**An Army View of Neutrality in Space:**

**Legal Options for Space Negation**

[Major David L. Willson]{.smallcaps}[^1]

**I. INTRODUCTION**

Commanders do have options with regard to space control and denying the
use of space to the enemy and those assisting the enemy. Because the gap
between technology and the law has widened significantly in recent
years, military attorneys who advise commanders on space matters have to
step away from traditional thought processes and think "outside the
box." This may involve looking back at some very old legal theories to
enable commanders to accomplish their mission. The response, "sorry sir
you cannot do that because it is illegal," is rarely acceptable. The
military attorney's goal should be to find legally acceptable solutions
wherever possible to support the commander's objective. This article is
a concrete example of the type of legal support military attorneys
should advocate. It provides an analysis of a potential real-world
problem a commander might face by examining the current law as well as
some antiquated law. In doing so, it serves as one limited example of
how legal solutions, instead of just options, should be provided for the
commander.

Imagine the following scenario. You are a commander planning for a major
battle. As the plan develops you attempt to anticipate the moves of your
adversary, President Osama Shareif, ruler of Northland. The U.S. is
either engaged in or on the verge of armed conflict with Northland. You
receive the intelligence preparation of the battlefield (IPB) describing
Northland's capabilities relating to space support. You are informed
that they are able to utilize satellites in planning, coordinating, and
launching extremely precise and lethal attacks. Northland is using
satellite communications to coordinate all of their troop movements, and
satellite imagery less than thirty-two hours old to locate your troops
and weapons. Northland is also using satellite navigation to guide their
planes, tanks, and helicopters, and using missiles equipped with
satellite guided navigation equipment allowing them precision targeting
and stealthy tracking avoidance.

More disturbing to you is the discovery that the satellite support is
coming from a commercial company, HERCULES, located within the borders
of Passivaland, a neutral country. You thought Passivaland was an ally,
or at least, would not get involved in support of Northland. What can
you do to prevent this company within Passivaland from providing support
to Northland? You realize that provision of the satellite services
mentioned above would require three different satellite systems,
probably owned by three different companies. But you also realize that
the time is quickly approaching when individual companies or consortiums
will offer one-stop shopping for all available satellite services.

Your goal is to deny Northland access to any and all satellite services.
There are numerous methods of accomplishing this goal. One such method,
destroying and interfering with Northland's ability to access satellite
services, was the method used in Desert Storm. Attacking Northland
directly using force or interfering with its ground systems would be the
best military option,[^2] but for political reasons this option is not
available. Nonetheless, you must concentrate on interfering with or
destroying HERCULES' ability to provide these services. You realize that
you may not attack the satellite system in space or the ground
components located in Passivaland without legal justification, because
Passivaland is a neutral country.

This article will analyze legal theories that might allow the U.S. to
use force against assets such as HERCULES' satellites and ground
components. If the U.S. can establish that HERCULES is providing direct
support to Northland with the knowledge of Passivaland, and if
Passivaland is otherwise legally responsible for the activities of
HERCULES, then Passivaland is no longer entitled to protection under the
laws of neutrality. In such a case, the U.S. could then use force
against the satellite in space, or ground components in Passivaland,
provided there are no other less intrusive options available to stop the
assistance to Northland. These other options might include diplomatic
and other nonviolent actions to put Passivaland on notice.

This article argues that during armed conflict, the United States may
legally interfere[^3] with a neutral country's commercial satellites
(and ground support systems)[^4] if they are supporting enemy
operations. Central to the argument is a showing that States are
responsible for all space-related activities originating or controlled
from their territory.[^5] Typically, under the laws of neutrality, a
State is not required to restrict the actions of private citizens and
commercial companies located within its borders.[^6] Yet the treaties
relating to outer space hold the launching *State* responsible for the
activities of all space objects, despite commercial ownership and
operation.[^7]

The article continues in Section II by providing background into the
capabilities of satellites, how their use may threaten the United
States, and how they can be rendered inoperable or destroyed. Section
III analyzes numerous treaties, which support the argument that States
are ultimately responsible for the satellites listed on their registry
despite the satellite belonging to a commercial or private company.
Section IV examines the theory of neutrality and the obligations of a
neutral State. Section V discusses U.S. options for use of force, such
as self-defense and the right of angary.

# **II. BACKGROUND**

# 

## **A. The Commercialization of Space**

## 

Satellites and the support they provide are now an integral part of the
United States military arsenal, and a vital link for support to
commanders and troops on the battlefield. For example, communications,
navigation, and remote sensing provide vital support and are now the
eyes, ears, and communication links for commanders. Because satellite
support is so critical to the United States, one of the U.S. military
goals is to attain complete control and dominance of space.[^8] In order
to attain this goal the United States will not only have to consider the
negation and protection of military satellites, but commercial
satellites as well.

As commercial space systems provide global information and nations tap
into this source for military purposes, protecting (as well as negating)
these non-military space systems will become more difficult. Due to the
importance of commerce, and its effects on national security, the United
States may evolve into the guardian of space commerce---similar to the
historical example of navies protecting sea commerce.[^9]

Many rogue States, such as Iraq, Iran, and North Korea, now have access
to satellite support allowing them enhanced war-fighting capabilities.
The playing field is quickly leveled when an adversary gains access to
satellite images that reveal what the battlefield looks like. He can use
these images to determine grid coordinates and use satellite navigation
for precision guided missiles (PGMs). Additionally, his command and
control (C2) will be greatly enhanced with the use of reliable secure
satellite communications.[^10] Lieutenant General Costello, Commander,
Space and Missile Defense Command and Army Space Command, recently
commented that satellites now make it impossible for armies to hide on
the battlefield.[^11] The element of surprise is lost when your
adversary has continuous updated pictures of the battlefield produced by
satellites.

The threat of equality on the battlefield became very evident to the
United States during the Persian Gulf War. Prior to the ground war in
1991, Iraq was purchasing satellite images of the Middle East from
France and Russia. Many of the images were provided by the French
commercial company Systeme Probatoire d'Observation de la Terre
(SPOT).[^12] Had Russia and France not agreed to stop selling these
images to Iraq, General Schwarzkopf's "Hail Mary" maneuver may have not
been as successful.[^13]

The commercialization of space is rapidly increasing. It may be
extremely difficult, if not impossible, in the near future to deny an
adversary's access to commercial satellite services.[^14] Support will
soon be available to anyone who can pay for it, to include third world
rogue countries and terrorists. The proliferation of space services
increases the importance of having thought through the legality of
attacking a commercial satellite system registered[^15] to a neutral
State whose company is located within the borders of the State.

Communication and remote sensing are two important services provided by
commercial satellite providers to the civilian and military sectors.
These services enable a military of any size to be quicker, more mobile,
and more lethal. Many countries do not have the technology or resources
to develop and own space systems. Even countries that can afford space
assets rely on commercial space support, because it is cheaper. Leased
commercial satellite services can quickly enhance a smaller country's
military capabilities and reduce a superpower's advantage.[^16]
"Advanced technologies can make third-class powers into first-class
threats."[^17] In order for the U.S. to retain its advantage in space,
it must deny its adversaries access to these services during periods of
armed conflict.[^18]

Space is rapidly becoming a very profitable and congested frontier. As
of January 29, 1999, there were 2561 satellites orbiting Earth, and 2671
as of June 21, 2000.[^19] The U.S. has 741 satellites registered and the
Commonwealth of Independent States (Russia et al.) has 1335. The
remaining 595 satellites belong to smaller countries and international
organizations.[^20] These figures are deceiving. Satellites may be owned
and operated by a private company, but must be listed on the
registry[^21] of the country from which they were launched. [^22] Well
over 250 of the 2671 satellites in orbit in June 2000 were operated by
international organizations, non-governmental organizations, or private
corporations. The number of satellites in orbit has more than doubled in
the last three years, and will probably be around 10,000 in ten
years.[^23]

Military budgets are getting thinner, and the reality is that the
commercial sector can provide satellite services cheaper than States
can. Even the U.S. military uses commercial satellites for a large
portion of its space support.[^24] During Desert Storm twenty-five
percent of the U.S. military communications was provided over commercial
satellite systems.[^25] One day we may find ourselves defending against
armed attacks supported by commercial satellite companies, possibly even
the same companies supporting our forces.[^26] Not too long ago, the
security implications were just coming into perspective.

> Today commercial \[companies\] routinely gather photographic data
> that, until a few years ago, even intelligence agencies could only
> dream of. What's more, they are selling the photographs to anyone who
> can afford them. The photos not only are valuable for the study of
> earth resources but also can reveal the position and status of such
> militarily significant objects such as tanks, ships and
> airplanes.[^27]

Today, fourteen years after this paragraph was written, the commercial
satellite market is booming, with no apparent end in sight.

Operation Desert Storm was the first war in which satellites played a
major role for the U.S. ground commander.[^28] Prior to the war,
President Saddam Hussein's ground forces were matched in size with the
Coalition forces, and Iraq possessed relatively modern weapons purchased
with oil money. A critical difference between the two was that the
Coalition forces had space systems allowing them to see, hear, and speak
to each other---a capability which Iraqi forces lost within the first
hours of the war.[^29] Martin Faga, Assistant Secretary of the Air Force
for Space at the time of the war stated, "\[t\]he world watched and
learned. Many . . . will want and will eventually obtain their own space
assets . . . adversaries will seek to dilute the effectiveness of
ours."[^30] U.S. Space Command takes the increasing importance of space
commercialization to its logical conclusion: "As commercial space
systems provide global information and nations tap into this source for
military purposes, protecting (as well as negating) these non-military
space systems will become more difficult."[^31]

## **B. Communication**

## 

"Satellite communications offer unique attributes of mobility, security,
and terrain independence with powerful advantages for military
use."[^32] A military command with reliable and secure communication has
greater command and control (C2) despite adverse conditions such as
weather, terrain, or distance.[^33] Denying our adversaries this
capability has proven extremely useful in winning battles and saving
lives. Communication satellites, as stated earlier, played a pivotal
role in the Gulf War. [^34] The Coalition forces had a clear advantage
over Iraq by being able to communicate with each other, despite the fact
there were numerous militaries from different nations fighting together.
Prior to the ground war, Iraq had three International Telecommunications
Satellite Organization (INTELSAT) communications terminals and one
Intersputnik terminal that allowed President Saddam Hussein to
communicate with his southern forces.[^35] He was capable of the same
command and control as the U.S. and Coalition forces prior to the
destruction of his communication terminals, destroyed by air strikes and
ground attacks.[^36] Imagine if the communication terminals were mobile,
destroying them would have been much more difficult. For purposes of the
analysis under this hypothetical destruction of Northland's
communication ground stations (stationary or mobile) is not an option or
cannot be accomplished. This could be due to the mobility of the
stations, the inability to locate them, or they may be located on
protected property such as a hospital, or are used by the civilian
community for vital communications.

## **C. Navigation**

## 

Satellites can be used in missile navigation for precision
targeting.[^37] Prior to the use of satellites for navigation, missiles
had to be programmed to follow preset navigational path to their
targets. Today, Global Positioning System (GPS) components installed in
missiles allow them to travel to their targets without relying on preset
terrain features, thus avoiding radar and warning systems.[^38]

This same technology is commercially available to any country. "GPS
computer components, available commercially, could be added to the
brains of Iranian cruise missiles or boost the accuracy of Chinese
ballistic missiles . . . ."[^39] Military forces worldwide are buying
U.S. GPS technology.[^40] Adversaries may be able to use our own GPS to
target U.S. troops and weapons.[^41] GPS selective availability has now
been turned off and all users enjoy the same degree of accuracy---seven
meters.[^42] In addition, GPS, available to anyone, may soon become
accurate to within one or two meters. "Indeed, civil GPS technology is
becoming so widely available the GPS location of targets soon will be
combined with detailed photographs taken by such commercial
remote-sensing satellites as the French SPOT, . . . ."[^43] GPS may also
be used by troops and aircraft for position location and to navigate
across featureless terrain such as a desert.

## **D. Remote Sensing**

## 

Remote-sensing is the collection of images of the Earth's surface using
satellites.[^44] It is used by militaries for a near real-time image of
the battlefield including troop and weapon positions.[^45] Satellite
images provide commanders a view of the battlefield, allowing them to
more accurately plan their attack based on enemy troop and weapon
positions. Remote sensing in the hands of an adversary is dangerous to
the U.S. because of the loss of surprise and stealth. As suggested
earlier, Iraq's blindness to the battlefield allowed General Schwarzkopf
to carry out his "Hail Mary." As of 1995, Russia, Canada, Japan, France,
Brazil and India possessed international remote-sensing satellites.[^46]
The French company SPOT offers to clients a video-moving map, which
provides, "simulat\[ed\] low-level flight over the imaged terrain,
intended for mission planning or familiarization for military aircraft
and cruise missiles."[^47]

The key to remote sensing is resolution. Attaining greater resolution
leads to a clearer picture and more useful information. "Presidential
Directive 23 (PDD 23), issued in 1994, states that dissemination of
imagery with resolution of one meter or less might be harmful to U.S.
national security."[^48] Space Imaging, a U.S. based company, offers
one-meter color imagery over the internet.[^49] SPOT, a French
commercial imagery company, advertises ten-meter resolution, but its
capability has been described as being closer to five-meters.[^50]

Present space capabilities pose a threat to the U.S. when placed in the
hands of an adversary. The U.S. must be prepared to deny or negate the
enemy's ability to capitalize on these capabilities whether it is their
own, leased, or purchased from a commercial company. This denial or
negation will likely include pursuing avenues ranging from political
protests to the threat or use of force against commercial industry and
possibly neutral territory. General Thomas D. White, the Air Force Chief
of Staff in 1955 stated, "\[t\]he United States must win and maintain
the capability to control space in order to assure the progress and
pre-eminence of the free nations. If liberty and freedom are to remain
in the world, the United States and its allies must be in position to
control space."[^51]

One method for controlling space is negation. "Negation is the ability
to deny, disrupt, deceive, degrade, or destroy an adversary's space
systems and services. It involves military actions to target
ground-support sites and infrastructure, ground-to-space links, or
spacecraft."[^52] The first step in developing a legal argument to
justify negation is determining who or what is legally responsible for
the space activities the U.S. intends on negating.

# **III. STATE JURISDICTION AND SOVEREIGNTY** 

# **OVER SATELLITES**

# 

The State is ultimately responsible for all space activities originating
or controlled from its territory. This section discusses who may be held
responsible for the activities of satellites in space. With reference to
our hypothetical example, it is important to establish Passivaland's
responsibility for the activities of the commercial company HERCULES
located within the borders of Passivaland. Under the laws of neutrality
the Nation-State is normally not held responsible for the activities of
commercial companies located within its borders.[^53] International law
only requires the neutral State to restrict the actions of its citizens
or commercial entities in very limited circumstances. If Passivaland,
under the laws of neutrality, were able to claim immunity from
responsibility for the actions of HERCULES, the U.S. would be limited in
its recourse against HERCULES. This is because the ground components are
located within Passivaland's borders and the satellite is considered to
be under the jurisdiction and control of Passivaland.[^54] Establishing
that Passivaland is responsible for the activities of HERCULES may allow
the U.S. to claim Passivaland has breached its status as a neutral and
attack its territory or assets, including a satellite in space.

Under international law, the protection afforded neutral territory is
"inviolability."[^55] In addition to this provision, several other
principles emerge from an analysis of the four relevant treaties dealing
with outer space. The next two sections analyze these other principles,
drawn from the following treaties: The Multilateral 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);[^56] the Convention on Registration of Objects Launched Into
Outer Space (Registration Convention);[^57] the Convention on the
International Liability for Damage Caused By Space Objects (Liability
Convention);[^58] and the Agreement on the Rescue of Astronauts, the
Return of Astronauts, and the Return of Objects Launched Into Outer
Space (Rescue Agreement).[^59] These treaties constitute the
near-totality of law relating to outer space. An analysis of these
treaties reveals the signatories' clear intent to hold the State, and
not the individual or commercial entity, responsible for all activities
in and from space.

## **A. Outer Space Treaty**

## 

The Outer Space Treaty, the first treaty relating exclusively to space,
was the precursor for the other treaties listed above, as well as
others.[^60] This Treaty is important because it holds States
responsible for supervision, jurisdiction, control, and damage caused by
all space objects the State has registered regardless of who owns and
operates the object.[^61] Article VI imposes upon States the
responsibility to supervise all "national" activities conducted in space
by a government or private entity.[^62] This article ensures "parties
cannot escape their international obligations under the treaty by virtue
of the fact that activity in outer space or on celestial bodies is
conducted through the medium of non-governmental entities or
international organizations."[^63] Additionally, Article VI requires
authorization and supervision by the State of registry for
non-governmental activities in space. [^64]

This article supports the conclusion that States are ultimately
responsible for space objects, thus allowing the U.S. to hold
Passivaland directly responsible for the space activities of the
commercial companies located within its borders, such as HERCULES. These
concept is similar those developed in the United Nations Convention on
the Law of the Sea III (UNCLOS III). Under UNCLOS III, all ships shall
sail under the flag of one State only, and every "State shall
effectively exercise its jurisdiction and control in administrative,
technical and social matters over ships flying its flag."[^65] This
includes the State maintaining a register of all ships, which fly its
flag.[^66] The drafters of the Outer Space Treaty clearly intended to
hold States responsible for supervising all space activities, outer
space being akin to international territory similar to the high seas,
just as States are responsible for the conduct of ships flying their
flag.[^67]

While Article VI requires that States take responsibility for and
supervise activities in space, Article VII holds States liable for all
damage caused to property by satellites and other space objects
registered to them.[^68] Commercial ownership and operation of the
object does not matter, the State is liable.[^69]

Finally, according to Article VIII, regardless of where in space an
object is, the State on whose registry it appears retains jurisdiction
and control over it.[^70] The registry, discussed below under the
Registration Convention, is the document created by a State upon
launching an object into space.[^71] If the launch is a private
commercial launch, the object is registered to the launching State. If
two or more States are involved in the launch, they shall decide among
themselves which one will register the object.[^72] This article along
with Articles VI and VII of the Outer Space Treaty, require States to
take responsibility for and supervise all space-related activities,
whether conducted by the government or private industry. The three
remaining space treaties outline in more detail the specific liability
and responsibility of the State as first articulated by the Outer Space
Treaty.

## **B. Rescue Agreement, Liability Convention,** 

## **and Registration Convention**

The Rescue Agreement, Liability Convention, and Registration Convention
all reinforce the basic principle of State responsibility established in
the Outer Space Treaty. The State, as mentioned above, cannot avoid
responsibility for activities in space by claiming the space object is
owned and controlled by a private or commercial entity,[^73] such as
HERCULES.

The primary focus of the Rescue Agreement, enacted in 1968, was to
facilitate international cooperation and peaceful exploration of space
by obligating States to assist each other in the rescue of astronauts
and fallen or stray space objects.[^74] States having knowledge of a
fallen space object must notify the launching authority and assist in
the return of the object to that authority.[^75] The term "launching
authority" is defined as "the State responsible for launching."[^76]

The Liability Convention of 1972 holds States absolutely liable for the
activities of their space objects which cause damage to the surface of
the earth, or to aircraft in flight.[^77] The Convention further
establishes fault-based liability for damage to another States' property
in space.[^78] The type of damage foreseen was one object running into
another in space or an object falling out of orbit. The liability
established by the Convention is joint and several where there is more
than one State involved or responsible for the object. Regardless of
ownership, government or private, the launching State is liable.[^79] "A
launching State shall be absolutely liable to pay compensation for
damage caused by its space object on the surface of the Earth or to
aircraft in flight."[^80] Many countries, such as the United States,
regulate the space-related activities of the companies within their
borders by requiring licenses and insurance.

Finally, the Registration Convention, which entered into force in 1976,
requires States register all objects either launched from their
territory or whose launch they have procured, and report the existence
of this registry and contents to the Secretary General of the United
Nations.[^81] The Registry was established to create a central
depository of all objects launched into space to facilitate the
enforcement of the other treaties.[^82] The State of registry is the
State on whose registry a space object is carried in accordance with
Article II of the Convention.[^83] Where there is more than one State
involved, the States will decide who will register the object.[^84]

Based on the treaties discussed above, the State of registration is
responsible for all objects, commercial and government, launched into
space. Passivaland, therefore, would be responsible for the activities
of HERCULES. The U.S. can hold Passivaland responsible for the
activities and conduct of HERCULES in supporting Northland.

## **C. No State Responsibility or Sovereignty over the Satellite**.

## 

As outer space becomes more commercialized, and in turn more profitable,
arguments against State jurisdiction and control over commercial
companies involved in space activities will appear with increasing
frequency. With the influx of commercial companies entering the space
arena creating new venues for economic growth and revenue to launching
States, such States may be reluctant to impose burdensome restraints on
these moneymaking ventures within their territories.

Today due to the vast commercialization of space and the amount of money
involved, restricting or limiting the activities of a commercial company
in another country may be more difficult than it was during the Gulf
War.[^85] Regardless of the commercialization of space, space assets
will most likely continue to be considered national assets when owned by
private organizations.[^86] If this were not true, if one day States are
not held responsible for space objects, the U.S. would not have to worry
about violating neutral territory, but only about claims for loss when
the satellite of the organization is destroyed. What about States who
are not signatories to the various treaties, are they then immune from
responsibility? Probably not, treaties such as the Outer Space Treaty,
Liability Convention, Registration Convention, and Rescue Agreement,
appear to be so widely accepted that they would are probably considered
customary international law and would thus be applicable to all nations,
even non-signatories.

In our hypothetical scenario, before the U.S. can pierce Passivaland's
sovereignty by attacking the HERCULES satellite or its ground
components, the legal authority and justification must be established by
showing Passivaland's breach of neutrality. HERCULES, as stated, is
operated by a private organization but registered in Passivaland. It is
being used to provide communication, navigation, and remote sensing
support to Northland. Northland is using these satellite services to
launch attacks against U.S. troops. Since Passivaland is neutral, we
must analyze the laws of neutrality to determine if the support to
Northland from the HERCULES Company may be regarded as a breach of
Passivaland's neutral status. Under international law neutral territory
is inviolable and may not be invaded or attacked.[^87]

# **IV. LAW OF NEUTRALITY**

# 

"Neutrality may be defined as the attitude of impartiality adopted by
third States towards belligerents and recogni\[z\]ed by belligerents,
such attitude creating rights and duties between the impartial State and
the belligerents."[^88] Under this definition, a neutral State must
refrain from any participation or support in an armed conflict that may
appear as partiality to one of the belligerents. This may include
restricting activities from within its territory, which support one or
more of the belligerents.[^89] Neutral territory is protected by law and
is inviolable as long as the neutral State remains impartial.[^90]
Belligerents are required to respect neutral property and may not move
troops or munitions of war onto or across neutral territory.[^91]
Belligerents are also prohibited from entering neutral territory without
authorization, and may suffer possible consequences for this
action.[^92] However, as discussed shortly, the neutrality principles do
not necessarily apply to the citizens or private commercial companies of
the neutral State.

## **A. Obligations of a Neutral State**

## 

The laws of neutrality originate from international law and the laws of
war. The main body of law relating to neutrality comes from the Hague
Convention (V) Respecting the Rights and Duties of Neutral Powers and
Persons in Case of War on Land, 1907.[^93] The State must prevent its
territory from becoming a base camp for military operations and prevent
belligerents from using its territory or resources for purposes of the
war.[^94] The neutral State may not allow a belligerent to move troops
or supplies through the neutral territory; erect communications stations
on neutral territory; use any facility of this kind established on the
neutral territory prior to the war; and may not allow combatants to form
on the neutral territory to assist the belligerents.[^95]

The neutral State must also prevent its territory from becoming, in
effect, an intelligence bureau transmitting messages from its territory
to aid one belligerent or provide intelligence on military
operations.[^96] The neutral State is not required to restrict a
belligerent's use of public utilities owned by the State, a company, or
private individual, if the service is public and available equally to
any of the belligerents.[^97] Although the neutral State may not assist
or support a belligerent, it is under no obligation to "prohibit all
exports of possible war materials to belligerents."[^98] In this regard,
the neutral State is not required to prohibit private citizens from
providing supplies to belligerents, including munitions of war. Although
the State is not required under the laws of neutrality to restrict the
activities of its citizens or private commercial companies, it may be in
the State's best interests to avoid the perception of partiality.

Further, when the issue is space support, the usual neutrality concept
of allowing States to take a hands-off position with regard to their
citizens' activities in support of a belligerent, does not apply. As
discussed previously, the four treaties relating to outer space require
the launching or registering State to take responsibility for all
national space activities. As a result, Passivaland is responsible for
the activities of all space objects listed on its registry. Passivaland
is liable to the international community for the activities of HERCULES
and must supervise and, if necessary, restrict the use of its
satellites. The actions of the HERCULES satellites cannot be considered
actions of a private citizen acting independent of the government of
Passivaland. The actions of HERCULES' satellites are directly
attributable to Passivaland.

## **B. Actions of Private Citizens of the Neutral State**

A discussion of the duties of the neutral citizen will assist in
understanding violations of neutrality. The neutral State has no
obligation, in most situations, to restrict or forbid a private company
or individuals from providing public communication services, supplies,
munitions, or even military intelligence such as photos or information
to one of the belligerents.[^99] Although the State is not required to
restrict the activities of its citizens, the private support to a
belligerent such as the dispatch of military intelligence from within
neutral territory could easily be attributed to the State. A belligerent
may not be able to detect from where the military intelligence is
coming. It may not be readily apparent that a private citizen or company
is providing the intelligence instead of the State, or that the support
is not State sanctioned. The neutral State should take caution to avoid
even the appearance of partiality, or it may be accused of acting as a
belligerent and lose the protection of neutrality.[^100] An aggrieved
belligerent could probably make a good argument for self-defense and a
neutrality violation after attacking the neutral's perceived support for
the opposing belligerent.

## **C. Violations of Neutrality**

It is the combination of Passivaland's responsibility under the
Liability Convention for satellites on its registry, and the type of
support being provided by the satellites that may cause the State to
lose its neutral status. What type of satellite support would constitute
a violation of the laws of neutrality, thus causing Passivaland to lose
its protection as a neutral? It can be argued that providing remotely
sensed images of U.S. troop and weapon positions is a clear violation
and may even be considered an act of aggression against the U.S.
Providing unsecure communication or navigation support services probably
would not violate neutrality because they are akin to a public service
utility available to anyone without discrimination. Before analyzing
these types of support under the laws of neutrality, it is important to
note that the present laws of neutrality were written in 1907 and relate
to the media of support in existence at the time, such as sea going
vessels and telegraphs.[^101] The 1977 Protocols to the Geneva
Conventions provide more recent rules relating to neutrality, such as
the protection of neutral citizens, though neither of the Protocols
address space support.[^102]

A violation of neutrality has been defined as "nothing more than a
breach of a duty deriving from the condition of neutrality."[^103]
Violations of neutrality may be slight or grave depending on the
circumstances. A slight violation may only provoke a complaint, but a
grave violation may cause the aggrieved party to declare the right to
use self-defense against the neutral State.[^104] No clear distinction
exists between acts constituting a violation of neutrality and those
that do not, nor between those categorized as slight versus grave. The
neutral State must be wary as to how its actions or the actions of its
citizens will be perceived. Ultimately, the aggrieved belligerent will
determine whether neutrality has been violated and what action to take
in retaliation. It may choose to complain to the government of the
neutral State or to an international organization such as the United
Nations Security Council. On the other hand, it may also choose to use
force and claim self-defense. Realistically, the aggrieved belligerent
will determine on its own whether there has been a breach of neutrality
and react according its best interests, taking into consideration the
anticipated response of the international community.

Any activity aiding one belligerent and not the other may be perceived
as a violation. If a neutral State provides military intelligence
concerning one belligerent to another, the neutral State will clearly be
perceived as violating the laws of neutrality.[^105] During World War I,
many neutral States, including the U.S. before its entry into the war,
took various steps to prevent telegraphs and wireless installations
within their territories from either being used by belligerents or used
by private citizens to pass coded messages to one of the
belligerents.[^106] Neutral States took these steps to avoid the
perception of partiality.[^107]

Technically, telegraphs and other wireless apparatus of the past, just
as the GPS or satellite communications of the present, could be seen as
equivalent to public utilities that could be provided lawfully to
belligerents in a nondiscriminatory fashion. The use or availability of
such services to one or more belligerents would not appear to cause a
violation of neutrality. It is the perception created by the alleged
support, as in the case during World War I, which will be the driving
force behind the aggrieved State's decision to retaliate. Providing
navigation and communication services may be perceived by some as a
violation, but is not likely so in fact.

On the other hand, a strong argument can be made that providing
satellite imagery (remote sensing) would be a violation of neutrality
because it can be considered military intelligence. Navigation and
communication services, because of the manner in which they are
provided, are not direct support. The type of communication envisioned
in this context is not secure satellite communications typically
utilized by military. Instead it would be unsecure commercial satellite
communications available to the general public. The navigation and
communication services are better categorized as indirect support or
services similar public utilities.

An example of direct support would be a one-on-one interaction between a
customer and the support provider similar to an operator connecting a
call for a customer, or providing secure assured satellite access and
bandwidth for communications. This is distinguished from indirect
support or a service wherein the customer merely has an account for
communication access, similar to a cell phone, whenever needed, but
which is not specifically guaranteed or secured. Communication and
navigation services are similar to public telephone services. The
company providing the service does little to directly support a
particular customer other than maintains the satellite and ground
systems. On the other hand, the provision of satellite imagery requires
that the satellite be in position, the lens aimed, an image captured, in
most cases analyzed, and then sent to the customer. A telephone company
does not provide this direct service to each individual user, but
maintains and operates the system for use by all of its customers.

As the law of neutrality states, "A neutral Power is not called upon to
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."[^108] Although the supplier may be
able to deny the service to a particular user, the support is not
personal and direct but simply made available to the public.[^109]
Therefore, allowing access to or providing the opportunity for
navigation or communication services to a user in most cases is indirect
support. Neutral States are not required to restrict belligerents from
using their public utilities, which in this case would include satellite
communications and navigational services.[^110]

In our hypothetical example, a few key questions emerge at this point.
First, is it possible for HERCULES to prevent Northland from accessing
its satellite system, thus denying the service or support? Second, if
Passivaland (HERCULES) can deny Northland access to communication and
navigation services and refuses to, has Passivaland violated the laws of
neutrality? The answer to the second question goes back to the foregoing
analysis on whether the service is defined as direct or indirect
support. This may be more a political matter than a legal one. An
argument may be made either way under the current laws of neutrality.
Some may argue that any support provided to one of the belligerents by a
neutral or from within its territory that is knowing and preventable is
direct support and thus a violation.

On the other hand, some may believe in a strict interpretation of the
law under Hague Convention (V),[^111] and argue that the neutral State
is not obligated to restrict the actions of its citizens. If the service
is available to anyone without discrimination, and HERCULES takes a
neutral and indirect role, similar to a telephone company, the answer
should be "no." In this case, then the U.S. would be required to rely on
other legal or political avenues to prevent the use by Northland.

In a recent U.S. Department of Defense legal assessment (DOD Assessment)
regarding information operations, the General Counsel's office take the
position that if a neutral allows (or does not prevent) a belligerent
from using its information systems, the aggrieved belligerent will have
a limited right of self-defense to prevent such use by its enemy.[^112]
Whether this theory implies a loss of neutral status and protection for
the neutral State is not clear from the paper. The DOD Assessment poses
as a solution using jamming techniques in theater to deny the satellite
(or information systems) support to one belligerent.[^113] This is a
viable option and would not appear to violate the rights of a neutral.

In our scenario though, a theater denial of these services and/or
attacking our adversary directly to negate the space support is not a
viable option. We must negate by affecting the ground stations in
Passivaland or the satellites. Based on the techniques suggested by the
DOD Assessment for negating neutral support (jamming in theater), there
is probably no need to conduct an analysis under the laws of neutrality.
A neutral nation would be hard pressed to argue that its neutral status
or territory had been violated based on one belligerent jamming
information systems or satellite support to its adversary in theater.
One concern would be the effect the jamming had on critical civilian
infrastructure, though this is a topic that could consume another entire
article.

The DOD Assessment implies, through examples, that providing precision
navigation and weather information services would constitute a violation
of neutrality by a neutral nation, or at least provide the aggrieved
belligerent a limited right of self-defense. The assessment did not
provide enough detail to discern the specifics of this position. One can
only speculate that the DOD Assessment merely analyzed the type of
information that would be provided by navigation or weather support and
then determined that providing this information would violate one's
neutral status. If this is in fact the DOD Assessment's view, it is
incorrect as has been shown above in the analysis of direct versus
indirect support.

For example, the U.S. cannot deny the use of its GPS system or degrade
its accuracy to an individual, a group, or even a region through the
system without affecting all users.[^114] As the assessment states,
individuals or areas can be jammed in response to the use of the system
by a belligerent. Surely DOD Assessment is not implying that a neutral
who operates a navigational system is required to actively jam all
belligerents use of that system in-theater in order to retain their
neutral status. Navigational support and weather information, available
to anyone with the equipment to receive it, would be examples of
indirect support that would not cause a neutral nation to be in
violation of the laws of neutrality. Article 7 of Hague Convention (V)
states that a neutral is not bound to prevent the shipment of supplies
by private citizens to one or more of the belligerents, even if the
supplies are munitions.[^115] In this case, as discussed earlier, it
would be a stretch for the U.S. or any other nation as a belligerent to
argue a violation of neutrality based on navigational support such as
that provided by GPS. Without more information on the extent or type of
weather information support to which the DOD Assessment refers, it
cannot be determined if there would be a violation of neutrality.

The third medium of support in our hypothetical is remote sensing
(satellite imagery). Remote sensing is the production or creation of an
image of an area or object on the earth using a satellite.[^116] The
image produced by the satellite is downloaded to the ground station
where it is either analyzed or forwarded for analyses.[^117] This type
of support clearly violates the laws of neutrality. Passivaland's
(HERCULES') satellite is being used to provide military intelligence
concerning the U.S. military activities to Northland. This is direct
support. In order to produce images of the battlefield the satellite
must be positioned and focused on a particular area or object.
Northland, therefore, must articulate the areas to be photographed and
HERCULES must take specific steps to provide those images.[^118] These
steps include capturing the image, downloading, and analyzing it.

Providing military intelligence to a belligerent is a serious breach of
neutrality.[^119] These images provide the enemy a clear view of the
battlefield and vital information relating to troop and weapon
positions. Remote sensing eliminates the element of surprise. Article 3
of Hague Convention (V) states, in part, that belligerents may not use
communication devices located on neutral territory for purely military
purposes if the devices are not open for public use.[^120] This
statement may be interpreted in many different ways. However, the
essence is that neutral territory may not be used as a base camp or
intelligence bureau for one or both of the belligerents. Providing
remotely sensed images of the battlefield to one belligerent concerning
the movements of the other would clearly violate this rule.

The laws of neutrality, as with much of international law, are
inadequate when applied to modern technology. International law has
failed to remain constant with technology and probably never will. In
order to provide further analysis for our scenario, we will examine one
recent international treaty, the Constitution and Convention of the
International Telecommunication Union (CCITU), as well as the two
proposed (but never ratified) international agreements---the 1923 Hague
Rules of Aerial warfare, and the Hague Radio Rules. These sources will
assist in analyzing how providing space support may cause a
non-belligerent nation to lose its neutral status.

Article 34 of the CCITU allows members to "stop the transmission of any
private telegram which may appear dangerous to the security of the State
or contrary to their laws, to public order or to decency, provided that
they immediately notify the office of origin of the stoppage or any such
telegram or part thereof, except when such notification may appear
dangerous to the security of the State."[^121] Members may also "cut off
any other private telecommunications which may appear dangerous to the
security of the State or contrary to its laws, to public order or to
decency."[^122]

Although these articles apply in peacetime, they would still apply to
our scenario because the U.S. is not at war with Passivaland. The U.S.,
under Article 34, can cut off or stop private transmissions between
Passivaland and Northland under the premise that the transmissions
threaten U.S. national security. The U.S.'s only requirement is to
provide notification to Passivaland, unless the notification may further
endanger the security of the U.S. The U.S. must also notify the other
members of the ITC through the Secretary General of the United Nations.
What means or methods can the U.S. use to stop or cut off these
transmissions? Article 34, and the CCITU as a whole, do not identify the
means or methods. For example, may the U.S. interfere with or destroy
the satellite ground components in Passivaland or even the satellite
under the CCITU? This also is not clear from the treaty. The CCITU
merely states that the threatened nation may stop the transmission.

Although they were never ratified, the 1923 Hague rules of Aerial
warfare and the Hague Radio Rules[^123] refer to the regulation of air
space and radio waves. These media are more similar to satellite
operations than the present adopted rules that relate to the laws of
telegraph usage and sea vessels (under the laws of the sea). An analysis
of these sources will enable a prediction of how the law might be
interpreted today.

Under the proposed Hague Rules of Aerial warfare Rules, espionage was
defined as collecting intelligence on one belligerent from an aircraft
with the intent to provide it to another.[^124] The neutral State was
bound, within its means and jurisdiction, to prevent "aerial
observations of the movements, operations, or defenses of one
belligerent, with the intention of informing the other
belligerent."[^125] A neutral citizen in an aircraft taking notes or
photographs of the battlefield for one of the belligerents is clearly
analogous to a satellite from a neutral State engaging in the same
activity. The difference is technology now allows this form of espionage
to be conducted from the safety of another territory, not in enemy
airspace subject to attack. Supplying remotely sensed images of troop
and weapon positions to a belligerent, either from an aircraft in enemy
airspace or from a satellite, would be a violation of neutrality under
the Hague Rules of Aerial warfare.

According to the proposed Hague Radio Rules, a neutral State was not
required to restrict or prohibit the use of radio stations within its
territory, except if necessary to prevent the transmission of
information to a belligerent relating to military forces or
operations.[^126] The commission drafting the Rules added that the
neutral State must take the necessary steps "to prevent the transmission
of information destined for a belligerent concerning military forces or
military operations."[^127] This is not to say this rule would prohibit
the use of satellite communication and navigation services by
belligerents. International law did not require this restriction.
Rather, States imposed it unilaterally during World War I.[^128] This
imposition of the restriction and proposal of the rules indicates the
intent of States to remain neutral, thus avoiding even the appearance of
providing partial support.

It is thus clear from an analysis of international law, as well as
proposed but never adopted rules of law, that providing remotely sensed
images of the battlefield to a belligerent violates the laws of
neutrality. In contrast, supplying satellite navigation and
communication services does not violate the laws of neutrality.[^129]
But let us change our hypothetical scenario just slightly. Assume the
satellite navigation system used by Northland is not owned by a
commercial company in Passivaland but by the government of Passivaland
itself. Would this change the neutral status of Passivaland based on the
navigational support? The proverbial lawyer's response would be, "it
depends." The DOD Assessment would appear to say "yes." Looking at the
current GPS capabilities described above, the answer is "no." The GPS
system cannot be used to deny or degrade user accuracy for a single
user, a group of users or even a particular region. The selective
availability of the system which creates the accuracy error is either
on, affecting the entire world, or off.[^130] Therefore, we cannot claim
that a nation has lost its neutral status for providing satellite
navigational services.

Does this concept hold true when all of the satellite services are
combined? As noted earlier, navigation systems can be placed in missiles
causing them to have greater stealth and target precision.[^131] If
Passivaland provides a combination of navigation services and satellite
imagery to Northland and knows the services are being used for precision
targeting of troop and weapon positions, it has violated the laws of
neutrality. In this situation, Passivaland may even be considered a
belligerent because of the severity of the violation. Consequently, this
same argument may be applied to communication services being used for
command and control. If Passivaland is aware its satellites are being
used for communicating troop movements and this use can be prevented,
the argument can be made that Passivaland has violated its neutral
status, or at the very least has created that perception. When the
communication support is used to relay intelligence derived from
satellite imagery there is a clear argument for a neutrality violation.

The Hague Rules of Aerial Warfare allow the offended belligerent some
recourse in response to violations of neutrality. The following are some
examples of actions deemed appropriate under the 1923 Rules. Neutral
aircraft were subject to capture, if after being warned by a belligerent
condemning their activity, they continued to engage in violations of
neutrality.[^132] The aircraft could then be condemned, and possibly
destroyed, depending on the military necessity.[^133] In addition, a
commander could fire on a neutral aircraft that disregarded warnings and
flew over a sensitive area.[^134]

Although not binding law, but a reflection of the law at the time, the
U.S. Naval War Code of 1900 allowed for the capturing of neutral vessels
carrying messages for the adversary. The captors considered these
vessels to be in service to the enemy and thus no longer neutral.[^135]
Neutral vessels or aircraft were subject to capture if while traveling
on or over international territory (the high seas) they were caught
dispatching military intelligence to one of the belligerents.[^136]

What actions then may the U.S. take to prevent Passivaland from
supporting Northland? Prior to any action involving force, the U.S.
should file diplomatic protests with Passivaland. The United Nations
Security Council should be consulted as well. If there were insufficient
time to pursue these options, the use of force would be
authorized.[^137] Under the proper circumstances, the U.S. may use force
in response to support to a belligerent by a neutral. "Vessels or
aircraft so engaged \[in violations of neutrality\] are liable to
capture and . . . to be destroyed."[^138]

A caveat to the foregoing conclusion is that a country in support of a
United Nations peacekeeping force during a U.N. sanctioned action is not
in violation of neutrality laws.[^139] During the Persian Gulf War the
U.S. and other Coalition forces leased satellite communication services
from INTELSAT who moved its satellites into position to support the
Coalition forces.[^140] Clearly a State acting in support of a
U.N.-sanctioned operation would not be violating its neutral status by
providing satellite support. In this instance the country opposing the
U.N. operation would probably consider all nations supporting the
operation as adversaries and thus lawful targets. A decision not to
attack the alleged neutral that is providing support would most likely
be a political decision of survival versus a legal decision based on the
laws of war and neutrality.

# **V. U.S. OPTIONS AND THE USE OF FORCE**

# 

U.S. options in response to the actions of HERCULES range from
diplomatic protests and requests for sanctions against Passivaland, to
interference or destruction of the satellite and ground systems. If the
threat to the U.S. were not imminent, diplomatic protests to the United
Nations Security Council and the leaders of Passivaland would be the
best options. For purposes of this analysis assume we will assume these
actions have failed. Either Passivaland claims it cannot restrict the
activities of HERCULES, or it refuses to restrict commercial activities
within its borders, claiming the laws of neutrality are not being
violated.

By protesting to the U.N. Security Counsel and Passivaland, the U.S. has
put Passivaland and the world on notice that it considers Passivaland's
actions or inaction's to be a violation of the laws of neutrality. If
the U.S. resorts to the use of force the argument justifying it will
thus be strengthened.

The U.S. right to use force to prevent HERCULES from providing support
to Northland is the next step in the analysis. The U.S. may consider
jamming or spoofing the satellite signals.[^141] These are excellent
options provided they are effective to prevent HERCULES' assistance to
Northland.[^142] If not, the U.S. must ultimately consider the use of
force. On the other hand, an argument can be made that the interference
of a satellite signal by jamming or spoofing is a form of force---an
argument beyond the scope of this article, however. If the U.S. believes
Passivaland has breached its neutral status by supporting Northland,
then the U.S. could attack the satellite in space or the ground
components in Passivaland.

## **A. Right of Angary**

## 

If we now assume, continuing our hypothetical scenario, that Passivaland
has not violated its neutral obligations, what legal avenues are
available, if any, for the U.S. to use force to prevent Passivaland's
satellite support to Northland. Recalling that international law has
failed to keep pace current with technology, we are forced to look to
the laws and theories in existence, regardless of how old they may be.
Angary (jus angariae) is one such legal theory we will explore. Under
the right of angary, or *jus angariae*, the U.S. may take control of or
destroy Passivaland's satellite if shown to be a military necessity,
regardless of whether Passivaland has violated the laws of neutrality.
"\[T\]he modern right of angary is a right of belligerents to destroy,
or use, in case of necessity, for the purpose of offence or defence,
neutral property on their territory, or on enemy territory, or on the
open sea."[^143] This right applies to all types of property to include
vessels and other forms of transport, arms, provisions and other
personal property, as long as it will serve a military need.[^144] A
belligerent may exercise this right against neutral property under the
same circumstances it may use against enemy property in time of war. The
neutral owner, though, must be fully indemnified.[^145]

This theory of law is similar to the theory of military
requisition.[^146] Requisition is a negotiation for services or supplies
in return for compensation between an occupying military and the local
authorities of the occupied nation. Angary is an outright taking with a
requirement of compensation to the aggrieved party under conditions not
amounting to occupation.[^147] This right, although not presently listed
in a military code, appeared in the U.S. Naval War Code of 1900.[^148]
It stated that taking and destroying neutral naval vessels was within
the authority of a belligerent provided there was a military necessity,
and that the owners were fully compensated.[^149]

According to von Glahn, the right of angary may be employed when a
military necessity exists.[^150] The necessity will override the legal
rights of the neutral State.[^151] Consequently, Article 53 of the 1949
Geneva Convention Relative to the Protection of Civilian Persons in Time
of War, relating to requisition, prohibits the destruction of real or
personal property belonging to an individual or the State, unless
absolutely necessary by military operations.[^152] Both concepts, angary
and requisition, appear to have been developed to allow a belligerent to
obtain the supplies needed to continue its mission. Angary has been used
in the past to obtain neutral ships to transport supplies as well as to
sink the ships to prevent the adversary from advancing. An incident of
angary occurred in 1918 during World War I when the U.S. and British
took eighty-seven Dutch vessels under the proclamation of March 20,
1918.[^153] The U.S. and British Governments in an exercise of the right
of angary requisitioned the ships. The government of the Netherlands
protested "but the United States defended on the theory of extreme
emergency, which made the principle of angary applicable."[^154]

Many scholars believe the right of angary is obsolete because no case
has arisen in recent history.[^155] However, the right should not be
considered obsolete until it is made absolutely clear by States that it
no longer exists.[^156] "\[B\]elligerents will not easily renounce the
use of any right unless it is absolutely clear it does not exist, or no
longer exists."[^157] Many scholars agree the right of angary has always
been a part of customary international law, and thus should not be
considered obsolete.[^158] Such principles are created by a State or
States, and appear to become customary when accepted by a majority of
the international community. Therefore, any concept or theory in
international law assumed to be obsolete could be reintroduced by any
nation.

The right of angary is applicable today despite the fact it has not been
invoked in decades. The U.S. may claim angary to legally justify the
destruction of Passivaland's satellite in international territory,
provided a compelling military necessity can be shown. Of course,
destroying one or more satellites can quickly become very costly.
Because of prohibitive cost, political considerations, and fear of
creating a war in space, destruction of the satellite would probably be
a last resort. The U.S. should attempt spoofing, jamming, or seizing the
satellite for its own use, if possible, before destroying it.[^159]

It is possible because of the similarity in the two theories that
requisition evolved from angary. The theory of requisition, discussed
above, could be considered the modern form of angary. In order for
theories such as angary and requisition to be applicable to modern
technology they will have to be revised or completely redeveloped.
International law has not remained current with existing technology, and
probably never will. New laws must be created and old ones modified to
provide the international community guidance during times of peace and
armed conflict.

## **B. Self-Defense**

## 

The U.S. may use force against Passivaland in self-defense if this
course of action is necessary to prevent Northland from attacking the
U.S. The support to Northland from within Passivaland's borders, whether
Passivaland refuses to prevent it or is unable to, may create for the
U.S. a military necessity requiring it to act in self-defense. There are
very limited circumstances in which the U.S. can use self-defense as its
legal shield to justify attacking Passivaland as a neutral. As stated,
this support has caused Passivaland to lose its neutral status, at least
as it applies to the satellite(s) and its supporting systems. The U.S.
is legally justified under the inherent right of self-defense to use
force against the satellite or the ground systems in Passivaland if
those systems are used to mount an attack against the U.S.[^160] This
right may only be exercised in response to an armed attack that has
either been launched or is imminent. The threatened State is then
justified in using force to quash the attack.[^161]

The use of force in self-defense is an appropriate response in our
hypothetical scenario. Assuming an attack is imminent, and that striking
Northland will not adequately prevent it, the U.S. can justify the use
of force against Passivaland in self-defense. For example, if HERCULES
was supplying images of U.S. troop or weapons positions to Northland,
and Northland was using the images to attack U.S. troops and weapons,
the satellite and ground systems would become military objectives and
lose their protection as neutral property.[^162] Although remote sensing
is considered direct support where military intelligence is provided, it
could be argued that that alone it is not enough to justify
self-defense, due to the lack of imminence of the attack.[^163] There is
much room for argument though as to what constitutes an imminent attack.
Self-defense has been claimed in the past, whether legally or not, where
imminence clearly was not a factor.[^164] In this case it seems clear
however that the U.S. would be well within its right to use force in
self-defense.

## **C. Military Necessity, Proportionality, Immediacy**

## 

*1. Military Necessity*

In the analysis of the use of force in self-defense against objects that
are not strictly military targets and do not belong to the enemy (i.e.
the satellite and its ground components), the rules of military
necessity, proportionality, and immediacy must be considered.[^165]
Under the rule of necessity, force must be the only option remaining and
no peaceful means of addressing the situation may be ignored. "Force
should not be considered necessary until peaceful measures have been
found wanting or when they clearly would be futile."[^166] This
statement defines the parameters for the use of force in self-defense.

Obviously if all other methods have failed or are futile, the
requirement of necessity in self-defense will automatically be
satisfied. Necessity in the hypothetical justifies the U.S.' use of
force against the territorial integrity of Passivaland in order to quell
the attack. This is due to imminence of the attack and the futility of
employing other methods of thwarting the attack. The U.S. has explored
all other options and they have failed or are futile. This imminent
situation combined with Passivaland's violation of their neutral status
opens the door for the U.S. to use force against the satellite(s) and
the ground stations.

*2. Proportionality*

A second rule in the law of self-defense, proportionality, "require\[s\]
the military means used bear a proportional relationship to the military
end pursued."[^167] Even in a war of self-defense, a State may use
whatever legal means necessary to defeat the enemy.[^168] Therefore
illegal means or weapons, such as chemical weapons, may not be used
regardless of the situation. An extreme example of a disproportionate
response would be dropping a nuclear bomb on a sniper.

Protocol I states that an attack that may cause incidental loss of
civilian life or damage to civilian property must not be excessive in
relation to the military advantage gained.[^169] In light of this rule,
the satellite would appear to be, proportionally, the best target due to
the probability of little or no collateral damage to civilians and other
property.[^170] One argument for destroying the ground stations rather
than the satellite is that a satellite system may consist of a
constellation of hundreds of satellites and be difficult to destroy. In
choosing this option the U.S. may be forced to destroy many of
satellites.[^171] Additionally, the physical destruction of a satellite
in orbit will create space debris, which may collide with other
satellites possibly disabling or destroying them. This would be
considered collateral damage if the satellites destroyed by the debris
do not belong to the U.S., or fratricide if they belong to the U.S.
Either way, this consequence must be seriously considered.

### 3. Immediacy

### 

Finally, immediacy requires there be no extended length of time between
the initial attack by the enemy and the action taken in
self-defense.[^172] International law leaves the exact amount of time
open to interpretation. The instances of self-defense claimed by the
U.S. and Israel, discussed above,[^173] are clear examples where the
State claimed the right but immediacy or the imminence of the attack did
not seem to be a factor in the equation. Destroying a satellite is
probably not a task that can be accomplished quickly and would therefore
not prevent any attacks close at hand. If the U.S. can justify legally
attacking Passivaland territory in self-defense then this would be the
best option.

# **VI. CONCLUSION**

# 

The commercialization of space has and will continue to create many
complex legal issues. The hypothetical scenario presented in this
article is just one of many situations that may occur in the future due
to increasing commercialization. There are many more factors to consider
which have not been mentioned or considered in this article. States may
be forced to resort to old theories of law as well as to create some new
ones if treaties and customary international laws do not remain current
with technology. Can the U.S. legally attack commercial property located
in neutral territory? Yes, under the right circumstances the U.S. is
legally justified in using force against the territorial integrity of
the neutral State. The crucial link to the justification for such an act
is the treaties relating to outer space. These treaties impose upon
States the responsibility for space activities related to their
territory by registration. This responsibility will allow the U.S., or
any other country, to protest to the U.N. and the neutral State, and
claim that the neutral State has violated its neutral obligations
through satellite support to a belligerent. The violated State is then
within its right, out of necessity if the neutral State does not take
action, to deny the belligerent's use of the satellite by force that is
necessary and proportional.

Determining when a nation has violated its neutral status comes down to
determining the extent of its knowledge of the support to a belligerent,
its ability and willingness to deny that support, and the extent of the
measures it must take to deny the support. Practically speaking, a
neutral State will consider other factors as well deciding whether to
stop the support. These include potential lost profits, and the short
and long term consequences of stopping or not stopping the support.

States are ultimately responsible for all national activities in space.
This is a vital tool for controlling commercial companies who operate in
space. This tool may dissipate as more and more commercial satellites
are launched and controlled by international consortiums consisting of
companies from multiple countries. It may also get to the point where we
cannot determine the space assets from which the support is coming from
or which State is responsible.

Our hypothetical scenario assumes some facts that may or may not be
realistic at present, and it does not consider many other factors. For
instance, does the U.S. now have the ability to accurately determine who
or where a case of satellite support came from in every instance? Would
there ever be a situation where the satellite support could not be
negated by merely attacking the adversary using it rather than the
source providing the support? Many satellite support companies have
ground support centers all over the world that can access information
from the satellites. Given this, could we totally prevent the support by
destroying some ground components? Additionally, commercial entity
providing satellite support to our adversary may also be providing
support to us. And finally, would the analysis be the same in a
peacetime scenario in which we need to negate the neutral commercial
satellite support to rogue elements of a peace process or to terrorists?

These are just a few of the many issues that will arise and become more
complex as technology and the uses of outer space develop. Unless
international law and technology are correlated with each other, which
seems quite unlikely, the law will continue trailing behind. The
discussion of the selected theories has hopefully laid a foundation for
further analysis of the international law applicable to space and the
operation of satellites.

[^1]: ^\*^ *Major Willson (B.A., C.W. Post College; J.D., Touro School
    of Law; LL.M., The Judge Advocate General School) is the
    International & Operational Law Attorney, Army Space Command,
    Colorado Springs, CO.*

[^2]: This was the case during the Persian Gulf War, the U.S. destroyed
    Iraq's ground towers cutting off their ability to use satellite
    communications. *See generally* *infra* note Error: Reference source
    not found[,]{.smallcaps} and accompanying text. Some of the services
    require the State to be able to access them, but satellite images
    can be transferred to a State very easily.

[^3]: Interference consists of a wide spectrum of actions from jamming
    (the blocking of a transmitted signal by overpowering it with noise)
    and spoofing (the deliberate alteration or replacement of a signal
    with a false one), to destruction of the satellite or the ground
    components supporting it. *See generally* Lieutenant Commander J.
    Todd Black[,]{.smallcaps} *Commercial Satellites: Future Threats or
    Allies?*, 52 [Naval War College Rev.]{.smallcaps} 99, 109 (1999),
    *available at*
    http://www.nwc.navy.mil/press/Review/1999/winter/art5-w99.htm (copy
    on file with the *Air Force Law Review*).

[^4]: The word satellite as used throughout this article may refer to
    more than one satellite. Satellite services may be provided for a
    single satellite or an entire constellation of satellites. *See id.*
    at 108.

[^5]: *See* 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) \[hereinafter Outer Space Treaty\]. This treaty lays the
    foundation for most other treaties relating to outer space, and
    holds States responsible for activities in space. *Id*. at art. VI.

[^6]: *See* Hague Convention (V) Respecting the Rights and Duties of
    Neutral Powers and Persons in Case of War on Land, Oct. 18, 1907, 36
    Stat. 2310, T.S. No. 540 \[hereinafter Hague Convention (V)\],
    *cited in* U.S. Army, Field Manual 27-1, Treaties Governing the Law
    of Land Warfare 18 (Dec. 7, 1956) \[hereinafter [FM
    27-1\].]{.smallcaps}

[^7]: *See generally* discussion *infra* Section III. "Launching State"
    refers to the state from whose territory the satellite was launched.
    Convention on the Registration of Objects Launched into Outer Space,
    Jan. 14, 1975, art. I, 28 U.S.T. 695, 1023 U.N.T.S. 15 (entered into
    force Sept. 15, 1979) \[hereinafter Registration Convention\].

[^8]: *See* United States Space Command, *Long Range Plan: Implementing
    USSPACECOM Vision for 2020* (March 1998) 20 \[hereinafter *Long
    Range Plan*\], *available at* http://www.peterson.af.mil/usspace/.
    "Control of Space is the ability to assure access to space, freedom
    of operations within the space medium, and an ability to deny others
    the use of space, if required." *Id.* Remote sensing is the
    collection of images of the earth's surface using satellites. *See
    infra* note Error: Reference source not found, and accompanying
    text.

[^9]: *Long Range* Plan, *supra* note Error: Reference source not
    found*.* "The United States must win and maintain the capability to
    control space in order to assure the progress and pre-eminence of
    the free nations. If liberty and freedom are to remain in the world,
    the United States and its allies must be in the position to control
    space." *Long Range Plan*, *supra* note Error: Reference source not
    found, at 20 (quoting General Thomas D. White, former Air Force
    Chief of Staff).

[^10]: *See* [Bob Preston, Plowshares and Power: The Military Use of
    Civil Space]{.smallcaps} 221-24 (1994) \[hereinafter
    [Preston\]]{.smallcaps}.

[^11]: Lieutenant General John Costello, Remarks at The Judge Advocate
    General's School, U.S. Army, Charlottesville, VA (Mar. 11, 1999).

[^12]: *See* [Preston,]{.smallcaps} *supra* note Error: Reference source
    not found, at 27. SPOT is a French-owned satellite system used to
    produce images of objects on the Earth.

[^13]: [Preston,]{.smallcaps} *supra* note Error: Reference source not
    found, at 35. General Schwarzkopf moved VII and XVIII Corps 300 to
    500 miles to the extreme west prior to the liberation of Kuwait. He
    did this after Saddam's ability to see, through the use of
    satellites and aircraft, was denied. He referred to this move as the
    "Hail Mary." *See* James T. Hackett, *Why the Kinetic Energy
    Anti-Satellite Program is Needed*, [Missile Defense
    Monitor]{.smallcaps} 2 (Aug. 21, 1997), *available at*
    http://www.fas.org/MHonArc/BMDList_archive/msg00250.html (copy on
    file with the *Air Force Law Review*).

[^14]: *Id*.

[^15]: All objects launched into space must be registered to a
    particular country, similar to the flag registration of ships.
    Registration Convention , *supra* note Error: Reference source not
    found, at art. II.

[^16]: [Preston,]{.smallcaps} *supra* note Error: Reference source not
    found, at 305.

[^17]: *Long Range Plan*, *supra* note Error: Reference source not
    found, at 2 (quoting Richard Cheney, Vice President of the U.S., and
    Former Secretary of Defense).

[^18]: *See* United States Space Command, *Vision for 2020*,
    http://www.spacecom.af.mil/usspace/visbook.pdf \[hereinafter *Vision
    2020*\] (copy on file with the *Air Force Law Review*).

[^19]: U.S. Space Command, *Satellite Boxscore* (June 21, 2000), *at*
    http:www.spacecom.af.mil/usspace/boxscore.htm (copy on file with the
    *Air Force Law Review*). This internet site, periodically updated,
    identifies the number of satellites and space debris presently
    orbiting the Earth, and which country or organization is responsible
    for the object.

[^20]: *Id.*

[^21]: The registry is the document States are required to maintain
    listing all space objects launched and/or controlled from their
    territory. If two or more states participate in the launching of an
    object they will decide which state shall register the object. For a
    discussion of the Registration Convention, and the registration
    process, *see infra* notes Error: Reference source not found-Error:
    Reference source not found and accompanying text.

[^22]: Article II of the Registration Convention requires that the
    launching State register the space object unless there are two or
    more launching States, then the States shall jointly determine which
    one will register the object. Registration Convention, *supra* note
    Error: Reference source not found, at art. II*.*

[^23]: *See* Black[,]{.smallcaps} *supra* note Error: Reference source
    not found[,]{.smallcaps} at 99 (citing Robert
    Ropelewski[,]{.smallcaps} *Satellite Services Soar*, A[erospace
    America]{.smallcaps} 26 (Nov. [1996]{.smallcaps}).

[^24]: The U.S. uses satellite communication "for 75% of its
    long-distance military communications." [Preston,]{.smallcaps}
    *supra* note Error: Reference source not found, at 224 n.28 (citing
    Hackett and Ranger[,]{.smallcaps} *Proliferating Satellites Drive
    U.S. ASAT Need*, [signal]{.smallcaps} 156 (May 1990)).

[^25]: *See* [Preston,]{.smallcaps} *supra* note Error: Reference source
    not found, at 132.

[^26]: *See generally* Richard A. Morgan, *Military Use of Commercial
    Communication Satellites: A New Look at the Outer Space Treaty and
    Peaceful Purposes*, [60 J. Air L. & Comm. 237, 239]{.smallcaps}
    (1994) \[hereinafter Morgan\]. Morgan's article helpfully explores
    the extent to which the U.S. military may use commercial satellite
    systems without violating international law. He states that during
    the Persian Gulf War the U.S. leased satellite communication
    services from a commercial company. The International
    Telecommunications Satellite Organization (INTELSAT) moved its
    satellites into position in order to support and provide
    communication services to the Coalition forces. *Id*[.]{.smallcaps}
    at 237 n.8. "INTELSAT \[is\] an international treaty organization
    with over 125 member countries, provid\[ing\] global
    telecommunications services of every type." [David W.E.
    Rees,]{.smallcaps} [Satellite Communications, The First Quarter
    Century of Service]{.smallcaps} 29 (1989), *cited in* Morgan, at
    253. Organizations such as INTELSAT and the International Maritime
    Satellite Organization (INMARSAT)---a 72-nation international
    organization that provides satellite telecommunications services
    primarily to the maritime community---provide military satellite
    services to all of their signatories, which include countries such
    as Iraq, Iran, Libya, Somalia, and many others. Morgan, *supra* note
    Error: Reference source not found, at 246, 253, 256. Many smaller
    countries are using commercial satellite companies and organizations
    to fulfill their military space needs. Morgan, *supra* note Error:
    Reference source not found, at 246-7.

[^27]: William J. Broad, *Private Cameras in Space Stir U.S*. S*ecurity
    Fears*, [N.Y. Times]{.smallcaps}, Aug. 25, 1987, C3.

[^28]: *See* Major Douglas S. Anderson[,]{.smallcaps} *A Military Look
    Into Space: The Ultimate High Ground*, 1995 [Army Law]{.smallcaps}.
    [19]{.smallcaps}, 20 \[hereinafter Anderson\].

[^29]: *See* Martin C. Faga, Keynote Remarks to the National Space
    Outlook Conference, National Space Club (June 18, 1991), *quoted in*
    [Preston,]{.smallcaps} *supra* note Error: Reference source not
    found, at 3. At the time of this symposium, Martin Faga was the
    Assistant Secretary of the Air Force for Space, and arguably had the
    best perspective on the contributions of military space to the
    Persian Gulf War.

    > On numerous occasions during the war, senior military officers
    > would stop me in the halls of the Pentagon. The gist of their
    > comments was that they had known space was valuable but had never
    > realized how much it would contribute and how critical it would be
    > to performing the mission.

    *Id*[.]{.smallcaps} at 3.

[^30]: *Id.*

[^31]: *See Vision 2020*, *supra* note Error: Reference source not
    found. This document contains the U.S. Space Command's vision for
    2020. It discusses the present and future impact space has on the
    U.S. military, and provides a general guide as to where the command
    and military space operations are headed. The vision discusses four
    concepts that must be implemented in order to attain the vision,
    space dominance. They are: control of space, global engagement, full
    force integration, and global partnerships. Under the concept of
    controlling space there is a need to protect space assets even when
    those assets are commercial. "Due to the importance of commerce and
    its effects on national security, the United States may evolve into
    the guardian of space commerce similar to the historical example of
    navies protecting sea commerce." *Vision 2020*, *supra* note Error:
    Reference source not found[.]{.smallcaps} Commercial satellite
    services, equivalent to the U.S.' capabilities, are quickly becoming
    available to anyone who can pay for them. Black, *supra* note Error:
    Reference source not found, at 99. The U.S. has pledged to augment
    its own capabilities through use of commercial satellite technology.
    *See*, *e.g.*, National Science and Technology Council, *National
    Space Policy* (Sept. 19, 1996), *available at*
    http://ast.faa.gov/licensing/regulations/nsp-pdd8.htm (copy on file
    with the *Air Force Law Review*). Further, "\[i\]f the U.S. military
    can use commercial systems to augment its capabilities, so can an
    adversary with access to similar systems." Black, *supra* note
    Error: Reference source not found, at 99. It may be difficult for
    any country including the U.S., to convince a commercial satellite
    company, that is reaping profits from the sale of their services,
    that it should deny these services to one of the belligerents to a
    conflict. The convincing may be simple if the company is located
    within the territory of one of the belligerents, the company will
    become a target. The issue becomes more complicated when the company
    is located within neutral territory, as stated earlier in the
    thesis. Diplomatic protests, possible threatened civil action or
    economic sanctions may be options, but they are not immediate and
    probably not feasible or at least attractive options in an armed
    conflict. This leaves armed attacks of the satellites and/or the
    ground components supporting the satellites, as the quickest and
    best option.

[^32]: [Preston,]{.smallcaps} *supra* note Error: Reference source not
    found, at 221.

[^33]: [Hackett,]{.smallcaps} *supra* note Error: Reference source not
    found, at 156.

[^34]: [Hackett,]{.smallcaps} *supra* note Error: Reference source not
    found, at 126.

[^35]: [Hackett,]{.smallcaps} *supra* note Error: Reference source not
    found, at 134. INTELSAT is an international organization that
    provides satellite communication services to its members.
    Morgan[,]{.smallcaps} *supra* note Error: Reference source not
    found, at 253.

[^36]: [Hackett,]{.smallcaps} *supra* note Error: Reference source not
    found, at 126-7.

[^37]: Lisa Burgess and Neil Munro, *Enemies could use GPS for their
    favor*, [Army Times]{.smallcaps} (Dec. 13, 1993) 40.

[^38]: *Id.* at 40. *See also* [Preston,]{.smallcaps} *supra* note
    Error: Reference source not found, at 253. GPS navigation installed
    in a missile allows the missile to fly over random flight paths
    enroute to its target, rather than following a flight path based on
    terrain features which may be tracked. Missiles without GPS must
    follow a flight path, which has been mapped out using terrain
    features for the missile to recognize. During the Gulf War U.S.
    missiles became vulnerable because the Iraqi's were able to predict
    the flight paths after a number of strikes. The two primary
    navigation systems available in the world today are the United
    States' GPS and the Russian Global Navigation System (GLONASS).
    Black, *supra* note Error: Reference source not found, at 102-3. The
    U.S. basic GPS, which is operated by the Department of Defense, used
    to be two services, the Precise Positioning System (PPS) and the
    Standard Positioning System (SPS). GPS is now one service and all
    users enjoy the same seven meter accuracy. See *infra* note Error:
    Reference source not found. The PPS system was used strictly by the
    U.S. military, had a 16-meter accuracy, and was used for precise
    weapons delivery. The SPS, which was available to anyone, only had a
    100-meter accuracy; therefore it was not suitable for weapons
    delivery. [Preston]{.smallcaps}*, supra* note Error: Reference
    source not found, at 250. The PPS is still equipped with a system,
    known as selective availability which may be used to deliberately
    degrade the SPS to create an error up to 100-meters, which may be
    implemented in a time of crisis. One concern with implementing
    selective availability is that it could be disastrous to civilian
    users who would not anticipate the increase in degradation.
    Commercial ships, vehicles, and airplanes use the SPS service for
    navigation and landing. U.S. Policy Statement on the GPS, *reprinted
    at* XXII [Annals of Air and Space Law 457]{.smallcaps} (1997)
    (stating, GPS consists of a constellation of satellites supported by
    ground stations, data links, and command and control facilities
    operated and maintained by the Department of Defense. The SPS is the
    civil and commercial service provided by GPS). Differential GPS,
    created by civilian users, is a technique that was developed to
    circumvent the 100-meter navigation error. This system provided the
    civilian users roughly the same accuracy as the PPS, 16-meters.
    *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 the
    Nahum Gelber Law Library, McGill University). The Differential GPS,
    as stated above is no longer necessary, because pursuant to the
    Clinton Administration 1996 announcement in May of 2000, GPS
    16-meter accuracy was made available to all. This allows all GPS
    users the same 16-meter accuracy, and thus precise targeting.

[^39]: Burgess, *supra* note Error: Reference source not found, at 40.

[^40]: Burgess, *supra* note Error: Reference source not found, at 40.
    ("\[M\]ilitary researchers in China, Iran and India are working to
    include U.S.-developed navigation technology into their
    next-generation missiles.")

[^41]: [Preston,]{.smallcaps} *supra* note Error: Reference source not
    found, at 256-7. The U.S. must ensure that GPS is not used in
    peacetime by terrorists for navigation, or in wartime by
    belligerents for precision attack. Anyone with knowledge of
    explosives, model airplanes and the GPS could build a pilotless
    aircraft equipped with explosives and send it to a target in the
    U.S.

[^42]: Interview with Captain Ronald A. Chernak, Navigation Payload
    Analyst, 2 Space Operations Squadron, Schriever AFB, Colorado
    Springs, CO (Jan. 3, 2001) \[hereinafter Chernak\]. Selective
    availability was turned off on May 1, 2000 as ordered by President
    Clinton. An accuracy difference still exists though between civilian
    and military users. Civilian users only have access to the single L1
    frequency providing an accuracy of approximately seven to nine
    meters. The accuracy for military users is approximately 5-7 meters.
    The military has access to the L2 frequency, which is encrypted. The
    L2 combined with the L1 frequency eliminates most of the error
    caused by signal defraction in the Earth's ionosphere. *Id.*

[^43]: Ken Taormina, marketing manager for Martin Marietta's
    intelligence-related business, *quoted in* Burgess, *supra* note
    Error: Reference source not found at 40. *See generally*
    [Preston]{.smallcaps}, *supra* note Error: Reference source not
    found, at 27.

[^44]: [Hamilton DeSaussure,]{.smallcaps} *Remote Sensing Satellite
    Regulation B*y *National and International Law*, 15 [Rutgers
    Computer & Tech. L.J. 351 (1989).]{.smallcaps}

[^45]: *Id.*

[^46]: [Preston,]{.smallcaps} *supra* note Error: Reference source not
    found, at 29.

[^47]: [Preston,]{.smallcaps} *supra* note Error: Reference source not
    found, at 316.

[^48]: Black, *supra* note Error: Reference source not found, at 100.

[^49]: Space Imaging *at*
    http://www.spaceimaging.com/level2/level2products.htm.

    > What does one-meter data show? What objects can you 'see' in the
    > images? In a one-meter resolution image, objects that are
    > one-meter in size on the ground can be distinguished, provided
    > those objects are well removed from other objects and have
    > separate and distinct visual characteristics. For example, objects
    > such as swimming pools, cars and trucks, boats and tennis courts,
    > which are all recognizable because of their context within their
    > surroundings, can easily be detected. White stripes in parking
    > lots and crosswalks are also visible because of the sharp contrast
    > against the black asphalt. One-meter imagery cannot 'see'
    > individual people. A large number of people grouped together, on
    > the other hand, could be seen, such as in a football stadium but
    > there, we only know these are people because we are familiar with
    > the context.

    *Id.* Space Imaging also offers 0.82-meter panchromatic (black and
    white) imagery. *Id.*

[^50]: Black, *supra* note Error: Reference source not found, at 100.
    *See also* Spot Imaging *at*
    http://www.spotimage.fr/home/present/welcome.htm (copy on file with
    the *Air Force Law Review*).

[^51]: *See Long Range Plan*[,]{.smallcaps} *supra* note Error:
    Reference source not found.

[^52]: *Long Range Plan*[,]{.smallcaps} *supra* note Error: Reference
    source not found.

[^53]: For example, "\[a\] neutral is not bound to prevent the export,
    on behalf of one or the other of the belligerents, of arms,
    munitions, or any other war material by private persons . . . ,
    unless, of course, it wishes to prohibit such exports at its own
    discretion." [Gerhard von Glahn,]{.smallcaps} [Law Among Nations: An
    Introduction to Public International Law]{.smallcaps} 845 (6th ed.
    1992) \[hereinafter [von Glahn]{.smallcaps}\].

[^54]: *See* Outer Space Treaty[,]{.smallcaps} *supra* note Error:
    Reference source not found[,]{.smallcaps} at art.
    VIII[.]{.smallcaps}

[^55]: Hague Convention (V), *supra* note Error: Reference source not
    found, at art. 1 ("The territory of neutral Powers is
    inviolable.")[.]{.smallcaps}

[^56]: Outer Space Treaty, *supra* note Error: Reference source not
    found.

[^57]: Registration Convention, *supra* note Error: Reference source not
    found, at art. II.

[^58]: Convention on International Liability for Damage Caused by Space
    Objects, Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187 (entered
    into force Sept. 1, 1972) \[hereinafter Liability Convention\].

[^59]: Agreement on the rescue of Astronauts, the Return of Astronauts,
    and the Return of Objects Launched into Outer space, Apr. 22, 1968,
    19 U.S.T. 7570, T.I.A.S. 6599, 672 U.N.T.S. 119 (effective Dec. 3,
    1968) \[hereinafter Rescue Agreement\].

[^60]: Of the space treaties, the Outer Space Treaty---considered the
    "Magna Carta" of space law---enjoys the broadest subscription and
    the highest regard. It entered into force in 1967 and enjoys the
    support of over one hundred nations, including the United States.
    The treaty's main purpose is to ensure the peaceful use of space and
    the moon and other celestial bodies, as well as protect the common
    interests of all mankind in the exploration and use of outer space.
    *See generally* Morgan, *supra* note Error: Reference source not
    found, at 296. *See also*, Anderson[,]{.smallcaps} *supra* note
    Error: Reference source not found, at 24; Major General Walter D.
    Reed and Colonel Robert W. Norris, *Military Use of the Space
    Shuttle*, 13 [Akron L. Rev]{.smallcaps}. 665 (Spring 1980); and
    [Glenn H. Reynolds & Robert P. Merges]{.smallcaps}, [Outer Space:
    Problems of Law and Policy 62]{.smallcaps} (2nd ed. 1997)
    \[hereinafter [Reynolds]{.smallcaps} & M[erges\].]{.smallcaps} The
    Outer Space Treaty accomplished a great deal. "It provides limits on
    military activities beyond earth, prevents the extension of
    terrestrial sovereignty to space or celestial bodies, and
    establishes a framework for the further development of law governing
    activity in outer space. . . ." Reed & Norris[,]{.smallcaps} *supra*
    note [Error: Reference source not found,]{.smallcaps} at 675.

[^61]: Outer Space Treaty[,]{.smallcaps} *supra* note Error: Reference
    source not found, at arts. VI, VIII. *See also*
    [Reynolds]{.smallcaps} & M[erges]{.smallcaps}, *supra* note Error:
    Reference source not found, at 74 (arguing that Article VI of the
    Outer Space Treaty "would prohibit, as a matter of treaty
    obligation, strictly private, unregulated activity in outer space or
    on celestial bodies even at a time when such private activity
    becomes most common-place.")

[^62]: Outer Space Treaty[,]{.smallcaps} *supra* note Error: Reference
    source not found, at art. VI (stating, "States Parties to the Treaty
    shall bear international responsibility for national activities in
    outer space, . . . whether such activities are carried on by
    governmental agencies or by non-governmental entities. . . ."). *See
    also,* Youseff Sneifer[,]{.smallcaps} *Federal Product Liability
    Litigation Reform: Recent Developments and Statistics: Comment: The
    Implications of National Security Safeguards on the
    Commercialization of Remote Sensing Imagery*, 19 [Seattle U. L.
    Rev]{.smallcaps}. 539, 549-50 (Spring 1996). The right of private
    entities to participate in space activities while being supervised
    by their state of registry was the result of a compromise between
    the Soviet Union and Western states. The Soviets advocated the ban
    of private activity in space, while the Western States advocated the
    right of private commercial ventures. *See* [Nathan C. Goldman,
    American Space Law: International and Domestic 72]{.smallcaps}
    (1988).

[^63]: Paul Dembling & Daniel M. Arons[,]{.smallcaps} *The Evolution of
    the Outer Space Treaty*, 33 [J. Air L.]{.smallcaps} &
    C[omm.]{.smallcaps} 419, 436 (1967) \[hereinafter Dembling &
    Arons\]. Dembling and Arons both worked for NASA at the time of this
    article, Dembling as the General Counsel, and Arons as an
    Attorney-Advisor. The article discusses State responsibilities for
    activities in outer space.

[^64]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at Article VI (stating, "The activities of non-governmental
    entities in outer space . . . shall require authorization and
    continuing supervision by the appropriate State Party to the
    Treaty.").

[^65]: United Nations Convention on the Law of the Sea, Dec. 10, 1982,
    arts. 92, 94, 1833 U.N.T.S. 3 (entered into force Nov. 16, 1994)
    \[hereinafter UNCLOS III\]. The U.S. has signed but not ratified the
    treaty.

[^66]: *Id.* at art. 94.

[^67]: Dembling & Arons[,]{.smallcaps} *supra* note Error: Reference
    source not found, at 437. Dembling and Arons analyze the treaty
    through an accumulation of U.N. documents and summaries of the
    delegates' testimony made during the creation of the treaty. It was
    the intent of the delegates to hold the State wholly liable for all
    space activities connected to their territory. The delegates, aware
    that Article VII would place liability on individual states, did not
    object to it. Dembling & Arons[,]{.smallcaps} *supra* note Error:
    Reference source not found, at 438. A French delegate stated: "The
    questions of liability . . . were extremely complicated, and if any
    reference to them was included in the Treaty under discussion, it
    should be very brief and simple and should merely establish the
    principle concerned." U.N. Doc. A/AC.105/C.2/SR. 67 at 10. "The
    discussions which took place at the formal meetings were summarized
    and published in the form of Summary Reports." Dembling &
    Arons[,]{.smallcaps} *supra* note Error: Reference source not found,
    at 438 n.38. The Indian delegate questioned the word
    "internationally," as used to modify the word "liable," arguing that
    "internationally" would be acceptable if it meant "absolutely," in
    referring to the State's liability. A number of other delegations
    agreed with this view. The committee decided that the term "absolute
    liability" would not be acceptable because it was still being
    refined in discussions relating to the drafting of the treaty on
    liability, later to become the Liability Convention. The committee
    drafting the Liability Convention, not yet in existence at the time
    of the drafting of the Outer Space Treaty, determined that the term
    "absolute liability" was subject to limitations and qualifications.
    A proposal was then made by several delegations, on the Outer Space
    Treaty committee, to make reference in the Outer Space Treaty to the
    existence of a treaty on liability. This was determined to be too
    dangerous because a reference to a treaty that did not yet exist
    might weaken the present treaty. Dembling & Arons[,]{.smallcaps}
    *supra* note Error: Reference source not found, at 439. The bottom
    line was that the committee for the Outer Space Treaty and others
    intended to hold States absolutely liable for space activities but
    had difficulty with the terms.

[^68]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at art. VII ("Each party to the Treaty that launches or
    procures the launching of an object into outer space . . . and each
    State Party from whose territory or facility an object is launched,
    is internationally liable for damage to another State Party to the
    Treaty. . . .").

[^69]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at arts. VI, VII*.*

[^70]: Outer Space Treaty, *supra* note Error: Reference source not
    found, at art. VIII (stating*,* "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 . . . ."). The
    Registration Convention requires that once an object is launched
    into space, the responsible State shall create a registry which will
    be made known to the Secretary General of the United Nations. *See*
    Registration Convention, *supra* note Error: Reference source not
    found, at art. II. For further information on the Registration
    Conventions, see *infra* notes Error: Reference source not
    found-Error: Reference source not found, and accompanying text.

[^71]: *See* Registration Convention, *supra* note Error: Reference
    source not found, at art. II.

[^72]: Registration Convention, *supra* note Error: Reference source not
    found, at art. II.

[^73]: *See generally supra* note Error: Reference source not found and
    accompanying text.

[^74]: Rescue Agreement, *supra* note Error: Reference source not found,
    at Preamble.

[^75]: Rescue Agreement, *supra* note Error: Reference source not found,
    at art. 5.

[^76]: Rescue Agreement, *supra* note Error: Reference source not found,
    at art. 6.

[^77]: Convention on International Liability for Damage Caused by Space
    Objects, Mar. 29, 1972, art. II, 24 U.S.T. 2389, 961 U.N.T.S. 187
    (entered into force Sept. 1, 1972).

[^78]: *Id*. at art. III.

[^79]: *See id*. at arts. II, III, V. Article V specifies "\[w\]henever
    two or more States jointly launch a space object, they shall be
    jointly and severally liable for any damage caused. A State from
    whose territory or facility a space object is launched shall be
    regarded as a participant in a joint launching." *Id.* at art. V.

[^80]: *Id*[.]{.smallcaps} at art. II.

[^81]: Registration Convention, *supra* note Error: Reference source not
    found, at art. II. Article II reads, in part, as follows:

    When a space object is launched into earth orbit or beyond, the
    launching State shall register the space object by means of an entry
    in an appropriate registry which it shall maintain. Each launching
    State shall inform the Secretary-General of the United Nations of
    the establishment of such a registry.

    Where there are two or more launching States in respect of any such
    space object, they shall jointly determine which one of them shall
    register the object in accordance with paragraph 1 of this article,
    bearing in mind the provisions of \[the Outer Space Treaty and any
    other binding treaties\] . . . .

    The contents of each registry and the conditions under which it is
    maintained shall be determined by the State of registry concerned.

    Registration Convention, *supra* note Error: Reference source not
    found, at art. II. Under article III, the Secretary-General of the
    U.N. maintains a Register, to which there is full and open access,
    containing the information furnished by the states relevant to
    objects they have launched. Registration Convention, *supra* note
    Error: Reference source not found, at art. III.

[^82]: Registration Convention, *supra* note Error: Reference source not
    found, at Preamble.

[^83]: Registration Convention, *supra* note Error: Reference source not
    found, at art. I(c).

[^84]: Registration Convention, *supra* note Error: Reference source not
    found, at art II(2)*.*

[^85]: Black[,]{.smallcaps} *supra* note Error: Reference source not
    found, at 107. Lieutenant Commander Black argues that States may not
    be able to control commercial entities involved in space. It is very
    conceivable that in the future States will seek to limit their
    liability to damage caused by space objects launched and controlled
    by commercial entities within their territory, especially in the
    wake of the commercialization of space. Certainly commercial
    entities faced with increasing taxes and restrictions will seek to
    limit their ties to individual States and expand their freedoms in
    space.

[^86]: Again, similar to the flagging of ships under UNCLOS III, *supra*
    note Error: Reference source not found.

[^87]: *See supra* note Error: Reference source not found.

[^88]: [Louis Henkin et. al., International Law]{.smallcaps} [Cases and
    Materials 875]{.smallcaps} (3d ed. 1993) \[hereinafter
    [Henkin\].]{.smallcaps}

[^89]: [FM 27-10,]{.smallcaps} *supra* note Error: Reference source not
    found, [¶]{.smallcaps} 512. "Traditionally, neutrality on the part
    of a State not a party to the war has consisted in refraining from
    all participation in the war, and in preventing, tolerating, and
    regulating certain acts on its own part, by its nationals, and by
    the belligerents. It is the duty of belligerents to respect the
    territory and rights of neutral States."

[^90]: A State need not declare its neutrality, it is assumed if the
    State is not a belligerent. *See* [FM 27-1,]{.smallcaps} *supra*
    note Error: Reference source not found, at 18. Article 2(4) of the
    U.N. Charter prohibits "the threat or use of force against the
    territorial integrity or political independence of any state. . . ."
    [U.N. Charter,]{.smallcaps} art. 2(4).

[^91]: This flows from the principle of "inviolability." *See* Hague
    Convention (V), *supra* note Error: Reference source not found, at
    art. 1. The Army explains article 1 as follows:

    > The foregoing rule prohibits any unauthorized entry into the
    > territory of a neutral State, its territorial waters, or the
    > airspace over such areas by troops or instrumentality's of war. If
    > harm is caused in a neutral State by the unauthorized entry of a
    > belligerent, the offending State may be required, according to the
    > circumstances, to respond in damages.

    [FM 27-1,]{.smallcaps} *supra* note Error: Reference source not
    found, at 18. *See also* U.S. Army, Field Manual 27-10, The Law of
    Land Warfare, ¶ 515 (Jul. 18, 1956) \[hereinafter [FM
    27-10\].]{.smallcaps}

[^92]: [FM 27-1,]{.smallcaps} *supra* note Error: Reference source not
    found, at 18. One consequence may be the requirement to pay damages.
    Information operations shed a new light on this area of law,
    neutrality, and the concepts of borders. In the past some nations,
    when in a neutral status, have refused to allow belligerents engaged
    in a conflict to fly through their air space. Computer attacks
    typically transcend numerous borders undetected.

[^93]: *See* Hague Convention (V)[,]{.smallcaps} *supra* note Error:
    Reference source not found.

[^94]: 2 [L. Oppenheim, International Law]{.smallcaps} §§ 294, 361 (H.
    Lauterpacht ed., 1952) \[hereinafter [Oppenheim\].]{.smallcaps}

[^95]: Hague Convention (V), *supra* note Error: Reference source not
    found, at arts. 2-4. These articles provide as follows:

    > Article 2: Belligerents are forbidden to move troops or convoys of
    > either munitions of war or supplies across the territory of a
    > neutral Power.
    >
    > Article 3: Belligerents are likewise forbidden to---(a) Erect on
    > the territory of a neutral Power a wireless telegraphy station or
    > other apparatus for the purpose of communicating with belligerent
    > forces on land or sea; (b) Use of any installation of this kind
    > established by them before the war on the territory of a neutral
    > Power for purely military purposes, and which has not been opened
    > for the service of public messages.
    >
    > Article 4: Corps of combatants cannot be formed nor recruiting
    > agencies opened on the territory of a neutral Power to assist the
    > belligerents.

    Hague Convention (V), *supra* note Error: Reference source not
    found, at arts. 2-4. The laws of neutrality are antiquated. The
    international community will have to decide whether allowing any
    military communication facilities constitutes a violation of
    neutrality. Cellular communications and satellite communications
    make it so a nation cannot easily accuse a neutral of aiding an
    adversary. Additionally, the use of various forms of communications
    have become so intertwined between commercial, civil, and military
    uses that a nation would be hard pressed to label a communication
    link as being strictly military.

[^96]: "It was added by the Commission of Jurists who drafted the Rules
    that the neutral Power must take the necessary action 'to prevent
    the transmission of information destined for a belligerent
    concerning military forces or military operations.'" [Howard S.
    Levie,]{.smallcaps} 2 [The Code of International Armed Conflicts
    829]{.smallcaps}-30 (1986) \[hereinafter [Levie\]]{.smallcaps}. "In
    1939 several neutral States adopted legislation prohibiting the
    transmission of information concerning the position, movement, or
    cargo of national and foreign shipping." [Oppenheim,]{.smallcaps}
    *supra* note Error: Reference source not found, § 356 n.3.

[^97]: Article 8 of Hague Convention (V) states: "A neutral Power is not
    called upon to 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." Hague Convention (V), *supra* note Error: Reference
    source not found, at art. 8

[^98]: [Hilaire McCoubrey & Nigel D. White, International Law and Armed
    Conflict]{.smallcaps} 298 (1992). Similarly, Hague Convention (V),
    article 7, provides that "A neutral Power is not called upon to
    prevent the export or transport, on behalf of one or other of the
    belligerents, of arms, munitions of war, or, in general, of anything
    which can be of use to an army or a fleet." Hague Convention (V),
    *supra* note Error: Reference source not found, at art. 7.

[^99]: [von Glahn,]{.smallcaps} *supra* note Error: Reference source not
    found, at 845, *citing* Hague Convention (V). FM 27-10 construes
    article 7 of Hague Convention V as follows:

    > Commercial transactions with belligerents by neutral corporations,
    > companies, citizens, or persons resident in neutral territory are
    > not prohibited. A belligerent may purchase from such persons,
    > supplies, munitions, or anything that may be of use to any army or
    > fleet, which can be exported or transported without involving the
    > neutral State.

    [FM 27-10]{.smallcaps}, *supra* note Error: Reference source not
    found, ¶ 527.

[^100]: [Oppenheim,]{.smallcaps} *supra* note Error: Reference source
    not found, § 356.

[^101]: *See* [FM 27-1,]{.smallcaps} *supra* note Error: Reference
    source not found, at 18[.]{.smallcaps}

[^102]: *See* 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) \[hereinafter Protocol I\];
    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) \[hereinafter Protocol II\].

[^103]: [Oppenheim,]{.smallcaps} *supra* note Error: Reference source
    not found, § 358.

[^104]: [Oppenheim,]{.smallcaps} *supra* note Error: Reference source
    not found, § 359.

[^105]: [Oppenheim,]{.smallcaps} *supra* note Error: Reference source
    not found, § 356.

[^106]: [Oppenheim,]{.smallcaps} *supra* note Error: Reference source
    not found, § 356. "In 1939 several neutral States adopted
    legislation prohibiting the transmission of information concerning
    the position, movement, or cargo of national and foreign shipping."
    *Id.* § 356, n.3.

[^107]: *Id.* § 356.

[^108]: *See* Hague Convention (V), *supra* note Error: Reference source
    not found, at art. 8.

[^109]: *See generally* [Preston,]{.smallcaps} *supra* note Error:
    Reference source not found, at 123, 235.

[^110]: *See* Hague Convention (V)[,]{.smallcaps} *supra* note Error:
    Reference source not found, at art. 8.

[^111]: *See* Hague Convention (V)[,]{.smallcaps} *supra* note Error:
    Reference source not found, at art. 8.

[^112]: Department of Defense Office of General Counsel, An Assessment
    of International Legal Issues In Information Operations 9 (2d ed.,
    Nov. 1999) (unpublished manuscript on file with the *Air Force Law
    Review*).

[^113]: *Id.* at 9.

[^114]: *See* Chernak, *supra* note Error: Reference source not found.

[^115]: Hague Convention (V), *supra* note Error: Reference source not
    found, at art. 7.

[^116]: *See supra* note Error: Reference source not found, and
    accompanying text.

[^117]: *See* [Preston,]{.smallcaps} *supra* note Error: Reference
    source not found, at 315.

[^118]: [Preston,]{.smallcaps} *supra* note Error: Reference source not
    found, at 317, 326.

[^119]: *See generally* note Error: Reference source not found, and
    accompanying text.

[^120]: Hague Convention (V), *supra* note Error: Reference source not
    found, at art. III. For the language of article III, see *supra*
    note Error: Reference source not found.

[^121]: Constitution and Convention of the International
    Telecommunication Union, Dec. 22, 1992, art. 34(1), S. Treaty Doc.
    No. 104-34 (1996) (as amended through 1994).

[^122]: *Id.* at art. 34(2).

[^123]: *Reprinted in* [The Laws of Armed Conflict: A Collection of
    Conventions, Resolutions, and Other Documents 207
    (]{.smallcaps}Dietrich Schindler & Jirí Toman eds., 1988)
    \[hereinafter Schindler & Toman[\].]{.smallcaps}

[^124]: *Id.* at 212.

[^125]: *Id.* at 215.

[^126]: *See* L[evie]{.smallcaps}, *supra* note Error: Reference source
    not found, at 829.

[^127]: *Id.* at 829-30.

[^128]: *See supra* note Error: Reference source not found, and
    accompanying text.

[^129]: "Unneutral service, especially by ships or aircraft, is rendered
    to a greater or lesser degree where 'Subjects \[of a neutral
    Power\], prompted either by the desire for profit or by their own
    sympathies, give material help to one of the belligerents, or
    perhaps to both.'" [H.A. Smith, The Law and Custom of the Sea
    104-5]{.smallcaps} (1954), *quoted in* [McCoubrey &
    White]{.smallcaps}, *supra* note Error: Reference source not found,
    at 311.

[^130]: *See* Chernak, *supra* note Error: Reference source not found.

[^131]: *See generally supra* note Error: Reference source not found,
    and accompanying text.

[^132]: Schindler & Toman, *supra* note Error: Reference source not
    found, at 215-16.

[^133]: Schindler & Toman, *supra* note Error: Reference source not
    found, at 215-16*.*

[^134]: [McCoubrey & White,]{.smallcaps} *supra* note Error: Reference
    source not found, at 309.

[^135]: [Captain Charles H. Stockton, United States Navy, The Laws and
    Usages of War at Sea: A Naval War Code]{.smallcaps} 13 (1900)
    \[hereinafter [War Code]{.smallcaps}\] ("A neutral vessel carrying
    hostile dispatches, when sailing as a dispatch vessel practically in
    the service of the enemy, is liable to seizure. . . ."). This Code
    was written by Captain Stockton for, and published by the U.S.
    Government, to assist Naval commanders.

[^136]: *See* [Levie,]{.smallcaps} *supra* note Error: Reference source
    not found, at 831.

[^137]: *See* [McCoubrey & White]{.smallcaps}, *supra* note Error:
    Reference source not found, at 308.

[^138]: [McCoubrey & White]{.smallcaps}, *supra* note Error: Reference
    source not found, at 311. Mr. McCoubrey states that these assets may
    be destroyed if they cannot be conveyed to an appropriate prize
    jurisdiction. In the case of a satellite, it is unlikely it could be
    sent anywhere, thus destruction would be the only option. In this
    regard, the destruction to which the author refers is due primarily
    to the fact that out of military necessity the belligerent has no
    recourse but to destroy the ship.

[^139]: *See* [FM 27-10,]{.smallcaps} *supra* note Error: Reference
    source not found, ¶ 513.

[^140]: *See* Morgan[,]{.smallcaps} *supra* note Error: Reference source
    not found, and accompanying text.

[^141]: Jamming is the "blocking of a transmitted signal by overpowering
    it with noise, and spoofing \[is\] the deliberate alteration or
    replacement of a signal with a false one." Black[,]{.smallcaps}
    *supra* note Error: Reference source not found, at 109.

[^142]: One drawback to jamming and spoofing is that satellite services
    in many cases are provided by a constellation of satellites and
    therefore they would all have to be jammed or spoofed.
    Black[,]{.smallcaps} *supra* note Error: Reference source not found,
    at 109.

[^143]: O[ppenheim,]{.smallcaps} *supra* note Error: Reference source
    not found, at [761.]{.smallcaps} As von Glahn puts it, the law of
    angary

    > developed when belligerents lacked sufficient vessels for their
    > purposes. They claimed, under these circumstances, a right to
    > seize neutral merchant ships in their ports and to force them and
    > their crews to carry troops, provisions, and materiel to certain
    > places on payment of freight charges in advance. . . . Unlike the
    > original law, the modern concept applies only to property and does
    > not permit the use of neutral crews of ships or trains seized
    > under this right.

    [von Glahn,]{.smallcaps} *supra* note Error: Reference source not
    found, at 866.

[^144]: As Oppenheim states, "All sorts of neutral property, whether it
    consists of vessels or other means of transport, or arms,
    ammunition, provisions, or other personal property, may be the
    object of the right of angary, provided it is serviceable to
    military ends and wants." [Oppenheim,]{.smallcaps} *supra* note
    Error: Reference source not found, at 762.

[^145]: "The conditions under which the right may be exercised are the
    same as those under which private enemy property may be utilized or
    destroyed; but in every case the neutral owner must be fully
    indemnified." [Oppenheim,]{.smallcaps} *supra* note Error: Reference
    source not found, at 762.

[^146]: Requisition consists of, "Any destruction by the Occupying Power
    of real or personal property belonging individually or collectively
    to private persons, or to the State, or other public authorities, or
    to social or cooperative organizations, \[and it\] is prohibited,
    except where such destruction is rendered absolutely necessary by
    military operations." Geneva Convention Relative to the Protection
    of Civilian Persons in Time of War, Aug. 12, 1949, art. 53, 6 U.S.T.
    3516 (entered into force Oct. 21, 1950) \[hereinafter Geneva
    Convention IV\].

[^147]: Occupation exists when one State physically occupies the
    territory of another by use of military forces. *See* [FM
    27-10,]{.smallcaps} *supra* note Error: Reference source not found,
    ¶ 412.

[^148]: *See* [War Code,]{.smallcaps} *supra* note Error: Reference
    source not found.

[^149]: *See* [War Code,]{.smallcaps} *supra* note Error: Reference
    source not found, at 13. The War Code's Article 6 contained the
    following provision:

    > If military necessity should require it, neutral vessels found
    > within the limits of belligerent, authority may be seized and
    > destroyed or otherwise utilized for military purposes, but in such
    > cases the owners of neutral vessels must be fully recompensed. The
    > amount of indemnity should, if practicable, be agreed on in
    > advance with the owner or master of the vessel. Due regard must be
    > had to treaty stipulations upon these matters.

    [War Code,]{.smallcaps} *supra* note Error: Reference source not
    found, at 7-8. *See also,* [FM 27-1,]{.smallcaps} *supra* note
    Error: Reference source not found, art. 53 (relating to the seizure
    or destruction of civilian property when a military necessity
    exists).

[^150]: [von Glahn,]{.smallcaps} *supra* note Error: Reference source
    not found, at 868.

[^151]: [von Glahn,]{.smallcaps} *supra* note Error: Reference source
    not found, at 868 ("\[W\]henever a seizure is legitimized by a prize
    court, military necessity has triumphed over the undoubted legal
    rights of neutrals, despite the inevitable payment of compensation
    for seized property.").

[^152]: Genera Convention (IV), *supra* note Error: Reference source not
    found, at art. 53.

[^153]: *The Taking of Ships in American Ports,* [35 Am. J. Int'l L.
    500]{.smallcaps} (1941).

[^154]: *Id.*

[^155]:
    ###  [Oppenheim,]{.smallcaps} supra note Error: Reference source not found, at 760-61.

[^156]:
    ###  [Oppenheim,]{.smallcaps} supra note Error: Reference source not found, at 761. Oppenheim compares the incident in 1918 when during World War I Dutch ships were requisitioned by the Allies. Although he states that this was not angary under the old right, he claims that this incident is an example of the modern right of angary, and "\[f\]or this reason it cannot with certainty be said that the right is obsolete." Accord [von Glahn,]{.smallcaps} supra note Error: Reference source not found, at 866 (agreeing that the Dutch incident constituted angary). See also, note 3, wherein Oppenheim cites Rolin, who argues that the right of angary on the open sea is inadmissible, and the requisitioning of neutral property on the high seas must be justified by military necessity and not angary. 

[^157]: [Oppenheim*,*]{.smallcaps} *supra* note Error: Reference source
    not found, at 760.

[^158]: Rainer Lagoni[,]{.smallcaps} *Angary, Right of*, in [1
    Encyclopedia of Public International Law]{.smallcaps} 166 (R.
    Bernhardt[,]{.smallcaps} ed[.,]{.smallcaps} 1992).

[^159]: "A duty to pay compensation for any damage done in the exercise
    of the right of angary is now generally recogni\[z\]ed."
    [Oppenheim,]{.smallcaps} *supra* note Error: Reference source not
    found, at 762-63. The amount of compensation the U.S. would be
    required to pay must be taken into consideration prior to any
    action.

[^160]: Article 2(4) of the U.N. Charter prohibits States from using or
    threatening to use force against the territorial integrity or
    political independence of another State. [U.N. Charter]{.smallcaps},
    art. 2(4). For the language of article 2(4), see *supra*, note
    Error: Reference source not found. This prohibition may be overcome
    under the right of self-defense, which is the inherent right of each
    State in customary international law to defend itself. This right is
    codified in Article 51 of the U.N. Charter. Article 51 states that
    nothing in the Charter shall impair the inherent right of
    self-defense if an armed attack occurs against a member of the U.N.
    [U.N. Charter]{.smallcaps}, art. 51. There are essentially two
    schools of thought with respect to what actions justify a claim of
    self-defense in international law. The pre-U.N. Charter theory and
    the post-U.N. Charter theory.

    The first view embodies the theory that the adoption of the U.N.
    Charter did not alter or restrict the inherent right of self-defense
    as it existed in customary international law. The State retains the
    power to decide when self-defense is appropriate. The scholars
    holding this theory argue that the words "armed attack" in Article
    51 do not prevent a state from using force to meet an unlawful force
    which does not amount to an "armed attack." For instance, a heavy
    troop concentration on the border may justify "anticipatory" or
    "preventive" uses of force to meet and quell the attack before it
    actually occurs. [von Glahn,]{.smallcaps} *supra* note Error:
    Reference source not found, at 131. Therefore, the use of force
    against a state can be justified even though there has been no armed
    attack. The customary international law concept of self-defense is
    that States may use military force in anticipation of an armed
    attack. *See* [Rex J. Zedalis,]{.smallcaps} *On the Lawfulness of
    Forceful Remedies for Violations of Arms Control Agreements: "Star
    Wars" and Other Glimpses at the Future*, [18 N.Y.U. J. Int'l L. &
    Pol. 98]{.smallcaps} (1985). These scholars also argue that Article
    51 of the U.N. Charter should not be interpreted to restrict the
    inherent right of self-defense. Professor Phillip C. Jessup, at one
    time sitting as a judge on the International Court of Justice,
    stated that the "right of self-defense by its very nature must
    escape legal regulation." [Phillip C. Jessup, A Modern Law of
    Nations 163]{.smallcaps} (1952), *quoted in*, [Robert F.
    Turner,]{.smallcaps} *Coercive Covert Action and the Law*[, 20 Yale
    J. Int'l L. 427, 433]{.smallcaps} (1995).

    Advocates of the second school of thought argue that Article 51 has
    narrowed the right of self-defense, allowing force to be used only
    in response to direct or imminent attack. This view, also receiving
    much scholarly support, is consistent with Article 2(4) which
    outlaws the use of force against the territorial integrity of
    another State, and Article 2(3), which requires a "peaceful
    settlement of disputes." [U.N. Charter,]{.smallcaps} arts. 2(3),
    2(4).

[^161]: [Henkin,]{.smallcaps} *supra* note Error: Reference source not
    found, at 421. The use of force against the territorial integrity of
    another state may therefore be legally employed, but the State
    concerned "will have to prove the gravity and imminence of such an
    attack in order to justify an action of self-defense . . . ."
    [Stanimir A. Alexandrov, Self-Defense Against the Use of Force in
    International Law]{.smallcaps} 100 (1996). Most agree today that
    with the existence of weapons of mass destruction and the minimum
    amount of time required to launch such an attack, the party claiming
    self-defense does not have to wait "like a sitting duck" until the
    attack is already in progress. *See id.,* at 149, 154.

[^162]: Protocol I defines military objective as follows:

    > Attacks shall be limited strictly to military objectives, . . .
    > \[M\]ilitary objectives are limited to those objects which by
    > their nature, location, purpose or use make an effective
    > contribution to military action and whose total or partial
    > destruction, capture or neutralization, in the circumstances
    > ruling at the time, offer\[ \] a definite military advantage.

    Protocol I, *supra* note Error: Reference source not found, at art.
    52(2)[.]{.smallcaps}

[^163]: *See* Space Imaging, *supra* note Error: Reference source not
    found (the company advertises several days as a quick turn around on
    an order).

[^164]: In 1981 Israel bombed an inactive nuclear reactor in Iraq
    claiming self-defense. Israel argued that Iraq was going to use the
    reactor to make nuclear weapons to threaten Israel. In 1985 the U.S.
    bombed targets in Libya claiming self-defense in response to
    State-sponsored attacks in Europe. The U.S. argued that Libya was
    responsible for bombing a nightclub in Germany which killed American
    servicemen and intelligence reports indicated further attacks
    against the U.S. were being planned. *See* [Stanimir A.]{.smallcaps}
    A[lexandrov, Self-Defense Against the Use of Force in International
    Law]{.smallcaps} 159 (1996).

[^165]: [Yoram Dinstein, War, Aggression and Self-Defence]{.smallcaps}
    202 (2d ed. 1994).

[^166]: *See* [O. Schachter,]{.smallcaps} *The Right of States to Use
    Armed Force,* [82 Mich. L.R. 1620, 1635]{.smallcaps} (1984), *cited
    in* [Dinstein,]{.smallcaps} *supra* note Error: Reference source not
    found, at 202.

[^167]: [Law and Responsibility in Warfare: The Vietnam
    Experience]{.smallcaps} 40 (Peter O. Trooboff ed., 1975). *See
    also,* Article 51 through 59 of Geneva Protocol I, which relate to
    attacks on civilian objects, unprotected objects, and using
    precaution in attacks. Protocol I, *supra* note Error: Reference
    source not found.

[^168]: [Dinstein,]{.smallcaps} *supra* note Error: Reference source not
    found, at 231-32.

[^169]: Protocol I, *supra* note Error: Reference source not found, at
    art. 51. Paragraph 5 states in part

    > Among others, the following types of attacks are to be considered
    > indiscriminate:
    >
    > . . .
    >
    > \(b\) an attack which may be expected to cause incidental loss of
    > civilian life, injury to civilians, damage to civilian objects, or
    > a combination thereof, which would be excessive in relation to the
    > concrete and direct military advantage anticipated.

    Protocol I, *supra* note Error: Reference source not found, at art.
    51(5).

[^170]: As stated earlier, this analysis does not consider the technical
    aspects or shortcomings of destruction of the satellite. One
    possible consideration is the extent to which the civilian sector
    depends on the use of the satellite for basic needs such as
    navigation or communication and what effect destruction would cause.

[^171]: Black[,]{.smallcaps} *supra* note Error: Reference source not
    found, at 108. This would create enormous debris possibly
    interfering with friendly satellites.

[^172]: [Dinstein,]{.smallcaps} *supra* note Error: Reference source not
    found, at 203.

[^173]: *See supra* note Error: Reference source not found.