Ben BaseleyWalker Legal and Policy Advisor Secure World Foundation bbwswfoundorg 12022552153 Overview International Law 101 Foundations Jus ad bellum jus in bello General Principles ID: 309010
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Slide1
Is Current International Humanitarian Law Sufficient to Regulate a Potential Conflict in Outer Space?
Ben Baseley-Walker,
Legal and Policy Advisor, Secure World Foundation
bbw@swfound.org
+1-202-255-2153Slide2
Overview
International Law 101
Foundations
Jus ad bellum/ jus in
bello
General Principles
The Application to Space
ConclusionsSlide3
International Law 101
Treaties
Legally binding
Consent to be bound
Customary International Law
2 conditions :Opinio Juris (belief that something is a law);Widespread State PracticeSoft LawGuidelines etc. Evidence for CustomConcept of Enforcement in International lawEnforcement is not a central part of the international legal regimeNot because the law is weak but because the concept doesn’t really work given the nature of the fieldLess conventional ‘sticks’
3Slide4
Foundations
No concept of war in space
no treaties establishing specific jus in
bello
principles for space combat
No specific ‘territorial’ limitation to the application of the jus in bello principles. The laws and customs of war apply both to the area where the hostilities actually take place, as well as the broader areas that are in some way affected by the hostilitiesSpace is militarized, is it weaponised?
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Jus ad Bellum
Jus ad bellum – transition from peace to war
UNC Art. 2(4) (refrain from threat or use of force), 51 (recognizing inherent right of self-defense – individual or collective
Questions that arise
What is use of force?
Note UNC Art. 42 and 51 – exceptionsnuclear weapons advisory opinion use of force = use of weapons What is territorial integrity?Oil Platforms Case – is court interpreting armed attack as having to be against the territory?
If so, problem in space as space objects are technically outside the territory of any StateSlide6
Jus in Bello
Jus in bello
Law of armed conflict, international humanitarian law
Human rights tied to jus in bello through ICJ cases
1996 advisory opinion on use of nuclear weapons
Noting that the threat or use of a nuclear weapon should comply with the requirements of international law relating to armed conflict, particularly the principles of international humanitarian lawSlide7
Key IHL Principles
Generally five principles
Necessity – only military objective targeted
Distinction – combatants and non-combatants, those things protected and those that are not
Proportionality – subset of distinction – incidental and collateral damage, the effective military contribution, is not grossly disproportionate to the civilian casualty
Humanity – does this apply in the indirect form?Chivalry - no perfidious action leading to a reliance on IHL.Slide8
Principles in Relations to Space
Necessity
Earth and ground concerns
How to balance the military worth of Earth vs. space
Distinction
Is this also relevant to space assets given the limited number of humans is space?Proportionality Can we quantify the value and magnitude of the role of space resources in human activity?Humanity – requires dignity of human beingsRelevant indirectly?Chivalry - is it relevant to the space environment?
SSA?Slide9
Key impact break-down
The impact to the space environment
E.g. space debris
The impact of the loss of space resources on Earth based population
Not only direct but indirect effects central to understanding potential space conflictSlide10
Conclusions
Crucial to begin academic and political thinking process on this issue
Through discussion, legitimacy?
Importance of legal parameters, should the global community find itself in a space conflict situation
Key to bear in mind that space is truly global environment with profound national security implications
As a result, importance to approach such a question from a multilateral standpoint.Slide11
Recommendations for Further Work
Key conclusions:
Need for definitions
what is proportional is space?
Are there established codes of behavior that have been developed at this point?
How military is a dual use object?Commercial satellites transmitting military communications signalsHow much can the loss of space capabilities affect a populace?Slide12
Many Thanksbbw@swfound.org