NE Space Law Week - Military Space Operations Panel: The Danger of Cross-Domain Analogies (Maritime, Land, Air)

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10/07/2020 Added

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Moderator: Jack Beard — Professor and Co-Director of the Space, Cyber, and Telecommunications Law Program at Nebraska Law and Member of the Governance and Editorial Board of The Woomera Manual. Speakers: Chris Borgen — Professor, St. John's Law School; Andrea Harrington — Associate Professor, USAF Air Command and Staff College; Dr. Heather A. Harrison Dinniss — Centre for International and Operational Law, Swedish Defence University; and David Koplow — Professor, Georgetown University Law School.

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[00:01:21.150]Jack Beard: I. I hope we're ready to begin here. Welcome to the virtual space last week, brought to you by the University of Nebraska.
[00:01:29.520]Jack Beard: Also sponsored by the American branch of the International Association and the American Society of international law, it's a guy to welcome you here today. Good morning, good evening, wherever you are in the world, joining us
[00:01:42.300]Jack Beard: A delight to finish up this conference this week. This hour long panel on military space operations we followed by
[00:01:50.670]Jack Beard: A presentation by Dr. Brian, we didn't have the secure world foundation about space counter space that's today and tomorrow. I said first before we do anything introduce the wonderful panelists have before you today.
[00:02:05.970]Jack Beard: The subject matter for this panel is a little bit different than other years. It comes as a result of all of us on this panel working on space law problems.
[00:02:15.390]Jack Beard: Some of us also working on the warmer I manual for the international law of a military space operations and then understanding space law. We have come
[00:02:26.760]Jack Beard: To accept that there's a lot of value and looking at analogies to other domains, but many pitfalls. Many pitfalls by taking those other regimes and trying to use them to
[00:02:38.280]Jack Beard: actually explain the rules in outer space that would apply to military space operations, each of the panelists has a different perspective and a different area.
[00:02:48.630]Jack Beard: From law and policy peacetime and potential armed conflict. And so I would like to introduce them all to you in order of presentation as a returning
[00:03:01.530]Jack Beard: First
[00:03:03.450]Jack Beard: Professor Chris Brogan Dan and wherever you find them on your screen. He's the co Director of the Center for International and comparative law at St. John's University and of course expert on the women manual
[00:03:17.070]Jack Beard: Will then be moving to Dr. Andrew Harrington, who is the Chair of the Department of space power at the Air Command and Staff College of the air University and welcome her today. And then we go to another off to Europe to
[00:03:36.180]Jack Beard: Heather.
[00:03:38.130]Jack Beard: Heather days, excuse me, Heather. These Harrison who is at the is a senior lecturer at the Swedish national defense college. Thank you for joining us here and you're later evening, Heather. Appreciate it.
[00:03:50.910]Jack Beard: She is also a core expert on the woman manual and friendly and last but certainly not least,
[00:03:57.660]Jack Beard: fester David kaplow Georgetown Law also a core expert were manual and each, each of them have, I think, really interesting perspectives on this.
[00:04:07.410]Jack Beard: Topic and in some ways, you don't really understand a particular area of law until you had a chance to compare it to others.
[00:04:15.420]Jack Beard: And in doing so, you get another understanding of what it really is, at least that's the argument that all the law professors will make. So with that, let me turn you over to a truly tremendous law professor at St. John's Chris boring, please. Chris, take it away.
[00:04:31.710]Christopher Borgen: Thank you very much, jack and I'd like to thank jack else Beth Matt and everybody at the University of Nebraska, for inviting me to be
[00:04:40.350]Christopher Borgen: To be on this panel and have a chance to participate. Um, what I'd like to do for the next few minutes is to talk a little bit about the role of analogy, and then specifically analogies in regards to the law of neutrality and space.
[00:04:53.700]Christopher Borgen: The title of the panel puts up analogies as a problem and for us as lawyers that might be somewhat surprising because we often use analogies and legal reasoning.
[00:05:03.720]Christopher Borgen: One of the things I would like to sort of begin by emphasizing or undermining or maybe some of the differences
[00:05:09.930]Christopher Borgen: In how we use analogies and domestic law versus some of the issues in terms of using analogies in international law.
[00:05:16.200]Christopher Borgen: So, you know, in domestic law analogies are often used especially when there are areas of new technology like what we're talking about today.
[00:05:23.040]Christopher Borgen: I graduated last tool in 1995 so a lot of the discussions at that time were about things about how do you regulate the internet. So we were thinking about things like email and should email be considered like paper mail.
[00:05:37.200]Christopher Borgen: Is it like broadcasting if you're sending it out to a whole bunch of people. Is it like publication, all of these was examples of reasoning by analogy.
[00:05:47.430]Christopher Borgen: Now in the domestic system, you know, what happens is is that in part you're having courts, especially common law systems courts that are trying to figure out
[00:05:56.250]Christopher Borgen: The best way to bring together existing regulations in terms of this potentially new area, the issues of an analogy can be worked out, not just in the in the initial trial court. But then on appeal, and then ultimately up to a Supreme Court, the legislature.
[00:06:13.920]Christopher Borgen: Sure Can look at what's being done and then decide whether or not the courts have gotten it right, more or less the institutional thickness that we have in domestic law.
[00:06:24.540]Christopher Borgen: Allows analogy to be used in a somewhat seamless way.
[00:06:28.140]Christopher Borgen: But let's consider this in terms of international law. So an international law. We have a variety of different regimes that are entering to enter into by sovereigns and those regimes to greater or lesser extent.
[00:06:39.210]Christopher Borgen: Interact or intersect with each other, but you don't have the same type of hierarchy of decision making.
[00:06:47.220]Christopher Borgen: And ultimately single legislature or a way to sort of smooth out all of the interpretive issues at the end.
[00:06:52.440]Christopher Borgen: So when we use analogies in international law, it's often across regimes and so we have to think about whether we using analogy to sort of reason through what should be done.
[00:07:02.400]Christopher Borgen: Or if we're using analogy to the point in which we're saying this actually is the law, which could be something that is more problematic. So let me
[00:07:12.930]Christopher Borgen: Use by way of example, one one example, having to do with the law of neutrality. Now here, when I'm using the term love neutrality, I do not mean the idea of
[00:07:23.670]Christopher Borgen: Perpetual neutrality, such as, say, Switzerland, saying that they're in neutral state I'm referring here specifically to the idea of the rights and obligations of neutral states that is states that are not party to a conflict that are not belligerent
[00:07:40.680]Christopher Borgen: So one specific aspect of the Law of Nature Valley comes from one of the Hague Conventions from 1907
[00:07:48.930]Christopher Borgen: It's from the Hague Convention on the rights and duties of neutral powers and persons in war on land Article eight of that convention states in neutral power is not called upon to forbid.
[00:08:00.600]Christopher Borgen: Or restrict the use, on behalf of the belligerence of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or two companies or private individuals in short
[00:08:15.630]Christopher Borgen: Neutral powers don't have to prevent use of telephone and telegraph equipment by belligerent powers.
[00:08:23.520]Christopher Borgen: Question is would this apply to satellite communications. Now there are two different ways that
[00:08:29.280]Christopher Borgen: We might approach this one would be to say whether by analogy. The treaty itself as a treaty obligation applies to satellites
[00:08:38.220]Christopher Borgen: That analysis would be one under the Vienna Convention of Law of Treaties, I'll leave some of those issues to other panelists, but
[00:08:44.760]Christopher Borgen: Note that the term of the treaty itself is talking about the war about issues on land. So at the very least you'd be interpreting it in a way that would contradict that some of the domain specific language of the Treaty.
[00:08:56.490]Christopher Borgen: But let's see the argument is that it's become part of customer international law if you're the argument is that this is now part of customer international law and would apply to satellites
[00:09:05.940]Christopher Borgen: Um, one of the things that would essentially be happening is, you'd have to say that customer International has now extended to include this issue in regards to satellites
[00:09:15.510]Christopher Borgen: And if you see any analogies. Well, the equipment there it's kind of like equipment that we have now in terms of satellites
[00:09:23.070]Christopher Borgen: The
[00:09:25.200]Christopher Borgen: The problem is that if you applied simply as an analogy, you wouldn't necessarily need looking at the actual state practice and opinion juris
[00:09:34.260]Christopher Borgen: So applying it by analogy would ignore part of the legal analysis of whether this actually exists as a matter of law in relation to customer international in relation to satellites that is whether the customer international of the time of 1907
[00:09:49.440]Christopher Borgen: Has changed in some way to include satellite communications. Now, in closing, it could be that this that this would be a good application to have that it should apply to satellites
[00:09:59.250]Christopher Borgen: But the analogy is not in and of itself. What makes the law and, as such, you can't see that it has an obligation because of the analogy.
[00:10:08.400]Christopher Borgen: It would obscure the actual analysis that you would have to do. Um, I can expand upon that in question and answer. But for now I'll stop and turn things over to our moderator. Thank you.
[00:10:19.710]Jack Beard: Thanks very much, Chris. There are a lot of angles to that to everything you said that can be explored regarding the duties of the state's involved.
[00:10:29.340]Jack Beard: And how far those analogies and land based domains. Go. And so I encourage you folks out there to send your questions in and we'll give you the chance
[00:10:42.240]Jack Beard: I'll give Chris the chance to answer them here when we get an opportunity. Thanks very much and thanks for the discussion of analogies and their use by all of us, lawyers, let me, let me turn now to Dr. Harrington edits. Your turn. Please, go right ahead.
[00:10:58.590]Andrea Harrington: Thank you very much. So I have to start out, of course, by saying, giving my disclaimer.
[00:11:03.690]Andrea Harrington: That my comments and remarks today are solely my own personal views and do not represent the views of the US Air Force US based force, the Department of Defense, or any other part of the US government
[00:11:14.010]Andrea Harrington: Okay. Now that that's out of the way. I'm going to talk specifically about treaties today. So, not about customary international law, but just a narrow focus on treaty law, particularly
[00:11:25.050]Andrea Harrington: I'm going to walk through treaty interpretation or some elements there of under Article 31 of the Vienna Convention on the Law of Treaties.
[00:11:32.370]Andrea Harrington: And how you can wind up with treaties that have similar language but distinct and different meanings.
[00:11:37.440]Andrea Harrington: And then I'm going to talk a little bit about the military provisions that are included in the Antarctic Treaty and in the Outer Space Treaty and talking about the way is that those are different.
[00:11:46.350]Andrea Harrington: So to start with, well, the United States is not party to the Vienna Convention on the Law of Treaties.
[00:11:52.200]Andrea Harrington: Particularly with regard to the Treaty interpretation rules in that treaty, the US and this is on the State Department's website.
[00:11:59.580]Andrea Harrington: has acknowledged that the Treaty interpretation rules and the VC LT do represent a codification of existing customer international law and so the US is not party to the treaty, the US is bound by these rules.
[00:12:11.400]Andrea Harrington: Because they exist as customer international law.
[00:12:14.490]Andrea Harrington: So when we look at Article 31 of the VC Lt. We see that the first thing that it tells us is that a treaty is to be interpreted in good faith in accordance with ordinary meaning.
[00:12:24.270]Andrea Harrington: And if you look just at that you would assume that two treaties that have identical or very similar texts therefore would be would be interpreted in in a way that is the same or very similar because they're ordinary meaning would be the same.
[00:12:38.250]Andrea Harrington: There are additional provisions, however, that create distinctions impossible meeting between different treaties. The first is when we move into the second paragraph of the VC LT article 31
[00:12:49.110]Andrea Harrington: We specifically. See what sets up the context of a treaty because Article one also tells us that we have to look at the context and the object and purpose of the Treaty, when we're interpreting it
[00:12:59.520]Andrea Harrington: And we see in, in particular, in particular relevance to this discussion in paragraph to
[00:13:04.740]Andrea Harrington: Two elements that I would like to focus on. And those are the preamble to the Treaty itself, because we will see distinct differences in the context that sets up
[00:13:14.130]Andrea Harrington: That set up by the preamble of the Outer Space Treaty in Antarctic Treaty.
[00:13:17.760]Andrea Harrington: But I also want to talk about the subsequent practice in the application of the Treaty that establishes the agreement of the parties regarding its interpretation.
[00:13:27.450]Andrea Harrington: And here I want to draw a particular distinction because when you hear folks talking about state practice.
[00:13:31.950]Andrea Harrington: Usually they're talking about state practice as one of the elements to confirm the existence of customer international law.
[00:13:37.740]Andrea Harrington: As Christians mentioned state practice and opinion juris to confirm a rule of customer international law, but when we're talking about state practice in a treaty interpretation context, we already have the Treaty.
[00:13:49.500]Andrea Harrington: The Treaty law, the states are bound to the Treaty law and we look to the practice to determine how those states are interpreting that treaty. So if you see the members to a treaty all behaving in a similar way and not
[00:14:02.100]Andrea Harrington: calling each other out, creating a diplomatic messaging about violations of the Treaty or potential violations of the Treaty.
[00:14:09.000]Andrea Harrington: Then we accept that those behaviors are in accordance with the Treaty and we interpret the language of the treaty to accept those behaviors that are reflected in state practice.
[00:14:18.570]Andrea Harrington: And so that's a really important element of treaty interpretation in the sense that when you have treaties that have been in place for some number of decades.
[00:14:25.710]Andrea Harrington: Like both the Antarctic Treaty and the Outer Space Treaty, you see that a particular practice develops in accordance with those treaties in the domains to which they apply
[00:14:37.020]Andrea Harrington: So to move specifically into talking about
[00:14:39.900]Andrea Harrington: The preambles that set up these the different contexts. So the Antarctic Treaty gives us in a couple of spots in its preamble some references to peaceful purposes.
[00:14:49.560]Andrea Harrington: It says Antarctica shall continue forever to be used exclusively for peaceful purposes.
[00:14:56.370]Andrea Harrington: And it also says that it's ensuring the use of Antarctica for peaceful purposes only. So we see this limiting language with regard to Antarctica.
[00:15:06.480]Andrea Harrington: in two places in the preamble. In addition to the operative word article on this. As for peaceful planet measures of the military nature, such as establishment and military bases fortifications carrying out military maneuvers, as well as testing any type of weapons is prohibited.
[00:15:25.530]Andrea Harrington: Though military personnel and equipment can be used for any peaceful purposes, including those of scientific research.
[00:15:32.400]Andrea Harrington: When we flip instead to the Outer Space Treaty, we see when we're talking specifically about the moon and other celestial bodies.
[00:15:39.990]Andrea Harrington: There's some very similar language in article for paragraph two, to what we saw an article one of the outer space. Sorry, of the Antarctic Treaty saying that military maneuvers weapons testing carrying out
[00:15:52.890]Andrea Harrington: Having military bases and fortifications. Those are prohibited on the moon and other celestial bodies and and there's an important note about the Outer Space Treaty as well.
[00:16:02.220]Andrea Harrington: Where we see folks will conflate the intention of the Antarctic Treaty quite heavily with the Outer Space Treaty, largely because President Eisenhower in 1960
[00:16:10.500]Andrea Harrington: Suggested and was in favor of taking the model of the Antarctic Treaty and moving it into the Outer Space Treaty and using it in the space domain.
[00:16:17.820]Andrea Harrington: But the big difference between the two is that the Antarctic Treaty.
[00:16:21.870]Andrea Harrington: Sets up that Antarctica is for exclusively peaceful purposes, while the Outer Space Treaty only reserves in its language.
[00:16:28.950]Andrea Harrington: The moon and other celestial bodies for exclusively peaceful purposes, rather than outer space itself in paragraph four, Article one, you see that
[00:16:37.860]Andrea Harrington: The deployment or stationing of nuclear weapons or other weapons of mass destruction in Earth orbit or on a celestial body is prohibited.
[00:16:45.750]Andrea Harrington: So there is an arms limitation there, but there's not a specific limitation in place with regard to other types of weapons.
[00:16:53.370]Andrea Harrington: Placement of military bases or fortifications etc in outer space, that there is in place on the moon and other celestial bodies.
[00:17:01.080]Andrea Harrington: And so if you look to the Outer Space Treaty in the preamble while we see two different points in the Outer Space Treaty preamble that encourage cooperation and development of peaceful purposes.
[00:17:11.190]Andrea Harrington: The preamble does not give that context for for exclusively peaceful purposes. And in fact,
[00:17:17.190]Andrea Harrington: That is only established in the operative texts of the treaty with regards to the moon and other celestial bodies. So you see some very distinct differences there.
[00:17:25.350]Andrea Harrington: And I also just kind of want to point out as well that we've seen a lot of established practice on Antarctica, with regard to peaceful uses of military personnel for the specific purposes of Antarctica.
[00:17:36.240]Andrea Harrington: We don't have that practice developed yet with regard to the moon or other celestial bodies and there may be different types of activities that are peaceful purposes that military
[00:17:47.160]Andrea Harrington: personnel and equipment could be used for on the moon or on celestial bodies as compared to how we have seen on Antarctica. I see that I'm just a bit over time. So I'm going to stop here, but I'm happy to discuss this at further length in the questions.
[00:18:00.060]Jack Beard: Well, thank you. And you know this is I think one of the single most important aspects about interpreting the Outer Space Treaty and when you turn to the Antarctic Treaty and you look at the language they lose. They use
[00:18:14.580]Jack Beard: The language and the Antarctica Treaty and the operative texts and Article one prohibits, among other things, any measures of a military nature language that was
[00:18:25.770]Jack Beard: Explicitly deleted during the negotiation of the Outer Space Treaty or they had the chance to use Antarctica at the Antarctic Treaty, it's interesting, too, that there have been few
[00:18:39.030]Jack Beard: Opportunities for the Cold War for the Western powers in the Soviet bloc to get together on an agreement Antarctica was the one they had done in 1961
[00:18:49.830]Jack Beard: So they had that before them and and this further highlights just how important
[00:18:55.710]Jack Beard: Entry point is about the Vienna Convention Law of Treaties, because the next step is the preparatory work.
[00:19:01.290]Jack Beard: And when you go to the preparatory work. You see that there was an enormous argument on this point you raised about
[00:19:08.670]Jack Beard: Putting outer space, putting peaceful purposes and application to outer space. Generally, and keeping it in the text that was voted down twice. It was put in the preamble.
[00:19:18.990]Jack Beard: Where it has an extremely important role. You know, in informing the Treaty, but not forming a substantive Operative Provision applicable to outer space. So, it is good. Would you like to say anything else about any other parts of the country, like for instance visits.
[00:19:38.130]Jack Beard: To facilities on the moon.
[00:19:40.110]Andrea Harrington: Yeah, actually. So the Antarctic Treaty has much broader opportunities for inspection of facilities in Antarctica in the sense that you get
[00:19:49.350]Andrea Harrington: Inspectors a list of inspectors, provided that can show up at any time to the facilities, you know, dark to go and inspect those facilities and visit those facilities, whereas article 12 of the Outer Space Treaty.
[00:20:01.050]Andrea Harrington: There has to be advanced coordination and some of that is because of the difference in the environments right in Antarctica. We have breathable air, for example, which we don't have on the moon and there might be
[00:20:13.410]Andrea Harrington: More logisticians probably also additional security considerations in terms of what kinds of technology or you're going to see likely on a moon base versus on an Antarctic race and ensuring that
[00:20:23.220]Andrea Harrington: You know those inspections are not cause a problem for any proprietary proprietary systems or that kind of thing as well.
[00:20:31.050]Andrea Harrington: But we don't have any state practice with regard to Article 12 with the Outer Space Treaty, we do have the practice with regard to the the the Antarctic Treaty, and I think that's an important
[00:20:38.910]Andrea Harrington: Note and and jack. I just want to say, while you while they did build in the peaceful purposes language to the preamble of the Outer Space Treaty.
[00:20:47.160]Andrea Harrington: It doesn't ever even in the preamble say exclusively, or only right there's an encouragement of uses of a peaceful purposes.
[00:20:55.710]Andrea Harrington: And and and for cooperation and that's encouraged but encouraging peaceful purposes is not necessarily exclusionary and and the one other thing I want to say is
[00:21:06.390]Andrea Harrington: The Outer Space Treaty does specifically pulling the UN Charter and acknowledges that it is part of international law and so the prohibitions on
[00:21:13.200]Andrea Harrington: The use or threat of force against the state's territorial integrity or political independence or just as operable in space as they are anywhere else that states are engaging and relations.
[00:21:22.530]Andrea Harrington: And therefore there's a limitation on peaceful purposes and a requirement for peaceful settlement of disputes.
[00:21:28.290]Andrea Harrington: That comes through the UN Charter into outer space, just as it does in other domains. And the question really the open question that we have to figure out is
[00:21:36.270]Andrea Harrington: Okay, well what real additional limitations, does the moon. Sorry. Does the Outer Space Treaty place on the moon and other celestial bodies.
[00:21:43.470]Andrea Harrington: Which are carved out only for peaceful purposes and some of those limitations are specifically set out in terms of military maneuvers weapons testing.
[00:21:51.330]Andrea Harrington: And military bases, but that that we haven't tested. Okay, what does that really add that the moon and other celestial bodies aren't exclusively for peaceful purposes, whereas outer space is not exclusively for peaceful purposes.
[00:22:04.050]Jack Beard: Right. Hey, thank you very much. And of course you know there's been a lot of practice on on in the Antarctic the hundreds of visits under
[00:22:14.460]Jack Beard: Article eight whereas so space is unknown, and also has the additional insertion by the Soviets of the phrase on a reciprocal basis and which subject the different
[00:22:25.590]Jack Beard: View so hugely important and interpreting Outer Space Treaty and comparing the two domains. I, I now go to Sweden and to you, Heather. Thank you very much for joining us. And please tell us about the future with the possibility of armed conflict and how that might work out differently.
[00:22:45.090]Heather Harrison-Dinniss: Well, thank you very much for having me. It's wonderful to be here will be it virtually and
[00:22:50.880]Heather Harrison-Dinniss: So I have to follow Andrea and giving the usual disclaimer that I worked for the Swedish Defence University, but I'm a civilian academic and my views are my own entirely and not representative of any part of Sweden in any way, shape, or form and but
[00:23:08.460]Heather Harrison-Dinniss: I wanted to pick one particular issue when when Jake was me to be on this panel. He said, Well, you know, pick a pick a good round pick your favorite issue and
[00:23:18.480]Heather Harrison-Dinniss: And so I so I came up with with surrender and I wanted to talk a little bit about that because I've been thinking a lot about
[00:23:27.840]Heather Harrison-Dinniss: The concept of how one surrenders in space. So when you're involved in in military space operations.
[00:23:34.920]Heather Harrison-Dinniss: And and suddenly you're in this different environment, whether you're whether you're either in space you're on a on a base your or you're on your own land.
[00:23:45.240]Heather Harrison-Dinniss: And because the rules on surrender differ actually depending on, on which domain you're operating in
[00:23:52.110]Heather Harrison-Dinniss: So for regular for renewal at Oregon conflict. If I can call it that. And the law of on conflict.
[00:23:59.160]Heather Harrison-Dinniss: will differ on its rules on surrender, whether you are on land, in which case surrender is on pretty much an individual basis, anybody can put their hands up and God had enough I surrender.
[00:24:09.210]Heather Harrison-Dinniss: And or whether you're at sea or in the air with rules are different and the ship or an aircraft will surrender as a unit.
[00:24:18.600]Heather Harrison-Dinniss: And and then I started thinking about this in the context of space and thinking, whoa, hang on a minute.
[00:24:24.210]Heather Harrison-Dinniss: If you're on a moon base. Are you I you on land. And if you're in a spaceship then presumably you're more like a ship or an aircraft.
[00:24:34.860]Heather Harrison-Dinniss: And so you surrender as a unit. But what if you're on a space station. Is that a ship or is that, or is that on land and fighting is taking place on so so anyway you can see
[00:24:45.900]Heather Harrison-Dinniss: You end up following down these rabbit holes of of exactly what what role should apply by analogy, whether they're going to be the rules on land or whether they're going to be the rules.
[00:24:57.540]Heather Harrison-Dinniss: The rules that are applicable to to vessels and and across. And so that was kind of where I wanted to start. But I guess and
[00:25:08.040]Heather Harrison-Dinniss: Things as as this a space or in cyber I should probably start by saying that
[00:25:13.440]Heather Harrison-Dinniss: The rules regulating surrender a customer international war. You can find them in The Hague regulations out of 23
[00:25:20.730]Heather Harrison-Dinniss: And they're also set out and articles 40 and 41 of additional protocol one in an article for of additional protocol to. So we have some we have some treaty Lauren and they are representative of customer international war.
[00:25:33.600]Heather Harrison-Dinniss: both international and non international conflicts and I think we can all agree that the doctrine of surrender should apply to outer space.
[00:25:44.520]Heather Harrison-Dinniss: And the question really comes down to is how, how do we apply it and which analogies of the appropriate analogies.
[00:25:52.590]Heather Harrison-Dinniss: So to surrender. Basically what you need to do is clearly indicate your intention to surrender. Once you once you have clearly indicated your intention to surrender. You've refrained from any hostile act.
[00:26:05.190]Heather Harrison-Dinniss: And you haven't tried to evade counter and and and it also must be it also must be unconditional
[00:26:13.350]Heather Harrison-Dinniss: So you can't say well also. And if if you're going to surrender. You're going to surrender. So those are the three basic three basic criteria. It's unconditional
[00:26:21.450]Heather Harrison-Dinniss: You clearly communicate your intention to surrender and you refrain from any hostile. Now some of those translate quite easily into space, whether you are
[00:26:30.780]Heather Harrison-Dinniss: Whether you are in a spaceship on a lunar base or whether you're on the ground operating space based assets. I mean, the unconditional part is no problem.
[00:26:41.370]Heather Harrison-Dinniss: On but refraining from last our legs proves a slightly more difficult and difficult thing if you're in charge of a space based acid.
[00:26:50.310]Heather Harrison-Dinniss: Do you then have to shut up that asset, do you then have to pass it off to someone else. And so they are more difficult. No one says at play here on how you do that.
[00:27:01.530]Heather Harrison-Dinniss: The other, the other issue and the one that I had the most fun with was was clearly indicating your intention to surrender, because that's going to that's going to differ a lot depending on your circumstances. And if you happen to be on the moon. For example, and you're wearing a big bulky
[00:27:19.980]Heather Harrison-Dinniss: Astronauts suit, can you actually put your hands up.
[00:27:23.610]Heather Harrison-Dinniss: I noticed the new space suits. There's, there's a wonderful picture and I'm sort of thing. I was ashamed. We're not doing PowerPoints, because they have this one full picture of a woman actually showing that she can do this.
[00:27:33.240]Heather Harrison-Dinniss: And but can you put your put your put your arms are you physically capable of doing that.
[00:27:39.990]Heather Harrison-Dinniss: Andrea talked about the fact that you can have military personnel on the moon and as long as they're doing peaceful purposes, but if their role is to provide security or protection for, for example, a mining operation.
[00:27:53.880]Heather Harrison-Dinniss: And it's not that useful to have, you know, a sign on as we normally think of it in in land base Wolf, it's not useful for them to have have a sign on. What if they could have built into this space suit. They can't put down their weapons.
[00:28:07.560]Heather Harrison-Dinniss: So does that mean they could never surrender, should an armed conflict breakout between stay in state be
[00:28:14.310]Heather Harrison-Dinniss: And the end the mining operations of state and State be on the moon or some other celestial body are there for caught up and
[00:28:23.280]Heather Harrison-Dinniss: So there's some interesting, interesting issues that one can play around with. And with that.
[00:28:29.940]Heather Harrison-Dinniss: And so, so we've got sort of the difference between surrender between individuals and surrender between units or or craft.
[00:28:39.000]Heather Harrison-Dinniss: We've got issues around surrender on the ground of people who are using I'm using space based assets and military space operations.
[00:28:47.880]Heather Harrison-Dinniss: And then we've got another another difficult analogy, which is people on the ground who are surrendering to satellites
[00:28:56.160]Heather Harrison-Dinniss: And so you may well find yourself in a situation where you have a space based assets that you're using military operations on Earth, and you have people trying to surrender to it. We saw the same thing when drones were introduced when
[00:29:12.000]Heather Harrison-Dinniss: That we suddenly had people in Iraq, who were waving the white flag and and putting their hands up to a drone that was passing overhead and what the obligations are. And that no
[00:29:23.160]Heather Harrison-Dinniss: It's not, it's a lot harder to surrender to a satellite, but it is by no means impossible. And there are wonderful stories about
[00:29:32.010]Heather Harrison-Dinniss: For example, North Korean North Korean military people who came racing out of their training barracks when they knew us satellite was overhead and forming a very rude word with their bodies.
[00:29:44.310]Heather Harrison-Dinniss: And to to message to the satellite and and and information about when satellites will be overhead or certainly sunset lights when some satellite will be overhead is certainly
[00:29:56.310]Heather Harrison-Dinniss: Publicly available. So, so that's a possibility that also stands for us because don't forget the requirement to surrender is that you clearly communicate your intention to surrender. So we've had similar similar issues when when aircraft was first used
[00:30:15.480]Heather Harrison-Dinniss: That people would surrender to aircraft. We've seen it with drones. And so far the law, you know, finds a way, find a way to to incorporate these ideas of surrender. This communication of surrender and two things that we wouldn't have necessarily thought of or
[00:30:32.250]Heather Harrison-Dinniss: And so, so that leaves us with sort of these interesting analogy issues coming to surrender. And then the final the final kind of
[00:30:41.640]Heather Harrison-Dinniss: Point that I wanted to check in there right at the end. And maybe we can we can talk about later, is what you then do and when you have captured someone
[00:30:52.170]Heather Harrison-Dinniss: And so if if you capture someone say in space, and you've where we're out in the future. Now we've got these mining colonies on the on the moon.
[00:31:02.700]Heather Harrison-Dinniss: And or or even on a space station, you know, the International Space Station. You've got state and State be who are
[00:31:09.540]Heather Harrison-Dinniss: Who are now in an armed conflict and someone who was who was a military astronauts trying to the armed conflict. What happens if you capture them.
[00:31:18.210]Heather Harrison-Dinniss: And and and then need to detain them Andrea is quite rightly pointed out that you can't have military bases on the moon. And so that means that you can't really have a prisoner of war camp on the moon.
[00:31:29.730]Heather Harrison-Dinniss: And. But what do you do with that person. Are they in fact entitled to prisoner of war protection or not. And this was one of the most marvelous debates that we ended up and having about whether the moon constituted land.
[00:31:42.570]Heather Harrison-Dinniss: And because there are particular rules in the law of armed conflict that say that if you have prisoners of war, they must be kept on land.
[00:31:50.940]Heather Harrison-Dinniss: And so, so we had a fantastic debate about whether the moon constitutes a land or not and but I'll leave you hanging as to as to what the answer to that was because back to you jack
[00:32:03.480]Jack Beard: Yes, that was, that was a painful interesting woman manual discussion. You know, before I leave you
[00:32:11.280]Jack Beard: Know, Heather. I think, you know, the members of the audience out there watching this don't have the same familiarity.
[00:32:18.060]Jack Beard: That you've spent your life working in here in the law firm conflict and
[00:32:21.870]Jack Beard: There are some writers who denied the even possibility of military forces doing much of anything in space and and reject the idea of worrying about the law of armed conflict but
[00:32:33.690]Jack Beard: Here's an example. You're talking about about the proper treatment of prisoners for humanitarian and other reasons, could you just very briefly.
[00:32:41.640]Jack Beard: remind the audience what the value of applying the law of armed conflict to space is because
[00:32:47.880]Jack Beard: It applies to other domains and there would be good reasons for applying it to space as well as the International Court of Justice and suggested that law of armed conflict applies everywhere, but could you remind the audience of the benefits just quickly here of
[00:33:01.980]Heather Harrison-Dinniss: Course so and so the law around conflict has quite extensive provisions on on how one deals with
[00:33:11.370]Heather Harrison-Dinniss: With people that you capture. I mean, obviously, if you find an armed conflict there are going to be people who are who are captured
[00:33:18.000]Heather Harrison-Dinniss: And it's developed it's developed over time and response to very bad treatment very ill treatment of of prisoners of war.
[00:33:26.640]Heather Harrison-Dinniss: And so, so the third Geneva Convention has been set up. It has very, very strict regulations on how one can treat and prisoners of war precisely to protect people to realize that prisoners of war and not
[00:33:41.130]Heather Harrison-Dinniss: Criminals that that soldiers and members of the armed forces who fights out for the country are really only prisoners of war because they're being taken out of the fight.
[00:33:51.690]Heather Harrison-Dinniss: To say you haven't done anything wrong, you just happen to be on the other side. So we're not going to let you go because we don't want you to
[00:33:59.610]Heather Harrison-Dinniss: Keep joining in the fight, but we're just going to remove you from the battlefield.
[00:34:03.870]Heather Harrison-Dinniss: And that's a really important concept to get behind a prisoner of war is not a criminal. They just someone who needs to be removed from the fight so that you don't have to fight them anymore.
[00:34:12.540]Heather Harrison-Dinniss: So, you know, when they are the secured, but you don't have to fight them and horses have the rights to participate in hostilities. Whereas, whereas civilians not. That's one of the one of the essential things to class.
[00:34:26.400]Jack Beard: And beyond the treatment of prisoners also point, of course, to those Cardinal principles that the law of armed conflict is intending to promote ensure
[00:34:37.350]Jack Beard: And that's trying to minimize damage to the civilian population and try to avoid unnecessary suffering or superfluous injury, the combatants. I mean, these especially with respect to
[00:34:49.620]Jack Beard: The civilian population and civilian objects space has so much value to so many countries.
[00:34:55.500]Jack Beard: To leave an open untested and unexamined what the law of armed conflict might be in a situation where so much would be at risk if an armed conflict occur would be just really negligence on the part of lawyers.
[00:35:09.240]Jack Beard: Thank you for what you do and your hard work and we'll see if there's any other questions to be directed to here coming up. But we, we, and I thank you and we turn now back to Washington DC and they become Georgetown Law and please eliminate us Professor copper
[00:35:27.420]David Koplow: But thank you drinking. I'm delighted to take my turn. Throw another log onto this fire where we hope to burn to consumption, all these mistaken analogies.
[00:35:39.360]David Koplow: Where people try to extend one area of law into the left speciality of outer space analogies are useful.
[00:35:48.810]David Koplow: Offered a limiting. In fact, they may be inevitable that maybe just part of the way the human brain is wired is to make connections.
[00:35:56.190]David Koplow: But the mistake, I think, is to assume to pretend to argue that just because of rule works well in one area of law, it must therefore be applicable in another law.
[00:36:07.680]David Koplow: And my own personal nominee as my favorite mistaken analogy in this regard, it comes from the oceans. The Law of the Sea Convention that establishes a series of
[00:36:19.980]David Koplow: Geo morphic zones radiating out from the shore that balance in a variety of different ways, the rights of the coastal state and the rights of a seafaring state.
[00:36:31.590]David Koplow: And that set of rules may work well enough in the Law of the Sea treated that's been joined by just about all the countries in the world, and even the United States, which has not joined
[00:36:43.020]David Koplow: has accepted these provisions, it's customary international so maybe satisfactory that wrong, but that does not mean that it can automatically
[00:36:52.410]David Koplow: Or thoughtlessly be extended into outer space. Let me describe briefly what that situation is
[00:36:58.380]David Koplow: Those of you who have stayed a lot this year familiar that the bulk of that treaty consists of a series of very excruciating Lee defined zones.
[00:37:09.120]David Koplow: The internal waters, the territorial see that can take you with. So the exclusive economic zone, the continental shelf. The extended continental shelf, the high seas.
[00:37:17.400]David Koplow: And in each of the who's the tricky defined the breadth of the zone.
[00:37:22.620]David Koplow: And balances the rights of the coastal to hit with those of the seafaring state and then the zones closer to shore. The control the authority, the rights of the coastal state predominate.
[00:37:34.410]David Koplow: And as you get further from the, from the short but seafaring states have greater autonomy Gregor, the ability to conduct their activities.
[00:37:41.850]David Koplow: And all of those zones are defined by a baseline that normally goes along the mean little watermark on the short but because there are lots of places where the
[00:37:54.900]David Koplow: Shoreline is not normal, the Convention as of right circumstances to define where the baseline is and all the sequential zones are measured from that baseline, as I said, that works reasonably well to permit.
[00:38:11.910]David Koplow: resource exploitation and to avoid at least some of the controversies that have plagued the Law of the Sea for millennia.
[00:38:21.750]David Koplow: People sometimes argue that something similar must or should be done with respect to outer space.
[00:38:27.750]David Koplow: And with space. As you know, the, the starting point is that we have two very different legal regimes, the law air and the law of outer space and the rules are quite different in those two domains.
[00:38:44.760]David Koplow: An overflowing country has sovereign control over its airspace and other countries are not legally authorized to enter that airspace without permission from the overflow and state.
[00:38:56.460]David Koplow: The law of outer space. On the other hand, is precisely the opposite the Outer Space Treaty establishes the rule that every country is free to orbit satellites overflying other countries.
[00:39:07.050]David Koplow: Without requesting permission, without giving advance notice without paying any kind of a fee. So the rules for the two regimes are quite different.
[00:39:15.810]David Koplow: But there is that present know authoritative divided in mind that establishes the boundary between the law here and the lot of space. There is no
[00:39:26.520]David Koplow: Defined rule that establishes where the two worst air ends and space begins as a practical matter.
[00:39:35.040]David Koplow: People frequently referred to the Carmen line at something like 100 kilometers in altitude, which is based on today's technology.
[00:39:45.060]David Koplow: About the highest that an aircraft can safely go and about the lowest that has spacecraft Guinness can effectively go
[00:39:52.320]David Koplow: But that's based on today's technology and who knows what might happen in the future. And therefore, many people have argued that there ought to be
[00:40:00.630]David Koplow: A new rule that establishes and authoritative boundary between the law and the law space, perhaps starting to be more than one zone that you could have
[00:40:11.640]David Koplow: A regime of air some sort of intermediate zone and even higher some
[00:40:16.860]David Koplow: The law of space would take over. And my point is not to for today is not to criticize that those concepts, not to say that that's a mistake.
[00:40:26.520]David Koplow: But just to say that it's not required. It's not automatic that the concept of zones that works well enough in the sea might or might not be useful in extending to
[00:40:39.840]David Koplow: airspace and outer space. We need to make a choice about whether whether there should be a dividing line and the choice should not be driven
[00:40:49.350]David Koplow: Simply by the power of analogy, it should not be driven by the suggestion that would be more tidy.
[00:40:56.190]David Koplow: To arrange the law airspace in outer space in the way that would mimic the tightness of the series of zones in the law to see
[00:41:05.130]David Koplow: If it turns out as it may well be that the world needs a clear demarcation between the two realms of air and space that not defined. But, to me at least it's not quite clear that the world is quite yet at the stage where that kind of demarcation is necessary or beneficial.
[00:41:27.630]David Koplow: We may be there soon the realm of space is becoming much more heavily utilized, including by the private sector, the dangers to the security of the outer space regime are mounting greatly
[00:41:41.520]David Koplow: It might be extremely the case that outer space needs more law, the existing realm of treaties has not been sufficiently dense to populate
[00:41:51.870]David Koplow: The law of outer space, not, not enough to give us the corpus of law that we need. And so at some point, it might be the case that the demarcation should be done.
[00:42:01.830]David Koplow: By argument today is simply that needs to be a conscious choice. It needs to be a policy driven by the international community as a whole, not inspired simply by an analogy from another area of law where demarcations work pretty well.
[00:42:16.710]David Koplow: I'll leave it there and join you in the Q AMP a session to fall well
[00:42:20.790]Jack Beard: I'll give you your first Q AMP. A here.
[00:42:23.820]Jack Beard: David, and that is, you know, this approach of having zones is certainly something that Soviet Union Russians now embraced and they'd love to see a zone in between.
[00:42:36.510]Jack Beard: Outer space and narrow space and maybe require innocent passage for military objects and so on. What, what say oh and an answer to that, that continuing proposal by the Russians.
[00:42:50.400]David Koplow: So at this point, I have to say. Personally, I am agnostic. I don't see the need under today's
[00:42:59.760]David Koplow: patterns of use of space and the upper atmosphere. I don't see a need based on the strategy or the international politics to define where the rule should be
[00:43:10.650]David Koplow: The policy of the United States government has generally been skeptical to say
[00:43:15.360]David Koplow: We don't quite yet know what the patterns based on emerging technology will be that will enable optimal use of those resources. So let's just defer that question until we have a better factual predicate.
[00:43:29.910]David Koplow: About the technology and international politics. I think that's where I am right now.
[00:43:35.760]Jack Beard: Okay. Well, great. So fortunately, we do have questions from a large audience out there. I'll take first three here and give them to you.
[00:43:46.110]Jack Beard: One of our viewers asks some scholars have positive leaving you know st because of risk of violations with the creation of US Space Force.
[00:43:56.970]Jack Beard: What room does the space for us have to operate within peaceful purposes with leaving the OSD damage internationalizing
[00:44:03.270]Jack Beard: Before I give it to you my quick answer to that was would be at the Space Force.
[00:44:07.560]Jack Beard: Has just as much opportunity to operate as any other activity in space military or peaceful under the terms of the treaty in outer space.
[00:44:15.420]Jack Beard: And the space for us is largely if Dr weed and we're here talking tell you is largely just an organizational
[00:44:22.560]Jack Beard: Arrangement on Earth. It doesn't change much about space, but there is this issue about leaving the OSD and and there's always talk about leaving it or amending it and I there's a lot to say. And that would anyone on the panel like to respond to this.
[00:44:40.020]Jack Beard: Any more than more than one please. Anyone please and
[00:44:44.280]Andrea Harrington: Have any jumping. So in terms of the US Space Force question in particular. I actually think there's a lot of opportunity for transparency additional cooperation and confidence building that comes from the creation of a separate Space Force.
[00:44:57.990]Andrea Harrington: Because it makes clear, both to the general public and to the international community.
[00:45:02.490]Andrea Harrington: More of what we are doing in space and that our military is engaged in space, which has been, you know, with the Air Force and other branches even prior to the creation of the Space Force, but I think that transparency.
[00:45:15.120]Andrea Harrington: Hasn't been actually strengthen and reinforce our international regime even, even more so. So I see it quite the quite the opposite way that a lot of other folks do. And in fact,
[00:45:24.960]Andrea Harrington: If you look at Space Policy directive for regarding the creation of the space for us, you will see that upholding international law and preserving the, the freedom of access and use an outer space.
[00:45:35.250]Andrea Harrington: For those responsible actors who are following the Outer Space Treaty is a primary
[00:45:40.440]Andrea Harrington: Is a primary consideration in the creation of the US base force. And so I don't see those two things is contradictory or problematic in any way in terms of the Outer Space Treaty.
[00:45:49.980]Andrea Harrington: SO THE RST would only limit space forces operations, particularly with regard to the moon and other celestial bodies as I talked about in my
[00:45:57.690]Andrea Harrington: OPENING COMMENTS, and even then there is potentially plenty of role for space for us to be involved. Should we have increased lunar operations in the future. So, for example,
[00:46:07.200]Andrea Harrington: If you look at it, the Antarctic analogy that I was talking about. We see transportation, for example, and supply being provided you know as one example, very consistently in Antarctica. And that's something that Space Force could help out with
[00:46:18.750]Andrea Harrington: You know, lunar capacity as well without any potential treaty violation. But in terms of operations and outer space.
[00:46:25.080]Andrea Harrington: As long as US based horses not violating the UN Charter and is not utilizing nuclear weapons or weapons of mass destruction in orbit than there. I see very little thing route very little danger in a potential violation.
[00:46:37.950]Andrea Harrington: Of the Outer Space Treaty in terms of the maintenance of the Outer Space Treaty in 2017 I believe it was there was a congressional hearing that was called by Ted Cruz in order to
[00:46:48.630]Andrea Harrington: discuss whether the United States should consider withdrawing from or amending the Outer Space Treaty that was a highly debated and discussed question at the time. And in fact,
[00:46:57.720]Andrea Harrington: When a number of experts came to speak to Congress and there were hearings that the overwhelming conclusion that resulted from that was no
[00:47:04.560]Andrea Harrington: We should leave the Outer Space Treaty as it is, it is doing a job. It's doing that job satisfactorily. It's not overly restricting us. And so we leave it in place. The ongoing question is whether or not we want to participate in development of any further.
[00:47:19.980]Andrea Harrington: Guidelines norms of behavior, perhaps binding treaty, if you want to characterize it that way rather than whether we should withdraw from or amend the Outer Space Treaty itself.
[00:47:30.090]Andrea Harrington: That seems to be the prevailing view and I certainly strongly support staying in the Outer Space Treaty and leaving it as it is as a framework as we can move forward as needed and work for more specific provisions elsewhere.
[00:47:43.350]Jack Beard: Thanks very much. And let me see if I can fit in a few more questions here is a great answer this one.
[00:47:51.450]Jack Beard: posits the following, given the mechanics of warfare projectiles directed energy weapons and conditions of any hypothetical combat in space.
[00:48:02.100]Jack Beard: Are they so different from the conditions of terrestrial warfare lancey air. Do we need a new convention on the laws of war and weapons of war in space. If not, at some point in the future.
[00:48:14.130]Jack Beard: And when you talk about
[00:48:16.710]Jack Beard: Weapons. We could be talking about more limited arms control actions. I know some of our panelists here have switches on that. What say you, panelists to that.
[00:48:29.400]Heather Harrison-Dinniss: I can jump in on that one. And so one of the, one of the things that I spend my professional life doing is thinking about the future and that and that my special exterior floors emerging military technology and and and in doing that.
[00:48:45.480]Heather Harrison-Dinniss: You know we are constantly looking at new and emerging styles of warfare and changes of warfare.
[00:48:52.950]Heather Harrison-Dinniss: And yes, the physics is different, but not so wildly different as it was when we first came across cyber warfare, for example.
[00:49:01.170]Heather Harrison-Dinniss: And I know many of you also studying cyber. And so, so I think yes, the conditions are different. Yes, we need to think very carefully about the analogies that we draw
[00:49:12.540]Heather Harrison-Dinniss: And and and how we apply the rules, but I think the thing to bear in mind is that the law of armed conflict is a very strong body of law that's based on general principles.
[00:49:22.440]Heather Harrison-Dinniss: And those general principles of distinction proportionality protection, etc. Apply, no matter where
[00:49:29.190]Heather Harrison-Dinniss: And we've got statements from the International Court of Justice that say exactly that, that the law of armed conflict and the principles on which they rest applies not only to
[00:49:39.270]Heather Harrison-Dinniss: To the weapons of the past, but also to the weapon, you know, current weapons and the weapons of the future. There's a nuclear weapons decision.
[00:49:46.710]Heather Harrison-Dinniss: And so we've we faced this problem before it doesn't matter that the physics changes, it doesn't matter that we're suddenly talking cyber or biological weapons or or genetics.
[00:49:59.100]Heather Harrison-Dinniss: And that the core principles are still the same, we still say you should not shoot civilians and it doesn't matter whether you attack civilians using projectiles or or other directed energy weapons or or
[00:50:15.480]Heather Harrison-Dinniss: Bit stream. It doesn't matter. You still should not take civilians and it's the same thing in space, you still should not tech solutions.
[00:50:23.940]Heather Harrison-Dinniss: And so, so the general principles on on which they live still apply. And the question about, do we need a new convention on on the laws of war and weapons in space and
[00:50:36.630]Heather Harrison-Dinniss: You know, that's a possibility. But and but we shouldn't throw the baby out with the bathwater, we shouldn't
[00:50:44.190]Heather Harrison-Dinniss: Say, Oh, we haven't got anything that applies, because we do the Geneva Conventions are drafted in terms of general principles.
[00:50:51.510]Heather Harrison-Dinniss: And so, so they still apply. No matter where they are and rather than rather than having to be reinvented every time we had a new domain or come up within you and you with
[00:51:03.870]Jack Beard: That's excellent. With respect to the law of war with respect to arms control. Of course, you have an enormous problem in space and defining a weapon for purposes of our arms control.
[00:51:14.250]Jack Beard: Especially since everything in space, arguably has a military dimension, but there are possibilities for prohibiting certain types of conduct might also be
[00:51:23.550]Jack Beard: Something of great interest to all the major seafaring spacefaring states and on that, I will turn it over to you, Professor couple of because I know you are one of many that have ideas about what might might be a possibility for something dangerous and stupid being limited space.
[00:51:43.530]David Koplow: Well, let me begin by just noting one of the physics differences between armed conflict in space and armed conflict on Earth.
[00:51:53.190]David Koplow: On Earth, when a bullet is fired or a bomb has exploded at some point, pretty soon the leaflet effects are finished the book eventually hits the ground. The shelf fragments eventually stopped moving before very long.
[00:52:12.900]David Koplow: That that incident is over with kinetic energy activities in outer space. However, the fragments remain in space traveling at enormously high speeds and have the potential for impacting other spacecraft for years or decades there after it is almost as if
[00:52:35.760]David Koplow: The bullets that were fired during World War Two. Continue to his around the battlefield for decades thereafter impacting civilians and neutrals and everyone years after the battle is over.
[00:52:50.880]David Koplow: Something like that does happen in outer space, or could happen in outer space with with anti satellite weapons and for me.
[00:52:58.530]David Koplow: That drives the conclusion that, yes, we need more arms control initiatives in outer space and the literature has been heavily populated with a number of good ideas.
[00:53:10.920]David Koplow: Many of which are attributable to our moderator here. Professor beard as having sponsored a number of beneficial ideas for
[00:53:21.210]David Koplow: For not abandoning the Outer Space Treaty not amending the Outer Space Treaty but supplementing it with additional measures to provide for a more peaceful and sustainable energy
[00:53:32.250]Jack Beard: And and in that regard, we all have to do a shout out for stopping or gangrene to stop or grain to limit destructed Eddie satellite weapons best in space.
[00:53:43.320]Jack Beard: Creating huge piles of debris threatening the use of space for everyone, destroying it as a sustainable environment.
[00:53:50.040]Jack Beard: And with the major powers able to disable satellites through every possible cyber Directed Energy or whatever means we're creating no debris.
[00:53:59.820]Jack Beard: There's no reason why the United States and China People's Republic of China and Russia need to do destructive any satellite weapons test.
[00:54:07.410]Jack Beard: What a great time to propose an agreement before more countries start trying out blowing things up in space, but
[00:54:13.830]Jack Beard: There are places to go here, but they revolve around stopping conduct instead of coming up with elaborate descriptions of what a weapon is. And one of the other questions here relating to
[00:54:26.550]Jack Beard: This the PP WT that's, that's another it's endless hole of trouble to go down trying to define what a space weapon is if it can move in space. It is unfortunately going to be in the Russian parlance.
[00:54:40.800]Jack Beard: Space maneuverable vehicle, but we're running out of time here. And I said, I said, try to give you one more.
[00:54:49.620]Jack Beard: Here is a question I think armed conflict has a way of accelerating the formation and understanding of the law of armed conflict in the context of new technologies and debates, should an armed conflict. Let's see. Just a second.
[00:55:04.980]Jack Beard: I just I just lost it as it went down on the page. I have
[00:55:11.250]Jack Beard: I have completely lost it. Forgive me a comrades.
[00:55:18.690]Jack Beard: Say,
[00:55:20.730]Jack Beard: It's funny, it's dropped off, it's dropped off my screen. I apologize. So
[00:55:28.020]Jack Beard: I guess, I guess, given that we have five minutes and I'm trying to find that question. I invite the panelists to discourse with each other here or discuss in a discourse.
[00:55:39.720]Jack Beard: One last topic of interest or or question to each other that you would like to pursue actually there is one here about customer international law and what forming out in outer space.
[00:55:51.390]Jack Beard: And there's an interesting point about customer international law and of course the treaty that governs this whole thing.
[00:56:00.030]Jack Beard: Of going back to the point, Andrea made that there's state practice implementing the Treaty and there's customer international law generally
[00:56:07.950]Jack Beard: You might be unsafe or ground right now talking about how the treaty is being implemented. But I encouraged and create innovative. If you have any further questions here while I try to find the what I had anyone
[00:56:23.790]Jack Beard: Have a proposal, please, Chris. Thank you.
[00:56:27.900]Christopher Borgen: So I'd like to pick up it on one thing that Heather had said before talking about the. Think about how general principles apply in any domain. I think there's one thing that I wanted sort of underlying I completely agree with that is that the
[00:56:44.340]Christopher Borgen: What is and is not an analogy. So, um,
[00:56:49.950]Christopher Borgen: One thing that we can look at is, is, for example, William booth be had written about
[00:56:54.270]Christopher Borgen: It looking at cyber operations, something that is not actually an issue of an analogy. So the question of whether or not a cyber attack.
[00:57:03.000]Christopher Borgen: Is an attack under international law and he's His argument was, in looking at things like the talent manual on cyber operations, but it was not making an analogy between cyber attack, and attack.
[00:57:15.150]Christopher Borgen: It was simply a definitional issue that under certain circumstances, a cyber attack is an attack.
[00:57:21.510]Christopher Borgen: And so I think a lot of what we're talking about. At times, in terms of the application of general principles across domains, is that we're seeing some of these instances we're not making analogies, but we're simply saying that
[00:57:33.240]Christopher Borgen: Those actual definitions apply to what we're looking at.
[00:57:36.960]Christopher Borgen: Where it becomes more problematic sometimes is when you have some of the types of differences that people have been talking about. So there can be issues having to do with physics.
[00:57:47.550]Christopher Borgen: So that surrender in say outer space as Heather was saying, would be a very potentially a very different issue than surrender in in other circumstances. And so we have to be careful about analogies and those circumstances.
[00:57:59.460]Christopher Borgen: So we can have issues with physics or we could have issues having to do with the context of legal regimes.
[00:58:05.250]Christopher Borgen: As Andrew was talking about in terms of Antarctica, whether it's a great deal of practice in regards to that legal regime, but it would be different than the practices that
[00:58:14.640]Christopher Borgen: We have in outer space. And that I think is one of the places where we sort of separate out the areas where you don't necessarily need a new treaty.
[00:58:22.260]Christopher Borgen: Because we have general principles that can apply, but other areas where there's some certain domain specific aspects and the problem in using an analogy could be that we would obscure. Some of the material differences.
[00:58:36.810]Christopher Borgen: across domains that would lead to badly.
[00:58:42.210]Jack Beard: Thank you, Chris, I think that's probably a good place for us to stop and prepare for Dr. Williams presentation. So thank you Chris Heather Andrea and David
[00:58:52.230]Jack Beard: We're all indebted to you here is the co director of our space ever telecom provider. I want to thank you for the bottom my heart for making this
[00:58:59.610]Jack Beard: A successful panel today and for all the other panelists through this week of the Nebraska virtual cyber virtual space law conference. So thank you very much standbys you want to listen to Dr. Wilson and see you around that corner and space. Thanks very much. Take care.
[00:59:16.260]Andrea Harrington: Thank you. Thank you.
[00:59:29.010]Jack Beard: And now I get to introduce my very good friend distinguished colleague Dr Weeden of the secure world foundation with his
[00:59:37.350]Jack Beard: Presentation of great actress, we're not losing any participants at this point. I know they're probably growing with this opportunity to look at Outer Space weapons threats today and tomorrow, please take it away, Brian.

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NE Space Law Week - Military Space Operations Panel: The Danger of Cross-Domain Analogies (Maritime, Land, Air)

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