McGill L.J.]{.smallcaps} 676 (1982). The
    satellite contained over 50 kg of enriched uranium, suggesting it
    was not designed for reentry in 1978 but only after a long orbital
    lifetime.

[^370]: President Carter notified Canadian Prime Minister Trudeau and
    actually repeated an offer made prior to the satellite's reentry.
    A.F. Cohen, *Cosmos 954 and the International Law of Satellite
    Accidents*, 10:1 [Yale J. Int'l L.]{.smallcaps} 78, 80 (1984). Not
    only does this suggest that the U.S. had tracked the satellite to
    its reentry point, but that the U.S. earnestly wanted an analysis of
    the Soviet spy satellite. Cohen reports that prior to the reentry,
    the Soviet Union secretly provided the U.S. with information about
    the satellite's reactor, though this information was only formally
    provided to Canada months after the crash. *See* *id.* at 179.

[^371]: Indeed, though the Soviet Union expressed no interest in the
    return of the object and therefore claimed it had no obligation to
    provide identifying data under Article 5(3) (required prior to
    return of the object), it expressed regret that its specialists did
    not participate in the search and removal of the object. [Christol,
    Modern International Law of Outer Space]{.smallcaps}, *supra* note
    Error: Reference source not found, at 179. Because no State has ever
    requested return of a space object from another, Article 5 has never
    been tested in practice.

[^372]: Rescue & Return Agreement, *supra* note Error: Reference source
    not found, at art. 5(2).

[^373]: *Id*. at art. 4.

[^374]: Austria, supported by France, wished to continue to offer asylum
    in keeping with its "traditional policies toward aliens." [Christol,
    Modern International Law of Outer Space]{.smallcaps}, *supra* note
    Error: Reference source not found, at 175.

[^375]: [Reynolds & Merges]{.smallcaps}, *supra* note Error: Reference
    source not found, at 204. These States plausibly asserted that
    requests for asylum under conditions of the unintended landings
    specified in the treaty could be coerced, "particularly when the
    requestor is the victim of a recent space accident and may not be in
    full possession of his or her faculties." *Id.*

[^376]: *Id.* Also, though its terms suggest application to living
    astronauts, the treaty does not answer whether a duty exists to
    return the remains of expired astronauts.

[^377]: Liability Convention, *supra* note Error: Reference source not
    found.

[^378]: *See* *infra*, Part VI, § E.3.

[^379]: Liability Convention, *supra* note Error: Reference source not
    found (from the Preamble).

[^380]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at art. VII. Article VI of the Outer Space Treaty also
    provided the drafters of the Liability Convention some guidance in
    its assertion that States Parties "shall bear international
    responsibility for national activities in outer space . . . ." *Id*.
    at art. VI. Foster notes that the Outer Space Treaty left several
    left several questions unanswered:

    > \(a\) what flight instrumentalities are covered by the term
    > 'object?'; (b) what is meant by the phrase 'internationally
    > liable?'; (c) what regime will govern the liability of States
    > engaged in a joint venture--will they be jointly and severally
    > liable or only severally liable?; (d) what is encompassed by the
    > term 'damage?'; (e) how is an international organization to be
    > responsible under the Treaty when it cannot become a party to, or
    > even accept the obligations contained in the Treaty?; and (f) what
    > mechanisms will be used to settle disputes arising when damage is
    > caused?

    W.F. Foster, *The Convention on International Liability for Damage
    Caused by Space Objects*, 1972 [Can. Y.B. Int'l L]{.smallcaps}. 137,
    143 n.3 \[hereinafter Foster\]. Of these, with the exception of the
    first, all have been clarified to some meaningful degree by the
    Liability Convention.

[^381]: Defined more expansively than "launching authority" under the
    Rescue & Return Agreement, "launching state" under the Liability
    Convention includes (1) the State who launches a space object; (2)
    the State who procures the launch of a space object; and (3) the
    State from whose territory or facility a space object is launched.
    Liability Convention, *supra* note Error: Reference source not
    found, at art. I(c).

[^382]: Liability Convention, *supra* note Error: Reference source not
    found, at art. 2. This significant provision was the first time that
    an international agreement provided for attaching absolute liability
    to State actors.

[^383]: *Id*. at art. 3.

[^384]: As stated previously, the Liability Convention's definition of
    "objects" attempts, but fails to define the term. Though it would
    appear to include non-operational space debris, it leaves several
    unresolved issues. For example, it is unclear whether a space object
    is simply an object designed for travel in outer space. Foster notes
    that all of the draft definitions of "space object" in the COPUOS
    Legal Subcommittee "contained the criterion of being designed for
    movement in outer space." Foster, *supra* note Error: Reference
    source not found, at 145. On this approach, sounding rockets that
    fail to leave earth's atmosphere and scientific equipment
    permanently left on the moon are not space objects. By contrast, a
    satellite in transit by rail that rolls off its platform causing
    damage would logically subject the State of origin to absolute
    liability. Though the Liability Convention attaches liability to
    "launching States" it does not specify that to be compensable the
    damage must occur during or after a launch. Further, because the
    Liability Convention definition of "space object" includes
    "component parts of a space object," it is unclear whether, for
    example, cargo and crew of a space object also qualify themselves as
    "space objects." They might if Christol is correct that "'component
    parts' is to be construed in a broad sense to include such property
    on board as would be conducive to the successful operation of the
    space object." [Christol, Modern International Law of Outer
    Space]{.smallcaps}, *supra* note Error: Reference source not found,
    at 109. Because the Convention does not explicitly define the term
    "space object," these hypothetical scenarios raise potential future
    disputes over what types of objects can create liability.

[^385]: Liability Convention, *supra* note Error: Reference source not
    found, at art. I(a).

[^386]: *Id*. at art. IV.

[^387]: *Id*. at art. V*.*

[^388]: *Id*. at art. VI*.*

[^389]: *Id*. at art. VII.

[^390]: *Id*. at art. VIII*.*

[^391]: *Id*. at art. X*.*

[^392]: *Id*. at art. XI*.*

[^393]: *Id*. at art. XIV--art. XX.

[^394]: [Christol, Modern International Law of Outer Space]{.smallcaps},
    *supra* note Error: Reference source not found, at 112.

[^395]: Convention on the Registration of Objects Launched into Outer
    Space, Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15 (entered into
    force Sept. 15, 1979) \[hereinafter Registration Convention\].

[^396]: [Diederiks-Verschoor]{.smallcaps}, *supra* note Error: Reference
    source not found, at 41.

[^397]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at art. VIII.

[^398]: Arguably, the Outer Space Treaty implicitly required the
    maintenance of a registry simply because use of the term in the
    Treaty assumes that States maintain them. Yet, the matter was not
    stated as a requirement until 1975.

[^399]: Registration Convention, *supra* note Error: Reference source
    not found, at art. I. The first two phrases are given definitions
    identical to those found in the Liability Convention.

[^400]: *Id*. at art. II(1)*.* This suggests that space objects, or
    other objects, launched into *sub*-orbital trajectories need not be
    registered. Technically, this would include objects failing to
    complete a single circumnavigation of the globe, as for example
    objects following a 180 or 270 degree arc, short of the complete 360
    degree path required of orbital flights.

[^401]: *Id*. at art. II(3)*.*

[^402]: Essentially, this information has been made optional in view of
    Article V which suggests that space objects may or may not carry
    identifying markings: "Whenever a space object launched into earth
    orbit or beyond is marked with the designator or registration number
    referred to in Article IV, paragraph 1(b), . . ." The obvious but
    unstated assumption flowing from "whenever" is that in some cases
    the object might be marked, in some cases it might not, at the
    option of the launching state.

[^403]: Also termed "orbital period." "The time it takes a spacecraft or
    other object to circumnavigate Earth, . . . High altitude circuits
    take longer to complete than low ones. Elliptical and circular
    orbits have equal periods, if the average of apogee and perigee
    altitudes is the same." [Collins, Military Space
    Forces]{.smallcaps}, *supra* note Error: Reference source not found,
    at 156.

[^404]: Also termed "orbital inclination."

    > The angle of a flight path in space relative to the equator of
    > Earth, . . . Equatorial paths are 0º for flights headed east, 180º
    > for those headed west. Polar paths are 90º. All other paths
    > overfly equal parts of the northern and southern hemispheres (from
    > 50º N latitude to 50º S, for example).

    *Id.*

[^405]: "The maximum altitude attained by a spacecraft in elliptical
    orbit around Earth, its moon, or another planet." *Id.* at 146.

[^406]: "The minimum altitude attained by a spacecraft in elliptical
    orbit around Earth, its moon, or another planet. Spacecraft in
    \[low-earth orbit\] attain maximum velocity at that point where
    Earth's gravitational pull is strongest." *Id.* at 157.

[^407]: Registration Convention, *supra* note Error: Reference source
    not found, at art. IV(1).

[^408]: In some cases, what is practicable may require delay for up to a
    year or more. During the prosecution of an international armed
    conflict, it would hardly be practicable for a belligerent to
    transmit the launch of its space objects to an opposing belligerent
    through the United Nations. Notification to the opposing belligerent
    is the practical result of such notifications made during the armed
    conflict, given the fact that "\[t\]here shall be full and open
    access to the information in this \[United Nations\] Register."
    *Id*. at art. III(2). On this interpretation of Article IV(1), a
    belligerent could avoid the difficult conclusion that the
    Registration Convention does not apply during armed conflicts--the
    belligerent could simply and reasonably apply the Convention's own
    terms in the context of armed conflict. This interpretative approach
    to the Registration Convention is available to belligerents in any
    conflict, not merely those involving space combat. Thus, during
    Vietnam, the 1991 Persian Gulf War, and the 1999 war in the former
    Yugoslavia, belligerents could legitimately delay notification to
    the U.N. Secretary General under Article IV until doing so provided
    no tactical advantage to the enemy. Once the military threat posed
    by earlier notification is passed, the notification became
    practicable for the State of registry.

[^409]: Indeed, protection of the "national technical means" (including
    space reconnaissance capabilities) under the Anti-Ballistic Missile
    (ABM) treaty between the U.S. and U.S.S.R., is the *sine qua non* of
    an effective verification structure. To the extent the ABM Treaty
    should survive in its current form, the U.S. and Russia must protect
    the secrecy of their space reconnaissance assets. The Registration
    Convention allows them to do this. For a discussion of the ABM
    Treaty, see *infra*, Part V, § A.2.

[^410]: [Diederiks-Verschoor]{.smallcaps}, *supra* note Error: Reference
    source not found, at 42.

[^411]: *Id.*

[^412]: In addition to reconnaissance satellites, the vague reporting
    requirements could easily obscure the true nature of attack
    satellites as well.

[^413]: Agreement on the Activities of States on the Moon and Other
    Celestial Bodies, Dec. 5, 1979, G.A. Res. 34/68, U.N. GAOR, 34th
    Sess., Supp. No. 46, U.N. Doc. A/34/664 (1979) (entered into force
    July 11, 1984) \[hereinafter Moon Agreement\].

[^414]: As of 2000, nine States had ratified the treaty, few of which
    are active in space and none of which are major space actors. Among
    others, these include Australia, Mexico, and Pakistan. Multilateral
    Treaties Deposited with the Secretary-General (July 21, 2000),
    *available at*

    http://untreaty.un.org/ENGLISH/bible/englishinternetbible/partI/chapterXXIV/treaty2.asp

    (copy on file with the *Air Force Law Review*). France signed but
    has not ratified the treaty. *Id*.

[^415]: Moon Agreement, *supra* note Error: Reference source not found,
    at art. 4(1); *accord* Outer Space Treaty, supra note Error:
    Reference source not found, at art. I.

[^416]: Moon Agreement, *supra* note Error: Reference source not found,
    at art. 4(1); *accord* Outer Space Treaty, supra note Error:
    Reference source not found, at art. I.

[^417]: Moon Agreement, *supra* note Error: Reference source not found,
    at art. 11(2); *accord* Outer Space Treaty, supra note Error:
    Reference source not found, at art. II.

[^418]: Moon Agreement, *supra* note Error: Reference source not found,
    at art. 12(1); *accord* Outer Space Treaty, supra note Error:
    Reference source not found, at art. VIII (using term "object" versus
    "vehicles, equipment, facilities, stations, and installations").

[^419]: Moon Agreement, *supra* note Error: Reference source not found,
    at art. 2; *accord* Outer Space Treaty, supra note Error: Reference
    source not found, at art. III.

[^420]: Moon Agreement, *supra* note Error: Reference source not found,
    at art. 14(1); *accord* Outer Space Treaty, supra note Error:
    Reference source not found, at art. VI.

[^421]: Moon Agreement, *supra* note Error: Reference source not found,
    at art. 15(1); *accord* Outer Space Treaty, supra note Error:
    Reference source not found, at art. XII. The Moon Agreement adds a
    fifth category, facilities, to the list of items open to States
    Parties.

[^422]: Moon Agreement, *supra* note Error: Reference source not found,
    at art. 1(1).

[^423]: *Id*. at art. 1(3).

[^424]: *Id*. at art. 6(2). Unfortunately, the treaty does not define
    "sample." Thus it is not clear from the treaty's terms either what
    sized object constitutes a sample (1 cm? .5 m? 10 m? 100 m?) or how
    many samples may be removed. Article 6(2) goes on to state that
    "States Parties may in the course of scientific investigations also
    use mineral and other substances of the moon in quantities
    appropriate for the support of their missions." *Id*. While this
    comes close to providing guidance on a permissible amount, the fact
    that minerals and substances may "also" be used in this way suggests
    that it is in addition to the taking and retaining of samples. Thus,
    there is no clear answer.

[^425]: The Apollo 11 moon landing in 1969 is regarded as providing the
    first major impetus toward negotiating a specific treaty governing
    moon activities. The negotiators were motivated in part by "an
    awareness that tangible Moon rocks were being returned to Earth, the
    possibility that mineral and other substances, as well as intangible
    resources, might be exploited, and speculation that it might be
    possible to establish human habitations on the Moon." [Christol,
    Modern International Law of Outer Space]{.smallcaps}, *supra* note
    Error: Reference source not found, at 246. The provision allowing
    for limited exploitation of the moon's resources came at the expense
    of proposals by some developing countries to outlaw the exploitation
    of natural resources in space except under the auspices of an
    international regime.

[^426]: Moon Agreement, *supra* note Error: Reference source not found,
    at art. 3(3). The prohibition on orbiting weapons of mass
    destruction around the moon was thought to close a gap left by
    Article IV of the Outer Space Treaty. The latter outlawed the
    orbiting of weapons of mass destruction around the earth, and the
    installation or stationing of such weapons on celestial bodies or in
    outer space. Though the prohibition on stationing weapons of mass
    destruction in outer space could be read to foreclose the lawfulness
    of orbiting, for example, a nuclear weapon around the moon, the
    Outer Space Treaty did not specifically forbid orbiting of the moon
    by nuclear or other weapons of mass destruction. The Moon Agreement
    did.

[^427]: *Id*. at art. 3(2)*.*

[^428]: *Id*. at art. 11.

[^429]: As applied to outer space, the concept first arose in July 1967
    at the behest of the Ambassador of Argentina, Aldo Armando Cocca, in
    discussions held with the COPUOS Legal Subcommittee.

    > A few months later, the Maltese Ambassador to the United Nations,
    > Arvid Pardo, applied the principle to the law of the sea when he
    > stated that the seabed was the 'common heritage of mankind.' The
    > concept was formalized first in the 1979 Moon Agreement, and
    > subsequently in the 1982 Law of the Sea Convention.

    Jasentuliyana, *Developing Countries*, *supra* note Error: Reference
    source not found, at 106. Prior to this, the CHM concept appeared in
    a 1970 U.N.G.A. resolution declaring principles governing the seabed
    and subsoil beneath it.

[^430]: During negotiations over the Moon Agreement, the Argentinean
    delegation submitted a working paper in which it proposed that the
    merit in "replacing the vague expression 'province of mankind' by
    the more meaningful expression 'common heritage of mankind' is that
    in doing so one has specified the commencement of an action,
    replacing an abstract statement by a means of operating, within a
    specified legal framework." Jasentuliyana, *Developing Countries*,
    *supra* note Error: Reference source not found, at 107-08. Perhaps
    Diederiks-Verschoor puts the distinction best:

    > The 'province of mankind' must be identified as a general
    > political principle with certain moral overtones, meant to govern
    > rights and duties in outer space. Its legal substance, according
    > to Article I \[of the Outer Space Treaty\] is international
    > cooperation and use of outer space without discrimination of any
    > States, and the duty to take into account the interests of other
    > States. The scope of the term 'common heritage' is much more
    > restricted in legal terms, covering only the exploitation of the
    > moon's natural resources.

    [Diederiks-Verschoor]{.smallcaps}, *supra* note Error: Reference
    source not found, at 45. As usual, Professor Christol gets to the
    heart of the matter:

    > \[despite commonalities\] it is evident that the two principles
    > carry separate and distinct characteristics. The province of
    > mankind principle is linked to the *res communis* principle which
    > allows for the exploration, use, exploitation, and voluntary
    > sharing of common resources. On the other hand, the Common
    > Heritage of Mankind principle, as contained in the Moon Agreement,
    > may be characterized as a "*res communis* plus" principle in the
    > sense that successful explorers, users, and exploiters of the moon
    > and its natural resources will be obligated to conform to the
    > decisions of the international legal regime identified in Article
    > 11 of that agreement . . . . The province of mankind principle
    > does not contemplate the formation of an international
    > inter-governmental body or that there be an obligatory sharing of
    > the tangible acquisitions of Moon and celestial body activity.

    C.Q. Christol, *Important Concepts for the International Law of
    Outer Space*, *in* [Proceedings of the Fortieth Colloquium on the
    Law of Outer Space]{.smallcaps} 73, 80 (1998).

[^431]: Jasentuliyana, *Developing Countries*, *supra* note Error:
    Reference source not found, at 106-07. For more detailed analyses,
    see G.M. Danilenko, *The Concept of the Common Heritage of Mankind
    in International Law*, XIII [Annals Air & Space L]{.smallcaps}. 247
    (1988); N. Jasentuliyana, *The U.N. Space Treaties and the Common
    Heritage Principle*, 2 [Space Pol'y]{.smallcaps} 296 (1986); A.
    Cocca, *The Common Heritage of Mankind: Doctrine and Principle of
    Space Law--An Overview*, *in* [Proceedings of the Twenty-Ninth
    Colloquium of the Law of Outer Space]{.smallcaps} 17 (1986); N.M.
    Matte, *Limited Aerospace Natural Resources and their Regulation*,
    VII [Annals Air & Space L]{.smallcaps}. 379 (1982); K.B. Walsh,
    *Controversial Issues Under Article XI of the Moon Treaty*, VI
    [Annals Air & Space L]{.smallcaps}. 489 (1981); and S.M. Williams,
    *The Common Heritage of Mankind and the Moon Agreement--Economic
    Implications and Institutional Arrangements*, *in* [Proceedings of
    the Twenty-Fourth Colloquium on the Law of Outer Space
    87]{.smallcaps} (1981).

[^432]: The Agreement calls for an international regime that contains
    four purposes:

    > \(a\) The orderly and safe development of the natural resources of
    > the moon; (b) The rational management of those resources; (c) The
    > expansion of opportunities in the use of those resources; and (d)
    > an equitable sharing by all States Parties in the benefits derived
    > from those resources, whereby the interests and needs of the
    > developing countries, as well as the efforts of those countries
    > which have contributed either directly or indirectly to the
    > exploration of the moon, shall be given special consideration.

    Moon Agreement, *supra* note Error: Reference source not found, at
    art. 11(7).

[^433]: *Id.* at art. 11(5).

[^434]: Indeed, friction between the U.S. and U.S.S.R. did not help the
    prospects for ratification. Although the other leading global space
    power, and presumably capable of developing the means to exploit the
    moon's natural resources, the U.S.S.R. generally sided with the
    interests of the developing States. Both were against incorporation
    of the CHM principal, however, the U.S. and U.S.S.R. could not agree
    on whether exploitation could begin before establishment of the
    international regime called for in Article 11---the U.S.
    position---or not, the Soviet position. *See*
    [Diederiks-Verschoor]{.smallcaps}, *supra* note Error: Reference
    source not found, at 46. For further information on the debates
    within the U.S. Senate and State Department, see M.L. Nash,
    *Contemporary Practice of the United States Relating to
    International Law: Moon Treaty*, 74 [Am. J. Int'l L.]{.smallcaps}
    418, 421-26 (1980). Though the State Department supported the
    Agreement, a large number of space interest groups mounted a
    tremendous protest to the implications of the CHM principle. What is
    most surprising is that despite the strong objection to the CHM
    principle coming from the U.S., "the U.S. delegation in COPUOS was
    the main architect \[of the concept\]." D. Goedhuis, *Some Recent
    Trends in the Interpretation and the Implementation of the Rules of
    International Space Law*, 19 [Col. J. Transnat'l L]{.smallcaps}.
    213, 231 (1981). *See also* C. Christol*, Current Developments: The
    Moon Treaty Enters Into Force*, 79 [Am. J. Int'l L]{.smallcaps}. 163
    (1985).

[^435]: [Reynolds & Merges]{.smallcaps}, *supra* note Error: Reference
    source not found, at 116.

[^436]: J.F. Kennedy, [Public Papers of the Presidents of the United
    States: John F. Kennedy, 1961, 405]{.smallcaps} (1962).

[^437]: Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer
    Space and Underwater*,* Aug. 5, 1963, 14 U.S.T. 1313, 480 U.N.T.S.
    43 (entered into Force Oct. 10, 1963) \[hereinafter Limited Test Ban
    Treaty\]. As the title suggests, the Treaty effected a "limited" ban
    on nuclear testing that did not restrict detonations under ground.
    Important as its restrictions on space activities are, some scholars
    refer to it as a sixth space treaty. *See, e.g.,*
    [Reijnen]{.smallcaps}, *supra* note Error: Reference source not
    found, at ix.

[^438]: The only limitation of course being those locations where the
    detonation would constitute an illegal use of force under the *jus
    ad bellum*, or means and method of warfare against foreign property
    or persons in violation of the *jus in bello*. Because France and
    China never signed the treaty, they would in theory still be free to
    initiate detonations in the atmosphere, under water, or in outer
    space. Such activity would have to overcome the strong argument that
    doing so violates customary international law, including that
    related to environmental protection. France continued to test on the
    high seas until 1973. Though Australia sought a declaration from the
    International Court of Justice that such testing violated
    international law, the Court determined the issue moot when France
    declared it would carry out no further such testing in the South
    Pacific. *See* Nuclear Test Cases (Australia v. France; New Zealand
    v. France), 1974 I.C.J. 253, 457.

[^439]: Limited Test Ban Treaty, *supra* note Error: Reference source
    not found, at art. I(1) (emphasis added). Interestingly, the
    drafters sidestepped the issue of where space begins by simply
    forbidding detonations within the atmosphere and "beyond its limits,
    including outer space." *Id*.

[^440]: *Id.* The U.S. signed the Comprehensive Test Ban Treaty, which
    was rejected by the Senate in October of 1999.

[^441]: Of course, negotiators were not oblivious to the clear military
    implications as well. Jankowitsch writes, "In 1962, the
    international community was jolted and the situation changed
    dramatically when the first nuclear weapon was tested in outer
    space. Suddenly, the extension of the arms race into outer space
    posed a real and present threat to international peace and security,
    . . ." Jankowitsch*, Legal Aspects of Military Space Activities*,
    *in* [Space Law: Development and Scope]{.smallcaps} 143 (N.
    Jasentuliyana, ed., 1992).

[^442]: [Reynolds & Merges]{.smallcaps}, *supra* note Error: Reference
    source not found, at 54.

[^443]: Although one of his highest priorities as President, Dwight D.
    Eisenhower declared the failure of his administration to secure a
    nuclear test ban "the greatest disappointment of any
    administration--of any decade--of any time and of any party." P.H.
    Nitze & S.D. Drell, *This Treaty Must Be Ratified*, [Wash.
    Post,]{.smallcaps} June 21, 1999, at 19.

[^444]: *See* N.M. Matte, *The Treaty Banning Nuclear Weapons Tests in
    the Atmosphere, in Outer Space and Under Water (10 October 1963) and
    the Peaceful Uses of Outer Space* IX [Annals Air & Space
    L.]{.smallcaps} 391, 397(1984). The Soviets did not begin their
    testing until Aug. 29, 1949.

[^445]: [Reynolds & Merges]{.smallcaps}, *supra* note Error: Reference
    source not found, at 59.

[^446]: *Id.* at 61. The authors note that the United States abandoned
    its experimentation on the ORION nuclear propulsion system after
    ratification of the treaty. Such system used small atomic bombs as
    fuel. A similar process is thought to fuel the X-ray laser developed
    as part of the Strategic Defense Initiative. *See supra* note Error:
    Reference source not found. The U.S. Congressional Office of
    Technology Assessment opined in 1985 that existing international law
    prohibits "the *testing or deployment in space* of nuclear space
    mines or ASATs that would require a nuclear detonation as a power
    source." U.S. Congress, Office of Technology Assessment,
    *Anti-Satellite Weapons, Countermeasures, and Arms Control*, 1985,
    at 21. The basis of this conclusion is likely not the Outer Space
    Treaty's ban on the orbiting or stationing of nuclear weapons in
    space, the definition of which is reasonably open to interpretation,
    but the Limited Test Ban Treaty's ban on nuclear detonations in
    space.

[^447]: Because electromagnetic pulses are not dissipated in space, a
    single two-megaton bomb exploded at 50 km or higher above the earth
    could affect the circuits of nearly all satellites up to the
    geostationary orbit. [Reynolds & Merges]{.smallcaps}, *supra* note
    Error: Reference source not found, at 59. While military satellites
    are shielded against such threats, commercial satellites usually are
    not. Of course, the treaty does not prohibit all explosions in
    space, only those generated by a nuclear blase.

[^448]: Treaty on the Limitation of Anti-Ballistic Missile Systems, May
    26, 1972, U.S.-U.S.S.R., 23 U.S.T. 3435 (entered into force Oct. 3,
    1972) \[hereinafter ABM Treaty\].

[^449]: [Reynolds & Merges]{.smallcaps}, *supra* note Error: Reference
    source not found, at 96.

[^450]: ABM Treaty, *supra* note Error: Reference source not found, at
    art. I, II. As would become significant in 1983, the ABM Treaty did
    not prohibit research into ABM systems.

[^451]: *Id*. at art. III, as amended. The treaty originally allowed two
    ABM systems having a radius of 150 km or less. This was reduced to
    one, by Protocol of 1974. *See* Limitation of Anti-Ballistic Missile
    Systems, July 3, 1974, U.S.-U.S.S.R., 27 U.S.T. 1645 (entered into
    force May 24, 1976). The Protocol specified that the U.S. would not
    deploy an ABM system in the area centered on its capital, while the
    Soviet Union would not deploy a system in the deployment area of its
    ICBM silo launchers. *Id*. at art. I. While the U.S. explored the
    development of a system as authorized by the Treaty, it never
    fielded one. By contrast, the Soviet Union did field one around
    Moscow. In addition, the U.S. suspected at least one other site
    maintained by the Soviets that was not authorized under the Treaty.
    As Shukman notes, "Mikhail Gorbachev was forced to admit, after
    years of denials, that one large radar, built near Krasnoyarsk in
    Siberia, was in breach of the agreement." [Shukman]{.smallcaps},
    *supra* note Error: Reference source not found, at 57.

[^452]: ABM Treaty, *supra* note Error: Reference source not found (from
    the Preamble).

[^453]: *Id.* at art. V(1).

[^454]: [Reynolds & Merges]{.smallcaps}, *supra* note Error: Reference
    source not found, at 97.

[^455]: ABM Treaty, *supra* note Error: Reference source not found, at
    art. XII.

[^456]: [Reynolds & Merges]{.smallcaps}, *supra* note Error: Reference
    source not found, at 97.

[^457]: The term 'national technical means' (NTM) includes

    > a variety of technical information-gathering methods for
    > monitoring both military activities and armaments subject to
    > verification. NTM consists, most importantly, of satellites,
    > ships, aircraft and ground-based radar stations, as well as other
    > technical devices. . . . Of course, neither side entirely relies
    > only on its technical means of verification; many additional
    > methods for collecting intelligence are also used to complement
    > the information obtained by technical means.

    I.A. Vlasic, *Verifying Compliance With Arms Control Agreements:
    Whatever Happened to 'ISMA'?*, *in* [Arms Control and Disarmament in
    Outer Space]{.smallcaps} 191 (N.M. Matte, ed., 1985).

[^458]: The possibility of a Security Council use of force authorization
    is practically zero as both Parties to the Treaty maintain a veto
    over any such Security Council resolutions.

[^459]: Recently published criticisms are numerous: C. Krauthammer, *The
    ABM Trap*, [Wash. Post,]{.smallcaps} July 2, 1999, at 27
    \[hereinafter Krauthammer\]; R.K. Bennett, *Needed: Missile
    Defense*, [Reader's Digest,]{.smallcaps} July 1999, at 117; J.
    Hackett, *Urgent Need to Exit ABM Treaty*, [Wash.
    Times,]{.smallcaps} June 11, 1999, at 19; Editorial, *Where's the
    Treaty?*, [Wall St. J]{.smallcaps}*.*, May 10, 1999, at 22; J.
    Skrlec, *ABM Pact Outdated, Kissinger Tells Panel: Rogue States Pose
    Threat*, [Wash. Times,]{.smallcaps} May 27, 1999, at 15.

    These sources show that in addition to the growing chorus of
    criticism from the U.S. public and Congress, critics include those
    having negotiated the treaty itself, including Henry Kissinger and
    John Rhinelander. Critics point to the threat to U.S. cities of
    missile attacks by nations such as North Korea, Iran, and Pakistan.
    Even those skeptical of the technical feasibility of ABM systems are
    witnessing some recent system successes, after numerous failures. A
    successful June 10, 1999 test firing of the Army's Theater
    High-Altitude Area Defense system (THAAD), showed, according to
    program manager Brigadier General Richard Davis, that the U.S. now
    has \"the guidance control, accuracy and the processing that allows
    us to hit a bullet with a bullet.\" P. Shenon, *After Six Failures,
    Test Of Antimissile System Succeeds*, [N.Y. Times,]{.smallcaps} June
    11, 1999, at 1; *See also* *THAAD Seeker Views Hera Target Before
    Hit-to-Kill Intercept*, 150:26 [Av. Wk. & Space Tech.,]{.smallcaps}
    June 28, 1999, at 42; World News Roundup, 150:24 [Av. Wk. & Space
    Tech,]{.smallcaps} June 14, 1999, at 56. The system scored a second
    successful test on Aug. 2, 1999. M.A. Dornheim, *Tough Tests for
    THAAD Are Several Years Off*, 151:7 [Av. Wk. & Space
    Tech,]{.smallcaps} Aug. 16, 1999, at 70. The second success prompted
    the DOD to consider an expedited fielding of the theater system;
    moving it from 2007 to 2006. R. Wall, *Missile Defense Changes
    Emerge*, 151:9 [Av. Wk. & Space Tech,]{.smallcaps} Aug. 20, 1999, at
    30; *See also* R. Wall, *THAAD At Crossroads After Intercept*, 151:6
    [Av. Wk. & Space Tech,]{.smallcaps} Aug. 9, 1999, at 29. The
    technical implications of these theater ABM successes are still
    unclear. This uncertainty is especially acute given a recent
    national missile defense test failure off the coast of California.
    *See* Elaine Sciolino, *Antimissile System Fails Over Pacific,
    Pentagon Reports*, [N.Y. Times]{.smallcaps}, July 8, 2000, at 1.
    However, as with early critics of ICBM or satellite technology who
    predicted such innovations were not feasible, the drive to
    accomplish each was simply a matter of scientific and fiscal
    willpower. It is likely that the quest for a technically feasible
    national missile defense system will follow a similar course. The
    strategic implications are more apparent. Among other benefits, a
    single THAAD missile battery could defend Taiwan while three
    batteries could defend the entire island of Japan. J. Hackett, *What
    the THAAD Hit Means*, [Wash. Times,]{.smallcaps} June 15, 1999, at
    18. As currently proposed, a national missile system could protect
    most of the U.S. against a limited missile strike.

[^460]: Following the dissolution of the U.S.S.R. in 1991, Russia became
    the successor State to the former U.S.S.R.'s rights and obligations
    under the Treaty.

[^461]: ABM Treaty, *supra* note Error: Reference source not found, at
    art. XV(2). Recent signs show that withdrawal by the U.S. may not be
    necessary. After repeatedly objecting to U.S. requests for a
    renegotiation of the Treaty so as to allow for a national missile
    defense, Russia decided to discuss the matter under President
    Yeltsin. J. Gerstenzang, *Clinton, Yeltsin OK New Look at Arms
    Treaties*, [L.A. Times,]{.smallcaps} June 21, 1999, at 1. Whether
    the process begun by these negotiations will result in meaningful
    progress remains to be seen. As of this writing, the U.S. had
    proposed a draft treaty that would allow a defensive system
    consisting of, in part, 100 missiles and launchers, as well as
    sophisticated new radars. Steven Lee Myers & Jane Perlez, *Documents
    Detail U.S. Plan to Alter '72 Missile Treaty*, [N.Y.
    Times]{.smallcaps}, Apr. 28, 2000, at 1. However, not only has the
    proposal met with great sceptism by the Russians, but several key
    national security experts have begun questioning the entire
    renegotiating strategy. Paul Mann, *Tide Surges Against Clinton's
    NMD Plan*, 152:25 [Av. Wk. & Space Tech]{.smallcaps}., June 26,
    2000, at 31.

[^462]: For example, the U.S. recently discovered that the North Korean
    ICBM program maintains a 3-stage rocket capability. Its Taepo-Dong
    missile travels at 7 to 8 km per second, faster than the Army's
    Theater High Altitude Area Defense ABM system could counter.
    Krauthammer, *supra* note Error: Reference source not found.

[^463]: E. Becker, *House Approves Star Wars Defense System*, [N.Y.
    Times,]{.smallcaps} May 21, 1999, at 1.

[^464]: M.A. Dornheim, *National Missile Defense Focused on June
    Review*, 151:7 [Av. Wk. & Space Tech,]{.smallcaps} Aug. 16, 1999, at
    66.

[^465]: Characteristically, Reagan communicated his disagreement with
    the assumptions made by the ABM Treaty in simple, populist terms.
    His views, articulated almost seventeen years ago, typify the
    current widespread disaffection with the treaty:

    > I've become more and more deeply convinced that the human spirit
    > must be capable of rising above dealing with other nations and
    > human being by threatening their existence. . . . If the Soviet
    > Union will join with us in our effort to achieve major arms
    > reductions, we will have succeeded in stabilizing the nuclear
    > balance. Nevertheless, it will still be necessary to rely on the
    > specter of retaliation, on mutual threat. And that's a sad
    > commentary on the human condition. Wouldn't it be better to save
    > lives than to avenge them? . . . I clearly recognize that
    > defensive systems have limitations and raise certain problems and
    > ambiguities. If paired with offensive systems, they can be viewed
    > as fostering an aggressive policy, and no one wants that. But with
    > these considerations firmly in mind, I call upon the scientific
    > community in our country, those who gave us nuclear weapons, to
    > turn their great talents now to the cause of mankind and world
    > peace, to give us the means of rendering these nuclear weapons
    > impotent and obsolete. . . . My fellow Americans, tonight we're
    > launching an effort which holds the promise of changing the course
    > of human history. There will be risks, and results take time. But
    > I believe we can do it. As we cross this threshold, I ask for your
    > prayers and your support.

    R. Reagan, Peace and National Security, Address to the Nation (Mar.
    23, 1983), *in* [Weapons in Space]{.smallcaps} 351-53 (A. Long, *et
    al.*, eds., 1986). Well before the President's "Strategic Defense
    Initiative" speech, derisively termed "star wars" by members of the
    news media, ABM research had been underway. "As early as the 1950s,
    Pentagon planners first suggested fielding anti-missile missiles."
    [Shukman]{.smallcaps}, *supra* note Error: Reference source not
    found, at 55.

[^466]: P. Mann, *Historic Turn Eyed in Missile Defense*, 151:1 [Av. Wk.
    & Space Tech,]{.smallcaps} July 5, 1999, at 30. Specific
    improvements noted include radar capability and data processing,
    optical systems, lasers and sensors, and miniaturization of crucial
    missile defense components such as rocket thrusters. *Id*.

[^467]: H. DeSaussure, *The Freedoms of Outer Space and Their Maritime
    Antecedents*, *in* [Space Law: Development and Scope]{.smallcaps} 1
    (N. Jasentuliyana, ed., 1992).

[^468]: United Nations Convention on the Law of the Sea, Dec. 10, 1982,
    1833 U.N.T.S. 3 (entered into force Nov. 16, 1994; U.S. has signed
    but not ratified) \[hereinafter LOS Convention\].

[^469]: Article 87 states that "\[t\]he high seas are open to all
    States, whether coastal or land-locked. Freedom of the high seas is
    exercised under the conditions laid down by this Convention and by
    other rules of international law. It comprises, *inter alia*, . . .
    (a) freedom of navigation; (b) freedom of overflight." *Id.* at art.
    87. Indeed the principal Outer Space Treaty negotiator for the U.S.
    stated that the analogy of the high seas was a guiding theme during
    the drafting of Article 1 of the Outer Space Treaty establishing the
    freedom of outer space[. Christol, Modern International Law of Outer
    Space]{.smallcaps}, *supra* note Error: Reference source not found,
    at 41. From this, Christol concludes that the negotiators of the
    Outer Space Treaty were "aware of the *res communis* concepts
    applying to the ocean and were employing this analogy as they
    contemplated the legal rules to be applied in the exploration and
    use, including exploitation, of the space environment." *Id.* at 45.

[^470]: That is, territory belonging to none. Regarding the principle of
    *terra nullius* and the example of Antarctica, see [Malanczuk,
    Introduction to International Law]{.smallcaps}, *supra* note Error:
    Reference source not found, at 149.

[^471]: *Id*.

[^472]: The Antarctic Treaty, Dec. 1, 1959, 402 U.N.T.S. 71 (entered
    into force June 23, 1961) \[hereinafter Antarctic Treaty\].

[^473]: Though the Treaty does permit the presence of military
    personnel, Article 1 ensures that the activity of such personnel
    will not be "of a military nature." *Id*. at art. 1.

[^474]: Although the Antarctic Treaty "has often been invoked as the
    most authoritative aid for the interpretation of the term 'peaceful'
    found in various outer space official texts," the phrase cannot be
    divorced from the immediate context in which it is subsequently
    used. Vlasic, *Peaceful and Non-Peaceful Uses of Outer Space*,
    *supra* note Error: Reference source not found, at 41. As noted
    previously, understanding of the term evolved from its early use in
    1957 as applied to space activity through its final expression in
    the Outer Space Treaty. *See supra*, notes Error: Reference source
    not found-Error: Reference source not found and accompanying text.

[^475]: Thus,

    > \[t\]hough it is sometimes offered as a model for space,
    > Antarctica has never offered military advantages that exceed the
    > costs it imposes. . . . The arguments for many military uses of
    > space, however, are cast in just such cost-effectiveness terms,
    > making Antarctica, in that sense, not the analog but the inverse
    > of space.

    W. Durch, *Introduction* to Durch & Wilkening, *supra* note Error:
    Reference source not found, at 7.

[^476]: By explicitly prohibiting the orbiting of nuclear weapons and
    other weapons of mass destruction in Article 4, the Outer Space
    Treaty implies that States remain free to orbit non-nuclear weapons
    that are not weapons of mass destruction.

[^477]: Antarctic Treaty, *supra* note Error: Reference source not
    found, at art. 1. The military inefficiency of Antarctica likely
    accounts for the wide adherence to this provision of the treaty.

[^478]: Interestingly, the LOS Convention claims at Article 88 that the
    "high seas shall be reserved for peaceful purposes." LOS Convention,
    *supra* note Error: Reference source not found, at art. 88. As
    Professor Vlasic notes however, this

    > most certainly does not mean 'non-military,' given the well-known
    > fact that the high seas are navigated by naval vessels of many
    > nations and used for tests of nuclear missiles as well as for
    > naval maneuvers. Hence, it is difficult to find the rationale for
    > the inclusion of the reference to 'peaceful purposes' under the
    > heading 'high seas.'

    Vlasic, *Peaceful and Non-Peaceful Uses of Outer Space*, *supra*
    note Error: Reference source not found, at 41. If the term
    "peaceful" as used in the LOS Convention were given the meaning
    ascribed to the similar term in the Outer Space Treaty by the
    majority of States, that is non-aggressive, the comparison of outer
    space with the high seas for purpose of military use becomes all the
    more apt. While the high seas have been the location of military
    activity for centuries, outer space is becoming increasingly so.
    That both environments must be used for non-aggressive (peaceful)
    purposes does not impugn the current military uses, so long as they
    remain compliant with the *jus ad bellum*.

[^479]: [U.N. Charter]{.smallcaps}, *supra* note Error: Reference source
    not found, at art. 10.

[^480]: [Stat. of the ICJ]{.smallcaps}, *supra* note Error: Reference
    source not found, at art. 38.

[^481]: A standard text on international law includes helpful commentary
    on U.N.G.A. resolutions:

    > General Assembly resolutions are not as such legally binding upon
    > member or non-member States in the manner of legislation enacted
    > by national parliaments. In terms of the sources listed in Article
    > 38(1) \[of the Statute of the International Court of Justice\],
    > although some writers have argued that General Assembly
    > resolutions might be seen as informal treaties or as indicating
    > general principles of law, the most common view . . . is that they
    > contribute in some way to the formation of custom. It is generally
    > agreed by writers that General Assembly resolutions may serve as a
    > convenient statement of a custom already established by state
    > practice of the accepted kind (diplomatic notes, etc.), or may at
    > once or gradually cause States to march in step in their practice
    > so as to create one . . . General Assembly resolutions may also
    > contribute to custom more directly as a form of 'collective' State
    > practice. They are the collective equivalent of unilateral general
    > statements or, in the context of a particular dispute, '150
    > diplomatic protests.'

    Harris, *supra* note Error: Reference source not found, at 61.
    Following the adoption of Resolution 1721, the U.S. delegate stated
    that "\[w\]hen a General Assembly resolution proclaimed principles
    of international law -- as resolution 1721 (XVI) had done -- and was
    adopted unanimously, it represented the law as generally accepted in
    the international community." Cheng, *'Instant' Customary Law*,
    *supra* note Error: Reference source not found, at 35. Key to this
    broad assertion is the word "represented." That is, the Resolution
    did not become customary law, it simply served as the vehicle by
    which the international community expressed unanimous agreement that
    the resolution's substance was reflective of the law. The U.S.
    delegate's statement is broad in that it purported to give the U.N.
    principles the status of customary international law before any
    custom had developed. For the criticism of this assumption, see
    *supra* notes Error: Reference source not found-Error: Reference
    source not found and accompanying text. The assumption aside
    however, the statement recognizes that formally speaking, the U.N.
    Resolution does not bind any State, whether expressing legal
    principles and adopted unanimously or not. As a 1975 U.S. Department
    of State pronouncement asserted:

    > \[a\]s a broad statement of U.S. policy in this regard, I think it
    > is fair to state that General Assembly resolutions are regarded as
    > recommendations to Member States of the United Nations. To the
    > extent, which is exceptional, that such resolutions are meant to
    > be declaratory of international law, are adopted with the support
    > of all members, and are observed by the practice of states, such
    > resolutions are *evidence* of customary international law on a
    > particular subject matter.

    Harris, *supra* note Error: Reference source not found, at 62
    (emphasis added). For further discussion of the legal significance
    of U.N.G.A. resolutions, see *infra* note Error: Reference source
    not found.

[^482]: This is likely a result of the increasingly fractious nature of
    international negotiation over space issues since the 1979 Moon
    Agreement. The international governing organization called for by
    the Moon Agreement enshrined the interests of developing States not
    seen before in treaty law. To many of the more developed States,
    this progress came at the expense of their own economic and security
    interests. Thus, the absence of any new space treaties since 1979 is
    likely the result of failures in negotiation, as well as a genuine
    reticence by the more developed States against undertaking treaty
    obligations with which the State has little intention of complying
    or even incentive for entering.

[^483]: *Declaration of Legal Principles Governing the Activities of
    States in the Exploration and Use of Outer Space*, Dec. 13, 1963,
    G.A. Res. 1962 (XVIII), U.N. GAOR, 18th Sess., Supp. No. 15, at 15,
    U.N. Doc. A/5515 (1964). It should be noted that though several of
    the U.N. Resolutions addressing outer space issues use the term
    "principles" in the title, these are not used in the same sense as
    the term appears in Article 38 of the Statute of the International
    Court of Justice. As articulated by the U.N.G.A., "principles"
    related to the use of outer space, remote sensing, or nuclear power
    sources in space are worthy precepts toward which States should aim
    in their use of outer space, but they are not "general principles of
    law recognized by civilized nations." [Stat. of the
    ICJ]{.smallcaps}, *supra* note Error: Reference source not found, at
    art. 38 ¶ 1.c.

[^484]: In lockstep fashion, the Outer Space Treaty adopted the
    Resolution's nine provisions practically word for word. Thus,
    Principle 1 became Article I, sentence 1 of the Outer Space Treaty.
    Principle 2 calling for the free exploration and use of space in
    accord with international law became Article I, sentence 2.
    Principle 3 became Article II. Principle 4 on the applicability of
    international law to outer space became Article III. Principle 5,
    setting forth the novel requirement that States bear international
    responsibility for national activities in space became Article VI.
    Principle 6 became Article IX. Principle 7 became Article VIII.
    Principle 8 became Article VII. Principle 9 became Article V.

[^485]: Jasentuliyana, *Developing Countries*, *supra* note Error:
    Reference source not found, at 97.

[^486]: Though the Soviet Union wanted the substance of the Resolution
    incorporated into a legally binding instrument, it did not claim
    that the vehicle used, the U.N. resolution, achieved that end. The
    fact that a General Assembly Resolution assumes for itself the term
    "Declaration" does highlight the importance of the document. It does
    not however render the resolution "legally more binding than any
    other recommendation." Cheng, *'Instant' Customary Law*, *supra*
    note Error: Reference source not found, at 31. As the United Nations
    Office of Legal Affairs has noted in a Memorandum on "Use of the
    Terms 'Declaration and Recommendation'"

    > 3\. In United Nations practice, a 'declaration' is a formal and
    > solemn instrument, suitable for rare occasions when principles of
    > great and lasting importance are being enunciated, such as the
    > Declaration on Human Rights. A recommendation is less formal. 4.
    > Apart from the distinction just indicated, there is probably no
    > difference between a 'recommendation' or a 'declaration' in United
    > Nations practice as far as strict legal principle is concerned. .
    > . . However, in view of the greater solemnity and significance of
    > a 'declaration,' it may be considered to impart, on behalf of the
    > organ adopting it, a strong expectation that Members of the
    > international community will abide by it. Consequently, in so far
    > as the expectation is gradually justified by State practice, a
    > declaration may by custom become recognized as laying down rules
    > binding upon States.

    *Id.* Use of the word "may" in the last quoted sentence, means that
    the 'declaration,' by itself, cannot bind States. Nonetheless, some
    scholars speak in terms suggesting that Resolution 1962 is itself
    law. Thus, Judge Lachs, former Chairman of COPUOS concluded that "it
    is difficult to regard the 1963 Declaration as a mere
    recommendation: it was an instrument which has been accepted as
    law." [M. Lachs, The Law of Outer Space: An Experience in
    Contemporary Law-Making]{.smallcaps} 138 (1972).

[^487]: *Principles Relating to Remote Sensing of the Earth from Space*,
    Dec. 3, 1986, GA Res. 41/65 (XLII), U.N. GAOR, 29th Sess., 95th
    Plen. Mtg., U.N. Doc. A/Res/41/65 (1987) \[hereinafter *Remote
    Sensing Resolution*\].

[^488]: Though not specifically geared toward remote sensing, several
    provisions of the Outer Space Treaty could apply to remote sensing.
    These include Article I (equal use of space by all States), Article
    III (activities conducted in accord with international law in the
    interest of maintaining international peace and security), Article
    VI (States bear international responsibility for national
    activities), and Article XI (duty to inform U.N. Secretary General
    of space activities of member States to the greatest extent
    feasible).

[^489]: C.Q. [Christol, Space Law: Past, Present and Future]{.smallcaps}
    73 (1991) \[hereinafter [Christol, Space Law]{.smallcaps}\]. After
    outlining the five general categories of compromise leading to
    agreement, Christol points out that the principle of "open skies"
    won the day. *Id.* at 76. He notes that in the end, even States
    initially hesitant to agree on freedom of surveillance from space
    "consulted self interest" and developed an expectation that the
    benefits to be gained by access to sensed data would outweigh any
    lost sovereignty to be suffered. *Id.* at 88.

[^490]: Although the Resolution made no exception for military
    activities, this civil/commercial orientation can be seen from the
    Resolution's specific definition of "remote sensing" which aims at
    "improving natural resources management, land use and protection of
    the environment." *Remote Sensing Resolution*, *supra* note Error:
    Reference source not found, at Principle (princ.) I(a). Major civil
    and commercial applications for remote sensing data include: water
    resource management (surface water inventory, flood control mapping,
    irrigation demand estimation, water circulation, lake eutrophication
    survey, ground water location); forestry and rangeland management
    (forest inventory, clearcut assessment, habitat assessment, fire
    fuel potential); fish and wildlife management (habitat inventory,
    wetlands location, vegetation classification, snow pack mapping,
    salt exposure); land resource management (corridor analysis,
    facility siting, land cover inventory, flood plain delineation,
    solid waste management, lake shore management); environmental
    management (water quality assessment, coastal zone management,
    wetlands mapping, resource inventory, dredge and fill permits);
    agriculture (crop inventory, crop yield prediction, assessment of
    flood damage, disease monitoring); and geological mapping (lineament
    mapping, mineral surveys, powerplant siting, radioactive waste
    storage). U.S. Congress, Office of Technology Assessment, *Remote
    Sensing and the Private Sector*, Mar. 1984, at 57. Some of these
    could easily be converted to military reconnaissance and
    surveillance purposes for locating targets, tracking fleet
    movements, identifying supply and transport facilities, monitoring
    air activities, and warning of enemy preparation or attack.

[^491]: A number of civil satellite systems produce data that is
    commercially-available to both private and public entities: KFA-1000
    (Russia, 6 m resolution, 120 km swath); Radarsat (Canada, 8-30 m
    resolution, 55-550 km swath); ADEOS (Japan, 8-16 m resolution, 80 km
    swath); SPOT (France, 10-27 m resolution, 60-81 km swath); Landsat 6
    (U.S., 15-120 m resolution, 185 km swath); JERS-1 (Japan, 18 m
    resolution, 100 km swath); CBERS (Brazil, 20 m resolution, 120 km
    swath); ERS-1 (European Space Agency, 15-30 m resolution, 80 km
    swath); RS-1 (India, 36-72 m resolution); MOS-1 (Japan, 50 m
    resolution). [B. Preston, Ploughshares and Power: The Military Use
    of Civil Space]{.smallcaps} 29 (1994) \[hereinafter
    [Preston]{.smallcaps}\]. An update to include improvements since
    1994 would swell this list as to the total number of systems, as
    well as technical capabilities. Today, imagery at 5 m resolution is
    widely available.

[^492]: Preston makes clear the military connection to remote sensing:

    > From a traditional military view of national security, the obvious
    > reason to worry about sensing from space is the ability of
    > adversaries to exploit intelligence from remote-sensing
    > information to achieve military advantage on the battlefield. A
    > broader perspective on national security would include economic
    > benefit and foreign policy advantage. For example, the Joint
    > Chiefs of Staff basic national defense doctrine includes
    > psychological or informational powers in its list of elements of
    > national strategy. Remote sensing from space affects all of these:
    > battlefield intelligence, economic strength, and diplomacy.

    *Id.* at 25.

[^493]: *Remote Sensing Resolution*, *supra* note Error: Reference
    source not found, at princ. IV.

[^494]: *Id.*

[^495]: *Id*. at princ. I(b). Primary data are defined as "the raw data
    that are acquired by remote sensors borne by a space object and that
    are transmitted or delivered to the ground from space by telemetry
    in the form of electromagnetic signals, by photographic film,
    magnetic tape or any other means."

[^496]: *Id*. at princ. I(c). "\[T\]he products resulting from the
    processing of the primary data, needed to make such data usable."

[^497]: *Id*. at princ. I(d). "\[T\]he information resulting from the
    interpretation of processed data, inputs of data and knowledge from
    other sources."

[^498]: *Id*. at princ. XII.

[^499]: Arguably it is a victory for Article I of the Outer Space Treaty
    as well which requires that the use and exploration of outer space
    remain "free."

[^500]: *Id*. at princ. XIII.

[^501]: Again, as with all U.N. resolutions, language suggesting that
    States "shall" take action or "will" refrain therefrom does not
    require such action or bind such States. The mandatory, directive
    language used in the Remote Sensing Resolution, as with other U.N.
    resolutions, is always subject to this clarification. *See, e.g.*,
    the following phrases from the principles indicated, Principle
    II--"shall be carried out;" Principles III and IV--"shall be
    conducted;" Principle V and VIII--"shall promote international
    co-operation;" Principle VII--"shall make available technical
    assistance;" Principle IX--"shall inform the Secretary-General of
    the United Nations;" Principle X--"shall promote the protection of
    the Earth's natural environment;" Principle XI--"shall promote the
    protection of mankind from natural disasters;" Principle XII--"shall
    have access;" Principle XIII--"shall . . . enter into
    consultations;" Principle XIV--"shall bear international
    responsibility;" and Principle XV--"disputes . . . shall be resolved
    through . . ." To the extent that these provisions draw from the
    authority of international law, they simply reiterate a State's
    preexisting obligations.

[^502]: [Christol, Space Law]{.smallcaps}, *supra* note Error: Reference
    source not found, at 94. The author goes so far as to suggest that
    the Resolution's principles are representative of customary
    international law. After considering the fact that, despite the lack
    of thorough agreement, there is no overwhelming demand to overturn
    the principles or even reduce them to a treaty, Christol concluded
    in 1988 that

    > \[f\]or the moment the debate has been somewhat stilled. Even the
    > best of agreements can become controversial or even unstuck.
    > Perhaps the best long-term approach is to retain remote sensing on
    > the agenda of COPUOS so that efforts can be made to transmit the
    > terms of the Principles into a treaty. In this manner those who
    > wish to dissent from the Principles can opt out. In considering
    > this approach they may find that they may have no where to go. As
    > has been abundantly indicated, *they will not find it easy to
    > escape the norms of customary international law*.

    *Id.* at 95 (emphasis added).

    Other commentators writing more recently have agreed. Thus,
    "\[t\]his resolution has come to represent a codification of
    customary legal principles that are binding on nations." J.I.
    Gabrynowicz, *Defining Data Availability for Commercial Remote
    Sensing Systems: Under United States Federal Law*, XXIII [Annals Air
    & Space L]{.smallcaps}. 93, 95 (1998).

[^503]: *See* *supra* notes Error: Reference source not found-Error:
    Reference source not found and accompanying text for a discussion of
    the Cosmos-954 incident.

[^504]: Paragraph 9 of General Assembly resolution 33/16, dated Nov. 10,
    1978, requested that launching States "inform States concerned in
    the event that a space object with nuclear power sources on board is
    malfunctioning with a risk of re-entry of radio-active materials to
    earth." This subsequently became Principle 5 of the NPS Resolution.
    Further, paragraph 11 of General Assembly resolution 42/68, dated
    Dec. 2, 1987, endorsed "the agreements reached in the Scientific and
    Technical Sub-Committee \[of COPUOS\] with respect to the use of
    nuclear power sources in outer space." As Terekhov notes, "\[t\]hose
    agreements were the recommendations formulated by the technical
    experts with the view to ensuring safe use of NPS in outer space,
    which recommendations had been subsequently reflected in the NPS
    \[Resolution\]." A.D. Terekhov, *U.N.G.A. Resolutions and Outer
    Space Law*, *in* [Proceedings of the Fortieth Colloquium on the Law
    of Outer Space]{.smallcaps} 97, 101 (1998) \[hereinafter Terekhov\].

[^505]: *Principles Relating to the Use of Nuclear Power Sources in
    Outer Space*, Dec. 14, 1992, U.N. Doc. A/Res/47/68 \[hereinafter
    *NPS Resolution*\].

[^506]: Because the Outer Space Treaty forbids the orbiting of "objects
    carrying nuclear weapons," the Resolution did not address the
    question of nuclear power sources in space used for weaponry. Outer
    Space Treaty, *supra* note Error: Reference source not found, at
    art. IV. Although a strict exegesis of Article IV of the Outer Space
    Treaty reveals that what is prohibited by this clause is the
    orbiting of "*objects* *carrying* nuclear weapons" not "nuclear
    weapons" themselves, the subsequent clause--"or station such weapons
    in outer space in any other manner" -- appears to foreclose the
    possibility of nuclear warheads in space. *Id*. The obvious
    exception, undoubtedly heavy on the minds of Outer Space Treaty
    drafters during the course of negotiations, were the case of ICBMs
    capable of delivering nuclear warheads to terrestrial targets after
    transiting outer space for several minutes. Although such objects
    would put nuclear weapons or conceivably other weapons of mass
    destruction into space, such delivery systems would not constitute a
    placement "in orbit" or a "station\[ing\]" of such weapons in space,
    and would not therefore violate the Outer Space Treaty. For a
    discussion of the meaning of placing an object in orbit, see *supra*
    note Error: Reference source not found. As used in the *NPS
    Resolution*, nuclear reactors in space apply neither to nuclear
    weapons (except those which might conceivably use nuclear power for
    "generation of electric power"), nor to nuclear power sources used
    for propulsion. *NPS Resolution*, *supra* note Error: Reference
    source not found (from the Preamble). Thus, it appears the law would
    allow the orbiting of nuclear power sources used for space weaponry.
    Such is not likely covered by the phrase "nuclear weapon" as used in
    the 1967 Outer Space Treaty, which more properly refers not to the
    weapon's method of propulsion, but to the nuclear source of its
    destructive power.

[^507]: *NPS Resolution*, *supra* note Error: Reference source not found
    (from the Preamble).

[^508]: Though the Resolution does not cover nuclear propulsion, and is
    not legally binding in any event, there are other reasons it may not
    find widespread use as a prescriptive guide for military spacecraft.
    Collins notes that even though nuclear space propulsion has many
    proponents, it "attracts little official support and few funds,
    because it is costly compared with chemical systems, and powerful
    opponents (rightly or wrongly) fear it is unsafe. International
    political pressure to ban such engines is great." [Collins, Military
    Space Forces]{.smallcaps}, *supra* note Error: Reference source not
    found, at 103.

[^509]: *NPS Resolution*, *supra* note Error: Reference source not
    found, at princ. 3.

[^510]: "Sufficiently high orbits" are those

    > in which the orbital lifetime is long enough to allow for a
    > sufficient decay of the fission products to approximate the
    > activity of the actinides. The sufficiently high orbit must be
    > such that the risks to existing and future outer space missions
    > and of collision with other space objects are kept to a minimum.

    *Id*. at princ. 3(2)(b).

[^511]: *Id.* at princ. 3(2)(a).

[^512]: *Id.* at princ. 3(2)(c).

[^513]: *Id.* at princ. 3(2)(e).

[^514]: *Id.* at princ. 5(1). In the aftermath of the Cosmos 954
    incident, the former Soviet Union disclaimed a duty to warn Canada
    of the impending crash, though it did in general recognize a duty to
    warn. *Supra* notes Error: Reference source not found-Error:
    Reference source not found and accompanying text, Because its errant
    calculations revealed the satellite's debris would either be
    incinerated on reentry, or land over the Aleutian Islands, the
    Soviet Union did notify the U.S. prior to impact. In one of the
    diplomatic exchanges, the Soviets maintained that

    > \[c\]alculations made on the basis of \[Cosmos 954's\] last orbits
    > within the visibility range of our tracking facilities showed that
    > if, because of the satellite's emergency condition, individual
    > parts of the satellite were not fully consumed in the atmosphere
    > and reached the earth's surface, they might fall into the open sea
    > in the region of the Aleutian Islands. In this connection, the
    > appropriate information was given to the U.S. government.

    [Reynolds & Merges]{.smallcaps}, *supra* note Error: Reference
    source not found, at 181. Because Canada agreed that the Soviets had
    a duty to warn, this agreement on the basic norm--that the Soviet
    Union had a duty to warn--represents significant State *opinio
    juris* on one of the few cases involving the reentry of a space
    object carrying radioactive materials. Indeed, whether customary law
    or not, the Convention on Early Notification of a Nuclear Accident
    requires such notifications as contemplated in Principle 5 of the
    NPS Resolution. Convention on Early Notification of a Nuclear
    Accident, Sept. 26, 1986, 1439 U.N.T.S. 275 (entered into force Oct.
    27, 1986; signed but not ratified by the U.S.). This treaty, adopted
    soon after failure of the Soviet Chernobyl nuclear reactor, applies
    to "any nuclear reactor *wherever located*." *Id.* at art. 1(2)
    (emphasis added). Thus, even for reactors located in space, the
    treaty mandates notification to other States Parties of accidents
    "from which a release of radioactive material occurs *or is likely
    to occur* and which has resulted or may result in an international
    transboundary release that could be of radiological safety
    significance for another State." *Id*. at art. (1) (emphasis added).

[^515]: Terekhov, *supra* note Error: Reference source not found, at
    101. Again, these U.N. principles are recommendations even though
    the NPS Resolution, as with the previous Remote Sensing Resolution,
    makes frequent use of "shall" in its attempt to encourage State
    behavior. The distinction between a resolution's use of "shall" and
    its use of "should" matters little and does not affect the
    document's non-binding character. "\[T\]he fact that, for example,
    the \[Remote Sensing Resolution\] contain\[s\] 'shall' and the
    \[Benefits Resolution\] uses mostly "should" is not perceived as an
    indication that the former makes stronger recommendations than the
    latter. In view of the foregoing, it appears that the "shall/should"
    controversy has basically lost its relevance at least as far as
    outer space declarations are concerned." *Id.* at 102.

[^516]: *Id.* at 101.

[^517]: *See*, *e.g.*, *Is Cassini Risky? Look to Facts, Not Emotion*,
    147:13 [Av. Wk. & Space Tech.,]{.smallcaps} Sept. 29, 1997, at 66.

[^518]: J. Wilson, *The International Telecommunication Union and the
    Geostationary Satellite Orbit: An Overview*, XXIII [Annals Air &
    Space L.]{.smallcaps} 249 (1998).

[^519]: *Supra* note Error: Reference source not found.

[^520]: "Members retain their entire freedom with regard to military
    radio installations." Constitution and Convention of the
    International Telecommunication Union, Dec. 22, 1992, art. 48(1), S.
    Treaty Doc. No. 104-34 (1996) (as amended through 1994), *available
    at* http://www.itu.int/publications/cchtm/cnv.htm. Because the RRB
    regulations do not regulate military activity either in peacetime or
    war, they cannot be classified as part of the *jus in bello*.
    Nonetheless, because they govern the civil and commercial use of
    radio spectrum, they become a critical factor in establishing a
    military telecommunications capacity in support of armed conflict.
    Beyond this, however, Article 48(2) requires "so far as possible"
    that military radio installations

    > observe statutory provisions relative to giving assistance in case
    > of distress and to the measures to be taken to prevent harmful
    > interference, and the provisions of the Administrative Regulations
    > concerning the types of emission and the frequencies to be used,
    > according to the nature of the service performed by such
    > installations.

    *Id.* at art. 48(2).

[^521]: Toward the end of the 1991 Persian Gulf War, the DSCS system was
    providing 75 percent of all inter and intratheater multichannel
    trunking. Leased commercial satellites provided 20 to 25 percent of
    all satellite communications used by U.S. forces. See
    [Preston]{.smallcaps}, *supra* note Error: Reference source not
    found, at 131, 132. For a discussion of the DSCS system, see *supra*
    note Error: Reference source not found. The Commander in Chief of
    USSPACECOM later testified before the U.S. Congress that,
    "\[e\]ffective command and control of U.S. and coalition forces
    simply would have been impossible without military satellite
    communication systems. Over ninety percent of the communications to
    and from the area of operations were carried over satellite
    systems." [Preston,]{.smallcaps} *supra* note Error: Reference
    source not found, at 133.

[^522]: The effects of losing commercial telecommunications services
    were dramatically illustrated for participants of the 1999 U.S.
    "Army-After-Next Space and Missile Defense" wargame. When the "Blue"
    forces lost information superiority as a result of degraded
    commercial space services, participants witnessed a "drastic impact
    on combat capabilities. . . . Regional commanders found they had to
    compete with other paying customers for commercial space services,
    such as communications. Ideal time slots and capacities were not
    always available." P. Proctor, ed., *Wargame Wake-Up Call*, 150:14
    [Av. Wk. & Space Tech.,]{.smallcaps} Apr. 5, 1999, at 17.

[^523]: [Clausewitz]{.smallcaps}, *supra* note Error: Reference source
    not found, at 119.

[^524]: ICJ Advisory Opinion on Nuclear Weapons, *supra* note Error:
    Reference source not found, ¶ 86. In this important opinion, the
    Court cites several of the numerous statements advanced by States
    for the conclusion that the law of armed conflict applies to nuclear
    weapons whether nuclear weapons were in existence at the time the
    law developed or not. Two relevant points arise from this
    discussion. First, as the Court quotes from the representative
    statements of States, the following phrases are used and are assumed
    by the court to be synonymous: "international humanitarian law" (New
    Zealand), "rules applicable to armed conflict" (Russian Federation),
    "*jus in bello*" (United Kingdom), and "law of armed conflict"
    (United States). Second, as the noted quotation above makes clear,
    the court's conclusion that humanitarian law applies to nuclear
    weapons is equally applicable to any "past . . . present and . . .
    future" forms of warfare and kinds of weapons. This statement
    certainly provides the ICJ's answer to the question of whether the
    law of war will apply to space warfare.

[^525]: While the author is aware of one paper presented at a Princeton
    symposium in May 1999 by Professor M. Bourbonniere, with one
    exception he is aware of no other authors in print on the specific
    topic under review. That exception, dating to 1959, presciently
    outlined several themes related to the regulation of space warfare
    from the relative infancy of military space development in the
    1950s. J.G. Verplaetse, *The Law of War and Neutrality in Outer
    Space*, 29 [Nordisk Tidsskrift for Int'l Ret]{.smallcaps} 49 (1959).
    Verplaetse pointed out that "\[t\]he unknown cannot be regulated,
    even less juridically organized." *Id.* Somewhat surprisingly, 41
    years after the appearance of this article, the regulation of means
    and methods of space warfare still appears to be largely unknown.
    Verplaetse's prediction about the possibility of armed conflict in
    space remains as true today as ever: "Human forecast cannot but
    accept the likelihood that outer space will soon be part of the
    theater of war of terrestrial belligerents." *Id.* at 51.

[^526]: In the 1999 production *Star Trek Insurrection*, one scene has
    Chief Engineer Lieutenant Geordi LaForge commenting on a weapon's
    explosive impact with his spaceship: "I thought subspace weapons
    were outlawed by the Khitomer Accords?" "They were," comes his
    crewmate's ominous reply thereby identifying a violation of the 24th
    Century law of war. Beyond this specific reference, a review of the
    following recent cinematic releases shows the general popularity of
    space and science-fiction themes at the box office: *Apollo 13,
    Independence Day, 2001: A Space Odyssey, Armageddon, Deep Impact,
    Contact, Lost in Space, My Favorite Martian, Wing Commander,
    Battlefield Earth, Titan A.E., Galaxy Quest*, the *Star Wars*
    remake, and a total of eight *Star Trek* movies. The increasing
    popularity of these movies may account for the lack of scholarly
    legal analysis as commentators find it difficult to take seriously
    what the popular mind relegates to the category "science fiction."

[^527]: Just this year, the Air Force established the first annual
    wargame devoted entirely to space. The Air Force hopes the game
    will, entitled "The Air Force Space Game," will eventually "become a
    Title-10 game on a par with annual events such as Navy 'Global,'
    'Army After Next' and Air Force 'Global Engagement." William B.
    Scott, *Innovation Is Currency of USAF Space Battlelab*, 152:14 [Av.
    Wk. & Space Tech.,]{.smallcaps} Apr. 3, 2000, at 52.

[^528]: Indeed, even beyond wargame scenarios, events prompting such
    questions have already occurred. One author has reported electronic
    interference by a hostile Middle East power against a U.S. military
    satellite.

    > In one recent case the interference continued for weeks. When the
    > U.S. satellite changed to a different channel, the interference
    > also changed channels, suggesting a deliberate attempt by a Third
    > World country to jam a U.S. military communications satellite. The
    > potential of radio interference is especially significant
    > considering that the United States is dependent on satellites for
    > 75 percent of its long-distance military communications.

    Hackett & Ranger, *Proliferating Satellites Drive U.S. ASAT Need*,
    [Signal,]{.smallcaps} May 1990, at 156. While cases such as this
    arguably do not rise to the level of an "armed attack" justifying
    the use of armed force in self defense under the U.N. Charter, they
    do raise questions about the legitimacy of coercive responses short
    of armed conflict, and whether non-aggressive military action could
    or should be interpreted as a threat or use of force under Article
    2(4). *See* *supra* notes Error: Reference source not found, Error:
    Reference source not found, and accompanying text. For an insightful
    analysis of the analogous problem of computer network attacks under
    the *jus ad bellum*, see M.N. Schmitt, *Computer Network Attack and
    the Use of Force in International Law: Thoughts on a Normative
    Framework*, 37:3 [Col. J. Transnat'l L]{.smallcaps}. 885 (1999)
    \[hereinafter Schmitt\]. Beyond this, the 1997 "Army After Next"
    wargame "jolted military and civilian leaders by showing that if
    U.S. satellites are quickly destroyed in the early stages of a
    conflict, ground forces can rapidly grind to a halt." W.B. Scott,
    *Wargames Revival Breaks New Ground*, 149:18 [Av. Wk. & Space
    Tech]{.smallcaps}*.*, Nov. 2, 1998, at 56, 58. To be effective,
    wargames require clear rules specifying what players can and cannot
    do. To the extent space wargaming continues raising questions to
    which there are no clear answers, such as application of the law of
    war and the *jus ad bellum*, these scenarios have served a useful
    purpose in prompting the development of national policy. However,
    with respect to law of war principles, the games often reveal a
    shortcoming beyond the control of the U.S. military or government:
    an inability to ensure that the development of international law
    will account for anticipated military capabilities. On the possible
    role law of war manuals might play in remedying this shortcoming,
    see *infra* note Error: Reference source not found and accompanying
    text.

[^529]: [Spires]{.smallcaps}, *supra* note Error: Reference source not
    found, at 244-45.

[^530]: The North Atlantic Treaty Organization (NATO) air strikes
    against Yugoslavia in 1999 (Allied Force) were even more heavily
    supported by space assets than the 1991 Persian Gulf War. In the
    Yugoslavian conflict, although the United States Space Command
    (USSPACECOM) classified all orbital data on U.S. military spacecraft
    during the conflict stating that even the *reason* for the
    classification remained classified (suggesting the critical role
    space systems played), several facts were apparent. NATO made heavy
    use of two National Reconnaissance Office (NRO) Lacrosse imaging
    radar satellites for pre-strike intelligence and post-strike bomb
    damage assessment with resolutions of one to three meters. Offering
    more precise resolutions, NATO used NRO's three KH-11 satellites for
    more sensitive optical and infrared imagery. It was also thought
    that NATO was using as many as three other of NRO's highly secret
    smaller imaging spacecraft. For weather data, NATO used ten
    spacecraft, including four USAF DMSP spacecraft flying in 500-mile
    polar orbits and two European Meteosat spacecraft in geosynchronous
    orbits. As in Desert Storm, Allied Force made heavy use of the
    twenty-four medium-earth orbit satellites comprising the Global
    Positioning System (GPS). These were used for precision strikes
    guiding both munitions and aircraft. *See* C. Covault*, Military
    Space Dominates Air Strikes*, 150:13 [Av. Wk. & Space
    Tech]{.smallcaps}*.*, Mar. 29, 1999, at 31. In addition to the
    Meteosat assets, several other non-U.S. space systems also
    contributed to NATO's effort including France's Helios 1 military
    imaging satellite, which provided images of one to five meter
    resolutions. *See* P. Sparaco, *French Satellite Details Air Strike
    Damages*, 150:15 [Av. Wk. & Space Tech]{.smallcaps}*.*, Apr. 12,
    1999, at 26.

[^531]: While recognizing the tremendous qualitative difference between
    the use of space in support of combat operations, and the
    weaponization of space itself, the author believes it virtually
    assured that within the near future space will be widely viewed as
    its own military theater of operations and thereafter weaponized.
    Increasing awareness in the U.S. of the need to protect national
    space assets continues to drive the debate closer toward
    weaponization. Though space weapons will likely be developed with
    the principal purpose to defend satellites, some will undoubtedly be
    fielded to provide for an offensive counter-attack. In both cases,
    the strategic and political implications appear to be the same. As
    Colin Gray points out, it "is a distinction without a difference."
    [C.S. Gray, American Military Space Policy: Information Systems,
    Weapon Systems and Arms Control]{.smallcaps} 49 (1982) \[hereinafter
    [Gray]{.smallcaps}\]. Gray proceeds to articulate four strategic
    reasons why the U.S. should weaponize space. Though written before
    the breakup of the Soviet Union, and largely directed toward a
    Soviet adversary, the continuing Russian threat coupled with the
    evolution of new space powers, could make Gray's points equally
    compelling today: first, both the U.S. and Soviet Union (now Russia)
    use space for military purposes that would be critically important
    during war; second, passive defensive techniques, or survival aids
    short of weaponization, are not certain to succeed; third, the
    Soviet Union likely already has deployed ASATs; and fourth, it is
    unlikely that U.S. spacecraft can be protected through deterrence
    given that the Soviets have too much to gain by attacking them in
    war. *Id.* at 49-51.

    > Overall, these arguments amount to the following policy judgment:
    > U.S. self-denial of ASAT capability will not contribute to the
    > survival prospects of U.S. C3I assets in space--indeed, quite the
    > opposite is true. Such self-denial could, and most probably would,
    > permit the Soviet Union \[or other potential future space
    > adversary\] to gather and relay strategic intelligence fatal to
    > the validity of the U.S. policy of continuing deterrence.

    *Id.* at 51.

[^532]: Professor Cheng hints that such is the case in his syllogistic
    argument for the proposition that the legal regime for outer space
    is analogous to the basis status of the high sees. His major
    premise, "that international law is inherently applicable to outer
    space," would certainly include the law of war. B. Cheng,
    *Astronauts*, *in* 11 [Encyclopedia of Public International Law 40
    (]{.smallcaps}Bernhardt, ed., 1982).

[^533]: These include restrictions on the orbiting of nuclear weapons or
    other weapons of mass destruction under Article IV of the Outer
    Space Treaty, as well as the detonation of nuclear weapons in outer
    space under the Limited Test Ban Treaty.

[^534]: *See supra* notes Error: Reference source not found-Error:
    Reference source not found and accompanying text.

[^535]: As implied throughout this article the *jus in bello* for space
    demonstrates an "already/not yet" character. Legal commentators
    understandably seem reluctant to speak of an existing and distinct
    *jus in bello spatialis* ("not yet"), though as has been shown in
    Parts III-V above, numerous specific customary and conventional
    norms operate to limit means and methods of space warfare that
    States may lawfully employ ("already").

[^536]: For example, the U.N. Convention on the Law of the Sea
    distinguishes between territorial sea (complete State sovereignty
    and jurisdiction) and high seas (no State sovereignty or
    jurisdiction, except jurisdiction over its registered vessels). LOS
    Convention, *supra* note Error: Reference source not found, at art.
    2(1), 87(1). Similarly, in the space above the earth, States
    recognize the distinction between national airspace (complete State
    sovereignty and jurisdiction) and outer space (no State sovereignty
    or jurisdiction, except jurisdiction over its registered objects).
    *Compare* Convention on International Civil Aviation, Dec. 7, 1944,
    art. 1, 61 Stat. 1180, 15 U.N.T.S. 295, *with* Outer Space Treaty,
    *supra* note Error: Reference source not found, at art. II.

[^537]: "As a general rule, neutral territory is treated as sacred
    space; it is inviolable." J. Astley & M.N. Schmitt, *The Law of the
    Sea and Naval Operations*, 42 A[.F. L. Rev]{.smallcaps}. 119, 140
    (1997). The law of neutrality is a part of the law of war but not of
    the *jus in bello* and is largely consistent with the law of the
    sea. Thus, the maritime rights and duties of States in peacetime
    continue to exist for the most part during armed conflict. *See id.*
    at 138.

[^538]: At the risk of descending into logical abstraction, a further
    clarification is necessary. With reference to the macro/micro
    categories established above, the form of argumentation here amounts
    to a *meta*-macro-analogy. That is, not only are we in this case
    comparing one combat environment to another to conceive a suitable
    legal framework for war, we are examining the *development* of that
    comparison as it has been used to establish the newer framework for
    aerial combat. Thus, the suggestion made here as to the evolution of
    norms limiting aerial warfare depends not only on the comparison of
    entire legal systems (macro-analogy between aerial combat and
    land/sea combat) within international law, but on an analysis of the
    larger (meta) process by which the comparison led to the newer legal
    regime in the first place.

[^539]: The possible exception being the proscription on discharging
    projectiles from balloons. *See* Declaration (XIV) Prohibiting the
    Discharge of Projectiles and Explosives from Balloons, Oct. 18,
    1907, 36 Stat. 2439.

[^540]: [Collins, Military Space Forces]{.smallcaps}, *supra* note
    Error: Reference source not found, at 1 n.2.

[^541]: *Id.* at 2.

[^542]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at art. III. In addition, the Outer Space Treaty references
    international law as well at Article I. "Outer space, including the
    moon and other celestial bodies, shall be free for exploration and
    use by all States without discrimination of any kind, on a basis of
    equality and in accordance with international law." *Id.*

[^543]: [U.N. Charter,]{.smallcaps} *supra* note Error: Reference source
    not found, at art. 1(1). The phrase appeared previously in the
    Covenant of the League of Nations. Covenant of the League of
    Nations, June 28, 1919, 225 Consol. T.S. 188.

[^544]: That is, it requires the "activity which is necessary for
    maintaining the conditions of peace." R. Wolfrum, *Article 1*, *in*
    [The Charter of the United Nations: A Commentary]{.smallcaps} 50 (B.
    Simma, et al., eds., 1994).

[^545]: Hague Convention (IV), *supra* note Error: Reference source not
    found (from the Preamble).

[^546]: *Id*.

[^547]: The distinction between customary law and other general
    principles of law was later announced as comprising two separate
    sources of international law. *See* [Stat. of the ICJ,]{.smallcaps}
    *supra* note Error: Reference source not found, at art. 38.

[^548]: Geneva Convention I, *supra* note Error: Reference source not
    found, at art. 63 ¶ 4; Geneva Convention II, *supra* note Error:
    Reference source not found, at art. 62 ¶ 4; Geneva Convention III,
    *supra* note Error: Reference source not found, at art. 142 ¶ 4;
    Geneva Convention IV, *supra* note Error: Reference source not
    found, at art. 158 ¶ 4.

[^549]: Protocol I, *supra* note Error: Reference source not found, at
    art. 1(2).

[^550]: Conventional Weapons Treaty, *supra* note Error: Reference
    source not found (from the Preamble).

[^551]: This possibility is strengthened by the claim of the
    International Military Tribunal at Nuremburg in 1946 that convention
    IV is declaratory of customary international law. Roberts & Guelff,
    *supra* note Error: Reference source not found, at 44.

[^552]: H. Strebel, *Martens' Clause*, *in* 3 [Encyclopedia of Public
    International Law 252 (]{.smallcaps}Bernhardt, ed., 1982).

[^553]: Protocol I, *supra* note Error: Reference source not found, at
    art. 1(2).

[^554]: Vlasic, *Negotiating and Drafting Agreements Relating to Outer
    Space*, *supra* note Error: Reference source not found, at 209.

[^555]: *See* definitions of "militarization" and "weaponization,"
    *supra* note Error: Reference source not found.

[^556]: As suggested above, the common view today regards peaceful
    purposes as synonymous with non-aggressive. Such operations would
    include not only peacetime military activity, but also activity
    involving the use of force during armed conflict. What makes an
    activity aggressive and thus non-peaceful is not the use or absence
    of armed force, but the larger purpose to which it is put. An
    aggressive act unlawfully initiated by one belligerent, may trigger
    a lawful, though overwhelming armed response from another in
    individual or collective self-defense. The latter response is not
    rendered aggressive even though it may involve a ferocious degree of
    force, or even what constitutes an act of aggression. In this way,
    even an act of aggression may have a larger peaceful purpose. To the
    extent a use of force is taken in self-defensive, or pursuant to a
    U.N. Security Council authorization, and is proportional to the
    initial aggressive act (that is, to the initial violation of the
    *jus ad bellum*), it complies with international law and may occur
    in space just as elsewhere. For a discussion of the requirement that
    the *jus in bello* principle of proportionality applies to acts of
    self-defense, see Military and Paramilitary Activities (Nicar. v.
    U.S.), 1986 I.C.J. 4, 103 ("The Parties also agree in holding that
    whether the response to the attack is lawful depends on observance
    of the criteria of the necessity and the proportionality of the
    measures taken in self-defense.").

[^557]: Perhaps the most difficult of all space law issues relates to
    the delimitation, or boundary, separating a State's territorial
    airspace and outer space.

    > There is no clear answer to the question of where space begins.
    > But equally clearly, at some point above the earth, there exists
    > an environment completely different from the one we have here. A
    > sort of customary law has developed . . . to the effect than any
    > object in orbit is in space, and that seems enough to satisfy
    > everyone for the time being.

    [Reynolds & Merges]{.smallcaps}, *supra* note Error: Reference
    source not found, at 12. For an excellent, recent legal analysis of
    the air and space boundary question, see Elizabeth Kelly, The
    Spaceplane: The Catalyst for Resolution of the Boundary and 'Space
    Object' Issues in the Law of Outer Space? (1998) (unpublished LL.M.
    thesis, McGill University) (on file with author, and the Nahum
    Gelber Law Library, McGill University).

[^558]: Liability Convention, *supra* note Error: Reference source not
    found, at art. 1(d).

[^559]: *See* DeBlois, *supra* note Error: Reference source not found;
    [Ziegler,]{.smallcaps} *supra* note Error: Reference source not
    found. Joseph Justin points out that the "space sanctuary" school
    "is fundamentally opposed to any military weapons in space." Justin,
    *supra* note Error: Reference source not found, at 104. Justin goes
    on to claim that the space sanctuary perspective "believes space
    should not be used as a military instrument of policy" and that the
    military role in space is to work for demilitarization. *Id.*
    Although this may represent the classic sanctuary position, DeBlois
    and Ziegler do not advocate space as a sanctuary free from any
    military presence, just free from weapons.

[^560]: David A. Fulghum, *USAF Chief Signals Key Funding Priorities*,
    153:1 [Av. Wk. & Space Tech.,]{.smallcaps} July 3, 2000, at 56.
    Expanding the point, General Michael Ryan asserted that while the
    weaponization of space is still decades off, "there is some
    inevitability that it will occur if just to protect extensive
    communications and navigation systems already there. . . . I think
    there will be attacks--challenges to our space capability. We will
    have to protect our assets in space because we're becoming much more
    dependent on them. So I see defense as a primary emphasis." *Id*.

[^561]: *See supra*, note Error: Reference source not found for further
    discussion of the definition of "nuclear weapons" as applied to
    X-ray lasers.

[^562]: S. Gorove, *Space Without Weapons: International Legal Aspects
    of Weapons and Harms*, *in* [Space Without Weapons]{.smallcaps} 29
    (N.M. Matte, ed., 1989) \[hereinafter Gorove, *Space Without
    Weapons*\].

[^563]: Paul B. Stares, *The Problem of Non-Dedicated Space Weapon
    Systems*, *in* [Peaceful and Non-Peaceful Uses of Space: Problems of
    Definition for the Prevention of an Arms Race]{.smallcaps} (B.
    Jasani, ed., 1991) 147 \[hereinafter Stares*, Non-Dedicated Space
    Weapon Systems*\].

[^564]: B. Jasani, *Introduction* to [Peaceful and Non-Peaceful Uses of
    Space: Problems of Definition for the Prevention of an Arms
    Race]{.smallcaps} 13 (B. Jasani, ed., 1991).

[^565]: Stares, *Non-Dedicated Space Weapon Systems*, *supra* note
    Error: Reference source not found, at 147. Stares goes on to suggest
    5 criteria that assist in determining the military capability of
    non-dedicated systems:

    > 1\. Operational readiness. How soon could the non-dedicated system
    > be readied for use as a space weapon? What does it entail to make
    > it ready? Are trained personnel available to convert it and use it
    > for this purpose? Are the necessary support systems, such as
    > target detection and tracking sensors also available? 2. Target
    > coverage. What targets does the non-dedicated system realistically
    > threaten? How many such attacks can it carry out? 3. Speed of
    > attack. How quickly can single or multiple attacks using
    > non-dedicated systems be carried out? Is there any warning
    > associated with their use that might allow defensive
    > countermeasures to be implemented? 4. Operational confidence. What
    > is the probability that single and multiple attacks using
    > non-dedicated systems will succeed in their intended mission? 5.
    > Operational costs. What, if any, are the military or political
    > costs associated with the use of non-dedicated systems as space
    > weapons?

    *Id.* at 151. With reference to ASATs, non-dedicated systems are
    also termed "residual" ASATs. *See* [Stares, Space and National
    Security]{.smallcaps}, *supra* note Error: Reference source not
    found, at 3.

[^566]: Professor Gorove, referring to nuclear and other weapons of mass
    destruction, maintains that "unless specifically covered,
    subcomponents which in themselves do not qualify as a weapon, should
    not be taken to be included in a ban relating to the weapon."
    Gorove, *Space Without Weapons*, *supra* note Error: Reference
    source not found, at 31.

[^567]: For a discussion of this general international legal principle,
    see *supra* note Error: Reference source not found.

[^568]: Indeed, the Soviet Union went so far as to present a "Draft
    Treaty on the Prohibition of the Stationing of Weapons of Any Kind
    in Outer Space" to the 36th Session of the U.N. General Assembly on
    Aug. 20, 1981. In pertinent part, the draft treaty would have
    required

    > States Parties . . . not to place in orbit around the earth
    > objects carrying weapons of any kind, install such weapons on
    > celestial bodies, or station such weapons in outer space in any
    > other manner, including on reusable manned space vehicles of an
    > existing type or of other types which States Parties may develop
    > in the future.

    (Article 1(1)). It would have equally required States Parties "not
    to destroy, damage, disturb the normal functioning or change the
    flight trajectory of space objects of other States Parties, if such
    objects were placed in orbit in strict accordance with Article 1,
    paragraph 1, of this treaty." (Article 3). [Gray]{.smallcaps},
    *supra* note Error: Reference source not found, at 115.

    While the treaty would not have prohibited land-based ASATs, it
    would have significantly expanded the scope of the partial
    deweaponization provision of Article IV, Outer Space Treaty. Outer
    Space Treaty, *supra* note Error: Reference source not found, at
    art. IV. The U.S. dismissed the Soviet draft treaty as a
    "hypocritical propaganda ploy." [Stares, The Militarization of
    Space]{.smallcaps}, *supra* note Error: Reference source not found,
    at 230. Following announcement that the U.S.S.R. would unilaterally
    refrain from deploying ASATs "for the entire period during which
    other countries, including the U.S.A., will refrain from stationing
    in outer space antisatellite weapons of any type," the Soviets
    presented a second draft treaty that would have prohibited the
    testing and deployment of "any space based weapons intended to hit
    targets on the Earth, in the atmosphere, or in space." *Id.* at 231.
    Over great scientific and congressional pressure, the Reagan
    administration rejected this proposal as well citing the extreme
    difficulty, if not "impossibility," in verifying an ASAT treaty.
    *Id.* at 233.

[^569]: After a discussion of the relevant provisions of the Outer Space
    Treaty and the Moon Agreement, Professor Christol observed in 1988
    that

    > \[i\]n the years since 1967 \[Outer Space Treaty\] and 1979 \[Moon
    > Agreement\] science and technology have perfected new generations
    > and families of weapons, including those employing highly focused
    > energy, such as laser weapons, and those based on sub-atomic
    > particles, such as particle beam weapons. Pursuant to the general
    > legal principle that which is not prohibited is permitted, it may
    > be concluded that the more recent exotic weapons do not fall
    > within the constraints of the foregoing treaty provisions.

    C.Q. Christol, *Outer Space: Battle-Ground of the Future?*, *in*
    [Space Law: Past Present and Future]{.smallcaps} 59 (C.Q. Christol,
    ed., 1991). The Russians have objected to the orbiting of particle
    beam weaponry claiming that it constitutes a "weapon of mass
    destruction." [Taylor]{.smallcaps}, *supra* note Error: Reference
    source not found, at 34. However, given its likely capacity for
    great precision, the weapon need not generate "mass" destruction,
    though it may be lethal for its intended target. Some authors
    suggest, inexplicably, that just about all space weapons constitute
    weapons of mass destruction. *See*, *e.g*., M.N. Andem,
    *Implementation of Article IV of the Outer Space Treaty of 1967
    During the 21st Century*, *in* [Proceedings of the Fortieth
    Colloquium on The Law of Outer Space]{.smallcaps} 338, 344 (1998).

[^570]: M.M. Matte, *A Treaty for 'Star Peace*,*' in* 2 [Arms Control
    and Disarmament in Outer Space]{.smallcaps} 190 (N.M. Matte, ed.,
    1987).

[^571]: [U.N. Charter]{.smallcaps}, *supra* note Error: Reference source
    not found, at art. 2(4).

[^572]: Vlasic, *Negotiating and Drafting Agreements Relating to Outer
    Space*, *supra* note Error: Reference source not found, at 211.

[^573]: The more restrictive view of Article 2(4) is admittedly
    difficult to square with the U.N. Charter's plain language and the
    historic reticence in the U.N.G.A. against foreign interventions.
    Nonetheless, "\[e\]xamination of the language and the negotiating
    background of Article 2(4) provides no unequivocal indication of its
    intended meaning." Vlasic, *Negotiating and Drafting Agreements
    Relating to Outer Space*, *supra* note Error: Reference source not
    found, at 211.

[^574]: [Hurwitz]{.smallcaps}, *supra* note Error: Reference source not
    found, at 148-50.

[^575]: Liability Convention, *supra* note Error: Reference source not
    found, at art. II.

[^576]: *Id*. at art. III.

[^577]: *Id*. at art. VI*.*

[^578]: In fact, the exoneration from liability shows the very opposite.
    The Convention purports to punish States engaging in intentional
    destructive acts by eliminating their remedy against the launching
    State. As Article VI(2) establishes however, if the damage is caused
    by activities of the launching State that are inconsistent with the
    international law, including the U.N. Charter and the Outer Space
    Treaty, there will be no exoneration from absolute liability
    "whatever." *Id.* at art. VI(2). This would mean that an aggressive
    military operation by launching State A that causes damage on the
    earth or in the air to claimant State B, will result in no
    exoneration of absolute liability for State A, even if State B
    contributed to the damage by acts done with an intent to cause
    damage.

[^579]: After observing that the U.S. ratified the Liability Convention
    only "after being advised by the Department of State that the
    Convention did not apply to international damage," Hurwitz concludes
    from this that "the U.S. has recognized the right to intentionally
    damage another State's space objects with impunity (as least as far
    as the 1972 Convention is concerned)." [Hurwitz]{.smallcaps},
    *supra* note Error: Reference source not found, at 149. Whether this
    overstates the U.S. position or not, it does seem clear that the
    Convention exonerates one State from liability only as against
    intentional damage caused by the *claimant* State or the natural or
    juridical persons it represents. Liability Convention, *supra* note
    Error: Reference source not found, at art. VI(1). Thus, the U.S.
    Department of State was certainly correct that the Convention does
    not "apply" (that is, create liability), as against one State in
    cases where the claimant State has at least "partially" caused
    intentional damage.

[^580]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at art. VIII.

[^581]: U.N. Charter, *supra* note Error: Reference source not found, at
    art. 51. Given the fact that Article 51 presupposes a previous
    customary right to self defense ("inherent right"), the right to
    respond by State Y may not even require the occurrence of an armed
    attack, depending on the nature of the customary right. For further
    discussion of article 51, see *supra* note Error: Reference source
    not found. State Y's act of self defense must also be proportionate
    to State X's provocation.

[^582]: For example, in arguing for an approach to space power that
    rests in part on the assertion that "America's future security and
    prosperity depend on our constant supremacy in space," United States
    Senator Smith advocated a shift of "substantial" national military
    resources into space. Sen. Bob Smith, *The Challenge of Space
    Power*, 13:1 [Airpower J]{.smallcaps}. 32, 33 (1999) \[hereinafter
    Smith\]. He opined that "if we do, we will buy generations of
    security that all the ships, tanks, and airplanes in the world will
    not provide. This would be a real 'peace-dividend' -- it would
    actually help keep the peace." *Id*. Subsequently, he specified that
    the use of space to secure information superiority does not
    constitute space warfare stating that "if we limit our approach to
    space just to information superiority, we will not have fully
    utilized space power." *Id.* at 34. Calling for a "space-power
    culture" within the U.S. military, Senator Smith warned against
    allowing a "blanket of political correctness and bureaucratic
    inertia" from smothering revolutionary ideas. *Id.* at 35, 36.

[^583]: Commentators, politicians, academics, and military members have
    been calling for such a move for years. For example, in 1970 Robert
    Salkeld provocatively claimed that space warfare was a virtual
    inevitability. "The concept which naturally suggests itself is the
    eventual creation and growth of a fourth major service, a United
    States Space Force, which might function at budgetary parity with
    the Army, Navy and Air Force." [R. Salkeld, War and
    Space]{.smallcaps} 189 (1970). Later, another commentator observed
    that roles and missions debates for space between the existing
    services would reach a fevered pitch leading to an inevitable
    evolution toward a separate space service.

    > Military space operations, much like U.S. tactical air combat
    > power, probably will remain a specialty within several military
    > services that squabble over respective budgets/prerogatives, until
    > important space missions involve more than support for armed
    > forces on Earth and powerful spokesmen present decisionmakers a
    > persuasive case. A Solomon-style decision eventually will be
    > unavoidable: senior officials must determine whether to deliver
    > the military space 'baby' intact or divide it. . . . A separate
    > armed service with centralized control over all military space
    > activities, for example, might avoid most doctrinal disputes.

    [Collins, Military Space Forces]{.smallcaps}, *supra* note Error:
    Reference source not found, at 82, 83. In 1999, Senator Smith
    suggested the propriety of such a move: "The notion that the Air
    Force should have primary responsibility for space is not sacred. .
    . . \[I\]f the Air Force cannot or will not embrace space power . .
    . we in Congress will have to establish an entirely new service."
    Smith, *supra* note Error: Reference source not found, at 37-38.

[^584]: [Newberry,]{.smallcaps} *supra* note Error: Reference source not
    found, at 6. Major Newberry's point could be applied equally to the
    U.S. Army and Navy, and likely to the national security
    establishments of all other spacefaring States as well.

[^585]: National Science and Technology Council, *National Space Policy*
    ¶ 3 (Sept. 19, 1996)
    http://ast.faa.gov/licensing/regulations/nsp-pdd8.htm (on file with
    the *Air Force Law Review*) \[hereinafter *National Space Policy*\].

[^586]: *Id.*

[^587]: A National Security Strategy for a New Century (The White House,
    Office of the President 1998) at 25.

[^588]: *National Space Policy*, *supra* note Error: Reference source
    not found, at "National Security Space Guidelines" ¶ (6)(a).

[^589]: Department of Defense Directive 5100.77, DOD Law of War Program
    ¶ 4.1 (Dec. 9, 1998)

[^590]: *Id.* ¶ 5.3.1.

[^591]: W.B. Scott, *'Milspace' Maturing Into Warfighter Roles*, 147:9
    [Av. Wk. & Space Tech]{.smallcaps}*.*, Sept. 1, 1997, at 46.

[^592]: W.B. Scott, *U.S. Adopts 'Tactical' Space Control Policy*,
    150:13 [Av. Wk. & Space Tech]{.smallcaps}*.*, Mar. 29, 1999, at 35.

[^593]: United States Space Command, *Long Range Plan: Implementing
    USSPACECOM Vision for 2020* (March 1998) 21 \[hereinafter *Long
    Range Plan*\]. Following release of the *Long Range Plan*, DOD
    issued a space policy which expanded upon themes raised by
    USSPACECOM. For example, the DOD policy states: "Purposeful
    interference with U.S. space systems will be viewed as an
    infringement on our sovereign rights. The U.S. may take all
    appropriate self-defense measures, including, if directed by the
    National Command Authorities (NCA), the use of force, to respond to
    such an infringement on U.S. rights." Department of Defense
    Directive 3100.10, Space Policy ¶ 4.2.1 (July 9, 1999) \[hereinafter
    DODD 3100.10\].

[^594]: *Long Rang Plan*, *supra* note Error: Reference source not
    found, at 11. The DOD definition of "space control" mirrors the
    USSPACECOM definition: "Combat and combat support operations to
    ensure freedom of action in space for the United States and its
    allies and, when directed, deny an adversary freedom of action in
    space. . . ." DODD 3100.10, *supra* note Error: Reference source not
    found ¶ E2.1.3.

[^595]: *Id*.

[^596]: W.B. Scott, *Space Ops Threatened By Launch Failures*, 150:20
    *Av. Wk. & Space Tech.*, May 17, 1999, at 25, 26.

[^597]: *Id.* at 26.

[^598]: AFP 110-31, *supra* note Error: Reference source not found.

[^599]: W.M. Reisman & W.K. Leitzau, *Moving International Law from
    Theory to Practice: the Role of Military Manuals in Effectuating the
    Law of Armed Conflict*, *in* 64 [International Law Studies, The Law
    of Naval Operations]{.smallcaps} 8 (H.B. Robertson, ed., 1991).

[^600]: [Stat. of the ICJ,]{.smallcaps} *supra* note Error: Reference
    source not found, at art. 38(1)c.

[^601]: General Fogleman, former Air Force Chief of Staff, asserted that
    "\[d\]ominating the information spectrum is as critical to conflict
    now as occupying the land or controlling the air has been in the
    past." Air Force Doctrine Document 2-5, Information Operations, 1
    (Aug. 5, 1998) \[hereinafter AFDD 2-5\].

[^602]: Such potential threats have not escaped notice by the Department
    of Defense. For example, fears about potential unauthorized access
    have prompted serious debate over whether the military should
    withdraw from the Internet altogether. *DOD May Unplug from Internet
    Due to Security Worries at Century's End*, [Inside the
    Army,]{.smallcaps} June 21, 1999, at 1.

[^603]: [Air Force 2025]{.smallcaps}, *supra* note Error: Reference
    source not found, at 4. The study went on to assert that "\[t\]he
    key to achieving and maintaining lasting superiority that cannot
    easily be duplicated by others lies in the integration of
    information, air, and space." *Id.* at 9.

[^604]: Department of Defense Directive S-3600.1, Information Operations
    (Dec. 9, 1996) \[hereinafter DODD S-3600.1\]. The Air Force broadens
    this definition for its forces, including space forces, as follows:
    "Those actions taken to gain, exploit, defend or attack information
    and information systems and include both information-in-warfare and
    information warfare." AFDD 2-5, *supra* note Error: Reference source
    not found, at 41. Information-in-warfare is defined as "the Air
    Force's extensive capabilities to provide global awareness
    throughout the range of military operations based on integrated
    intelligence, surveillance and reconnaissance (ISR) assets; its
    information collection/dissemination activities; and its global
    navigation and positioning, weather, and communications
    capabilities." *Id.*

[^605]: DODD S-3600.1, *supra* note Error: Reference source not found.
    As with "information operations," the Air Force expands this
    definition as it recognizes the continuing engagement of defensive
    information warfare systems even absent crises or armed conflict:
    "Information operations conducted to defend one's own information
    and information systems, or to attack and affect an adversary's
    information and information systems." AFDD 2-5, *supra* note Error:
    Reference source not found, at 42. Thus, on either definition,
    information warfare is a specialized kind of information operations.
    Unlike previous definitions, it includes more than just attack of
    command and control systems. *Id.* at vii.

[^606]: Of course, information warfare and the multi-faceted operations
    it entails is not limited to the space environment. However, with
    the increasing reliance on space for telecommunications
    applications, the means of transmitting, intercepting, and
    corrupting information will entail use of satellite systems.

[^607]: For a discussion of the customary principle of military
    necessity, see *supra* notes Error: Reference source not
    found-Error: Reference source not found and accompanying text.

[^608]: For a discussion of the customary principle of proportionality,
    see *supra* notes Error: Reference source not found-Error: Reference
    source not found and accompanying text.

[^609]: For a discussion of the customary principle of discrimination,
    see *supra* notes Error: Reference source not found-Error: Reference
    source not found and accompanying text.

[^610]: For a discussion of the customary principle of humanity, see
    *supra* notes Error: Reference source not found-Error: Reference
    source not found and accompanying text.

[^611]: For a discussion of the Hague system, see *supra* Part III, §
    C.1. For a discussion of the Geneva system, see *supra* Part III, §
    C.2.

[^612]: Department of Defense, *Annual Report to the President and the
    Congress*, 1998, Chapter 7, p.1. The most recent *Annual Report*
    continues this theme, "\[m\]ilitary operations rely heavily upon
    information lines of communication to, in, through, and from space."
    Department of Defense, *Annual Report to the President and the
    Congress*, 2000, Chapter 8, p.2. The observation from the 1998
    *Annual Report* that space operations provide access to foreign
    countries "without violating their sovereignty," requires some
    clarification as it might apply to space warfare. It is certainly
    true that space surveillance and reconnaissance activities, even if
    conducted by foreign militaries, do not violate a sensed-State's
    sovereignty. This includes all manner of remote sensing and
    electronic interception. Yet as space operations evolve into
    instruments of combat, actual destruction of an adversary's space
    assets is likely to be accompanied by claims that its sovereignty
    has been violated. The implications under the *jus ad bellum* are
    obvious and the question will increasingly merit attention,
    particularly because a State's sovereignty is generally tied to its
    territory. The Outer Space Treaty outlaws national appropriation by
    claim of sovereignty of outer space, including the moon and other
    celestial bodies. Outer Space Treaty, *supra* note Error: Reference
    source not found, at art. II. By itself, this does not mean that
    States will not have sovereign rights in space. Article II was
    tested in 1976 when eight equatorial States attempted to claim
    sovereignty in portions of the geosynchronous orbit by means of the
    dubious "Bogota Declaration." Predictably, such claims were roundly
    rejected by the international community which, on the authority of
    the Outer Space Treaty and common sense, refused to recognize
    sovereign rights in portions of outer space itself. The claims of
    these States (Colombia, Brazil, Ecuador, Congo, Kenya, Uganda,
    Zaire, Indonesia), four of whom had previously ratified the Outer
    Space Treaty, "has met with technically constructive as well as
    legally well-reasoned refutations by a majority of member states of
    the U.N. in those international fora where it has been reiterated."
    [M.N. Andem, International Legal Problems in the Peaceful
    Exploration and Use of Outer Space 160]{.smallcaps} (1992).

    Beyond assertions of sovereignty over natural resources from space,
    or portions of space itself, lies the question of whether the Outer
    Space Treaty allows for sovereignty in a space *asset* itself beyond
    an assertion of sovereignty as a property right. The Outer Space
    Treaty provides that States retain jurisdiction and control as well
    as "ownership" over the space objects on its registry. Outer Space
    Treaty, *supra* note Error: Reference source not found, at art.
    VIII. The ISS Agreement uses similar language ("ownership,"
    "jurisdiction and control") without vesting national sovereignty in
    the asset. ISS Agreement, *supra* note Error: Reference source not
    found, at art. 5, 6. However, because Article II of the Outer Space
    Treaty focuses on national appropriation, only secondarily
    mentioning sovereignty as one of several means of effectuating an
    illegal claim of national appropriation, it appears that a
    limitation on State sovereignty over its space assets, if any, will
    not come by operation of Article II.

    Certainly States have already appropriated objects that they own and
    control. In effect, States already maintain a national appropriation
    over their assets in space. A possible source limiting a State's
    sovereignty rights in its space assets comes from Article XII of the
    Outer Space Treaty which requires that all "stations, installations,
    equipment and space vehicles on the moon and other celestial bodies
    shall be open to representatives of other States Parties to the
    Treaty on a basis of reciprocity." Outer Space Treaty, *supra* note
    Error: Reference source not found, at art. XII. Typically, spaces
    over which a State exercises its sovereignty may be closed to
    foreign entrance. However, although with this provision States
    Parties give up a measure of exclusive occupation and privacy in
    their space objects on the moon and other celestial bodies, such
    does not necessarily imply a loss of sovereignty. As a practical
    matter, the question of State sovereignty in its space objects is
    relatively unimportant for civil and commercial activities given the
    "jurisdiction and control" and "ownership" provisions of Article
    VIII, Outer Space Treaty. However, the question may become acute as
    the prospect of military confrontation in space increases and States
    engage in hostilities that may constitute an act of aggression. For
    an interesting recent discussion of State jurisdiction in outer
    space, see W.P. Heere, *Problems of Jurisdiction in Air and Outer
    Space* XXIV:2 [Air & Space L]{.smallcaps}. 70 (April 1999).

[^613]: *See*, *e.g.*, R.G. Hanseman, *The Realities and Legalities of
    Information Warfare* [45 A.F. L. Rev]{.smallcaps}. 173 (1997); S.P.
    Kanuck, *Information Warfare: New Challenges for Public
    International Law* (1996) 37 Harv. [Int'l]{.smallcaps} L. J. 272;
    and Schmitt, *supra* note Error: Reference source not found.

[^614]: As the practice of space warfare is currently evolving, for the
    near future it will likely entail principally the targeting and
    destruction of unmanned assets both within airspace and outer space.

[^615]: Phrasing the issues in this way is intended to illustrate that
    the problem of "dual use" assets can be understood in two different
    ways. The *use* of the asset can be "dual," as for example a remote
    sensing satellite used both for agricultural research as well as for
    evidence of war crimes. In this regard the NATO use of satellite
    imagery to establish the creation of mass graves could have come
    from civilian, commercially available remote sensing systems.
    Further the *ownership* of the satellite can be dual as between
    several States directly, or through participation in
    intergovernmental organizations such as the International
    Telecommunications Satellite Organization (INTELSAT) and the former
    International Mobile Satellite Organization (INMARSAT).

[^616]: *See* Agreement Relating to the International Telecommunications
    Satellite Organization "INTELSAT," Aug. 20, 1971, 23 U.S.T. 3813
    (entered into force Feb. 12, 1973).

[^617]: Article 3 of the INMARSAT treaty requires that the uses of its
    assets be reserved for "peaceful purposes." Convention on the
    International Maritime Satellite Organization, Sept. 3, 1976, art.
    3, 31 U.S.T. 1, 1143 U.N.T.S. 105 (entered into force July 16,
    1979).

[^618]: W.D. von Noorden, *INMARSAT Use By Armed Forces: A Question of
    Treaty Interpretation*, 23:1 [J. Space L]{.smallcaps}. 1, 2 (1995)
    \[hereinafter von Noorden\].

[^619]: *Id.* As for military uses authorized by the treaty, the member
    nations of INMARSAT, as well the INMARSAT staff itself, have
    concluded that the treaty's language "permits the use of INMARSAT
    assets by UN peacekeeping or peacemaking forces acting under the
    auspices of the UN Security Council, even if they are engaged in
    armed conflict to accomplish their missions." Department of Defense,
    Office of General Counsel, *An Assessment of International Legal
    Issues in Information Operations* (May 1999) at 15.

[^620]: von Noorden, *supra* note Error: Reference source not found, at
    2. The author strongly implies that the U.S. simply avoided the
    "peaceful purposes" issue by focusing instead on unwanted publicity.

[^621]: *See*, *e.g.*, R.A. Morgan, *Military Use of Commercial
    Communication Satellites: A New Look at the Outer Space Treaty and
    'Peaceful Purposes'* 60 [J. Air L. & Com]{.smallcaps}. 237 (1994).

[^622]: Once again, military wargames are precipitating discussion of
    potential legal issues. In the Army's 1998 "Space Game 2" an issue
    arose as to the use of commercial satellites and whether the U.S.
    could or should attack either the space or ground segment. The
    now-familiar question "which of these options constitute an act of
    war?" also was raised. W.B. Scott, *Wargame Raises New Space Policy
    Dilemmas*, 148:8 [Av. Wk. & Space Tech]{.smallcaps}*.*, Feb. 23,
    1998, at 98.

[^623]: The following discussion describes neutrality as a specific
    legal category within the law of war:

    > The term 'neutrality' designates the legal status of a State which
    > does not participate in a war being waged by other States. A
    > precondition, therefore, is the existence of a war between
    > sovereign States or a civil war in which the rebels have been
    > recognized as belligerents. . . . In the case of a use of force
    > which falls short of actual war, the laws of neutrality do not
    > apply. . . . Neutrality ends when the neutral State enters the
    > war, but not if it uses force to counter a violation of its
    > neutrality. . . . A neutral State has the right to demand respect
    > for its independence and above all for its territorial
    > sovereignty, including its air space. . . . The supreme precept is
    > that the neutral State may not, by governmental measures,
    > intervene in the conflict to the advantage of one of the
    > belligerents. Measures that would assist a belligerent and those
    > that would harm it are alike forbidden. This prohibition applies
    > even if equal treatment for both parties is contemplated. Equality
    > of treatment and impartiality are in this respect irrelevant. It
    > is an obligation imposed on the government of the neutral State,
    > but not on its nationals. . . . Basically, neutral obligations are
    > only of a political or a military nature.

    R.L. Bindschedler, *Neutrality, Concept and General Rules*, *in* [4
    Encyclopedia of Public International Law 9-13]{.smallcaps}
    (Bernhardt, ed., 1982).

[^624]: *See* Hague Convention (V) Respecting the Rights and Duties of
    Neutral Powers and Persons in Case of War on Land, Oct. 18, 1907
    (1908 Supp.) 2 [Am. J. Int'l L]{.smallcaps}. 117 \[hereinafter Hague
    Convention (V)\]; *See* Hague Convention (XIII) Concerning the
    Rights and Duties of Neutral Powers in Naval War, Oct. 18, 1907
    (1908 Supp.) 2 [Am. J. Int'l L]{.smallcaps}. 202.

[^625]: As previously suggested, references to "bombardment" where used
    in the conventions governing land (IV) and sea (IX) warfare have
    been widely read to effect limits on means and methods of
    prosecuting air war. *See*, *e.g.*, Parks, *supra* note Error:
    Reference source not found.

[^626]: Hague Convention (V), *supra* note Error: Reference source not
    found, at art. 8. The specific reference to early instruments of
    telecommunications is particularly apt as applied to space warfare.
    The principal assets in which the "dual use" problem for neutral and
    belligerent co-ownership arises in space warfare will be for
    telecommunications satellites.

[^627]: *Id.* at art. 9.

[^628]: *Id.* at art. 20.

[^629]: Other non-parties to the Convention that were active to some
    degree in the 1991 Persian Gulf War include Canada, Italy and
    Turkey.

[^630]: Roberts & Guelff, *supra* note Error: Reference source not
    found, at 61.

[^631]: In addition to those cited below, perhaps the most obvious
    example of dual-use technology pertains to launch vehicles. In the
    civilian context, launch vehicles are also termed boosters or simply
    transportation systems. In the military context, virtually the same
    launch vehicles become missiles and rockets. This dual use potential
    for the same launch vehicle creates tension given the rise of
    commercial use of space. For example, the joint venture between
    U.S., Russian, Norwegian, and Ukrainian corporations to launch
    commercial satellites from an ocean-going oil rig was suspended in
    1998 over missile technology concerns. The effort, popularly known
    as Sea Launch, uses a Russian Zenit rocket to boost the commercial
    payloads to orbit. The U.S. State Department, fearful that Boeing
    was educating Russia on improvements to its missile design, halted
    work on the project. The Zenit rocket is a modified version of the
    Russian SS-18 ICBM. *See* J. Mintz*, U.S. Suspends Boeing-Ukraine
    Rocket Launch*, [Wash. Post,]{.smallcaps} Aug. 8, 1998, at A14. The
    U.S. has subsequently allowed work to resume.

[^632]: The dual-use character of remote sensing satellites benefits
    military and civilian organizations in both directions. Thus,
    military imagery finds useful civilian application as well. For
    example, declassification of photoreconnaisance from the early U.S.
    Corona satellites has allowed for surface water studies.
    Recently-released imagery showed the size of the Soviet Aral Sea in
    1962. By comparison with 1990s imagery, the considerable extent to
    which the sea has shrunk due to the diversion of water for
    irrigation becomes clear. [Peebles, The Corona Project,]{.smallcaps}
    *supra* note Error: Reference source not found, at 266. Peebles also
    notes that

    > \[t\]he first NASA Landsat earth resources satellite was launched
    > in 1972 -- a month after the end of Corona. With the Corona
    > photos, environmental studies could be extended back another
    > twelve years, helping to separate long-term changes from normal
    > variations in such areas as movement of sand dunes, loss of forest
    > areas, and shifts in the courses of tropical rivers.

    *Id.*

[^633]: Christol argues that this dual-use aspect of most space assets
    contributed "to the demise of the position that military activities
    in the space environment were inherently aggressive. . . . Space
    objects engaged in communications, observations of earth from space,
    weather observation, and geodesy could be engaged in either a
    military, a non-military, or both military and non-military
    activities." [Christol, Modern International Law of Outer
    Space]{.smallcaps}, *supra* note Error: Reference source not found,
    at 28.

[^634]: A further permutation of the issue arises when several opposing
    belligerents simultaneously use the same asset. During Operation
    Desert Storm, both the coalition *and* Iraq were using transponders
    off the ARABSAT telecommunication system. F.R. Cleminson, *Banning
    the Stationing of Weapons in Space Through Arms Control: A Major
    Step in the Promotion of Strategic Stability in the 21st Century*,
    *in* [Arms Control and the Rule of Law: A Framework for Peace and
    Security in Outer Space 39]{.smallcaps} (J.M Beier & S. Mataija,
    eds., 1998). Aside from the issue of neutral State partial ownership
    of the system, there appears to be no *jus in bello* reason why
    either side could not have attacked the satellite. Though each side
    would have had to calculate whether it stood to gain more than it
    lost by the attack, this amounts to a question of military tactics
    and strategy rather than permissible conduct under the law.

[^635]: Thus, in its Report to Congress on the conduct of the Gulf War,
    the Department of Defense discussed the coalition attacks on major
    utilities, the Iraqi communications system, and bridges. The Report
    affirms that

    > \[w\]hen objects are used concurrently for civilian and military
    > purposes, they are liable to attack if there is a military
    > advantage to be gained in their attack. ('Military advantage' is
    > not restricted to tactical gains, but is linked to the full
    > context of a war strategy, in this instance, the execution of the
    > Coalition war plan for liberation of Kuwait.)

    Department of Defense Report to Congress on the Conduct of the
    Persian Gulf War: Appendix O on the Role of the Law of War, 31
    I.L.M. 612, 623 (1992).

[^636]: If all that were required were a potential military use, *any*
    asset could be targeted. The homes of civilians far from the
    battlespace could potentially be used by military forces, but such
    are not lawful targets unless so used. Similarly, any satellite with
    a system of on-orbit propulsion is a potential kinetic ASAT for
    another satellite. This, by itself, does not make the satellite a
    military objective.

[^637]: [M. Collins, Liftoff: The Story of America's Adventure in
    Space]{.smallcaps} 161 (1988).

[^638]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at art. V. Though "astronaut" was originally a U.S. term
    referring to human beings in space, it can apply equally to humans
    in space from other countries, including those that may prefer the
    term "cosmonaut." As used here, the two terms are synonymous and use
    of the one constitutes reference to both. The phrase "envoys of
    mankind" comes from the Outer Space Treaty which declares "States
    Parties to the Treaty shall regard astronauts as envoys of mankind
    in outer space and shall render them all possible assistance in the
    event of accident, distress, or emergency landing on the territory
    of another State Party or on the high seas." *Id*.

[^639]: Commenting on this term, Cocca writes

    > The term 'envoy' has a precedent in diplomatic law, that of an
    > envoy extraordinary. An envoy ranks just below an ambassador and
    > always is an agent, a messenger. The reason for this unique
    > concept lies in the fact that astronauts have been vested with the
    > legal representation of all mankind in outer space and celestial
    > bodies. No former representation has ever been as wide and
    > politically, it goes beyond the most audacious ambition. On the
    > other hand, this investment was recognized in the General Assembly
    > by unanimity and acclamation.

    A.A. Cocca, *Prospective Space Law*, 26:1 [J. of Space
    L]{.smallcaps}. 51, 54 (1998).

[^640]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at art. IV ("The use of military personnel for scientific
    research or for any other peaceful purposes shall not be
    prohibited.")

[^641]: At the time of the adoption of the Outer Space Treaty, virtually
    all U.S. astronauts in space from the Mercury and Gemini projects
    had all been members of the U.S. military.

[^642]: It appears to be of little significance that the Outer Space
    Treaty requires that astronauts be regarded as envoys of mankind "in
    outer space." When read in context, this is not a geographic
    limitation for the exclusive area in which astronauts are to be
    regarded as envoys, but rather a claim that when away from earth,
    that is, in outer space, astronauts represent the human race.

[^643]: Hague Convention (IV) Annex, *supra* note Error: Reference
    source not found, at art. 1. Although the requirements to have a
    distinctive emblem "recognizable at a distance" and to "carry arms
    openly" certainly assume new meaning as applied to outer space, such
    requirements could be complied with in space just as they are on
    land, sea, or in the air. The central point of these requirements is
    to allow clear distinction between combatants and civilians,
    legitimate and illegitimate military targets. Failure to so identify
    oneself if done to take advantage of the enemy's goodwill, amounts
    to an act of perfidy, one of the most serious law of war violations
    as it undermines the entire system and the mutual "confidence" on
    which it is based. For a discussion of perfidy under Protocol I to
    the Geneva Conventions, see *supra* note Error: Reference source not
    found.

[^644]: Article 31 of the Vienna Convention requires that a treaty be
    interpreted "in good faith in accordance with the ordinary meaning
    to be given to the terms of the treaty in their context *and in
    light of its object and purpose*." Vienna Convention, *supra* note
    Error: Reference source not found, at art. 31 (emphasis added).
    Though the Vienna Convention came into force well after adoption of
    the Outer Space Treaty, the U.S. views its provisions as simply
    codifying preexisting customary international law.

[^645]: It is for this reason that diplomats stationed in foreign
    countries are accorded such wide protections under international
    law. Not only are their personal and professional premises, archives
    and documents, and persons deemed "inviolable," but they are free
    from the criminal jurisdiction of the receiving State. Vienna
    Convention On Diplomatic Relations, Apr. 18, 1961, 500 U.N.T.S. 95
    (entered into force June 24, 1964).

[^646]: M. Bourbonniere, & L. Haeck, *Jus in Bello Spatialis*, [1999
    Proceedings of the Space Studies Institute 8]{.smallcaps} (1999)
    (conference on space manufacturing). Once a diplomat takes up arms,
    he arguably loses his diplomatic protections. *See* J.S. Beaumont,
    *Self-Defense as a Justification for Disregarding Diplomatic
    Immunity*, 1991 [Can. Y.B. Int'l L]{.smallcaps}. 391 (1992).

[^647]: The Outer Space Treaty itself hints at this by requiring that
    States Parties regard astronauts as envoys. This raises the subtle
    distinction between an astronaut actually being an envoy, and simply
    being regarded as one.

[^648]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at art. V.

[^649]: Rescue and Return Agreement, *supra* note Error: Reference
    source not found, at art. IV.

[^650]: *See* S. Gorove, *Legal and Policy Issues Raised by the Proposed
    Notion of 'Aerospace Object,'* *in* [Proceedings of the Fortieth
    Colloquium on the Law of Outer Space]{.smallcaps} 411 (1998); [C.Q.
    Christol, Space Law: Past, Present, and Future]{.smallcaps} 339
    (1991); [M. Lachs, The Law of Outer Space: An Experience in
    Contemporary Law-Making]{.smallcaps} 59, 60 (1972). Generally, the
    arguments rests on anecdotal evidence of spacecraft entering the
    national airspace of a foreign State without incident or objection.

[^651]: For additional discussion of the question of innocent passage as
    a customary norm of international law, see *supra* note Error:
    Reference source not found. In addition to the arguments of
    Malanczuk and Wassenberg, additional space law commentators have
    made the argument cogently, including A.D. Terekhov, *Passage of
    Space Objects Through Foreign Airspace: International Custom?*, 25:1
    [J. Space L]{.smallcaps}. 1 (1997); P. Haanappel, *The Aerospace
    Plane: Analogies with Other Modes of Transportation*, *in*
    [Proceedings of the Thirty-Second Colloquium on the Law of Outer
    Space]{.smallcaps} 341, 342 (1990); B. Cheng*, The Legal Regime of
    Airspace and Outer Space: The Boundary Problem Functionalism Versus
    Spatialism: The Major Premises*, V [Annals Air & Space
    L]{.smallcaps}. 323, 357 (1980). Indeed, while backing away from its
    earlier unequivocal assertions that such a right exists, Russia more
    recently stated that "\[p\]rovisions of international customary law
    with respect to the passage of aerospace objects after re-entry into
    Earth's atmosphere are currently in the process of being
    elaborated." *Questionnaire On Possible Legal Issues with Regard to
    Aerospace Objects: Replies from Member States*, U.N. Doc.
    A/AC.105/635 (1996).

[^652]: LOS Convention, *supra* note Error: Reference source not found,
    at art. 19.

[^653]: Scott, *Space As New Area of Responsibility*, *supra* note
    Error: Reference source not found, at 55. While General Estes' point
    appears self-evident, the U.S. is not likely to deploy weapons for
    some time. "\[W\]e don't foresee weaponization in space between now
    and the 2020 timeframe." Robert Wall, *Space Weapons Fall from USAF
    Vision*, 153:2 [Av. Wk. & Space Tech]{.smallcaps}., July 20, 2000,
    at 86 (quoting Secretary of the Air Force, F. Whitten Peters).

[^654]: This prospect appears unlikely. Following his discussion of
    events at the U.N. Conference on Disarmament, Professor Vlasic
    plausibly asserts:

    > It may not be too far-fetched to conclude that the position of
    > certain States on the issue of space weapons reflects their desire
    > not to be subject to restrictions, at least not yet, by an
    > international legal instrument, even if only a U.N.G.A.
    > resolution, condemning in unambiguous terms the development,
    > testing and deployment of devices, wherever based, designed to
    > attack or interfere with space assets.

    Vlasic, *Space Law and Military Technology*, *supra* note Error:
    Reference source not found, at 407.

[^655]: As stated previously, given the continuing implications of State
    sovereignty in international relations, it is important to conceive
    State behavior not as *authorized* by international law, but rather
    inherently lawful unless proscribed by international law. *See*
    *supra* note Error: Reference source not found. Accordingly, it is
    appropriate to speak of activity that is "not prohibited" or
    "consistent with international law."

[^656]: Several of the items on these prohibited and not prohibited
    lists were taken from a July 1985 working paper entitled "Survey of
    International Law Relevant to Arms Control and Outer Space"
    submitted by the government of Canada to the U.N. Conference on
    Disarmament. Stojak, *supra* note Error: Reference source not found,
    at 45, 46.

[^657]: The two publicly-acknowledged exceptions include the U.S. and
    Russian ASAT systems. States have historically been reluctant to
    agree to restrictions on their use of potential weaponry before it
    has been developed and fielded. The notable exception is the recent
    restriction on blinding lasers. *See* *supra* note Error: Reference
    source not found.