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
jredwine2
Author
10/12/2021
Added
60
Plays
Description
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.
Searchable Transcript
Toggle between list and paragraph view.
- [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.
The screen size you are trying to search captions on is too small!
You can always jump over to MediaHub and check it out there.
Log in to post comments
Embed
Copy the following code into your page
HTML
<div style="padding-top: 56.25%; overflow: hidden; position:relative; -webkit-box-flex: 1; flex-grow: 1;"> <iframe style="bottom: 0; left: 0; position: absolute; right: 0; top: 0; border: 0; height: 100%; width: 100%;" src="https://mediahub.unl.edu/media/18056?format=iframe&autoplay=0" title="Video Player: 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 " allowfullscreen ></iframe> </div>
Comments
0 Comments