May the 4th be with you

For those of you who did our Star Wars Quiz, you will already know all about how the laws of war apply in a galaxy far, far away.*

For others, it may still surprise you to know that first space war was fought in 1991, that is, the first Gulf War.

While not undertaken in the physical domain of space, the conflict itself relied heavily upon space-based assets to enable terrestrial combat. Such reliance utilised satellites for precision navigation, space situational awareness, global communications, intelligence, surveillance and reconnaissance (or ISR) and early warning ballistic missile defence.

Space has become critical for military capability and its significance therefor increasingly recognised. In recent years, warfare in outer space itself is emerging as a real possibility.

In 2017 the US Air Force Secretary, Heather Wilson explicitly stated that ‘we must expect that war, of any kind, will extend into space in any future conflict, and we have to change the way we think and prepare for that eventuality’.Subsequently, in 2019, NATO recognized the critical nature of space-based military operations and formally declared space as an operational area. In 2020, Australia also recognised the central place of space for national security in the 2020 Defence Strategic Update. Within this document, the Australian government specified that ‘assured access to space is critical to [the Australian Defence Force] (ADF) warfighting effectiveness, situational awareness and the delivery of real-time communications and information’, and that it will:

Equally, China and the United States have both made statements identifying the strategic importance of outer space for the conduct of military activities and operations.

Despite the recognition of the space environment as a critical enabler to military operations, there has been very little correlative attention paid to the application of the laws of war, or international humanitarian law (IHL) to space. To date, only one treaty, namely the Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (the ENMOD Treaty) even refers to space, leaving it an open question as to how IHL would apply to restrict military activities and protect civilian objects, uses and people in space. In 2021, the International Committee of the Red Cross (ICRC), the guardian of IHL and an independent and neutral institution which draws its mandate from the key instruments of IHL – the Geneva Conventions of 1949 – did provide a statement that recognised that IHL applied to space, at least with respect to general cardinal principles of distinction, proportionality, and precautions.

Many questions are raised in relation to warfare in the space context, including the targetability of GPS satellites, the legal consequences of using kinetic means to create long lasting physical debris in space, the protections afforded to military astronauts when engaging in purely scientific work and what type of military activities and operations may – or may not – apply to the Moon, asteroids and even Mars. If a war was to break out in space, then the communication links that underpin the modern world, such as the internet and accurate global navigation and communications would be decisively impacted. The ultimate consequence would be a potential reversion to a pre-internet and analogue world that existed in the 1970s and 80s. Equally concerning would be humanity’s capacity to explore and use space for long term peaceful purposes.

In addressing this critical issue of the application of international law to space, a number of Australian (University of Adelaide and UNSW - Canberra), US (University of Nebraska) and UK (Universities of Exeter) universities have been working together, along with other universities and Governmental and non-Governmental Institutions on the Woomera Project.

This project seeks to produce a Manual that deals with the international law applicable to military activities and operations in outer space. The drafting team comprises both core and non-core experts and observers as well as peer reviewers. In summary there are representatives of 11 universities, seven Governments (though all acting in their personal capacity), two Non-Government Organisations and over a dozen Peer Reviewers from across the globe along with the ICRC (as observers) who are participating in this project. Issues concerning the law applicable to peacetime military operations in space, times of crisis and tension and outright armed conflict are all canvassed in this Manual.

In June 2022, 24 countries, plus the ICRC, attended a State Engagement process held in The Hague to assess the draft content of the Manual. While the Manual and its objectives drew widespread praise there were a number of key issues that States queried and sought to provide their input towards. The Manual is currently under editorial review following State Engagement and will be published by Oxford University Press in 2023.

As in all arenas of human conflict, IHL seeks to ameliorate violence and protect those outside the conflict. The same focus applies to space. If humanity is going to be an inter-stellar species as it must ultimately be, then it is critical that warfare, should it extend to outer space, be contained and minimised to the greatest extent possible. While the space environment offers new challenges, humanity has the capability to confirm and even establish new interpretations of the law to ensure that space is spared the worst consequences of human capacity to undertake warfare. The time to deal with potential warfare in space is now and projects such as the Woomera Manual are seeking to identify and articulate the law applicable to space operations to ensure that legal restraints are observed and strategic miscalculation is avoided.