International Humanitarian Law:
Considerations upon an ASAT attack
.
Brendan O’Neill 2015
University of Amsterdam
Master’s Thesis: International Public Law
Lift-off of the Apollo 17, Saturn V Moon Rocket, December 17, 1972: Photo Credit NASA
ACKNOWLEDGMENT
My thanks to all those who have helped me in the realization of this thesis.
Beginning with Professor Jackson Maogoto, his continued support and encouragement has been key
to my development both professionally and personally.
Secondly my thanks to the provocative and controversial Professor Mark Reiff, for helping me to
think critically about many issues, such tutorship is highly appreciated.
Thirdly I would like to thank the teaching staff of the University van Amsterdam who have taught me
everything about International Law, especially my thesis supervisor Professor Terry D Gill who has
inspired me greatly.
Contents
Abstract ... 4
Scope and Methodology ... 4
Structure ... 5
Introduction ... 7
Background. ... 7
Satellites: The significance. ... 8
Emergence of New Actors. ... 10
Chapter 1 Origins and evolution of Space Militarisation. ... 12
Background. ... 12
Getting into Space. ... 12
The ‘edge of Space’ ... 12
The Dawn of the Space Age. ... 13
Chapter 1.1 Overview of Space Weapons. ... 14
Background. ... 14
Defining Space Weapons. ... 15
Kinetic Energy Weapons. ... 17
Directed Energy Weapons. ... 18
Electronic Cyber Weapons. ... 20
Chapter 2 Regulating Military Activities: Contemporary Law of Outer Space. ... 22
Background. ... 22
The Early Days of Space Regulation ... 23
Chapter 2 1. Air Space V Outer Space. ... 25
Air Space... 25
Outer Space. ... 26
The Correct approach: ... 27
Chapter 2.2 Law of Outer Space: Enabling Certain Force. ... 28
Partial Test Ban Treaty ... 28
The Outer Space Treaty. ... 29
Chapter 3 Applying International Humanitarian Law. ... 36
Background. ... 36
Development: Law of The Hague ... 37
Development: Geneva Law and AP1 ... 37
Chapter 3.1 Applying Customary International Law. ... 39
Distinction. ... 40
Military Necessity... 41
Proportionality. ... 42
Chapter 3.2 the ‘Space Debris’ Argument. ... 43
Background. ... 43
Orbit Paths and Lifespan of Debris. ... 45
Legal Analysis. ... 46
Prohibition against Indiscriminate Attacks. ... 46
Protection of Natural Environment. ... 47
Conclusion. ... 49
Abstract
My thesis concerns the legal and strategic implication of the use of force in Outer Space in the
context of anti-satellite (ASAT) attacks. It compares and considers the Law of Outer Space
(LOS) and International Humanitarian Law (IHL). I argue that while LOS essentially permits
certain ASAT attacks, IHL in theory offers more protection to satellites, making it extremely
difficult to conduct legal ASAT attacks; therefore it follows that ASAT weapons should be
seldom used and if ever, with great consideration and trepidation.
Scope and Methodology
Using International law as a normative departure point I will judge the legality of force against
Satellites. The legality of the use of force will be evaluated by applying Jus in bello principles
contained within the corpus of IHL which seeks to regulate the means and methods of
conducting hostilities between states irrespective of the legitimacy to use force. As such this
thesis does not concern itself with illegal uses of force known as aggression. Instead it will
assume that an International Armed Conflict (IAC) already exists and in doing so limit its scope
to Jus in bello rules automatically applicable irrespectively of questions of legitimacy and
right.
1Furthermore, this thesis will assume that states party to such IAC will obey and
implement relevant IHL principles thus offering a prescriptive value as to how states, ‘ought’
to act.
Jus in bello principles automatically apply in times of an armed conflict.
2Logically this means
that those considering ASAT attacks must limit means and methods by applying principles of:
distinction, humanity, military necessity and proportionality during military operations.
Although there exists a customary right of self-defence and no prohibition on ASAT attacks
per say, I will demonstrate that the necessary consideration required by IHL serve as a serious
barrier to conducting several ASAT attacks, as jus in bello prohibit, ‘harm greater than that
unavoidable to achieve legitimate military objectives.’
31 An international armed conflict is a conflict between two or more states. Common article 2 to the Geneva
Conventions of 1949 provides that: “any difference arising between two States leading to the intervention of armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of ware. It makes no difference how long the conflict lasts, or how much slaughter takes place.” J Pictet (ed.), Commentary on the Geneva Conventions of 19 August 1949, (I) Commentary on the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva, 1952, p. 32
2 International humanitarian law applies whenever and wherever an armed conflict exists. There is no need for
a formal declaration of war. The criteria to determine if the threshold of an armed conflict have been met are: 1) “any difference arising between States and leading to the intervention of members of the armed forces” (J. Pictet (ed.), Commentary on the Geneva Conventions of 19 August 1949, (I) Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, ICRC, Geneva 1960, p.28) and 2) “whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups within a State” (Prosecutor v. Dusko Tadic, Case No. IT-94-I-T, Decision on the Defence Motion on Jurisdiction, 10 August 1995, para 488).
3 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 257) [hereinafter Nuclear
As such I will arrive at the conclusion that until a more complete means regulating Space
activities arises, high contracting parties are to declare bound by Jus in bello principles in
times of armed conflict, and in doing so create a higher level of protection for satellite systems
than that previously granted under the Corpus Juris Spatialis that is the Law of Outer Space.
4Structure
My thesis concerns the legal and strategic implication of the use of force in Outer Space in
the context of anti-satellite attacks. The sources of law reviewed will be conventional, first
addressing the current Law of Outer Space, I will demonstrate that certain types of ASAT
attacks are legally permissible. After I will show how protection to satellites increases during
an armed conflict by applying the two major systems that comprise IHL: the Hague system
and the Geneva system
5. These systems have received broad accession from many states and
subsequently have been confirmed as, ‘intransgressible principles of international customary
law' via the International Court of Justice (ICJ).
6This allows us to derive a normative legal basis
as to how states ought to act during an armed conflict.
While established customary principles relevant to the use of force will be considered, state
practice as well as soft law instruments will only serve an illustrative function. Furthermore,
the Law of Neutrality will be excluded due to the nature of the topic requiring separate
attention. As such my thesis will be structured accordingly,
Chapter 1 will serve two purposes. 1) To give a brief historical context of the origins
and evolution of space militarisation familiarising the reader with the prior events that
led to current Space law. 2) Deliver an overview of realistic ASAT technology that
can/has be used.
Chapter 2 will address the Law of Outer Space (LOS) to determine if legal force can be
used in Outer Space. First a necessary distinctions must be made concerning, the Air
Space V Outer Space debate as I intend to dispel the notion that Outer Space can be
seen as an extension of air space and thus subject to aviation norms. After establishing
that Outer Space is a separate domain. I will then analyses the LOS by deconstructing
The Court cites several numerous statements advanced by States for the conclusion that the law of armed conflict applies to nuclear weapons whether or not nuclear weapons were in existence at the time.The conclusion that humanitarian law applies to nuclear weapons is equally applicable to any 'past ... present and ... future' forms of warfare and kinds of weapons. This statement certainly provides the International Court of Justice's answer to the question of whether the law of war will apply to space warfare
4 R Tucehurst, The Martens Clause and the Laws of Armed Conflict, Nov. 1997,
cuments/article/other/57jnhy.htm https://www.icrc.org/eng/resources/do
5The Geneva system is four separate conventions as well as three additional protocols: Geneva Convention for
the Amelioration of the Condition Of the Wounded and Sick in Armed Forces in the Field 1949, 75 UNTS 31 (Here in after referred to as GC I); Geneva Convention for the Amelioration of the Condition Of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea 1949, 75 UNTS 85(here in after referred to as GC II); Geneva Convention Relative to the Treatment of Prisoners of War 1949, 75 UNTS 85 (hereinafter referred to as GC III); Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949,75 UNTS287 (hereinafter referred to as GC IV) see, https://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions
some of the main elements contained within the Outer Space Treaty, the main
governing treaty of Outer Space. Through this analysis I will demonstrate that there is
no prohibition upon ASAT attacks and thus they may be lawful provided there is
compliance with the UN Charter as well as certain restrictions such as the prohibition
of nuclear weapons or other weapons of mass destruction.
Finally I will assess the Application of the UN Charter to establish the customary right
of self-defence in Outer Space, therefore enabling legitimate force to be used in
response to an armed attack regardless of language contained within the LOS.
Chapter 3 will then apply Jus in bello principles in the assumption an IAC has occurred.
Discussing classic doctrines of, distinction, necessity, and proportionality, I will
demonstrate that regardless of the LOS and Article 51 of the UN charter permitting
force in self-defence, conducting a legal ASAT attacks through the lens of IHL is a
difficult and demanding process which warrants serious consideration and possible
negation if one cannot meet the necessary requirements.
A number of special constraints will also be considered to demonstrate that the legal
threshold for conducting ASAT attacks is high. For example, the obligation of care
afforded to the environment, as well as the obligation not to use or create damage via
indiscriminate means. This will be entitled the, ‘Space Debris argument.’
Introduction
‘Where goes man, goes the clash of opposing wills, goes the instruments to effect that clash:
Weapons. It was true of the territorial frontiers throughout history, true of the high
seas in the Middle Ages, and true of the air realm in the twentieth century. The same is
destined to be true in space.’
7The now-ubiquitous and interconnected nature of space capabilities and the world’s growing
dependence on them mean that irresponsible acts in space can have damaging
consequences for all of us.” –U.S 2010 National Space Policy’
8‘The Humanitarian law of armed conflict applies to all forms of war and all kinds of weapons
those of the past, those of the present, and those of the future’
9Background.
Outer Space is the void beyond the atmosphere of Earth and between all other objects in the
universe. Although it is a void, Outer Space is thought of as an environment
10, an imperfect
vacuum that separates the stars and the galaxies.
11Vast beyond comprehension Outer Space
is not as empty as one would think. Within this imperfect vacuum loom large interstellar dust
clouds, solar winds, beams of light, isolated particles, huge rocks called asteroids, and several,
solar radio, and x-rays frequencies echoing constantly through time and space
12. Billions of
years old these naturally occurring phenomena while fascinating will not be the focus of this
thesis. Instead Outer Space in this context will focus upon the implications of the new
additions. The man-made additions. The satellites and debris caused by them.
7 B. M. Deblois, ‘The Advent of Space Weapons’, Astropolitics , Vol. 1, No. 1 (2003) pp. 29 – 53, p. 30. Here, most
obviously, the Chinese and US demonstration of ASAT capability, albeit against their own satellites, raises significant questions as to whether space is in fact already weaponized
8 Available at https://www.whitehouse.gov/sites/default/files/national_space_policy_6-28-10.pdf p1(visited
April 2015)
9 See Legality of the Threat note 3, at 259, the Court cites several of the numerous statements advanced by
States for the conclusion that the law of armed conflict applies to nuclear weapons whether nuclear weapons were in existence at the time the law developed or not.
10 NASA QUEST http://quest.nasa.gov/space/teachers/suited/3outer.html (visited April 2015) This position is
also supported by the ICRC, commentary to Additional Protocol 1 , para.1451, see
https://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=2F157A9C651F8B
1DC12563CD0043256C
11 http://education.seattlepi.com/big-outer-space-4612.html
12 For more information see, http://hubblesite.org/hubble_discoveries/10th/photos/indexspace.shtml
HubbleSite is produced by the Space Telescope Science Institute (STScI). STScI is operated by the Association of Universities for Research in Astronomy, Inc. (AURA) for NASA, under contract with the Goddard Space Flight Center, Greenbelt, MD. The Hubble Space Telescope is a project of international cooperation between NASA and the European Space Agency (ESA).
Satellites: The significance.
Satellites have become an essential part of everyday life. With roughly 1265 operational
satellites orbiting earth’s atmosphere at a range of 200-22,300miles,
13the western world
especially has developed a ubiquitous and interconnected nature, which is now dependent
upon space capabilities
14. In January 2001, the U.S Space Commission affirmed this stating,
‘the U.S. Government is increasingly dependent on the space sector to provide essential
services for national security operations... including satellite communications as well as
images of the earth useful to government officials, intelligence analysts and military
commanders’
15. According to Peter Singer, Space is, ‘arguably the life blood of modern US
operations’
16by the simple fact that between 70 and 80 per cent of all US long-haul military
consultation, command and control is transmitted via satellite relays. Singer demonstrates
dependence referencing the global positioning system (GPS) satellites that are used to, ‘direct
the movement of 800,000 U.S. military receivers, located on everything from aircraft carriers
to individual bombs and artillery shells. A glitch in GPS in early 2010 left almost 10,000 of
these receivers unable to log in for days, rendering them useless and their systems
directionless.’
17Yet it isn’t just the U.S. who rely heavily on Space capabilities. Worldwide, nations rely upon
civil and commercial Space capabilities owned by other nations for a variety of functions. As
such the global dependence on space assets has become synonymous with the 21
stcentury.
Since the end of the Cold War new countries, companies, and even private citizens have
joined the spacefaring club. Ushering in great technological breakthroughs and a rapid
advancement of globalisation, access to Outer Space has fundamentally changed the world.
18On the other hand, this reliance and proliferation of the use of Space means that as Outer
Space continues to grow it becomes more congested, competitive, and contested. Already we
can see the signs of congestion with 1,265active and 2,000 inactive satellites currently
13 As of April 2015 , see the Union of Concerned scientists database, available at
http://www.ucsusa.org/nuclear_weapons_and_global_security/solutions/space-weapons/ucs-satellite-database.html#.VUC8AyGqqko
14 Satellites launched from The United states vastly outnumbers that of any other nation(s) with 528 in total:
civil 18, commercial 229, Governmental 121 military 160. See note 6 for more information.
15REPORT OF THE COMMISSION TO ASSESS UNITED STATES NATIONAL SECURITYSPACE MANAGEMENT AND
ORGANIZATION pgViii (2001), available at http://www.dod.mil/pubs/space20010111.pdf (last visited April. 2015) [hereinafter Rumsfeld Report]. Prior to becoming Secretary of Defense, Donald H. Rumsfeld chaired the Space Commission
16 P. Singer ‘The Future of National Security, By the Numbers’ Joint Forces Quarterly, May 2011 available
http://www.brookings.edu/research/articles/2011/05/national-security-singer#_edn2
17 Ibid,
18 Eleven countries have space launch capability and over sixty countries own and operate approximately 1,100
active satellites that play an invisible but essential role in almost all facets of our daily lives.’see, M Zenko, D, Dillon Fellow, A Code of Conduct for Outer Space, Policy Innovation Memorandum.,p10 See also, M. Schmitt International Law and Military Operations in Space 2006 p6 ‘Globalization has even reached space. Today, almost 70 nations are involved in space operations to some extent, often through the lease of commercial services.’
orbiting the earth.
19As such, Space can no longer be viewed as an infinite global commons,
with inexhaustible resources accessible only to a few. Instead Space has become another
collective action problem with too many actors and not enough resources, that if not resolved
could lead to conflict.
A quick illustration of one possible collective action problem can demonstrate the inherent
tension. Telecommunication satellites are the most popular type of satellite. Since the
beginning of the Space age, 1,107 satellites have provided civilian communications and 792
military communications.
20They represent the most numerous kind of satellite ever
launched and are heavily reliant upon during both peace and war time. For example during
the first Gulf War the coalition forces made, ‘approximately 700,000 telephone calls’ and
passed ‘152,000 messages along satellites per day.’
21Since then Space has become
inextricability linked with any sophisticated military operations. Acting as the eyes and ears
of an armed force Space is used for long-distance communications via communications
satellites; protection via early warnings surveillance satellites; crisis situations awareness by
intelligence satellites; as well as various other functions including weather monitoring form
weather satellites and navigation via global positioning satellites to determine reliable
positions.
22Summed up nicely by U.S. military officials, ‘you can’t go to war and win without
space’.
23In order to deliver information satellites need a clear and undisturbed frequency, as well as
a clear and undisturbed orbit path. Yet as more Satellites become operational, frequency
waves become stretched and geo-stationary orbital paths contracted. As reliance upon
satellites grow and valuable real-estate for satellite function shrinks, satellites become more
valuable and therefore more prone to attack. Some have even gone as far to suggest that
regardless of a collective action problem, a ‘Space Pearl Harbour’ is eminent
24due to the
heavy U.S reliance upon space capacities. With little defence mechanisms in place, Outer
19The United States of America, NATIONAL SECURITY SPACE STRATEGY UNCLASSIFIED SUMMARY available at
http://www.defense.gov/home/features/2011/0111_nsss/docs/NationalSecuritySpaceStrategyUnclassifiedSu mmary_Jan2011.pdf For the amount of inactive Satellites see, NASA, Orbital Debris Quarterly News 15, no. October 2011
20 For a list of individual telecommunication satellites launched see, http://claudelafleur.qc.ca/Q08.html (visited
April 2015)
21 J H Peterson, Info Wars U.S Naval Inst rev, May 1993 p86,. C.Cynamon, Protecting Commercial Space Systems:A
Critical National Security Issue, Research Report, Maxwell AFB, Air Command and Staff College, 1999, ‘During Iraqi Freedom, military operations relied on commercial satellite communications for 80 percent between the theatre and continental U.S.’
22 C. Cook, National Security, in T. Simpson (ed.), The Space Station: An Idea Whose Time Has Come, New York:
IEEE Press, 1985, p.180.
23 B. Gertz, U.S. Deploys Warfare Unit to Jam Enemy Satellites, Washington Times, 22 September 2005 24 See note 8
Space has become the, ‘Achilles heel’ of US military power.
25Pursuit of ASAT capabilities, as
elaborated by Professor Kapolow is, ‘therefore neither surprising nor recent.’
26Emergence of New Actors.
History shows us that every medium-air, land and sea-has seen conflict. Accordingly the
contemporary reality indicates that Outer Space would be no exception. With various
governments having at the very least the technical capabilities to use force in space, and for
those nations not yet at this level of armament, seriously considering development them,
Space can no longer be viewed as the door to the heavens beyond human reach. As of yet
we have only seen, ‘passive’ demonstrations of force with nations targeting their own
satellites in the name of peaceful scientific research.
27Nevertheless using these tests as a
departure point it is now safe to assume that if the political will was present and that a
significant military advantage could be drawn from attacking Satellite systems; if desired
several nations could in fact achieve an effective ASAT attack.
By analysing current international Space relations that began in 2003 with China sending its
first man into space
28some believe a new, astropolitik has emerged.
29With new
independent actors such as Brazil, China, India, Israel
30and most recently, The United Arab
Emirates (UAE).
31Developing robust space programmes has become a new trend bringing
with it connotations of global/regional influences. As such others nations like Japan, Russia
and North Korea, have increased efforts to invest in more space-based assets, clearly
25 Timonthy L. Thomas, The Mind has no Firewall, Foreign Military Studies office Publication,
http://leav-www.army.mil/fmso/documents/firewall.htmGeneral Fogleman, former Air Force chief of staff, ‘dominating the information spectrum is as critical as to conflict now as occupying the land or controlling the air has been in the past’ (noting that “the United States is the nation most dependent on its space systems”); Jesse Oppenheim, Danger at 700,000 Feet: Why the United States Needs to Develop a Kinetic Anti-Satellite Missile Technology Test-Ban Treaty, 38 Brooklyn Journal of International Law No. 2, 2013, p. 761, 789-90 (identifying the extreme reliance upon satellites as the U.S. military’s “Achilles heel”); Report of the Commission to Assess United States National Security Space Management and Organization, at 9 http://www.dod.mil/pubs/space20010111.html (expressing concern about growing U.S. dependence on space, and the vulnerabilities it creates); Tom Wilson, Threats to United States Space Capabilities, http://www.fas.org/spp/eprint/article05.html, p. 2 (arguing that “the United States’ increasing economic and military dependence on space creates a vulnerability that is an attractive target for our foreign adversaries.”); US Army Seeks New Technology to Replace GPS,
http://phys.org/news/2013-04-army-technology-gps.html (reliance upon Global Positioning Satellites has become a vulnerability)
26 D.A. Koplow, An Inference About Interference: A Surprising Application of Existing International Law
to Inhibit Anti-Satellite Weapons, 35 U. Pa. J. Int'l L p10 (2014) (Koplow, (2014))
2727 J. Page, Stealing Zeus’s Thunder: Physical Space-Control Advantages against Hostile Satellites, Air and Space
Power Journal, Vol. 20 (2006), p.27. ‘This led to the flexing of muscles by other states, with the US performing a similar test in 2008 (shooting down a spy satellite) and revitalization of the Russian ASAT program’ (In response to the 2007 Chinese ASAT test) (Page, (2006))
28 H, Brian. The Chinese Space Programme: From Conception to Manned Spaceflight. New York: Wiley, 2004. 29 E.C.Dolman, Astropolitik: Classical Geopolitics in the Space Age (London: Frank Cass, 2002), (E.C.Dolman, 2002) 30Centre for Non-proliferation Studies, "Countries with Advanced launch Capabilities", available at c
cns.miis.edu/research/space/spfrnat.htm
31 The UAE formally announcing on May 6, 2015, its intention to launch an indigenously built probe to Mars by
July 2021. This will be, ‘the Arab world's first mission to another planet," said an Emirati government statement on Wednesday.
competition for Outer Space is increasing.
32Since the fall of the USSR the idea of conflict in
Space held little sway, however this changed dramatically in 2007 when China left the world
reeling after it conducted its first ASAT test by destroying its own weather satellite
33. Since
then there has been a renewed interest in Space policy, with some commentators suggesting
we are heading for a new Space race.
34With renewed interest, and increasing fear from the, ‘eastern threat’
35the International
community began to question how the LOS which largely regulated two super powers on the
brink of nuclear destruction during the Cold War fitted into this new space age. With new
actors and new weapons, the notion of space warfare according to some is becoming a virtual
certainty, as such it is not a matter of if but a matter of when.
36Whether warfare will extend
to the fourth territory of Outer Space is another question not concerned with this thesis. But
assuming it does, one must ask, 1) what are the regulatory constraints currently in place? 2)
Are they adequate? 3) If not can IHL play a restricting role if force did occur? 4) Can the
International community effectively regulate the use of force in Outer Space if directed
against a satellite system?
This thesis concerns the legal and strategic implication of the use of force in Outer Space
within the context of ASAT attacks. It compares and considers the Law of Outer Space (LOS)
and International Humanitarian Law (IHL). I argue that although the LOS does not prohibit
ASAT attacks per say. When applying Jus in bello principles found within IHL one will find that
the requirements and concerns demanded by IHL effectively mean that conducting an ASAT
attack is a difficult task which considers negation if unable to adhere to IHL.
32 For more information upon Japans intent to invest in Space Assets see, A Lele, China: A Growing Military Space
Power, Astropolitics: The International Journal of Space Politics & Policy, 3:1, 67-75, 2005, (Lele, 2005) as for the revitalization of the Russian ASAT program see,.J.McIntyre et al., Navy Missile Hits Dying Spy Satellite, Says Pentagon. Available at http://edition.cnn.com/2008/TECH/space/02/20/satellite.shootdown/
For more information upon the North Korean Space programme and the launch of Kwanmyongsong-3 satellite in August 2012. see, D, Wright, December 15, 2012 ,Union of Concerned Scientists
http://allthingsnuclear.org/north-koreas-satellite/ and Nick Hansen, North Koreas Satellite system,38 North 12 September 2012, http://38north.org/2012/09/nhansen091212/
33 J N Maogoto and S Freeland, Space Weaponization and the United Nations Charter Regime on Force A Thick
Legal Fog or a Receding Mist, (Freeland, , Space Weaponization and the United Nations Charter Regime on Force A Thick Legal Fog or a Receding Mist, , 2007 )’On January 11 2007 The Chinese military launched a KT-1 rocket that successfully destroyed an redundant China Feng Yun 1-C weather Satellite which it had launched in 1999 in low Earth Orbit 800km above Earth’ 2007 pg1, See eg, Michael R. GordonandDavid S. Cloud, ‘U.S. Knew of China’s Missile Test, but Kept Silent’, N.Y Times April 23, 2007
34 Mike Moore, Is the U.S. Provoking an Arms Race in Space?, Independent Institute, 25 Nov 2014. 35In 2000, China unveiled an ambitious ten-year space program
36 See note 8, Rumsfeld report , see also lole M. De Angelis, Legal and Political Implications of Offensives Actions
from and against the Space Segment, 45 Proceedings of the Colloquium on the Law of Outer Space 197 (2002) noting that space warfare is, in fact, inevitable.)
Chapter 1 Origins and evolution of Space Militarisation.
Background.
The history of science is the history of ideas. When paradigms change, the world itself
changes, and led by this paradigm scientists begin to adopt new instruments and to look in
new places.
37However, instead of advocating a new a new paradigm I seek to do what is
intuitive to IHL lawyers when faced with a new theatre of war, apply IHL principles. Historically
we have seen the emergence of a partially retro-active approach to the creation and
application of IHL which in my view is somewhat paradoxical as IHL by its nature seeks for
Humanitarian reasons to limit the effects of armed conflict. Examples include the beginnings
of aerial warfare and the ongoing issue of cyber warfare. Nevertheless this thesis will buck
the trend somewhat by assessing the legality of ASAT attacks in Outer Space before conflict
occurs.
Before applying principles of IHL to a hypothetical attack, one must understand the
complexities of the system that purports to regulate space activity and the context that it
came to be. Therefore a brief history of the pursuit to the heavens is necessary, followed by
an overview of possible ASAT weapons
38.
Getting into Space.
The first rocket to pass the edges of our atmosphere was launched on October 1942.
Developed by German engineers Wernher von Braun and Walter Thiel using funding from the
Nazi regime to build upon American Robert Goddard’s breakthroughs in Rocket science. The
A-4 was humanities first real glimpse into the possibilities of Space. Latter renamed V-2
(Vengeance) this rocket was a formidable weapon. Faster than the speed of sound and able
to travel over 200miles
39, naturally the V-2 had a devastating effect for the people of Europe
during WWII killing in total approximately 5,400
40. Yet in terms of Space capacity this was a
breakthrough as Human technology could now potentially leave Earth’s atmosphere passing
into Outer Space.
The ‘edge of Space’ was calculated soon after in the 1950’s by Hungarian-American physicist,
Theodore von Karman placing the beginning of space at 100km. Officially accepted by the
Fédération Aéronautique Internationale (FAI), the international governing body for
aeronautics/astronautics formed 110 years ago this October.
41The Karman line is 100km
above sea level when the atmosphere becomes too thin to support aerodynamic principles.
37 T S Kuhn, the Structure of Scientific Revolutions, 1962 2nd Ed 1970. Ffound in Excerpts Revolutions as Changes
of World View in J. Margolis and J Catudal, The Quarrel between Invariance and Flux (2001), 35-36
38 For reasons of length I omit some important historical processes, like the discovery of the ‘rocket equation’ by
Russian Konstantin Tsiolkovsky in 1880s and the subsequent launch of the first rocket by US physicist Robert Goddard in 1920’s.
39. At the end of burning stage the V-2 can reach a speed of 3,500mph travelling beyond sonic velocity. For a
detailed History of the V2 see V Hardesty, G Eisman, ‘Epic Rivalry: The Inside Story of the Soviet and American Space Race’ p5
40 Ibid,p15 ‘An Estimate 5,400 people, mostly civilians, were killed in the V-2 bombardment campaign. (with an
estimated total of 12,685 killed by all V1 and V2 attacks’
41 The Fédération Aéronautique Internationale was founded on 14 October 1905 for more info see,
While not a fixed line it is the moment that, ‘lift is no longer needed, since centrifugal force
took over; consequently aerodynamic flight is meaningless, as astronautic principles come
into play.’
42Although widely accepted,
43legally speaking there is still no international legal
definition of the demarcation between a country's Air Space and Outer Space.
44The Dawn of the Space Age.
Emerging from the ashes of World War II, the remaining super-powers sought to capitalise
upon German advances in rocket science. Compelled to assert dominance the rational was,
control the ultimate high ground and by extension, Earth. While both the US and the Soviets
were developing Space capabilities, it was the Russians who made world history on October
4th, 1957 by launching Sputnik I, the world's first artificial satellite, swiftly followed by Liakia
the dog aboard Sputnik 2.
45While the world witnessed the dawn of the space age there were,
of course, more earthly considerations. As Asif A Siddiqi succinctly states, the Soviet satellite,
‘while only a ball of metal, managed to achieve in one day what the Soviets were unable to
convey with decades of rhetoric on the virtues of socialism: that the USSR was a power with
which to be reckoned.’
46This display of force from the Soviets was responded to with the launch of Explorer 1 by the
U.S on January 31;st 1958, thus setting the tone for the rest of the Cold War. Space would be
tightly contested, not for exploration proposes but as a sign of strength, an extension of the
superpowers, Space became a domain of power posing and gesturing not unlike Silverback
Gorillas beating their chest to assert dominance. Thus the race for Space was on, leading to
various significant events for mankind as a whole all in the context of war. For example the
first human into space, Russian Yuri Gargin in 1961 and the famous moon landing on July 20th,
1969.
The point here is to note that while Outer Space has been used for scientific purposes, a
traceable military context limiting US-Soviet relations runs through almost all major Space
activities and subsequent law
.
This leads to a twofold initial conclusion, 1) Outer Space cannot
be separated from military use, and therefore those who wish to create a completely
42 Dr. S. Fernández de Córdoba, ICARE President Fédération Aéronautique Internationale,100km Altitude
boundary for aeronautics, http://www.fai.org/icare-records/100km-altitude-boundary-for-astronautics
43 Dennis Jenkin, ‘Schneider walks the Walk ‘A word about the definition of space.’ NASA. 2005
http://www.nasa.gov/centers/dryden/news/X-Press/stories/2005/102105_Schneider.html ‘This position
enjoys the support of the International Law Association and is supported in national legislation in Australia’ International Law Association, Report of the Fifty-Ninth Conference, 1980, p.197; V. Vereshchetin, Outer Space, in: R. Wolfrum (ed.), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2008, online edition, . V. Vereshehetin, E. Vasilevskaya and E. Kamenetskaya,Outer Space: Politics and Law, Progress Publishers, 1987 p.60-65; ‘persuasive argument in this regard is the lack of objection by states since the launching of the first satellite.’
44 Boleslaw and Boczek; International Law: A Dictionary, by Scarecrow Press, 2005; p 239 ‘no agreement exists
on a fixed airspace - outer space boundary’
45 J.C. Moltz, 2014. Crowded Orbits: Conflict and Cooperation in Space. New York: Columbia University Press,
2014. P17. For a comprehensive and detailed account see , Asif A Siddiqi, Challenge to Apollo: The Soviet Union and the Space race.1945- 1974 ,National Aeronautics and Space Administration NASA History Division Office of Policy and Plans Washington, DC 2000 p161-171
46 A. A Siddiqi, Challenge to Apollo: The Soviet Union and the Space race.1945- 1974 ,National Aeronautics and
demilitarised zone, or a ‘global commons’
47similar to Antarctica face an uphill struggle as
man’s definition and conceptualisation of Outer Space from its beginnings has been overtly
military. 2) If Space is going to be used for military purposes a sufficient regulatory system
needs to be in place, offering transparency and factual objectivity.
Admittedly achieving the second point is easier said than done. The idea of a code of conduct
for Space activity, including a comprehensive international arms control treaty while not yet
materialised has been discussed and advocated strongly by Russia and China at the United
Nations Conference on Disarmament (UNCD) in Geneva since the 1980’s.
48Although with
little interest by the U.S who dismiss attempts year after year for a various amount of reasons,
including deeming treaties as ‘hypocritical propaganda' during the 80’s
49, denying a Space
arms race during the 90’s, and most recently taking issue with defining space weapons, and
wanting to keep their options open.
50Clearly there is no political will to engage in serious
talks, U.S practice has been to consistently veto, or worse simply not to show up. Negotiations
at the UNCD have been in stalemate since 1990s.
Therefore while many academics and commentators advocate a new treaties the realistic
conclusion would be that although highly beneficial and worthwhile perusing, the likelihood
of a new treaty governing space activity is remote. Nevertheless in its absence I believe that
IHL can play a regulatory role if conflict did in fact emerge either on Earth or in Space.
Chapter 1.1 Overview of Space Weapons.
Background.
The Deterrence Theory
made famous by Thomas Schelling
51and Herman Khan
52during the
1960’s led some to believe that the end of war itself had arrived
53. Simply put it follows,
nuclear weapons have such devastating effects that the possibility of use would deter either
side from attack. Threat alone would be the ‘superweapon that would put an end to all war’.
54This assumption while admirable is short sighted, as it ignores the reality that a) over 1700
47 B M. DeBlois, “Space Sanctuary: A Viable National Strategy,”Airpower Journal,Vol. 12, No.4 (Winter 1998), pp.
41–57; and B M. DeBlois, “The Advent of Space Weapons,”Astropolitics,Vol. 1, No. 1 (Spring 2003), pp. 29–53.see also, Russell Hardin, ‘The Tragedy of the Commons.’ Science 162 (1968) p1243-48.
48The Soviet Union presented a "Draft Treaty on the Prohibition of the Stationing of Weapons of Any Kind in
Outer Space" to the 36th Session of the United Nations General Assembly on 20 August 1981.
49 P.B. Stares, The Militarization of Space: U.S Policy 111, 1985,
50 M Moore: The New Arms Race in Space, An Independent Policy Forum held on 3rd July 2008 by the
Independent Institute.
51 T. C Schelling, (1966), "2", The Diplomacy of Violence, New Haven: Yale University Press, pp. 1–34 52 H Khan,. ‘Thinking about the unthinkable. Horizon Press’ . 1962
53 Note this was not the first time the idea had been articulated, Wilkie Collins, writing at the time of the
Franco-Prussian War in 1870: "I begin to believe in only one civilizing influence—the discovery one of these days of a destructive agent so terrible that War shall mean annihilation and men's fears will force them to keep the
peace". Available at http://wilkiecollinssociety.org/newsletter-spring-2009/
54 Tesla, Nikola, ‘The New Art of Projecting Concentrated Non-Dispersive Energy through Natural Media, System
nuclear tests have been conducted as demonstration of force
55and b) other less destructive
weapons can be developed thus circumventing any nuclear test ban treaty in the continuation
of war.
This policy can be transposed to the context of ASAT weapons in Outer Space as although
there were initial nuclear ASAT tests which the International community regulated with the
nuclear test ban treaty. In subsequent years, the United States, Russia, and now China have
pursued, and experimented in space with other diverse ASAT systems; much of which the
international community has failed to regulate.
56This however is not a new phenomenon, since the beginning of the Space age the spectre of
Anti-satellite capabilities have been present. Summed up by Professor Kapolow, ‘anti-satellite
weapons has been around almost as long as satellites themselves – indeed, the first U.S.
exploration of ASAT concepts was drawn up within 6weeks of the U.S.S.R.’s first orbit of
Sputnik in 1957’.
57Defining Space Weapons.
Any consideration of Space regulation raises the difficult issue of defining Space weapons.
Generally speaking space weapons can be defined as assets or mechanism intended to cause
destructive harm either partial or complete. They can be located either on Earth or in Space
and they can target the satellite, the ground station, or the links between them. Attacks may
be overt, or covert and thus not attributable to the attacker.
According to Theresa Hitchens when discussing space based weapons, ‘there is a lot of
‘Science fiction’ thinking and hype about how difficult these threats are to counter and what
‘drivers’ exist to use such weapons.
58Therefore in my definition of Space weapons, I will limit
55 To date, the United States, Soviet Union and China have conducted 1,790 tests of nuclear devices. Moscow
last carried out a nuclear test in 1990, the United States in 1992 and China in 1996.
56 In 2007, it was reported that China performed an ASAT test destroying its own weather satellite with a KT-1
rocket The Guardian, China Confirms Anti-Satellite Missile Test, 22 January 2007, available at
http://www.theguardian.com/science/2007/jan/23/spaceexploration.china ‘In response to China the US performed a similar test in 2008 shooting down a spy satellite’ J.McIntyre et al., Navy Missile Hits Dying Spy Satellite, Says Pentagon. Available at http://edition.cnn.com/2008/TECH/space/02/20/satellite.shootdown/
(accessed may 2015)
57 David A. Koplow, An Inference about Interference: A Surprising Application of Existing International Law to
Inhibit Anti-Satellite Weapons p59 (Note: These plans resulted in the U.S. developing two "crude" ASAT systems: Project 505 or "Nike Zeus" (1963-67), a modified Anti-Ballistic Missile (ABM), and Project437 or "Thor" (1964-75), a converted Intermediate Range Ballistic Missile(IRBM); however, both had "limited capabilities with severe operational constraints." Most notably, both systems used nuclear warheads to destroy their targets, which meant that their use would have not only contravened the Limited-Test-Ban Treaty, but would have also threatened U.S. satellites in the vicinity of the explosion. These factors greatly reduced the usability of these systems and their credibility as deterrents as well.
58 Theresa Hitchens, International Humanitarian Law and New Weapon Technologies, 34th Round Table on
Current Issues of International Humanitarian Law (Sanremo,Italy, 8th-10th September 2011) pg56-64 concluding, ‘Space-based weapons of every sort are not likely in the near term. They are fun to read about but
not coming any time soon’.
http://www.unog.ch/80256EDD006B8954/%28httpAssets%29/F77AF42ED509F890C1257CD90025183F/$file/I HL+&+new+weapon+technologies_Sanremo.pdf
my scope to only those weapons that can be considered realistic in the sense they have been
used or at least, tested. Each category considered will take inspiration from the Tallinn
Manuals definition of a cyber-attack contained in rule 30.
59As such an ASAT weapon must
reasonably expect through specific design and flight-test to inflict, death, destruction, or the
requirement of large scale repair or intervention.
It is necessary to impose such criteria as some passive measures, for example pulse
electromagnetic shielding, while causing harm have not been intended to cause explicit harm
and as such should be exclude.
60This criteria also excludes the use of Satellites becoming a
weapon in themselves. According to Peter Hays, Professor of Space Policy at Tufts University,
‘in an extreme situation you can crash your satellite into another satellite.’
61A line of
reasoning argued first by the Soviets in the failed 1978-79 negations upon the first
International Space station (ISS) at which the Soviets pressed for the Space Stations to be
classified as weapons-this did not happen.
Regardless of definitional issues, physically speaking, while immensely difficult to change a
Satellites flight path once in orbit; it is considered possible. Witnessed by the Chinese in
August 2010 in what was thought a possible ASAT experiment, two small satellites were
maneuvererd to apparently ‘bump’ each other at low speed.
62With no reported damage or
destruction this passed generally unnoticed by the International community, nevertheless it
demonstrated that it could be possible.
Although possible, I would argue that the amount of force needed to turn for example a
weather satellite into a weapon, even on impact would be extremely demanding. As
explained by physicists David Wright, ‘Because the orbital speed of satellites is so large
(18,000 miles at LEO) the velocity changes required for manoeuvring may also be large,
requiring a large amount of propellant.’
63Since fuel is heavy, operators usually seek to
minimize amounts to only that necessary to propel the satellite back to earth or into GEO to
quietly decay. As such it seems unlikely that Satellites will be used as battering rams anytime
soon as the amount of fuel needed to change orbit and accelerate to a destructive speed
59 See Tallinn Manual, Rule 30 p 106 https://ccdcoe.org/research.html
60 Passive measures such as, hiding, camouflaging, pulse electro-magnetic shielding or simply moving valuable
assets to deny a remote sensing satellite the ability to acquire information shall not be considered as these are not direct attacks upon other satellites but defensive measures. Other measures such as Jamming while an assault upon the functionality of a satellite do not reach the level needed to be an armed attack therefore they will also not be considered.
61 Peter Hays, Theresa Hitchens, Jeff Kueter & Mike Moore: The New Arms Race in Space, An Independent
Policy Forum held on 3rd July 2008 by the Independent Institute available at
https://www.youtube.com/watch?v=n2q51wTe1kA
62David A. Koplow,note 25, at 68 see also, Li Bin, What China’s Missile Intercept Test Means, Carnegie
Endowment for International Peace, February 4, 2013, http://carnegieendowment.org/2013/02/04/what-china-s-missile-intercept-test-means/fa45 ; Bill Gertz, Going on Defense, Washington Free Beacon, January 27, 2013; Brian Weeden, Time for Obama to Go Public on China’s ASAT Program, Defense News, June 2, 2013,
http://www.defensenews.com/article/20130602/DEFREG/306020009/Time-Obama-Go-Public-China-s-ASAT-Program
63 Union of Concerned Scientists, Satellite Database,
http://www.ucsusa.org/nuclear_weapons_and_global_security/solutions/space-weapons/technical-implications-of.html#.VXGICc-qqko
seems to be too demanding. Furthermore, even if it was possible it would at very least call for
prior consideration therefore in my opinion it is excluded.
In order of most used, the following categories of ASAT weapons will be considered: Direct
Ascent Kinetic Weapons. Non-kinetic Directed Energy Weapons and finally Cyber means. I
have purposefully excluded nuclear radiation weapons, as although they were some of the
first ASAT weapons tested the International community has specifically banned there use.
64Kinetic Energy Weapons.
There are two main concepts of ASAT weapons, Kinetic energy weapons (KE) and directed
energy weapons (DE). Kinetic energy weapons are the most typical type of ASAT weapon and
have disintegrate satellites through brute force alone. The concept is straight forward and
involves destroying things, ‘the old fashioned way’, that is by sending a physical mass into
space which either smashes the target at fatal speed or explodes wiping out both. Kinetic
weapons are the oldest type of ASAT weapon tracing their roots back to 1958 when a missile
defence proposal by the US Air Force resulted in the two-stage Nike-Ajax nuclear armed
antiballistic missile (ABM), later followed by the more powerful Nike-Hercules and Nike-Zeus
leading to a first successful hit in May 1963.
65In subsequent years all major space powers,
United States (U.S), Russia and now China have collectively engaged in approximately 60 KE
weapons test determining among other things, range accuracy and power needed to conduct
an effective ASAT attack.
6664 For more information upon the ban against nuclear weapons see, Chapter 2.2 Partial Test Ban Treaty. 65 For a detailed expose of the military position at that time, see Baker D, ‘The history of manned spaceflight’.
New Cavendish Books, London, p. 12–30 ,1985
66
The United States conducted thirty-one kinetic ASAT tests in space between 1959 and 1970 Three more tests
in the 1980s and a further test in 2008. For more info see, Paul B. Stares, The Militarization of Space: U.S. Policy, 1945-1985, 1985, at 106-261 (describing several early U.S. ASAT programs, operated by Army, Navy and Air Force, including both DE and KE systems, including some using nuclear explosives); John Pike and Eric Stambler, Anti-Satellite Weapons and Arms Control, in Richard Dean Burns (ed.), Encyclopaedia of Arms Control and Disarmament, 1993, vol. 2, p. 992- 993 Desmond Ball, Assessing China’s ASAT Programs, APS Net Special Report, June 14, 2007, http://nautilus.org/apsnet/assessing-chinas-asat-program/#n2
-The U.S.S.R. tested approximately twenty times between 1968 and 1982. For more info see, Paul B. Stares, The Militarization of Space: U.S. Policy, 1945-1985, 1985, at 135-262; David Wright, Laura Grego, and Lisbeth Gronlund, The Physics of Space Security: A Reference Manual, 2005 3-4 . Asa Bates, Jr., National Technical Means of Verification,123 RUSI Journal No. 2, p. 64, June 1978; A. Zak, Spacecraft: Military: IS Anti-satellite System, 2008, http://www.russianspaceweb.com/is.html ; Petr Topychkanov, Features of the Outer Space Environment, in Alexi Arbatov and Vladimir Dvorkin (eds.), Outer Space: Weapons, Diplomacy, and Security, 2010, p. 3, 10-13 (providing Russian perspective on outer space as a sphere of military operations). 32-33; Desmond Ball, Assessing China’s ASAT Programs, APSNet Special Report, June 14, at 3;
http://nautilus.org/apsnet/assessing-chinas-asat-program/#n2 Chinese Anti-satellite Test Creates Most Severe Orbital Debris Cloud in History, 11 Orbital Debris Quarterly News No. 2, April 2007, p. 2, 3 (noting that Soviet ASAT testing from 1968 to 1982 had generated more than700 catalogued items of space debris, 301 of which are still in orbit); Nicholas L. Johnson, Orbital Debris: The Growing Threat to Space Operations, at 3
http://www.ntrs.nasa.gov/archive/nasa/casi.ntrs.nasa.gov/20100004498_2010003521.pdf; Milton Leitenberg,
Studies of Military R&D and Weapons Development, Case Study 1 – The History of US Anti-Satellite Weapons (undated), at 27-34 (describing early Soviet ASAT programs)
Directed Energy Weapons.
The other types of weapons, directed energy weapons, also known as non-kinetic weapons
were pioneered during the early 1960’s and came to the fore in 1973 when the Mid Infrared
Advanced Chemical Laser (MIRACL) was first tested against tactical missiles and drone
aircraft. With escalating fears of Cold War collisions the Reagan Administration, continued
and pushed military scientist begrudgingly to further develop DE weapons under the Strategic
Defence Initiative,
67popularly dubbed ‘Star Wars’ Initiative.
68DE weapons include chemical, biological and radiological weapons that emit pure energy.
69They are not dependent upon a physical mass or explosion, instead they use high-energy
lasers, microwaves, or beams of sub-atomic particles to burn holes into a targeted satellite.
The power can be tailored to produce temporary and reversible effects or permanent,
debilitating damage. For example DE weapons can blind, jam or spoof communications
sensors thus obstructing information momentarily, or if a stronger response is needed power
can be increased or focused for longer, fatally scrambling internal electronics through an
overload.
70This ability to control DE weapons means that the creation of Space debris is
significantly lowered when compared to its Kinetic counterpart. A Successful use of a DE
weapon could disable a target satellite, rendering it debris
71. This would essentially add to an
already existing situation. Yet instead of a functional satellite it would be debris therefore no
major additions of Space Debris should result from a successful DE attack.
While being more controllable than Kinetic weapons, DE weapons have some major draw
backs. In order to work they require huge amounts of energy both financial and molecularly.
72-China to date has conducted 5 KE weapons tests in Outer Space and while only one has hit an actual satellite the capabilities demonstrated is sufficient to be dubbed a test. For more info see, Michael R. Gordon and David S. Cloud, U.S. Knew of China’s Missile Test, But Kept Silent, New York Times, April 23, 2007; Brian Weeden, Anti-satellite Tests in Space: The Case of China, Secure World Foundation, August 29, 2013 at 2.
-For more information with regards to the two tests conducted between 2010-2013 See Note 57, as well as Associated Press, China: Missile Defense System Test Successful, USA Today, November 1, 2010,
http://usatoday30.usatoday.com/news/world/2010-01-11-china-missile-defense_N.htm?csp=34
67 Paul B. Stares, Space and National Security, p111 (Brookings Institute 1987). ‘At the height of research on the
Strategic Defence Initiative many scientists openly questioned a missile defence project involving space-based lasers and if it could ever work.’
68 First quoted in, 1988. The Stars Spoke on Capitol Hill., Washington Post.
69 Casey-Maslen, Non-kinetic-energy weapons termed ‘non-lethal’, A Preliminary Assessment under
International Humanitarian Law and International Human Rights Law, Geneva academy of international humanitarian law and human rights, 2010, p.4-8
70 For a comprehensive review of ASAT weapons see, Manual David Wright, Laura Grego, and Lisbeth Gronlund
‘The Physics of Space Security A Reference’ Section 11: Overview of Interfering with Satellite Systems, available at http://www.ucsusa.org/sites/default/files/legacy/assets/documents/nwgs/physics-space-security.pdf also, Bruce M. DeBlois,Richard L. Garwin, R. Scott Kemp, and Jeremy Carwell, Space Weapons Crossing the U.S. Rubicon, International Security, Volume 29, Number 2, Fall 2004, pp. 50-84, The MIT PRESS, available at
http://web.mit.edu/nse/pdf/faculty/kemp/Kemp_SpaceWeaponsCrossingtheRubicon.pdf
71 David A. Koplow, An Inference about Interference: A Surprising Application of Existing International Law to
Inhibit Anti-Satellite Weapons p61
72Federation of American Scientists, Space Based Laser, http://fas.org/spp/starwars/program/sbl.htm
Energy for the sustained laser burst is generated by the chemical reaction of the hydrogen fluoride (HF) molecule. The HF molecules are created in an excited state from which the subsequent optical energy is drawn by an optical resonator surrounding the gain generator.
Furthermore even when possible their limited range acts as further constraint, for targets
must be visible in order to hit with any significant force. With increased difficulties compared
to KE weapons some argued that DE weapons should be abandoned in favour of a more
definite kinetic weapon strike.
73Nevertheless after much trial and error the first DE weapon,
ALAPHA Laser, was successfully tested by the US in 1991 under conditions simulating space
environment.
74This led to a renewal in DE development most vividly demonstrated in October 1997, with the
U.S testing of the MIRACL laser (Mid-Infrared Chemical Laser) in New Mexico. The system
targeted a MSTI-3 satellite at 420km altitude temporarily blinding target sensors, which
eventually led to its failure as a satellite.
75Although much work is needed to develop DE
weapons since then the DE weapons have received a higher preference than traditional KE
weapons, with the U.S Department of Defence (DoD) stating, ‘U.S Military policy is to focus
only on negation technologies which have temporary, localized, and reversible effects.’
76With regards to the other two major Space powers, while claims have emerged that Russia
and China attempted to blind US satellites, no hard evidence can support this.
77As such one
must rely on official statements endorsing DE weapons to suggest other nations are seriously
considering there continued development and if need be, use.
7873L.B.Taylor, Jr Space: Battleground of the future p36 (franklin watts 1988)
‘
The Union of Concerned Scientistsdeclared that an effective
defence
of the U.S. against a Soviet missile was unattainable. A report from the Congressional Office of Technology Assessment claimed the likelihood that such a system could protect the U.S. from Soviet missile attack 'so remote that it should not serve as the basis for public expectations or national policy.' , at 24 (quoting EdwardEdelson, Space Weapons: The Science Behind the Big Debate, POPULAR SCIENCE (July 1994)).Partly because of tremendous technical difficulties, the program began to refocus on earth-based lasers.74 Federation of American Scientists, Space Based Laser, http://fas.org/spp/starwars/program/sbl.htm
75U.S Department of Defence, Press Operations. Release No: 526-97, ‘Secretary of Defence Approves Laser
Experiment to Improve Satellite Protection October’ 02,
1997http://www.defense.gov/releases/release.aspx?releaseid=1431
76 U.S. Department of Defense, Budget Justification: Space Control Technology, Fiscal Year 2004/2005, February
2004, http://www.dtic.mil/descriptivesum/Y2005/AirForce/0603438F.pdf Space Weapons, Part II, Foreign Policy, August 1, 2005,
77 Russia: Terra-3 a former USSR laser testing centre, located in Sary Shagan, Kazakhsta was said to be involved
in an incident with the Space Shuttle, Challenger. During its 6th orbital mission on 10 October 1984 i claims arose a laser was fired causing, ‘malfunctions on the space shuttle and distress to the crew,’ according to Steven Zaloga, this caused the US to file a diplomatic protest about the incident.However, a UN inspection of the facility in 1989 revealed little cause for concern.
China: Francis Harris, Beijing Secretly Fires Lasers to Disable US Satellites, Telegraph (U.K.), September 26, 2006,
http://www.telegraph.co.uk/news/worldnews/1529864/Beijing-secretly-fires-lasers-to-disable-US-satellites.html
78 Russia: ‘Russia Building Anti-satellite Weapons’, The Independent (UK), March 5, 2009,
http://www.independent.co.uk/news/world/europe/russia-building-antisatellite-weapons-1638270.html.
Russia Pursuing Antisatellite Capability, Global Security Newswire, March 6, 2009,
http://www.nti.org/gsn/article/russia-pursuing-antisatellite-capability/.
China: ‘the ability to wage cyber war in space is vital to China’s military modernization’. Bill Gertz, China’s Military Preparing for ‘People’s War’ in Cyberspace, Space, Washington Free Beacon, July 30, 2013,
http://freebeacon.com/national-security/china-military-preparing-for-peoples-war-in-cyberspace-space/ . Also note, ‘It is necessary for China to have the ability to strike U.S. satellites. This deterrent can provide strategic
Electronic Cyber Weapons.
A third and final weapon, although technically falling within the non-kinetic grouping should
in my opinion be considered separately due to the proliferation and possible access by most
if not all nations. The advent of electronic warfare namely cyber-warfare introduced a new
unseen invisible dynamic to the concept of satellite attack/defence. Theoretically being
launched from any computer from almost anywhere in the world, without directly exposing
the attacker to physical harm cyber means could be a major change to how nations conduct
warfare.
79Cyber-attacks involves hacking a target’s strategic or tactical resources for the purposes
of espionage or sabotage. While the capabilities to conduct a cyber-attacks might be available
to multiple actors.
80Those likely to pose a significant threat to satellites realistically will be
nation states with the necessary time resources and determination to do so. As such, this
treatment of cyber-attacks will depart exclusively from a national military background
offering a realistic treatment that fits the running theme of, legal uses of Force in Outer Space
during an IAC.
Cyber warfare is unique when compared to traditional methods of warfare as it offers actors
direct or indirect opportunity to destroy Space assets with minimal risk due to limited
attribution and traceability.
81Attacks can take many forms and affect several elements of the
entire space and control system from the uplink system (base station) altering tracking,
telemetry, and control networks. Or via the downlink on board computer or satellite antenna,
impeding the ability to transmit reliable data.
82Summarised neatly by Xavier Pasco, ‘any
satellite can virtually be taken over by a non-authorized user who can force a system
shutdown or a wrong manoeuvre leading the system to put itself in a safe mode or in any
other uncontrolled mode.’
8384protection to Chinese satellites and the whole country’s national security’. Dean Cheng, China’s Military Role in Space, Strategic Studies Quarterly, Spring 2012 at 65-69 (surveying Chinese attitudes toward military space operations); Larry M. Wortzel, The Chinese People’s Liberation Army and Space Warfare, American Enterprise Institute, October 17, 2007.
79 George J.Tenet, "Testimony by Director of Central Intelligence", Before the Senate Committee on Government
Affairs (24 June 1998)
http://www.cia.gov/cia/public_affairs/speeches/archives/2000/cyberthreats_022300.html
80 i.e. National intelligence agencies; Cyber warriors; Cyber Terrorist; Corporate competitors; Organized
criminals; employees; or individual Hackers for more info see, "Information Warfare: Cyber Warfare is the future warfare" SANS Institute 2004,pg 2-19 available at http://www.giac.org/paper/gsec/3873/information-warfare-cyber-warfare-future-warfare/106165
81 Jan Kallberg, Designer Satellite Collisions from Covert Cyber War, Strategic Studies Quarterly p 124, 2012 82 Although applicplbe to each category of ASAT weapon. The method and desired outcome employed have been
summarized as the “Five D’s” (deception, disruption, denial, degradation and destruction see J. Page, Stealing Zeus’s Thunder: Physical Space-Control Advantages against Hostile Satellites, Air and Space Power Journal, Vol. 20 (2006), p.27.
83 Dr. Xavier Pasco is a Senior Research Fellow at the Fondation pour la Recherche Stratégique (FRS) based in
Paris, he is in charge of the Department “Technology, Space and Security”. Research Fellow at the Space Policy Institute in the George Washington University (Washington D.C., U.S.A.). He is also giving lectures in the French Military School in Paris
84Xavier Pasco, ‘Various Threats of Space Systems’
pp 663-678. in K.-U. Schrogl et al. (eds.), Handbook of Space Security, Springer Science Business Media New York 2015
