The Woomera Manual Outlines Rules Applicable To National Security Activites in Space

Woomera Manual The Woomera Manual outlines the rules applicable to national security activities in space. (credit: Oxford Univ. Press) The Woomera Manual on military law in space by David A. Koplow Monday, November 18, 2024 Bookmark and Share The international legal regime applicable to outer space contains several unusual, even startling, provisions. For example, there are unique rules dealing with the regime of civil torts, such as when a satellite crashes into another satellite in space or plummets to Earth and inflicts damage on the ground. Other remarkable provisions deal with the complicated legal linkages between a particular satellite and one or more countries—far more intricate and multiple than the relationships between aircraft or oceangoing vessels and the countries whose flags they may fly. Space is not a “law-free zone.” There are longstanding legally binding rules that provide some important guardrails for national competition, even if those constraints have not been fully understood or appreciated by the national rivals. Among the most consequential, challenging, and understudied aspects of space law are the rules applicable to national security activities in space, a field that is now burgeoning. To organize and clarify that snarl of public international law, the Woomera Manual on the International Law of Military Space Activities and Operations has just been published by Oxford University Press. This Manual is the product of a multiyear, multinational, multi-expert collaboration, endeavoring to provide a comprehensive, neutral, accessible recital about the current state of the law, and designed to be useful to governments, academics, journalists, non-governmental organizations, and others. To introduce the Woomera Manual to the community of interest, this article first describes the background, development, and organization of the manual. It then dives deeply into one particularly problematic topic, the issue of “planetary defense” or protecting the Earth from asteroid impacts, to illustrate the complexity and richness of some of the international legal issues to be addressed. The Woomera Manual: process This manual is the latest in a growing body of literature that undertakes to summarize the extant international law regarding selected military functions and theaters of operation. For example, some readers will be familiar with the Tallinn Manuals, which have proven remarkably successful as the most authoritative non-governmental representation of the rules regarding cyber operations. Earlier cognate projects undertook to collect the rules regarding warfare at sea, the use of missiles, and in other discrete fields. The Woomera Manual is inheritor of that tradition, responding to the pronounced surge in military and intelligence community action in outer space. In recent years, for example, four countries (China, India, Russia, and the United States) have tested kinetic anti-satellite (ASAT) weapons, pursued alternative directed-energy systems, and experimented with satellite maneuvers that are potentially hostile. Similarly, some states have mimicked or predated the creation of the US Space Force and the formal declaration that space should henceforth be regarded as an “operational” military theater. The increasingly belligerent rhetoric about the need to achieve space “superiority” or “dominance” has likewise inflated, as vying protagonists seek to exploit the new “high ground.” At the same time, space is not a “law-free zone.” There are longstanding legally binding rules that provide some important guardrails for national competition, even if those constraints have not been fully understood or appreciated by the national rivals. The Woomera process therefore assembled a cadre of space experts, including legal academics, military officers, technical consultants, and others, to provide some greater clarity. As one of the editors of the Manual, I can testify about the vigor of the intellectual engagement of the group, as we grappled with so many fine and emerging points of space law that have previously been obscure, disorganized, and chaotic—many of them questions of first impression for the legal community. The Woomera Manual: substance The Woomera Manual includes three kinds of components. First and most prominent is a series of 48 rules, which state concisely and emphatically what the applicable international law requires, permits, or prohibits. These rules are catalogued into three distinct time frames: peacetime, during a crisis, and in armed conflict. The second element is a voluminous commentary, which undertakes to explain the often-terse language of a rule, to elaborate some of the arcane terms of reference, and to provide illustrations of states’ behavior in implementing the rules. This commentary occupies the bulk of the manual, as it assembles a repository of sometimes-obscure state practice in implementation of the key legal instruments. In all of this, the editors of the Woomera Manual were devoted to stating what the law currently is (the lex lata) rather than opining about what the law may or should become (the lex ferenda). The third component is the citations to authority that substantiate the articulation of the rules and the commentary. The manual’s rich footnotes contain a trove of citations to often-overlooked examples, official statements, and heretofore hidden documents that will enable future researchers to retrace the current interpretations. In all of this, the editors of the Woomera Manual were devoted to stating what the law currently is (the lex lata) rather than opining about what the law may or should become (the lex ferenda). Each of the experts and other contributors holds personal views about how the law of space should develop in the coming years, to better serve community interests, but articulating those recommendations is not a function of this Manual. Planetary defense To zoom in on one selected space topic to illustrate more vividly the challenges of applying the pieces of an incomplete legal system to a prospective severe security threat, consider the problem of potentially hazardous asteroids and comets. Our solar system is known to contain millions of asteroids, of widely disparate size, composition, and trajectories. Most of them inhabit the main belt between the orbits of Mars and Jupiter, but many, jostled by collisions, gravity, or space weather, can approach the Earth. Indeed, such collisions are common: “shooting stars” are small asteroids burning up as they transit the atmosphere. Occasionally, larger, more dense asteroids survive that passage and crash to the surface, winding up as museum displays. Larger asteroids can be much more than curiosities; they can inflict significant damage. Some readers will recall the 2013 incident near Chelyabinsk, Russia, when a previously undetected asteroid perhaps 20 meters across streaked across the morning sky and exploded in a dramatic fireball at approximately 30 kilometers altitude. The force of that detonation, estimated at 400–500 kilotons yield (i.e., 20–25 times the power of the atomic bombs detonated at the end of World War II) damaged thousands of buildings and injured hundreds of people. The geological record amply indicates that larger, more devastating asteroids have altered the Earth’s ecology on a massive scale. One such cataclysm, about 65 million years ago, led to the extinction of all species of non-avian dinosaurs. Ominously, astronomers now caution that the proper question is not “whether” that sort of holocaust could happen again, but “when” it will arrive: next year, or not for another 65 million years. Responding to that danger, NASA and its companion space agencies in other countries have undertaken to conceptualize, experiment, and develop technologies and techniques for deflecting incoming asteroids, but that inventive process is far from complete. Only one full-scale real-world experiment has been conducted: NASA’s celebrated DART mission in 2022, which validated the concept of a “direct impact.” There, a small spacecraft flew unerringly for months in order to crash head-on into a small asteroid, succeeding in perceptibly altering its prior trajectory. The language of OST Article IV applies to “weapons.” Would it be possible to interpret the nuclear explosive device employed for planetary defense as being something other than a “weapon,” so the mission could escape the treaty altogether? But what if the asteroid were larger, and if the time available to forestall an impact were shorter? In such an emergency, a more powerful mechanism would have to be employed, and the specter of a nuclear explosion would inevitably be pushed onto the table. Such a response would not be anyone’s first choice, and nothing of the sort has ever been tested, but in extremis, it might be the only technically feasible solution—and international law creates important restraints. The Outer Space Treaty and nuclear weapons The 1967 Outer Space Treaty is the foundational instrument in this field, articulating principles applicable to the exploration and use of space. It has been joined by virtually all spacefaring states, and it provides the essential touchstone for the Woomera Manual. Article IV of the treaty provides a succinct set of military-related prohibitions: States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner. This passage is sometimes oversold as establishing a comprehensive “no nukes in space” rule, but its actual coverage is significantly more constrained. The treaty prohibits three particular activities: placing a nuclear weapon (or other WMD) into orbit, installing it on a celestial body, or stationing it in space in any other manner. Unfortunately, the treaty does not contain the elaborate definitions of terms or other explanatory agreed statements that routinely accompany modern treaties to assist in interpretation. But it is reasonably clear that a nuclear weapon that merely “transits” outer space en route to a terrestrial target (for example, as incorporated into the warhead of an ICBM or SLBM) would not be categorically banned. Accordingly, if planetary defense planners could devise a mission profile that did not transgress any of the three verbs of the Outer Space Treaty—e.g., a “direct ascent” from the Earth to the asteroid, without orbiting the Earth, being installed on the asteroid, or being stationed in space—it could be lawful. One additional interpretive conundrum confronted the Woomera experts and editors. The language of OST Article IV applies to “weapons.” Would it be possible to interpret the nuclear explosive device employed for planetary defense as being something other than a “weapon,” so the mission could escape the treaty altogether? After all, in common parlance, a “weapon” is a device employed for hostile, criminal, or other damage-inflicting purposes. In planetary defense, in contrast, the nuclear power would be marshalled for benevolent, protective purposes, to save people and their property, not to threaten or jeopardize them. There has been, blessedly, no state practice to rely upon here, and various commentators have been divided regarding the best interpretation of the treaty. Ultimately, the editors of the Woomera Manual determined that the proper reading here would focus on the “purpose” of the device, determining that when a nuclear explosive is employed in this planet-saving mission, it is not a “weapon,” and the Outer Space Treaty would not stand in the way. For decades, the treaty’s prohibition against nuclear weapons in space was largely moot: no country had undertaken such a provocative and dangerous mission, and there were no live controversies over interpretation of the ban. But within the past year, reports surfaced that Russia might be actively planning or pursuing such a reckless course. As the Woomera Manual makes clear, any such activity would be a clear, conspicuous violation of longstanding black-letter law, with no countervailing conditions to provide a legitimate excuse. The legal, technical, and political challenges of planetary defense provide just one illustration of the myriad puzzles confronting space lawyers, today and in the foreseeable future. It is hoped that the Woomera Manual can assist these efforts by organizing and summarizing the applicable legal rules and identifying the existing gaps and ambiguities that remain to be resolved. David A. Koplow is a Scott K. Ginsburg Professor of Law at the Georgetown University Law Center, who served as a co-editor of the Woomera Manual. He has previously served in government at the US Department of Defense, the US Arms Control and Disarmament Agency, and NASA.