Nebraska Virtual Space Law Week - What About Everyone Else? The Law of Armed Conflict and Neutrality and Proportionality in Space: Protecting Neutrals and Civilians in Space

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10/12/2021 Added

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The final day of Nebraska Virtual Space Law Week features panelists Dr. Dale Stephens, Dr. Andrea Harrington, and Christopher Borgen in a discussion about the Law of Armed conflict and protecting civilians in space.

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[00:00:03.260]Okay, good morning, Dale,
[00:00:06.160]glad you're here with us,
[00:00:07.450]looks like we have the entire panel assembled.
[00:00:12.070]A delight to see you all this morning.
[00:00:14.300]Welcome to the final installment,
[00:00:16.840]the last panel of this Virtual Space Law Week.
[00:00:21.060]I'm the host of your panel here,
[00:00:23.500]Professor Jack Beard,
[00:00:24.720]and co-director of The Space, Cyber, Telecom Program
[00:00:27.700]at the University of Nebraska College of Law,
[00:00:29.960]where we are broadcasting from this morning,
[00:00:31.910]and around the world.
[00:00:34.270]I want to say before I introduce the panelists,
[00:00:37.530]a couple of things about what we're talking about today.
[00:00:41.540]Today, we're all about all the other people
[00:00:44.170]that'd like to be left out of war and protected from war.
[00:00:47.760]The civilians who do not want to be injured in the conflict
[00:00:52.060]and the neutrals who want to stay out of it.
[00:00:54.410]And it's an important topic because it demonstrates
[00:00:57.440]a key function of the Law of Armed Conflict,
[00:00:59.770]to serve humanity and keep as many individuals
[00:01:03.430]who want to be out of the conflict out,
[00:01:05.230]and protect those that are not
[00:01:06.980]legitimate military targets.
[00:01:08.850]And that's a really important point.
[00:01:12.050]And it has nothing to do with legitimizing a war in space.
[00:01:15.850]And those who would suggest that studying these topics
[00:01:19.030]legitimizes war in space is,
[00:01:20.840]the technical applied term would be that's kind of
[00:01:23.110]poppycock.
[00:01:23.943]Because the Law of Armed Conflict
[00:01:26.010]is part of international law, it applies to space,
[00:01:29.040]and governments and lawyers and their leaders
[00:01:31.150]should be conversant in this topic,
[00:01:33.490]and be prepared to deal with a conflict
[00:01:37.000]if it does happen in space.
[00:01:38.590]And to dismiss it and to ignore it
[00:01:42.130]and to say, well, we're just not going to even discuss
[00:01:44.570]the issue of a war in space, is to ignore,
[00:01:48.280]completely ignore, one of law's great contributions,
[00:01:52.100]one of its great services to humanity,
[00:01:54.810]in the protections that the Law of Armed Conflict provides.
[00:01:58.300]And so that is our topic area for the day.
[00:02:02.390]And I'm going to proceed now, I guess,
[00:02:05.270]we can take down the screen
[00:02:06.990]and I'll introduce our panel.
[00:02:10.080]I'll start with something I've always wanted to say.
[00:02:13.600]Someone who can actually see the future,
[00:02:16.300]because he's in the future.
[00:02:18.540]What does tomorrow look like, Dale?
[00:02:20.760]It's 1:30 AM in Australia,
[00:02:23.540]and he's up and with us,
[00:02:25.620]he looks just photogenic and ready to go.
[00:02:28.520]Good morning, Dale.
[00:02:30.610]Dr. Stevens is a professor and director
[00:02:33.640]of the Adelaide Research Unit on Military Law and Ethics,
[00:02:37.140]at the beautiful University of Adelaide Law School
[00:02:40.590]in South Australia.
[00:02:42.210]And it is a delight to have Dale here this morning,
[00:02:45.820]joining us, making this truly a global experience.
[00:02:50.140]Meanwhile, back here in the United States.
[00:02:52.019]And I'd like to introduce my friend, Dr. Andrea Harrington,
[00:02:54.190]who is the interim Dean of Space Education
[00:02:57.060]at the Air University of the United States Air Force
[00:03:00.860]with all sorts of responsibilities now for training,
[00:03:03.540]not just the Air Force, but also the Space Force,
[00:03:06.430]and the work that they are doing.
[00:03:09.100]And so moving on,
[00:03:10.859]we're looking at Christopher Borgen,
[00:03:12.690]Professor Christopher Borgen,
[00:03:14.560]who's the director of the law,
[00:03:17.780]he's actually the Professor of Law
[00:03:19.330]and Co-Director of the Center for International
[00:03:21.130]and Comparative Law at St. John's University Law School.
[00:03:25.490]All of us have worked on the issues
[00:03:28.040]we're talking about here today.
[00:03:29.280]Some of us also have been laboring on this,
[00:03:32.590]on The Woomera Manual for the International Law
[00:03:35.720]of Military Space Operations.
[00:03:37.970]Forthcoming next year in publication,
[00:03:40.040]and we've struggled with some of these issues
[00:03:42.810]and worked hard on them.
[00:03:44.030]And it's worth sharing some of our information with you,
[00:03:47.440]for those of us that are on the panel, or excuse me,
[00:03:50.460]those of us who are working on Woomera.
[00:03:53.317]So at this point, I'd like to foreshadow for you,
[00:03:57.470]that the Law of Neutrality is a very difficult topic,
[00:04:02.430]very understudied, undervalued in many ways,
[00:04:06.520]and it doesn't have any state practice
[00:04:08.870]to point to per se, because we've had no conflicts in space,
[00:04:13.170]which is good.
[00:04:14.570]But trying to figure out how it will work is problematic
[00:04:18.360]as you'll see,
[00:04:19.193]because many of the rules are terrestrial specific.
[00:04:23.020]And so it requires a little bit of everyone
[00:04:25.420]to go back to law school on this for a while,
[00:04:27.910]with one of the greatest that can do that for you,
[00:04:30.800]Professor Borgen there at St. Johns.
[00:04:34.500]So we have a brief PowerPoint demonstration
[00:04:37.800]to make these complicated points
[00:04:39.340]that he'll be giving to you.
[00:04:40.730]And with that, let me say no more and let you take it over,
[00:04:44.410]Chris, thank you.
[00:04:48.300]Great, thank you, Jack.
[00:04:49.680]And thank you to everybody at the University of Nebraska
[00:04:52.750]for putting together a fantastic conference.
[00:04:56.590]As Jack mentioned,
[00:04:57.423]what I'm going to do for the next few minutes
[00:04:59.120]is to talk about the Law of Neutrality
[00:05:01.820]and its relation to military space activities.
[00:05:05.280]Now, to do this, to begin with, excuse me, there we go.
[00:05:11.370]To begin with, let me begin with a sort
[00:05:13.000]of a short hypothetical to give a sense as to
[00:05:15.740]what we're talking about.
[00:05:16.890]Assume that there are states, A and B
[00:05:19.710]and they're belligerents in an armed conflict.
[00:05:22.030]State N is not a party to the conflict.
[00:05:25.610]May state N provide launch services to one of the parties
[00:05:29.390]or to both?
[00:05:30.690]Can it provide safe satellite
[00:05:32.150]military communication services to one or both parties?
[00:05:36.290]Might a company incorporated in state N
[00:05:38.760]and under state N's jurisdiction
[00:05:40.620]undertake any of these activities
[00:05:42.890]without affecting the neutral status of state N?
[00:05:46.110]These are the types of questions
[00:05:47.830]that we'll be coming to.
[00:05:48.663]I'm afraid that I'm not going to have answers to everything,
[00:05:51.160]but what I'm going to do is try to issue spot
[00:05:53.580]the types of questions that are being considered
[00:05:56.320]in relation to this.
[00:05:57.790]So as an overview of what I'll be doing
[00:05:59.690]in the next few minutes, is essentially two things.
[00:06:02.690]First, I'm going to talk about the sources
[00:06:04.940]and content of the Law of Neutrality.
[00:06:07.690]Second, I will talk about, I'll issue spot, basically,
[00:06:11.170]a series of challenges
[00:06:12.760]in applying the Law of Neutrality to space.
[00:06:15.690]So to begin with, the Law of Neutrality,
[00:06:18.040]what are its sources?
[00:06:19.410]As Jack mentioned, a few moments ago,
[00:06:21.410]some of the sources that we often turn to in regards to
[00:06:25.320]what what the Law of Neutrality is,
[00:06:28.100]are domain specific treaties.
[00:06:30.200]That is they're treaties that deal with say
[00:06:31.720]land warfare or naval warfare.
[00:06:34.900]We will also be talking about
[00:06:36.040]customary international law
[00:06:37.150]and the requirements of customary international law
[00:06:40.900]in terms of state practice and opinio juris,
[00:06:44.120]which as Jack mentioned as well,
[00:06:46.020]is potentially problematic in relation to
[00:06:50.080]thinking about customary international law in space.
[00:06:52.840]So do these sources shape the Law of Neutrality
[00:06:55.620]regarding space activities?
[00:06:57.650]Before going to that, we should consider for a moment,
[00:07:00.910]what are the purposes of neutrality?
[00:07:04.420]And there are two that I'll focus on,
[00:07:06.640]there are others that various commentators mentioned,
[00:07:08.330]but the two that I'll focus on
[00:07:09.900]are that they're to decrease the risk of states
[00:07:12.610]being drawn into conflicts
[00:07:14.190]that they don't want to be part of.
[00:07:16.290]The second purpose is actually
[00:07:18.110]in relation to the belligerents.
[00:07:19.770]And that is to provide recourse to belligerents,
[00:07:22.670]if a state that is supposedly outside of the conflict
[00:07:25.900]does not meet its obligations as a neutral
[00:07:28.980]and does something that actually intervenes in the conflict.
[00:07:32.370]So how does Law of Neutrality attempt to approach
[00:07:36.600]these purposes?
[00:07:38.100]First is by assigning various neutral rights
[00:07:41.750]and the flip of that coin,
[00:07:43.720]belligerent obligations in relation to conduct
[00:07:48.590]during an armed conflict.
[00:07:50.110]So neutral rights and belligerent obligations.
[00:07:52.580]There are also a series of neutral obligations
[00:07:56.100]of what the neutral parties are supposed to do.
[00:07:58.650]Now, when we come to talking about space
[00:08:00.790]in relation to this,
[00:08:01.900]one of the things to consider is
[00:08:04.030]if we're talking about rights and obligations in space,
[00:08:06.460]what is the source?
[00:08:08.140]Are we claiming that it's based on a treaty?
[00:08:09.960]Are we claiming that it's based under
[00:08:11.120]customary international law?
[00:08:12.470]And how should we analyze that?
[00:08:14.520]So in terms of neutral rights,
[00:08:16.720]neutral rights can be thought of as essentially,
[00:08:19.290]that neutral territory and territorial waters
[00:08:21.540]are inviolable.
[00:08:23.030]And that neutral persons and objects
[00:08:25.170]shall not be military objectives,
[00:08:26.960]except under certain circumstances,
[00:08:28.930]those circumstances have to do with targeting,
[00:08:30.810]and I'll talk about that in just a few moments.
[00:08:33.180]So at the outset, a certain aspect of rights and obligations
[00:08:36.240]deals with the territory of a neutral state.
[00:08:40.130]But we can also think about neutral obligations
[00:08:42.380]and the customary international law of neutral obligations.
[00:08:45.550]And these relate to impartiality, abstention and prevention.
[00:08:51.070]So neutral states are supposed to be impartial
[00:08:53.880]in how they interact with belligerent parties.
[00:08:56.980]So for example, if a supposedly neutral state
[00:08:59.700]provides surveillance satellite data to the military
[00:09:02.890]of one belligerent, but not the other,
[00:09:05.610]that could be viewed as going against
[00:09:08.290]the requirement of impartiality.
[00:09:11.000]A second obligation is to abstain
[00:09:13.710]from participation in an armed conflict.
[00:09:18.620]So for example, if a supposedly neutral party launches
[00:09:22.830]a belligerent party's military satellite
[00:09:25.520]during an armed conflict,
[00:09:27.070]and that satellite will be used in that armed conflict,
[00:09:29.430]that might be viewed as a violation
[00:09:31.560]of the obligation of abstention.
[00:09:33.850]And third prevention, which is that neutral states
[00:09:37.010]are supposed to prevent their territory from being used
[00:09:40.260]in a way that would violate their neutral obligations.
[00:09:44.420]So if a belligerent is attempting to build
[00:09:46.110]a satellite communication station in neutral territory,
[00:09:49.040]and that neutral state does not try to stop that,
[00:09:52.100]that might be a violation of the obligation of prevention.
[00:09:56.310]Now, when there are violations of neutral obligations
[00:09:58.800]that might lead to self-help by belligerents,
[00:10:01.080]it can lead to possible loss of the neutral status
[00:10:03.480]of the state as a whole,
[00:10:05.010]or of a particular object of the state,
[00:10:09.390]such as a ship, a plane, or potentially a satellite.
[00:10:13.470]Now does the Law of Neutrality apply to space?
[00:10:16.450]In the Nuclear Weapons Advisory Opinion,
[00:10:17.940]the ICJ wrote that international law leaves no doubt
[00:10:20.600]that the principle of neutrality,
[00:10:21.980]whatever it's content,
[00:10:23.330]is applicable to all international armed conflict,
[00:10:26.620]whatever types of weapons might be used.
[00:10:28.990]But even with that, there are a series of challenges
[00:10:31.570]in applying this to space.
[00:10:33.300]So here I've issued spotted six challenges.
[00:10:36.610]I'm going to really briefly pass through the first three,
[00:10:40.740]which I've already discussed to a certain extent.
[00:10:43.470]And I'm going to focus on the second three challenges
[00:10:46.541]for the remaining few minutes of my opening presentation.
[00:10:51.700]The first challenge has to do with the domain specificity
[00:10:54.440]of treaties, that is something that I've talked about,
[00:10:56.803]and that Jack mentioned previously.
[00:10:58.150]What that means in terms of a challenge is,
[00:10:59.620]let's say we looked at the Fifth Hague Convention,
[00:11:02.460]which deals with land warfare.
[00:11:04.280]There's a clause there that says a neutral power
[00:11:06.400]is not called upon to forbid or restrict the use,
[00:11:09.130]on behalf of belligerents,
[00:11:10.410]of telegraph or telephone cables in neutral territory.
[00:11:14.220]Does that apply?
[00:11:16.434]You could say that that might apply to things
[00:11:18.820]that are within neutral territory,
[00:11:20.180]including say, satellite uplink stations, potentially.
[00:11:24.570]But that's an open question in terms of how do we
[00:11:27.080]interpret this treaty and applying it to space assets,
[00:11:29.790]both in the territory and whether it was meant to
[00:11:32.360]apply to anything outside of the territory.
[00:11:34.790]So these are questions of interpretation of treaties
[00:11:37.710]and intent of the parties who signed those treaties.
[00:11:41.070]A second question is another issue of sources,
[00:11:43.340]and that's having to do with customary international law.
[00:11:46.610]So as mentioned before, there's state practice,
[00:11:49.870]but the state practice that we generally have,
[00:11:51.420]is having to do with terrestrial armed conflict.
[00:11:53.650]To what extent should we view that
[00:11:55.780]as also applying to conflicts in space?
[00:11:58.700]Do we have opinio juris showing application of
[00:12:01.740]customary international law in relation to neutrality
[00:12:05.010]to conflict in space?
[00:12:07.290]And then the third issue that I'll pass over briefly,
[00:12:10.120]is once again, having to do with territoriality
[00:12:12.080]and nationality.
[00:12:13.600]Here, as we know under the Outer Space Treaty,
[00:12:16.040]there is no territorial sovereignty in space.
[00:12:20.230]So if many of the obligations in regards to neutrality
[00:12:24.640]deal with what happens within a state's territory,
[00:12:27.840]how do neutral obligations apply
[00:12:29.700]when there is no national territory?
[00:12:32.070]I note that some would say that the issue,
[00:12:37.190]the territorial emphasis might be related
[00:12:38.890]to certain treaties and certain specific obligations,
[00:12:41.240]but there's also a conduct based approach
[00:12:43.090]that we can look at in relation to neutrality,
[00:12:45.230]which has to do with the conduct of parties
[00:12:47.870]more than just what happens within territory.
[00:12:51.130]And that you have to be impartial in your conduct,
[00:12:53.170]you have to abstain in your conduct.
[00:12:54.790]And that a conduct based approach
[00:12:56.010]is not purely based on territoriality.
[00:12:59.140]And in relation to the issue of vessels,
[00:13:02.100]the flagging of naval vessels or of planes
[00:13:06.120]is not the same way that we think about
[00:13:08.140]registration of satellites, which is much more complex,
[00:13:11.630]and there can be multiple launching states.
[00:13:13.870]So the norms that we have in relation
[00:13:17.440]to the registration of space objects
[00:13:19.090]does not track easily onto the rules of neutrality
[00:13:23.100]that we have in relation to A terrestrial space object,
[00:13:26.940]terrestrial objects, excuse me.
[00:13:28.900]So for the last couple of minutes,
[00:13:31.000]I want to talk about these last three challenges
[00:13:34.640]that I've noted.
[00:13:36.050]The first is as I'd mentioned before,
[00:13:38.340]neutral persons and objects
[00:13:39.730]shall not be military objectives, and I said, except.
[00:13:42.550]And the exception is an object may be targeted
[00:13:45.415]if it makes an effective contribution to military action
[00:13:49.530]and its destruction or neutralization
[00:13:51.270]would lead to a definite military advantage.
[00:13:53.220]This is the basic rule that we have on targeting.
[00:13:55.260]I note that in many instances, perhaps most instances,
[00:13:59.270]something that meets those requirements
[00:14:01.410]would probably be an object which is being used in a way
[00:14:05.720]that would contravene neutral obligations.
[00:14:08.440]So in various points, neutrality and targeting
[00:14:11.410]might work well hand in hand,
[00:14:14.450]but it's not necessarily always going to track.
[00:14:18.600]And when we think about the use of satellites,
[00:14:24.040]there can be some complexities in thinking about
[00:14:26.870]whether something might be leading to a military advantage,
[00:14:29.380]but whether it should be considered still
[00:14:31.450]more or less a neutral object,
[00:14:33.570]if it's being used by multiple states.
[00:14:35.230]This will be something that we'll probably talk about more
[00:14:37.219]in the discussion afterwards.
[00:14:39.530]Now, similar to this or leading from this,
[00:14:41.980]we can also think about the role of non-state actors.
[00:14:44.890]So as we know, article six of the Outer Space Treaty,
[00:14:47.750]has the OST rule of responsibility,
[00:14:50.900]which is different from the rule of responsibility
[00:14:52.810]that we have in the ILC's draft articles
[00:14:55.360]on state responsibility,
[00:14:56.590]where here states are responsible for national activities
[00:14:59.730]that are carried out by non-governmental entities.
[00:15:03.790]So what does that mean
[00:15:07.480]in terms of the neutral obligations of a state?
[00:15:11.070]Can the actions of a non-state actor,
[00:15:13.720]which normally would be imputed to a state under
[00:15:16.157]OST article six actually cause that state
[00:15:19.290]to be in violation of its neutral obligations?
[00:15:21.610]So for example, to take a stark example,
[00:15:24.070]can accompany that provides satellite imaging
[00:15:27.150]to a belligerent,
[00:15:28.270]without the knowledge of a neutral state,
[00:15:30.570]and that company is incorporated
[00:15:32.400]under the rules of that neutral state,
[00:15:34.350]would that action lead to a violation
[00:15:37.530]of neutral obligations backed by that state,
[00:15:39.880]and that state as a whole would be viewed
[00:15:42.675]as no longer being a neutral?
[00:15:45.660]That is a very stark potential result if,
[00:15:49.670]depending on how we interpret the relationship
[00:15:51.540]of article six to neutrality.
[00:15:54.160]And the final point that I'll make
[00:15:55.280]is also in relation to this is thinking about
[00:15:59.010]commerce and neutrality.
[00:16:01.190]Now the classic Law of Neutrality would allow trade,
[00:16:03.510]other than for war materials,
[00:16:04.660]to continue between a neutral state and a belligerent party.
[00:16:07.900]There's been some argument that arms deals
[00:16:11.010]by private parties,
[00:16:13.160]no longer come within that exception,
[00:16:16.120]and that an arms deal by a private party
[00:16:18.500]would be something that would be a violation of
[00:16:21.853]a neutral obligation by a state.
[00:16:24.230]Now, what is our understanding of war materials
[00:16:26.850]in relation to space activities?
[00:16:28.650]Is the providing of launch services
[00:16:31.960]or providing them launch vehicles specifically,
[00:16:34.890]would that be a violation of neutral obligations?
[00:16:39.310]Would the provision of something like say,
[00:16:41.740]intelligence data from a satellite,
[00:16:44.050]be something that would not be viewed
[00:16:45.830]as commerce or logistics,
[00:16:47.810]but something that would be viewed
[00:16:49.470]as a violation of neutral obligations?
[00:16:52.970]So to close, these are once again,
[00:16:56.420]the six topics that I've sort of walked through
[00:16:58.780]very briefly, but to close,
[00:17:00.220]I want to sort of put them into a series of groups.
[00:17:03.020]So we can think about one series of challenges
[00:17:05.510]having to do with neutrality, space, and the sources of law.
[00:17:08.700]How do we interpret treaties
[00:17:09.870]and evolving meaning of treaties?
[00:17:12.430]What counts as state practice for space
[00:17:15.580]in regards to customary international law?
[00:17:17.050]So that's a series of issues having to do with sources.
[00:17:19.050]The second series of issues has to do
[00:17:21.080]with the interaction of neutrality and other legal regimes.
[00:17:24.170]Such as targeting or say responsibility
[00:17:26.750]under the Outer Space Treaty.
[00:17:28.680]Third set of challenges,
[00:17:30.120]deals with the evolution of commercial space
[00:17:33.610]and how we think about that
[00:17:35.110]in relation to the abilities that states have to undertake
[00:17:39.160]commerce under the rules of neutrality.
[00:17:41.830]And how that adjusts, or whether that adjusts,
[00:17:46.950]in regards to space activities.
[00:17:48.810]And finally, whether or not we take a view
[00:17:51.230]of the Law of Neutrality that is primarily territorial
[00:17:54.110]or one that is conduct based,
[00:17:55.820]in which the issue is not specifically
[00:17:57.590]whether or not something's happening
[00:17:58.470]within the territory of the state,
[00:17:59.930]but rather the conduct of a state
[00:18:01.870]in relation to the belligerents.
[00:18:03.780]So with that, I'll stop here
[00:18:06.050]and I look forward to our ongoing discussion.
[00:18:08.650]Thank you.
[00:18:09.970]Well, thank you, thank you very much, Chris.
[00:18:12.820]That's a incredibly quick and complete performance.
[00:18:17.590]You can see why he would be a core expert
[00:18:19.579]for The Woomera Manual in this area.
[00:18:22.370]I'd like to turn to,
[00:18:23.500]I have one comment that I'd like to turn to you,
[00:18:26.820]Professor Stevens, Dale, if you'd like to,
[00:18:29.750]you are also expert in this area,
[00:18:32.500]what else would you like to add to this issue of neutrality
[00:18:35.890]that interests you?
[00:18:37.560]So thank you, Jack.
[00:18:38.890]Thank you to the University of Nebraska
[00:18:40.990]for inviting me to present, at 1:45 in the morning,
[00:18:48.570]and I'm very honored to be on this panel
[00:18:51.970]with Andrea and Chris.
[00:18:54.050]And I am coming to you from the future,
[00:18:56.650]I can see the future, I can see who won the Super Bowl,
[00:19:00.050]I can see who won the World Series,
[00:19:02.150]but we don't care about that, we care about neutrality.
[00:19:05.000]So let's talk about the important thing,
[00:19:07.570]which is neutrality,
[00:19:08.610]and I'm going to be actually reinforcing much of what
[00:19:14.080]Chris' excellent presentation revealed,
[00:19:17.140]and perhaps diving a little bit into some of those issues.
[00:19:21.640]And he's right,
[00:19:22.473]how do we deal with neutrality in space itself?
[00:19:25.970]And the problem of course,
[00:19:27.720]is that the treaty law that exists,
[00:19:30.280]articles one of the Fifth Hague Convention,
[00:19:33.120]and article one of the 13th Hague Convention,
[00:19:36.230]talk about territory and make it very clear
[00:19:38.490]that neutrality applies to territory.
[00:19:42.070]The problem, of course, in space is there is no territory,
[00:19:44.420]you can't claim territory.
[00:19:45.560]So that becomes a critical point of division
[00:19:50.750]or divergence in terms of applying the Law of Neutrality.
[00:19:54.010]But even in the classic Law of Neutrality,
[00:19:56.520]there was an idea that airspace,
[00:19:59.210]not included in any treaty, by analogy,
[00:20:02.280]could be neutral territory.
[00:20:04.370]Additionally, as Chris mentioned,
[00:20:06.010]it became clear that merchant ships
[00:20:08.070]from states carrying the flag of that state
[00:20:11.470]could have neutral status,
[00:20:13.490]because it was so connected with that state.
[00:20:16.570]So we've got that history, but as Chris said,
[00:20:22.100]space objects are not flagged like merchant ships,
[00:20:26.800]their status is not as clear as what a merchant ship is.
[00:20:31.000]There is a state of registry as Chris said,
[00:20:32.900]there is a launching state, there is the article six issue,
[00:20:35.980]there is the question of who owns it.
[00:20:37.640]The status itself is just not that clear.
[00:20:41.760]Hence we have some academic opinion
[00:20:44.460]that says that the Law of Neutrality
[00:20:46.130]just cannot apply on the face of it,
[00:20:48.090]at least on the face of the treaty provisions.
[00:20:51.890]So what does that mean?
[00:20:53.570]Does that mean that if you're fighting an armed conflict
[00:20:56.280]in space, because of these 19,
[00:21:00.072]these early 20th century treaties,
[00:21:03.190]that there is no Law of Neutrality?
[00:21:05.210]Does that mean that you're only restricted,
[00:21:07.360]if you're a belligerent, to military necessity?
[00:21:10.090]Can I do what I like, subject only to military necessity?
[00:21:14.300]That can't be right.
[00:21:15.730]That can't be what the Outer Space Treaty imagines,
[00:21:18.830]that can't be what the Law of Armed Conflict imagines.
[00:21:22.410]And I'm thankful for Chris for putting up that ICJ statement
[00:21:28.010]that says the Law of Neutrality applies everywhere.
[00:21:30.750]So our challenge is to work out, how can we make it apply?
[00:21:35.760]There is only one state that actually says
[00:21:38.480]the Law of Neutrality applies to space,
[00:21:41.080]and they do it very indirectly and very briefly,
[00:21:44.520]and it's not the United States and it's not Australia,
[00:21:47.120]it's actually Denmark,
[00:21:48.880]who in one provision of their Law of Armed Conflict manual,
[00:21:52.210]make that statement.
[00:21:53.800]There is silence everywhere else.
[00:21:56.240]Perhaps because it's just obvious
[00:21:58.180]that it would apply
[00:21:59.260]and states haven't turned their mind to it.
[00:22:01.790]Perhaps it's because fortunately
[00:22:03.770]there hasn't been an armed conflict in space.
[00:22:05.990]So there hasn't been the incentive or the motivation
[00:22:10.820]to come to a conclusion.
[00:22:12.640]But it is time that states
[00:22:16.020]start thinking about this point.
[00:22:19.570]And I'm assuming that rational people
[00:22:22.160]want to ensure that armed conflict in space is limited
[00:22:26.010]and that neutral, or at least third party rights,
[00:22:28.830]are protected from belligerent actions,
[00:22:31.180]however that might be manifested.
[00:22:35.130]There is some academic commentary that says
[00:22:37.130]that while the Law of Neutrality doesn't apply,
[00:22:39.260]because of this strict view, in treaty law about territory,
[00:22:43.450]other provisions might apply.
[00:22:45.060]So the Law of Prize might apply
[00:22:48.230]and the Law of Armed Conflict in terms of targeting,
[00:22:51.700]might apply.
[00:22:54.860]And that's fine as far as it goes,
[00:22:57.170]but I doesn't offer much protection for neutrals,
[00:23:00.890]which the vast majority of states will be,
[00:23:03.820]in an armed conflict that extends into space.
[00:23:06.900]And in that regard, I take Chris's point,
[00:23:10.750]that perhaps we stop looking at territory,
[00:23:13.030]and we start looking at conduct,
[00:23:14.830]and we start having a view as to the capacity of conduct
[00:23:20.490]to be neutral or non-neutral.
[00:23:23.310]And that the law applies accordingly
[00:23:26.060]to provide protections to neutrals.
[00:23:30.896]And of course there is much in the Law of Neutrality
[00:23:33.300]that is detailed, that provides protections.
[00:23:35.920]For example, I think Chris made mention of this
[00:23:40.210]in terms of what you can do,
[00:23:41.760]but in the lore of naval warfare,
[00:23:43.680]if you engage in non-neutral, if you're a neutral state
[00:23:46.950]and then engage in non-neutral service
[00:23:49.250]in your territorial sea,
[00:23:51.120]a belligerent doesn't just attack you,
[00:23:53.770]it has to give you an opportunity to respond,
[00:23:57.265]to come back into line, to start being neutral again,
[00:24:01.140]before it can do anything.
[00:24:02.600]And that sort of mechanism,
[00:24:04.050]that sort of procedural requirement,
[00:24:07.030]I think we want to have applicable to space
[00:24:10.290]in the event that armed conflict should occur there.
[00:24:13.870]And similarly, concepts such as the Law of Blockade
[00:24:17.000]and the Right of Visit and Search,
[00:24:18.210]both naval concepts,
[00:24:19.690]that come into the law of naval warfare,
[00:24:21.970]that deal with neutral rights are based on territory.
[00:24:28.260]Their application is based on territory
[00:24:30.960]and their rights and obligations apply accordingly.
[00:24:34.080]So perhaps, perhaps,
[00:24:36.500]we can have a two track way of thinking.
[00:24:38.700]Perhaps we can look at conduct,
[00:24:40.530]but perhaps we can start exploring
[00:24:42.820]with what is territory like in space?
[00:24:46.320]What does article eight,
[00:24:48.240]with its requirements as to jurisdiction,
[00:24:50.480]provide in that regard?
[00:24:51.580]What does article 12, which deals with facilities
[00:24:55.100]on celestial bodies,
[00:24:57.080]is that akin to territory that we can link
[00:25:00.260]the Law of Neutrality to?
[00:25:02.290]My view at the moment is that you can,
[00:25:04.160]but that's for law review articles,
[00:25:06.870]that's not actually something that states are arguing
[00:25:10.050]at the moment.
[00:25:11.140]I think at the moment, the ball is very much
[00:25:14.010]in the court of states.
[00:25:16.180]We have one state, Denmark,
[00:25:18.593]who's been open about his declaration.
[00:25:21.560]I think the easiest and most effective way
[00:25:24.910]to meet the objectives of the space law regime,
[00:25:27.930]to meet the objectives of the Law of Armed Conflict,
[00:25:30.750]is to encourage states to come to a view.
[00:25:33.450]And I doubt there is any state
[00:25:36.593]that says that the Law of Neutrality,
[00:25:38.670]despite academic critique to the contrary,
[00:25:41.670]that the Law of Neutrality,
[00:25:42.850]or at least neutral protections can't apply.
[00:25:46.200]And it's up to, perhaps our imagination,
[00:25:49.580]to come to a legal framework that permits that to apply.
[00:25:55.640]So in summary, you still with me?
[00:25:59.930]In summary, okay, you can all wake up now.
[00:26:03.350]I think that it is implausible
[00:26:06.760]that the drafters of the Outer Space Treaty,
[00:26:09.740]imagined that by inserting article two,
[00:26:13.010]that they would divest neutrals of rights in space
[00:26:17.050]in the event of an armed conflict.
[00:26:19.170]I think we have the capacity,
[00:26:20.820]and I think Chris has been outstanding
[00:26:22.900]in providing the framework and pointing out the key issues,
[00:26:26.520]I think we do have the framework
[00:26:28.010]for some innovative thinking as academics,
[00:26:31.260]but I think at the end of the day,
[00:26:33.600]it is up to states to come to some overt statements
[00:26:38.510]about how the Law of Neutrality applies
[00:26:41.510]and how it applies with the assistance, perhaps,
[00:26:44.620]of some academic thinking.
[00:26:47.440]The end
[00:26:48.660]Oh, wow, well, thank you very much.
[00:26:50.957]And thank you for that peak into the future, Dale,
[00:26:54.270]that's really quite a service you're performing for us,
[00:26:57.360]you two are a great team on this.
[00:27:00.740]I think I'll wait,
[00:27:04.010]there's at least one question here on neutrality.
[00:27:06.050]I think I'll wait until the end to send it back to you.
[00:27:10.290]But I would forewarn the audience that those categories,
[00:27:16.560]that Professor Borgen did such an absolutely great job
[00:27:20.910]of bringing out, and that Professor Stevens
[00:27:23.600]was starting to address.
[00:27:24.630]You can drill down in each of those categories
[00:27:27.230]and come to some additional, very difficult questions,
[00:27:30.450]which is why Chris so beautifully packaged them
[00:27:35.480]and gave you a summary of the issues.
[00:27:38.230]If you want to ask about any of the particular areas,
[00:27:41.334]those are larger articles in and of themselves,
[00:27:45.450]or at least pretty long explanations.
[00:27:47.560]But you're welcome to do that.
[00:27:49.580]So we'll stand by to come back to both of you
[00:27:52.900]for questions on neutrality.
[00:27:55.140]And it is remarkable that the Outer Space Treaty,
[00:27:59.920]dedicated to all these peaceful pursuits in space,
[00:28:03.410]could be read in such a way as to enlarge
[00:28:05.630]international conflicts and bring countries into it
[00:28:08.000]that don't want to be part of it.
[00:28:09.320]So how states develop this is going to be
[00:28:13.420]how states develop it,
[00:28:14.500]but they seem to have a roadmap that's worth looking at here
[00:28:17.770]and thinking about.
[00:28:19.080]So leaving the world of neutrals,
[00:28:22.680]then we enter the world of civilians,
[00:28:24.450]that would like to not be injured or killed
[00:28:26.420]and their property destroyed in this a world of space.
[00:28:29.647]And to do that, I turn to you Dr. Harrington,
[00:28:33.490]and ask if you'd like to talk a bit with us about
[00:28:36.450]the proportionality rule as it applies
[00:28:38.860]to armed conflict in space.
[00:28:41.200]Sure thing, thanks very much Professor Beard.
[00:28:43.380]So first of all, I have to give my disclaimer
[00:28:45.460]at the start of my talk here,
[00:28:46.870]which is to say everything I'm saying here today
[00:28:49.730]on this panel are my own views.
[00:28:52.430]They do not represent the views of the US government,
[00:28:55.720]whether it be the Space Force, the Air Force,
[00:28:57.370]Department of Defense, or any other part of the government.
[00:28:59.460]Whatever I say today is me, not the government.
[00:29:02.590]Okay, now that that's out of the way,
[00:29:04.810]getting into the substantive discussion.
[00:29:06.630]So since this is Space Law Week
[00:29:08.550]and not Law of Armed Conflict week,
[00:29:11.180]I want to deconflict some terms for you right here
[00:29:13.870]at the beginning,
[00:29:14.703]because there are a lot of places in international law
[00:29:17.110]where you'll see the same term used in different contexts.
[00:29:20.630]And I want to make sure we understand
[00:29:21.860]what context we're talking about
[00:29:23.430]the word proportionality in here today.
[00:29:26.450]So the purpose of the discussion of proportionality
[00:29:29.270]is really about the jus in bello,
[00:29:31.130]the Law of Armed Conflict portion of proportionality.
[00:29:35.603]But I'm going to explain to you how proportionality works
[00:29:38.170]on both sides of the point first,
[00:29:39.500]which is in the jus ad bellum, the resort to use of force,
[00:29:42.610]and then in the Law of Armed Conflict
[00:29:44.980]for the meat of our discussion today.
[00:29:47.690]So both jus ad bellum and jus in bello,
[00:29:50.680]have treaty obligations
[00:29:53.490]and also customary international law obligations,
[00:29:56.260]just like the Law of Neutrality as Professor Borgen
[00:29:58.610]was pointing out earlier.
[00:29:59.910]So for jus ad bellum, the resort to use of force,
[00:30:02.920]we look primarily to the UN Charter,
[00:30:05.000]and we know that the UN Charter, in particular,
[00:30:08.270]and international law in general,
[00:30:09.630]tie into international space law
[00:30:11.700]through article three of the Outer Space Treaty.
[00:30:14.120]So they apply in space.
[00:30:16.090]And the UN Charter tells us that we are prohibited
[00:30:19.240]to the resort to the use of force
[00:30:21.510]or the threat of use force against
[00:30:25.450]a state's territory or political independence.
[00:30:29.140]And that's in article 2.4 of the UN Charter.
[00:30:32.970]A lawful use of force that would be permissible
[00:30:35.920]under the UN Charter, in article 51,
[00:30:38.660]would be the right to self-defense.
[00:30:40.600]So you can use force in order to defend against
[00:30:43.410]an armed attack within the context of the UN Charter.
[00:30:45.790]And there is a customary international law
[00:30:48.750]right to self-defense that comes in there as well.
[00:30:51.080]And when you're determining whether or not
[00:30:52.890]your use of force is going to be lawful
[00:30:54.550]under the UN Charter,
[00:30:55.810]you have to look at two elements,
[00:30:57.250]necessity, and proportionality.
[00:30:58.880]And this is where it gets a little bit confusing
[00:31:00.560]because the necessity and proportionality
[00:31:02.680]under jus ad bellum are not the same
[00:31:04.920]necessity and proportionality that they are under
[00:31:07.980]jus in bello in the Law of Armed Conflict.
[00:31:10.440]So when we're talking about jus ad bellum,
[00:31:12.880]we're talking about is the action
[00:31:14.810]that you're taking, your use of force.
[00:31:16.190]is it necessary to defend yourself or your allies,
[00:31:19.520]depending on the context,
[00:31:21.010]from the armed attack and to stop future attacks?
[00:31:23.520]There's a very specific context for that necessity.
[00:31:26.550]And likewise, there's a very specific context
[00:31:28.970]for that proportionality,
[00:31:30.220]is your action in response to the armed attack,
[00:31:32.830]proportional to the armed attack itself?
[00:31:36.360]So that's the specific context that we're looking at there.
[00:31:38.870]But then once you're in an ongoing armed conflict,
[00:31:41.310]and you have belligerents like Professor Borgen
[00:31:43.770]was talking about earlier,
[00:31:45.940]then you're talking about Law of Armed Conflict,
[00:31:47.770]and you're talking about a different set of rules
[00:31:50.690]that also include necessity and proportionality,
[00:31:53.780]but a slightly different necessity and proportionality.
[00:31:56.560]So when we get into targeting,
[00:31:58.350]there's five prongs that we look at
[00:32:01.370]to determine whether or not our action against a target
[00:32:05.260]is lawful.
[00:32:06.850]And so the first of those is military necessity,
[00:32:10.050]is your action necessary to quickly and efficiently
[00:32:13.610]defeat the enemy, to achieve a military objective?
[00:32:17.930]And then the second prong is distinction.
[00:32:21.880]Can you discriminate?
[00:32:23.560]You can say distinction or discrimination.
[00:32:25.090]Can you discriminate between civilian targets
[00:32:29.420]and military targets?
[00:32:31.400]And you can have targets that are civilian targets,
[00:32:35.240]that are lawful targets,
[00:32:36.820]if they meet a sufficient military objective,
[00:32:40.460]if you can demonstrate that there is military necessity
[00:32:44.190]to attack that target.
[00:32:46.760]When we get into the third prong, proportionality,
[00:32:49.360]we're looking at the indiscriminate damage to civilians.
[00:32:53.000]So incidental, excuse me, incidental damage to civilians.
[00:32:57.170]So not the intentional targeting
[00:32:59.100]or intentional destruction of civilians,
[00:33:01.310]that comes in under distinction or discrimination,
[00:33:03.780]but that incidental damage to civilians
[00:33:06.440]under proportionality.
[00:33:07.730]So what's the overspill effect of the action
[00:33:10.710]that you're taking?
[00:33:11.880]And then I'll briefly mention the other two prongs
[00:33:14.480]that we're looking at, are humanity.
[00:33:16.610]So is the action that you're taking toward the combatants,
[00:33:20.970]towards the lawful combatants, the military personnel,
[00:33:23.710]does it cause unnecessary harm or unnecessary suffering?
[00:33:26.820]When I get questions about this in class,
[00:33:29.800]the example that I think is easy to give is to say,
[00:33:32.230]if you have a valid target that you're going to attack
[00:33:34.460]in a conflict situation, a human being,
[00:33:38.220]the human being you're going to attack,
[00:33:39.260]and you have at your disposal,
[00:33:40.870]a conventional firearm with conventional bullets on one hand
[00:33:44.020]and a flame thrower on the other hand,
[00:33:46.050]if you set the other combatant on fire,
[00:33:47.850]rather than using the conventional firearm against them,
[00:33:50.160]you're causing unnecessary suffering
[00:33:52.310]to that combatant in terms of humanity,
[00:33:55.720]in terms of that principle of humanity.
[00:33:58.310]So that's not talking about the civilian piece,
[00:33:59.980]that's primarily talking about the combatants.
[00:34:02.250]And then finally, honor in armed conflict.
[00:34:05.270]So are you following the rules around conflict
[00:34:07.310]and not manipulating or unlawfully using false hoods
[00:34:12.252]to achieve your objective?
[00:34:13.490]So for example,
[00:34:14.323]if you had people marked as medical personnel
[00:34:16.420]who were not medical personnel,
[00:34:17.750]but you were trying to shield them as medical personnel
[00:34:20.480]to get them to carry out actions in combat
[00:34:24.310]that you needed them to carry out, that would violate honor.
[00:34:26.990]So to go to proportionality, the treaty language,
[00:34:31.100]the codified language that supports
[00:34:33.360]the principle of proportionality
[00:34:36.070]can be found in additional protocol one
[00:34:38.330]to the Geneva Conventions in article 51, 5B.
[00:34:43.330]And it says that an attack which may be expected
[00:34:45.640]to cause incidental loss of civilian life,
[00:34:48.380]injury to civilians, damage to civilian objects,
[00:34:51.690]or combination thereof,
[00:34:53.500]which would be excessive in relation to the concrete
[00:34:56.620]and direct military advantage anticipated,
[00:34:59.726]would therefore then violate that rule of proportionality.
[00:35:03.420]So when we're talking about this proportionality,
[00:35:05.900]you're balancing the incidental damage to civilians
[00:35:09.620]incidental harm to civilians.
[00:35:11.770]And when we're talking in a space context,
[00:35:14.010]right now, at this stage of development.
[00:35:15.510]It's probably not going to be people,
[00:35:17.070]the only place that would be people
[00:35:18.290]is going to be on the ISS, physical human life.
[00:35:22.340]But the direct effects are going to be against
[00:35:24.380]satellites or satellite signals.
[00:35:25.880]And that could affect human life indirectly,
[00:35:29.060]which is still covered by the principle of proportionality.
[00:35:31.440]So both direct and indirect effects count.
[00:35:33.900]So if a spoofed GPS signal caused a plane to crash
[00:35:39.260]and killed civilians,
[00:35:40.180]that's something you would take into account,
[00:35:41.520]but you're not talking about civilians that are in space,
[00:35:43.920]but you still need to think about that.
[00:35:46.650]Or likewise, cause disruption to an electrical grid
[00:35:51.610]where there's a hospital
[00:35:52.540]and the patients could be harmed by that.
[00:35:55.390]But largely what we're going to be talking about
[00:35:57.440]at a surface level, when you're talking about in space,
[00:35:59.940]it's going to be damage to civilian objects
[00:36:02.480]and harm for civilian activities.
[00:36:04.540]And under the principle of proportionality,
[00:36:07.160]inconvenience or stress is not sufficient
[00:36:10.700]to prohibit an activity under proportionality.
[00:36:13.360]So there's got to be some actual harm,
[00:36:15.620]whether direct or indirect,
[00:36:17.350]in order for that to be considered a violation
[00:36:19.530]of the principle of proportionality.
[00:36:25.931]Foreseeability, that's the one other major piece
[00:36:29.250]that I really wanted to hit on today,
[00:36:31.010]which is to say, the damage to civilians,
[00:36:34.140]that incidental damage to civilians that we're looking at,
[00:36:37.060]we're looking at what's reasonably foreseeable.
[00:36:39.160]We're not looking at any and all possible conclusion
[00:36:44.750]you could come to where civilians would be harmed
[00:36:46.850]in the process.
[00:36:47.683]We're looking at this kind of reasonable foreseeable outcome
[00:36:50.690]of your actions as you intend them to be carried out.
[00:36:54.700]If there's an accident or a mishap
[00:36:56.130]in carrying them out that causes unanticipated damage
[00:36:59.690]to civilians that was not reasonably foreseeable,
[00:37:03.690]then that in and of itself, is not going to be a violation
[00:37:06.360]of the principle of proportionality.
[00:37:07.690]You're looking at it upfront, subjectively,
[00:37:10.070]weighing your military necessity
[00:37:12.370]and the possible indiscriminate harm
[00:37:14.230]that you can foresee to civilians.
[00:37:17.060]So of course, when we are in a space context,
[00:37:19.610]we are going to have to be thinking about,
[00:37:21.870]not only the dual use objects,
[00:37:25.260]objects that have multiple payloads on them,
[00:37:27.190]some of which may be civilians,
[00:37:28.950]some of which may be military,
[00:37:30.140]some of which maybe leased by military,
[00:37:33.390]or used for military purposes,
[00:37:34.690]even though they're inherently commercial.
[00:37:37.000]But we also have to think about the orbital mechanics,
[00:37:39.029]the physical component of the space domain
[00:37:42.470]and the way orbits work.
[00:37:43.840]So we're not talking about something that
[00:37:45.780]in a terrestrial context would be stationary,
[00:37:48.290]but rather objects that are in this continuous motion,
[00:37:52.150]falling toward earth in the gravity of earth
[00:37:54.470]as they're orbiting the earth.
[00:37:56.340]And so therefore, the potential for one action
[00:38:01.130]to damage an orbital regime or to damage an object
[00:38:04.290]that's going to cause a significant amount of space debris
[00:38:07.820]that is then going to cascade or cause additional effects
[00:38:12.340]to other objects that are not the primary target
[00:38:15.920]is something that we need to think about
[00:38:17.760]in terms of how that physical characteristic
[00:38:20.050]of the space domain,
[00:38:20.970]might change our calculus on proportionality
[00:38:23.380]as compared to looking at something in
[00:38:25.610]a terrestrial context or at sea or in the air,
[00:38:30.250]in an air battle or air conflict scenario.
[00:38:35.940]So I think I'm going to leave it there
[00:38:37.670]and leave the rest for discussion.
[00:38:39.710]Thank you very much, Jack,
[00:38:40.920]for giving me the opportunity.
[00:38:42.970]Well, thank you very much, Dr. Harrington.
[00:38:45.850]I also want to give a shout out,
[00:38:48.540]having been at the Air University
[00:38:51.490]and listening to Dr. Harrington lecture.
[00:38:54.806]She's one of the very skilled group of people
[00:38:57.810]who can spend a lot of time on the issue
[00:39:00.710]or a little bit of time on the issue
[00:39:02.390]and break it down into pieces that people can understand.
[00:39:05.650]And so I think that our Air Force and Space Force
[00:39:08.600]are in good hands with her.
[00:39:10.540]So that's fantastic work on this.
[00:39:13.750]I'd add, everything is covered so beautifully there,
[00:39:18.590]I'd add a couple of extra things then that have troubled me
[00:39:22.640]working quite a bit on this in space.
[00:39:24.691]And Andrea spoke to both of them.
[00:39:28.930]One is the whole problem of space debris,
[00:39:32.290]and its very unpredictable creation and effects.
[00:39:37.460]Perhaps they're not quite so unpredictable
[00:39:40.060]in terms of the damage that you're expecting
[00:39:43.310]and the orbits that you're operating with
[00:39:46.450]and the possibility you could use some other weapon
[00:39:49.110]that doesn't even cause the debris in a destructive act.
[00:39:54.210]So there's all sorts of interesting aspects about it.
[00:39:57.080]And some people have a pretty permissive views
[00:40:00.800]of how much debris you could create
[00:40:02.560]before you actually cause any problem in space.
[00:40:05.820]And lots of folks like to talk about the Kessler Doctrine,
[00:40:08.970]but sometimes I've heard some speakers
[00:40:11.470]and scientists refer to that more
[00:40:13.170]like a global warming phenomenon,
[00:40:15.520]that's gradual as opposed to something
[00:40:17.240]that's going to occur as a result of one attack.
[00:40:20.650]But I'd like to spend just a couple of minutes
[00:40:24.850]on the thing that bothers me the most,
[00:40:27.710]if I were going to advise military planners on this,
[00:40:32.250]and that is the unbelievably diverse connections
[00:40:37.070]a satellite can have with life on earth.
[00:40:40.180]I don't know that any military commander
[00:40:43.790]is going to be in a position to know everything
[00:40:46.590]that a satellite does, and if it meets the qualifications,
[00:40:50.910]Dr. Harrington was talking about,
[00:40:52.400]it's a military objective, and even if it's a neutral,
[00:40:55.230]as Professor Borgen says,
[00:40:56.970]it can qualify as a military objective,
[00:40:59.550]it can be targeted.
[00:41:00.950]And during that time, when the decision is made
[00:41:03.820]and the criteria Dr. Harrington outlined are applied,
[00:41:09.100]there's not a perfection standard,
[00:41:12.470]there's not a standard post-hoc looking back saying
[00:41:15.990]you should've known that there is a service
[00:41:18.610]that was provided here that ended up shutting down
[00:41:21.260]the electricity in a particular place,
[00:41:23.310]and the effects that came with it.
[00:41:25.150]Quite a few connections might be less than visible.
[00:41:28.760]And that brings us back to,
[00:41:30.120]so what exactly is the standard for the commander
[00:41:33.010]applying proportionality,
[00:41:34.520]and whether we're in space or at sea or in air,
[00:41:39.040]the proportionality rule is a real conduct related rule,
[00:41:44.240]not tied to any one of these environments,
[00:41:46.370]forcing this incredibly difficult decision
[00:41:48.760]on the commander and those planning the attack.
[00:41:51.530]What are the expected consequences here?
[00:41:56.020]And the evaluation of what the incidental harm is
[00:42:00.380]to the civilian population, objects and balancing that
[00:42:03.630]against the anticipated military advantage.
[00:42:05.900]It's a horrible test, it's a horrible balancing act,
[00:42:08.710]it has to be done.
[00:42:10.100]And with respect to space,
[00:42:13.220]I think we have the desire by some writers
[00:42:18.410]to make a military commander
[00:42:20.290]ultimately responsible for everything.
[00:42:22.940]And they do that by saying if it's out there
[00:42:26.280]and it might happen,
[00:42:28.500]then the commander's responsible for it,
[00:42:30.570]as Dr. Harrington noted, that's not the standard.
[00:42:34.730]And I go back to the negotiation of the additional protocol,
[00:42:37.870]always a great place,
[00:42:39.990]when we're talking about looking at state practice,
[00:42:42.330]to see what the state said when they negotiated
[00:42:45.450]that rule of proportionality.
[00:42:47.780]And there was a proposal on the floor originally to say,
[00:42:51.560]that the commander and those planning these activities
[00:42:54.090]would be responsible for everything
[00:42:55.920]risked to the civilian population and civilian objects.
[00:43:00.160]Risk means pretty much, if you can foresee it, it's risk,
[00:43:05.310]or however you'd like to define it.
[00:43:07.370]But the drafters narrowed that language to say,
[00:43:10.890]no, it's going to be what's expected.
[00:43:13.825]Expected is a more difficult standard
[00:43:17.010]to blame the commander for everything that has happened
[00:43:19.960]in a situation like this.
[00:43:21.550]And so I highlight this from my own experience
[00:43:26.420]as a lawyer in the Defense Department, that at some point,
[00:43:31.830]these targeting decisions,
[00:43:33.680]whether it's at the lowest level in a command center,
[00:43:38.400]where the JAG is being put on the spot with this,
[00:43:41.220]up to the more senior lawyers at CENTCOM or wherever,
[00:43:45.530]and the staff judge advocate and the decisions,
[00:43:47.580]on up to the general counsel's office at DOD
[00:43:50.930]and the chief counsel and the legal counsel
[00:43:54.830]in the Joint Staff,
[00:43:56.310]the same standard is being applied and struggled with.
[00:43:59.370]And at some point, the leader who's making the decision
[00:44:03.210]has to deal with an uncomfortable fact,
[00:44:05.230]and that is law doesn't go to everything.
[00:44:08.560]At some point, what's expected under the law
[00:44:11.950]is not necessarily all the bad things
[00:44:15.110]that will happen.
[00:44:16.010]And all the conceivable things risked
[00:44:18.720]begin to be something that's a policy matter
[00:44:21.470]for the commander to make that difficult decision,
[00:44:24.090]which in the world of satellites and space,
[00:44:26.760]is just getting more and more and more tragically difficult.
[00:44:30.270]So that division line between somewhere
[00:44:33.130]the lawyer's work ends
[00:44:34.740]and the leader needs to make this policy decision
[00:44:37.200]is exactly in line with the problems
[00:44:40.720]that Dr. Harrington has described.
[00:44:42.527]And it's more difficult maybe in space than anywhere else.
[00:44:45.810]And unfortunately, and this is unfortunate,
[00:44:49.910]in some respects, everything,
[00:44:52.810]and my colleague here at Nebraska, Professor Von der Dunk
[00:44:57.600]has written off in notes,
[00:44:59.980]just about everything in space has a military dimension.
[00:45:02.740]And it's possible to define a lot of objects
[00:45:06.740]that do a lot of civilian work as military objectives,
[00:45:10.410]in part because, the military, at least the US military,
[00:45:14.040]sends the majority of its packets of information
[00:45:17.700]on commercial services.
[00:45:20.810]So there are going to be those situations
[00:45:22.640]where dual use satellites are performing a lot of uses,
[00:45:26.900]making this particularly tough.
[00:45:29.140]So I thank you Andrea for all of that,
[00:45:32.900]and I think we've finished the proportionality side here,
[00:45:36.550]and we're at the right time in the panel
[00:45:39.820]to be more conversational and more interactive.
[00:45:43.410]I thank my panelists, I've really enjoyed your comments,
[00:45:46.393]and respect them.
[00:45:49.860]One of the first, I think one of the first questions
[00:45:52.550]I'm going to send to you, Professor Borgen,
[00:45:56.527]and it illustrates some of the points that you've made
[00:45:59.820]when the question was asked,
[00:46:01.580]what if a neutral party, in your first example,
[00:46:04.580]sends satellite data to both countries, B1 and B2,
[00:46:08.290]it would fit in,
[00:46:10.430]that's a helpful hypothetical just to begin with.
[00:46:13.490]Go ahead.
[00:46:17.480]Okay, there you go, I just had to unmute myself.
[00:46:19.739]That's a great question.
[00:46:21.610]And I'm going to also tie it to one thing
[00:46:23.680]that you said in your comments a few moments ago, Jack,
[00:46:25.770]which was that even if you're neutral,
[00:46:28.927]you can be targeted if you meet
[00:46:31.570]the requirements of a military target.
[00:46:33.180]And I want to actually turn that
[00:46:34.090]into an actual bit of a problem.
[00:46:36.070]In terms of we're not necessarily sure that that's the case.
[00:46:40.200]So in regards to this hypo of what if you provide
[00:46:43.010]satellite data to both B1 and B2?
[00:46:45.000]One possible mode of analysis and keep in mind,
[00:46:47.673]that all of this is novel,
[00:46:49.840]so this is just for me giving it sort of an analysis
[00:46:53.210]at the moment, I don't know that this is actually how states
[00:46:55.150]would analyze this,
[00:46:55.983]but here's one possible way of looking at this.
[00:46:59.720]And let's assume that the data is militarily useful data
[00:47:02.407]and is specific having to do to the armed conflict,
[00:47:05.034]and it's going to B1 and B2.
[00:47:08.040]That might not violate the requirement of impartiality
[00:47:12.070]because it's going to both,
[00:47:13.950]but it potentially could violate abstention.
[00:47:17.380]And that depends on whether or not we view
[00:47:19.770]the provision of satellite data as doing something
[00:47:24.470]that would no longer be abstaining in the armed conflict.
[00:47:27.360]That's also an open question.
[00:47:28.950]There's, at various points on terrestrial conflict,
[00:47:32.130]we said that providing logistical assistance is not,
[00:47:35.850]well, that's not participation in armed conflict.
[00:47:39.410]It might be an issue having to do with say,
[00:47:44.470]potentially with abstention or impartiality.
[00:47:46.560]It would be a question of whether or not
[00:47:47.520]the provision of the data would be in
[00:47:48.710]violation of abstention.
[00:47:49.890]If so, then that would be viewed as a violation
[00:47:52.310]of neutral obligations.
[00:47:53.860]Now that relates to, I just want to say one last point
[00:47:56.110]before sort of tossing it back to you.
[00:47:58.290]Let's say that they were still viewed as being a neutral,
[00:48:00.800]for whatever reason, can they be targeted,
[00:48:03.670]even if they're viewed as a neutral,
[00:48:04.503]that is, if it doesn't meet the requirement,
[00:48:07.220]that is if abstention is met and impartiality is met,
[00:48:09.930]and it's viewed as being a neutral,
[00:48:11.400]can something still be targeted?
[00:48:13.340]And what I had said was in many instances,
[00:48:17.570]the neutral obligations,
[00:48:18.620]if there's a violation of neutral obligations,
[00:48:21.440]that would, well, let me put it the other way,
[00:48:23.950]that something that can meet the requirements of targeting
[00:48:27.350]will often be something where there's already been
[00:48:30.660]a violation of neutral obligations.
[00:48:32.260]But I don't know that that's necessarily
[00:48:34.160]always going to be the case.
[00:48:35.980]And one of the things that's going to need to be resolved is
[00:48:39.310]if something might be militarily useful,
[00:48:41.140]but we don't think that it has violated
[00:48:44.170]the relatively unclear rules of customary international
[00:48:50.110]on regards to neutrality, what trumps?
[00:48:54.120]What law trumps?
[00:48:55.100]Does Law of Targeting trump the Law of Neutrality,
[00:48:56.870]or does the Law of Neutrality,
[00:48:57.880]or do we view the Law of Neutrality as being very robust
[00:48:59.770]and trumping the Law of Targeting?
[00:49:01.430]I don't know that there's an answer to that.
[00:49:02.750]There very well might be,
[00:49:04.260]but I put that out as a potential problem.
[00:49:10.600]Thank you very much, that was a great,
[00:49:13.711]these sorts of basic hypotheticals
[00:49:16.600]that then the experts can expand on
[00:49:18.980]are just perfect teaching things.
[00:49:21.300]And Professor Borgen is quite skilled in that area,
[00:49:25.950]among many.
[00:49:26.920]I'll go to the next questions which go to proportionality
[00:49:30.950]and thus, I'll send to Dr. Harrington here.
[00:49:35.117]The opening part of this question asks,
[00:49:38.180]do you have a view on which civilians form part
[00:49:41.310]of the in bello proportionality assessment
[00:49:43.980]in the context of space?
[00:49:45.380]And then the writer here asks, or explains,
[00:49:50.930]incidental harm to civilians may be considerable
[00:49:53.460]given the breadth and importance of services on earth
[00:49:56.010]provided by space objects, that's true, by comparison,
[00:49:59.210]in the air to ground targeting sense,
[00:50:01.030]it's likely to be much clearer which civilians
[00:50:03.760]need to be considered for the assessment,
[00:50:05.980]I'll leave it at that for you to answer Dr. Harrison.
[00:50:10.810]Okay, sure.
[00:50:11.750]So first on its face, just to be clear,
[00:50:14.000]the civilians of the belligerent state,
[00:50:16.790]the opposing belligerent state,
[00:50:17.970]are certainly included in this analysis.
[00:50:20.450]And so we're protecting those belligerent states'
[00:50:23.510]civilians as well.
[00:50:24.840]But when we're looking at this from a space context,
[00:50:27.170]there's likely to be a situation
[00:50:30.220]where we don't necessarily know,
[00:50:32.720]either we're affecting civilians
[00:50:33.980]broadly across multiple countries, maybe our own civilians,
[00:50:36.650]not just the belligerent states' civilians
[00:50:38.180]and other neutral states' civilians as well.
[00:50:40.930]And so we need to think about the effect
[00:50:42.630]on the civilian population as a whole,
[00:50:45.220]when we're looking at this.
[00:50:46.690]In terms of answering that question from the second part
[00:50:50.160]of your statement, your paragraph there.
[00:50:53.850]There are two things that I would ask you to look at.
[00:50:56.180]So one is exactly what Jack mentioned, the expected harm.
[00:51:01.460]So what can you reasonably foresee
[00:51:03.870]that you expect will happen as a result,
[00:51:07.670]whether directly or indirectly from your military action.
[00:51:11.660]And if you can reasonably expect
[00:51:16.190]that you are going to cause harm to the civilians
[00:51:19.210]in that process,
[00:51:21.210]in terms of what you can understand,
[00:51:23.250]what you can figure out, you were talking about,
[00:51:25.850]sometimes it's difficult to understand exactly
[00:51:28.240]what the sort of long-term attenuated effects
[00:51:30.920]of your attack are gonna be.
[00:51:32.950]Then you need to take that into account
[00:51:34.830]when you're making your balancing test
[00:51:36.400]in terms of what the expected effects are,
[00:51:38.950]so what you can expect.
[00:51:40.460]And balance that against your military necessity
[00:51:43.780]to determine whether or not your response
[00:51:46.010]is going to be proportional.
[00:51:47.630]And I'll again mention something that I mentioned earlier,
[00:51:50.020]which is there is a difference
[00:51:51.870]when you're talking about this spillover effect to civilians
[00:51:56.150]between harm, death, destruction, property damage,
[00:52:02.870]on the one hand, and on the other hand,
[00:52:05.650]inconvenience, psychological stress, fear, and that side.
[00:52:11.660]And what the rule of proportionality really is looking at
[00:52:14.880]is the actual harm to life or property
[00:52:19.260]rather than the inconvenience or stress
[00:52:23.150]that you might cause a population.
[00:52:24.830]And certainly when we're talking about
[00:52:26.650]some of the indirect effects that are likely to occur
[00:52:29.220]from space activities, there's a lot of inconvenience
[00:52:32.390]or stress that could come from that
[00:52:34.860]for civilian populations.
[00:52:36.950]If your DirecTV is down, that's inconvenient for you,
[00:52:40.730]that's stressful for you,
[00:52:42.330]when "Game of Thrones" was running,
[00:52:43.340]maybe you were waiting for the next episode of
[00:52:44.687]"Game of Thrones,"
[00:52:45.520]and now you're not gonna be able to watch it,
[00:52:47.570]but that is not rising to the level of harm
[00:52:52.410]that you would need to take into account
[00:52:54.110]for the principle of proportionality.
[00:52:55.800]So you have to think about what the effect is,
[00:52:57.460]not just which civilians, because you asked which civilians,
[00:53:00.570]but what kind of an effect are we talking about?
[00:53:02.110]Is it just a stress or an inconvenience?
[00:53:05.460]Oh, I can't figure out what the most convenient
[00:53:07.050]traffic route is to get where I'm going,
[00:53:09.240]because my GPS isn't working correctly,
[00:53:11.770]that's inconvenience, that's not harm,
[00:53:13.860]versus a hospital losing power,
[00:53:17.530]a plane being unable to land safely
[00:53:20.802]because of its GPS signal malfunctioning in some way
[00:53:24.010]or another or something like that
[00:53:25.750]that's going to rise more significantly
[00:53:27.480]to that level of harm
[00:53:29.100]when you're considering the proportionality principle.
[00:53:30.850]And again, it's a balancing, right?
[00:53:32.530]It's not a straight answer, always the same,
[00:53:35.110]so if you could potentially,
[00:53:37.413]you can foresee that you might reasonably likely
[00:53:41.400]impact lives on the International Space Station,
[00:53:44.090]just because that's true,
[00:53:44.940]doesn't automatically mean that you have failed
[00:53:48.470]the rule of proportionality.
[00:53:49.990]You have to consider, okay, what's the military necessity?
[00:53:52.470]Am I affecting a valid target in my action, initially,
[00:53:56.300]that might have this spillover effect?
[00:53:58.800]And how important is it to the conflict?
[00:54:00.330]How much other damage and harm am I going to save
[00:54:03.560]by taking this action now?
[00:54:05.230]It's a holistic balancing test.
[00:54:07.250]And certainly the standards are going to be
[00:54:09.180]a whole lot higher when you're talking about something like
[00:54:11.490]human life, especially human life of astronauts on the ISS,
[00:54:15.120]but you have to take that whole balancing test into account.
[00:54:17.663]Thanks.
[00:54:18.730]Thanks very much, Andrea, that was great.
[00:54:21.240]We're running low on time here,
[00:54:23.530]but I have one question, I may come back to Andrea,
[00:54:27.000]but I'm going to go next to Dale and Chris here.
[00:54:30.980]Hey, maybe Dale, you can give us an insight on this
[00:54:34.630]with your perspective on the future here.
[00:54:36.540]The question is how would the Law of Neutrality
[00:54:39.660]deal with existing satellites
[00:54:41.410]that provide critical infrastructure?
[00:54:44.800]Yeah, so thanks Jack.
[00:54:48.140]Assuming that the law, well, let's assume that the academic,
[00:54:53.380]the strict academic view is correct,
[00:54:56.120]and I don't think it is, but let's assume that it is,
[00:54:58.800]that the Law of Neutrality does not apply to space.
[00:55:03.770]If that is true, then I can do just about anything I like
[00:55:09.220]consistent with military necessity
[00:55:11.590]against third parties in space, a ludicrous view,
[00:55:15.910]but that's the view that you take to its extreme end
[00:55:19.890]if you accept the statement that the Law of Neutrality
[00:55:23.800]cannot apply to space.
[00:55:26.260]But let's get back to what rational people think.
[00:55:29.370]And that is that it must, it has to,
[00:55:31.940]and there are ways that we can make it apply.
[00:55:35.530]And here I'm with Chris, so if I am a neutral state
[00:55:41.300]and the way I interpret this question,
[00:55:43.510]if I am a neutral state and I'm allowing my satellites
[00:55:48.400]to engage in non-neutral service,
[00:55:52.970]I'm not sure what it means by providing
[00:55:54.740]critical infrastructure, but just as a basic proposition,
[00:55:59.270]then the belligerent, under normal rules,
[00:56:03.127]has got to tell the neutral to knock it off,
[00:56:06.270]stop what you were doing or else,
[00:56:10.060]and the or else then mergers into that question
[00:56:14.000]that Chris, I think, very expertly answered.
[00:56:16.940]Does this rise to a military objective?
[00:56:21.300]nature, purpose, use or location,
[00:56:22.810]making an effective contribution to military action.
[00:56:25.300]Of course I recite the AP1 formula,
[00:56:28.530]we're an API1 one party.
[00:56:30.946]And if that is the case, then yes, it becomes targetable,
[00:56:34.886]prima facie.
[00:56:36.030]But as Andrea pointed out,
[00:56:37.910]when you start targeting satellites
[00:56:39.740]that are engaged with critical infrastructure,
[00:56:41.890]precautions have a role, proportionality has a role,
[00:56:47.170]constant care is an obligation you've got.
[00:56:49.810]So just because you can target it,
[00:56:52.500]doesn't mean that you will ultimately do it
[00:56:54.920]or that you'll do it in a manner of just blowing it up.
[00:56:58.060]Perhaps you'll disable it.
[00:56:59.350]Perhaps you'll use ones and zeros.
[00:57:01.250]And the effect, if it's on critical infrastructure,
[00:57:04.170]in the neutral state, then you've got an issue
[00:57:08.240]about the effect on the civilian population.
[00:57:10.520]So I guess I'm sort of giving rise to all of the issues
[00:57:16.900]that you'd have to consider
[00:57:18.620]without providing any answer whatsoever,
[00:57:20.980]because we don't know at the moment,
[00:57:23.800]we just have a best guess.
[00:57:26.170]With just minutes to go,
[00:57:28.380]I could leave this with, if you'd like to add anything
[00:57:31.180]to that Chris, with respect to critical infrastructure.
[00:57:35.228]Well, that's good.
[00:57:37.550]I feel like first to thank you for being part of this,
[00:57:40.920]panelists, and thank you attendees for watching.
[00:57:43.920]I think it's a near religious principle now
[00:57:46.590]that if you are on Zoom, it needs to end on time.
[00:57:49.910]And so I'm going to adhere to that semi-religious principle
[00:57:53.504]and call this closed and call it an end
[00:57:56.280]to Nebraska Space Law Week,
[00:57:58.670]and hope that you'll rejoin us next year,
[00:58:00.570]in person in Washington DC, where we usually are.
[00:58:03.830]And if I could give a round of applause
[00:58:05.800]to my wonderful panelists here, I would,
[00:58:08.070]but all I can do is clap.
[00:58:09.630]Thank you very much, thanks for everyone being here.
[00:58:12.590]And we'll see you in Washington DC next year live,
[00:58:15.990]hopefully, thanks very much and take care.
[00:58:18.950]Bye-bye.
[00:58:21.480]Thank you, Jack and Elsbeth, and Joshua
[00:58:23.700]for all your work in organizing this.
[00:58:26.060]Thank you.

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Nebraska Virtual Space Law Week - What About Everyone Else? The Law of Armed Conflict and Neutrality and Proportionality in Space: Protecting Neutrals and Civilians in Space

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