 Good morning ladies and gentlemen. Welcome again to the Stockton Center for National Law at the United States Naval War College and to the next installment of our Stockton series. I'm Lieutenant Colonel John Cherry. I'm the deputy here at the Stockton Center, and I'm also the president of the US group of the International Society of Military Law and the Law of War. Today's event addresses international law limits to the military presence of activities in outer space. I'd first like to thank the International Society for Military Law and the Law of War for co-sponsoring this event today. And a special thanks goes out to Alphonse Van Huisen for his leadership and hard work to help make this event happen. Alphonse is the assistant secretary general for the International Society and we really do appreciate his help. In the months to come, the Stockton Centers will have other series on gender and on conflict. In May, we will host our annual Alexander Cushing conference and then in June we'll have an event covering the Arctic. We also ask that you follow us on Twitter and come and visit our Stockton Center website. We'll post a link in the chat where you can subscribe to our mailing list for updates on future events. I'd like to now introduce Professor James Kraska, who's the chairman and the Charles H. Stockton Professor of International Law at the Stockton Center for International Law. Professor Kraska. Thanks Colonel Cherry and welcome everybody to this month's Stockton Seminar. We're going to look at outer space and military activities and operations. We're especially pleased to be partnering with the International Society for Military Law and the Law of War, and we welcome, in particular, Professor Wolf on Heine, who is a former Stockton chair at the Naval War College he was here for two years, and part of our extended family. And we also are pleased to be able to partner with Professor Jeff Biller at the US Air Force Cyber Works at the Air Force Academy, who is a former professor in the Stockton Center, and also one of our panelists is Professor Karen Tinkler, squadron leader from the Royal Air Force, who is a current professor in the Stockton Center. So in the Stockton Center we focus on three different areas of effort or lines of inquiry. The first is the law of the sea and the law of naval warfare. The second is the law of land warfare, the law of armed conflict and international humanitarian law. And the third is the law of airspace, outer space and cyberspace. And so our program today is brought to you by our, our third line of effort or associate directorship focusing now on outer space. And with that, we'll preserve all the time for our panelists, we have two panels and fantastic speakers, and I'll pitch it back to you, John Sherry, thank you. Much, much for this comment, we appreciate it. And like Professor Crask has said we want to leave as much time as possible for our panelists. So, I would like to introduce our first chair or moderator for the day, Professor Jeff Biller Jeff is an assistant professor of cyber law and policy at the Air Force Cyber Works at the United States Air Force Academy and without further ado, Jeff, please take it away. Thank you very much Colonel Sherry. The timing of this presentation is actually excellent because it gives me an opportunity very briefly to advertise our upcoming conference that we have at the US Air Force Academy where we are partnering with the United States Space Command to develop and present space commands first legal conference. So if anybody has attended the strategic command or the cyber command legal conference, it will be very much in those veins. To the COVID environment, it will be an all virtual event. And it starts on the 7th of April and runs through the ninth with keynote speakers, multi member panels on specialized topics and guest speakers throughout the event. The final day participants will have the opportunity to engage in an interactive breakout session concerning specific topics. And for those with the appropriate legal clearance or excuse me security clearance, there will be a classified briefing on the last day of the afternoon. In just a moment. Once we get going I'll post the the link for the conference in the chat and also an email if you have any questions. But now to today's topic. So as outer space becomes increasingly utilized for military purposes and states developed weapons designed for use against space objects, the likelihood that an armed conflict will either extend into outer space or even begin an outer space is becoming an increasing possibility. However, the law that would govern such a conflict is anything but settled and as such we have assembled a very distinguished panel to discuss several aspects of this problem set. We have squadron leader Karen Tinkler who's the associate director for the law of coalition air and space warfare at the Stockton Center. He recently served as an advisor to the UK headquarters air command on operational law issues, and he's a core expert to the international law of military space operations. We also have professor Hitoshi Nassu, who is a professor of international law at the University of Exeter and senior fellow at the Stockton Center for international law. He is known for his expertise on new technologies and the law of armed conflict. Additionally, we have professor Lori blank a clinical professor of law and director of the international humanitarian law clinic at Emory University School of Law, where she works directly with students to provide assistance to international tribunals non governmental organizations and militaries around the world on cutting edge issues of humanitarian law and human rights. She is also a core expert on the woomera manual. So the first sub topic of the day the law is as you all know is generally split between the use add Belem and the use add Belem. However, certain in Bello principles continue to have applicability after the start of a conflict and this is no less true and outer space to what extent use add Belem customary conditions namely proportionality continue to govern targeting decisions during ongoing hostilities. We have squadron leader Karen Tinkler. I turn it over to you. Thanks, Jeff. So good morning everyone or good afternoon depending on where you are in the world. So the first thing I wanted to talk about today is, when we think about targeting law, we often obviously jump to the law of armed conflict. But there is a there is an additional question when states are thinking about target selection, whether that's in outer space or just or just generally, and that is to what extent does the use of Belem continue to apply and give rise to restrictions essentially in targeting. So there's a number of potential ways to look at this one of them is to say that. And when you look at for example how we label the use of elements, you know we often say it's the Arab international law that governs the recourse to war, which obviously suggests that it has a sort of very finite application. So if you look at sort of scholarly views on this, I would say it's fair to surmise that the majority opinion is that the use of Belem continues to have a role throughout a conflict. So if that's the case, then what you're really thinking about is the customer conditions attached to a right of self defense, which is necessity and proportionality, and really focusing on proportionality. So if you're going to think about it, one is to say that it doesn't really go on at all, and that you would look to, for example, military necessity as a general principle. So for example, there's some interesting discussion in the UK High Court decision so they will say the case dealing with the judicial review of weapons supply to to Saudi Arabia from the UK. In the High Court decision there was the suggestion or be able to dictate that targeting laws very complex. And you have to think about military necessity, and then it talks about and also what's the military objective. So the inference there is that there's sort of two requirements when you're thinking about what to target from the distinction perspective. So you have to apply a broader principle of military necessity, and you have to comply with article 52 to its customer equivalent so what's the military objective. So quickly, I think that view is wrong. See the manual takes the right position in my opinion that you that when you're looking at targeting objects. And what is where military necessity resides has been refined and detailed in the test in article 52 to say there is no separate requirement for what's military necessity above and beyond what's military objective. And there have been discussions particularly in the context of car targeting combatants for the military necessity has a greater restriction than just say to space targeting. That's something we don't need to go into here. And so, this question of military necessity have something above what's a military objective and it's also a question of use of bell and does just the conditions of necessity and proportionality to continue to apply. So, so my view is something of the middle ground so I think that the conditions of proportionality under the use of bell and does continue to apply. But when you properly conceive of what that principle demands, then it is not as generous as what as what you might think initially. And this is what when we think about proportionality in the use of bell and what we're talking about that unfortunately it's not there's a lot of disagreement. So there's kind of, there's at least three ways to think about proportionality under the use of bell and probably the two main ones. One is, okay, well, and I've just suffered another attack, and you've used X amount of force to do it. Therefore, my whatever force I use and self defense must be commensurate so roughly equivalent amount of force. And I think I've used wrong for multiple reasons, logically is wrong because you may have to use if someone, for example, were to invade an island or a peninsula, the amount of force that you may need to use to regain that could be far in excess of the amount of force that was used to take it if it was lightly defended. Also, it would suggest that proportionality might be more permissive than what you would need to to act in self defense. If what you need was less than the amount of force that you suffered in the first place. So, when we think about proportionality, what in my opinion what we're talking about is, is my state actions in self defense. Is it justified based on the legitimate aims of self defense. And that gives rise to the question of what are legitimate aims. So one view is that you are limited to acting to hold the ongoing armed attack. And that there's obviously some room in between the other end of the spectrum. This is the view that you basically can carry the war through to essentially annihilating the enemy. And that, you know, that's the kind of book that's if you look at the way you pick one. So in some interest is discussion recently at David Kretzmer, for example, and I am a fan of this opinion. But if you suffer a small scale sort of under attack it trips over that threshold so it's not just the use of force, it's an under attack but it's relatively minor. And I think that the, the, the means of self defense, which again is linked to proportionality to how much, how much force can I use, legitimately to respond to that. That is limited to halting the ongoing small incident. So if the act that you're defending against is sufficiently large, then proportionality allows you to both hold and repel the attack and deal with reasonably expected future attacks, based on the totality of the circumstances. If you combine that to space, why this matters. And if you were to say, for example, the proportionality has to be commensurate, so a calculation of you use X amount of force so you can only use Y response. That could mean that you are limited in terms of targeting ground stations or satellites, and perhaps more importantly, talking about this, you could suggest from my people like Christopher Greenwood, that if you were to bring the fight to a new domain to a new geographical area so here we're thinking about space, then that would be disproportionate response and therefore would be prohibited under the use of space. So that could have caught. And to me that that miss on that kind of view misunderstands what warfare is certain in the 21st century. So we talk about joint operations we talk about multi domain warfare. There's such a great interconnectedness between cyber land space at the maritime domain the air domain to arbitrarily deny the state's ability to target things in different domains. Based on something like proportionality use and Bella to me misunderstands both what the rule requires and warfare itself so with that I'll hand back over to Jeff. Great thank you and before we continue on with the discussion I just wanted to make sure that everybody all the participants or panel or participants in the conference know that we do have the question and answer. Please as we go along throw your questions in there. And we will get to them as we are able to do so. So thank you for that opening squad and leader Tinkler. Really interesting topic. One question. So you addressed the argument that it should not be extended into this new domain, but might there be certain limits on how it can be extended, given the nature of the space domain so I'm thinking, is it possible that you there could be a limit on what you could do in the space domain such as using temporary and reversible effects, as opposed to kinetic means as part of that proportionality analysis. So I think, thanks. So I think what you're driving out there is kind of mitigation of sort of the amount of force he use, which is I guess is an interesting question from from a user benefit the really use of the argument talking about necessity so it's an over option and using force in circumstances to you know the state to defend itself. And then secondly how much force can I use is how much force can I use and is it reasonable based on on the on the actual object that I'm looking to achieve. And as I mentioned, I think it can kind of be a bit of a sliding scale. And there's a heavily reasonable argument that if you can do something to achieve a self defense objective and and use less force than you're doing, then you can argue that's not necessary. However, that depends on what you think necessity is, which to me is just a gateway to have a use force in the first place people take different views on that. I don't know if it should or have got a different opinion. I think I'm with you. I think the question, Jeff poses this is essentially a question under using Bella. So, in terms of those questions about the amount of force you can use to target the particular immediate objective in space. And other alternative methods to be considered. That's an obvious application of proportionality and a duty to exercise physical precautions. So there was obligations on the traditional law of armed conflict would guide and it would control such decisions in my view. Professor blank, did you have anything you'd like to add. I'm going to add the anytime as Karen was saying when we add a new domain into the equation right we start to have questions about the very breath to which the principles we've been thinking about in one, let's call it area for to not use the word domain. What that means and one of the tricky things I think about space is the fact that it is in fact so far away. Right now that may seem quite simplistic, but it's the attenuation from where we envision the conflict to be taking place that sometimes can trip up the conversation in terms of thinking about necessity or proportionality. In other words, it can take a bit of thinking through right and grasping the actual intricate connection between what's happening in space and the military operations that we actually can see on the ground or in the air or at sea in order to then think through necessity and proportionality correctly and so you can see a knee jerk reaction sometimes that, well, taking out that satellite can't have been proportionate right because here's where the conflict is happening right and so you know this is an example like so many other examples when we talk about use adbellum and use in Bella where where the operational context and understanding it matters and not thinking things you know not sort of taking to either theoretical or just abstract a view of what the concepts mean and so it might seem to someone that neutralizing or even destroying a particular space capability seems over the top right, meaning outside the bounds of use adbellum and proportionality in a particular context, but it's not necessarily the case right it very much depends on context. Another challenging piece here, I think that comes up will come up across our conversation is the fact that a lot of space capabilities may not be something that a state wants to share how they know the way a particular capability is impacting the adversaries ability to do something and so we end up with what is not a new challenge for the state that is taking a particular action which is how do you plan and justify your action in a way that would satisfy external observers and yet not cause you to share information you don't feel like sharing. That's obviously a huge issue when it comes to use in fellow as well. So just a couple of thoughts there. The story raises a great point and an example would be, you know, if you need to achieve your self defense objectives, let's let's say take it back, you've been invaded somewhere you need to send your name there. Right. And if satellites have been put up in space for the very purpose of tracking maritime vessels to enable targeting. Right, that is, that's a key aspect of what you might want to counter voice into Navy. You know, just saying, well, hang on into place over here. So it looks like it's fairly small. Why are you targeting this, whether it's, you know, jamming or more kinetic activity. You know, it's too simplistic just to say, hey, like Laurie said, you need to need to restrict your geographic ability to target. I think another interesting question that often comes up in the use addbellum context. When it comes to outer space is the question of anticipatory self defense and aggressive satellite maneuvers. So we've seen certain states developing the capability to use satellites in an aggressive means, sometimes for espionage purposes but potentially also for purposes of affecting the the ability of that satellite to operate, or even cause some sort of kinetic effect against that satellite. I was just wondering if any of our panelists had any thoughts on kind of the development of determining those hostile intent or hostile act questions as it relates to the the use addbellum question of self defense and outer space. So, I mean, one of the things Jeff is going to be important here is at the moment in space there isn't a loosely agreed, you know, what's what's acceptable what's not acceptable so people in this kind of in such relations and space are in at the moment, often to have norms and, you know, non binding ideas of behavior, because this feeds very much into and why, you know, is there an imminent attack coming, because if you if, for example, in 10 years time we would have a less, you know, your your predicted orbit is is going to come close to my satellite, unless that's the case if you come within, let's say something arbitrary five kilometers, 20 kilometers depending on what orbit you're talking about. If you come within that, you know, that's not normal. Therefore, I'm already on high level what's happening. It'll also depend on the on the continue activity so if there's an increase in the amount of satellites that are used as inspectors for whether that's in geo or satellite so you know passively and collecting intelligence for example, then that sort of behavior becomes more more normal and therefore you're going to be less inclined to sort of jump ahead with your analysis of is there an imminent attack a lot. And so there's a long way to go in terms of being able to paint a picture that gives you that that impression it's it's very contextual. There's a lot of factors that go into it. I think Karen you're right. I think it comes down to the factual assessment by the government under the tandem circumstances. And as you also rightly pointed out, there are many sort of different testings and experiments that are taking place in space. But that makes that assessment, particularly challenging. And that also increases the perhaps a risk of misperception and miscalculation among the space power or space favorite nations. That would be a concern but the state would behave in a manner that would be reasonable and that's the circumstances, and as long as they can find ground for justifying the action they would do so. Yes, it comes down to the factual assessment. It's very difficult to actually decide or predict on the what circumstances state would be justified in launching a preemptive or anticipatory self defense action in abstract. Yeah, I think one of the challenges here is we're now talking about every piece of this question has debate and uncertainty involved in it. There's no agreement about what imminent means when it comes to imminent armed attack. Is it literally, you know, the planes, the equivalent of the planes are en route, or is it we know they're about to attack right there's a variety of conceptions or definite definition would be too strong a word there. Interpretations of imminent and now that's hard enough, again in the earthly domain, but now add into space that we don't have a sense of exactly what constitutes a use of force or an armed attack. We have good ideas, but until essentially the rubber meets the road. We don't actually know what states will think and then we can also imagine circumstance where whether it's Jeff what you're talking about, you know, aggressive satellite maneuvering and RPO or maybe it's more of a cyber intrusion, and it's unclear what the extent of that intrusion is, is that going to interfere with a satellite or other space objects is it going to temporarily disable it. Are you unsure and you think maybe it's going to permanently disable it. You don't know. So now how do you consider both whether it's pushing above the threshold to trigger self defense, and when it's imminent right is is a temporary disabling of something that we wouldn't consider to be an armed attack let's imagine we don't consider temporary loss of functionality be armed attack. Is that actually a sign of an imminent permanent loss of functionality. In essence, right, so essentially we're jumbling up the puzzle pieces completely, but I think that's one of the challenges. One of the ways we solve these things ordinarily is state practice and the way both states act and other states respond. We don't have a lot of state practice yet in this respect it's unclear what will come. There's not a lot of state practice in this regard given what can be the extremely widespread consequences of these types of actions, but in the absence of it. There's a lot of unpredictability for states in terms of how will my, you know, putative adversary respond to my conduct. What I'm doing is staying within a certain set of boundaries, but maybe they're going to consider it a use of force or even a name in an armed attack. I better be able to predict how they're going to view what I'm doing, right, and vice versa. And that's, that's certainly a tricky piece here. Sorry about that. Let's muted. All right, let's move on to our second topic now. As Richard Baxter has stated, the first line of defense against the use in Bello is to deny that it applies at all. And this has been a big debate in the area of space law is the applicability of the use in Bello and here to introduce that topic is Professor Nasi. Thank you, Jeff. So I think for many of us. Attending this workshop or seminar. It'll be obvious that law burden conflict for international human Italian law, if you want to call it would apply to space operations in situations of our conflict. That's an obvious statement and proposition. There are certain questions that may be posed. So I thought I should perhaps explain two reasons why this fundamental proposition and maybe questions by some people. The first reason is more of a political reason. There are certain aspects that are reluctant to accept the view that the armed conflict could be engaged in space. Talking about the application of global armed conflict in space would signal the acceptance of the possibility that space domain can be exploited for a military engagement and the engagement with engagement with armed conflict. There are some reluctance for political reasons because of it. And also there's some sort of belief or aspirational sort of statement, as you can find in the piano to the outer space treaty that the space activities should be reserved for peaceful purposes. So basically there's a question and a big debate about what we actually mean by peaceful in this context. But certainly that sort of aspirational statement is also adding some flavor to this view, which is politically motivated. The other reason is perhaps some a little bit more important, and it's about the vehicle technicality. It's not that it's simple to say that global armed conflict applies in space. We have to look at the actual specific rules to see which rules of international law apply in space. And there are certain rules, traditional rules of global armed conflict, which are considered as domain specific. The development of those rules were taking place in a specific context, for example, in the maritime context or in the land context. So if you look at the many of the Hague conventions of 1907, and many of them are dedicated to certain domains of hostilities. So those rules, domain specific rules may not find application, automatic application with the various space activities or conduct of hostilities taking place in space. So we have to look at which rules of international human Italian law or the law of armed conflict actually do have application when it comes to the enlightenment with the armed conflict in space. And also there is a technical question about additional protocol one. Well, the United States doesn't have to worry about this because you're not party to it. As for those other states that are party to additional protocol one, then it is a sort of a qualifying clause some article 49 paragraph three, which sort of indicates the possibility that this bigger regime which is basically targeting rules may not be considered as having an in other domains, because the law of the law of armed conflict that applies in the sea and air explicitly excluded from the application of this particular legal regime. It's a treaty interpretation question. There are different views about it. And maybe would say that it's only designed to preclude this legal regime, making some changes to the existing rules of law of armed conflict that have applied in the in the maritime or air context. It wasn't it wasn't a design to exclude it of the application in other domains like space or cyber. But nonetheless, the there is some open question about interpretation of this particular clause. So it comes down to the actual interpretation of individual treaty and treaty obligations. And it says each one of those in deciding which rules of love on conflict would have an application when it comes to the conduct of hostilities in space. So one question I have I think on on that last point that you made is people often raised the lotus principle right in this regard that because there has not been any specific treaty or customary law to suggest the extension of the law of armed conflict or the use in Bello into outer space that under the lotus principle, then it has not done so. So I know that there's been a number of retorts to that position. Do you have kind of a summary of those responses or one of your own. Well, I don't have any summary of responses when I'm a huge fan of Lotus principle, I can say, but one difficulty though, in the space domain is that it's not completely void of legal regime. So we, I think in the next session, the experts would talk about application of space law. And there are several treaties that are concluded specifically dealing with space activities. So, even in situations of armed conflict, some of those obligations may continue to bind states, even those engaging in the conduct of hostilities. Yes, I'm a huge fan of Lotus principle, but we have to acknowledge that they are actually a legal regime that is put in place, specifically for regulating activities in outer space, and there is a need to reconcile competing legal obligations that may arise under two different bigger regimes. And I'll open this up to any of the panelists but one of the arguments has been that the outer space tree explicitly states that international law applies and outer space. Does this incorporate the use in Bello into that statement and overcome maybe some of those lotus principle objections. So, I mean, it helps article three certainly helps. I think it's actually wrong to pin your pin your hat on article three I think you need to because, although that is one way to get there. Because law of armed conflict is is pose 1949 is supposed to be an objective factual assessment it's not supposed to be when, you know, for example when states declare war. So factually, if you have what amounts to an armed conflict, then the law of conflict applies I don't think you need to to get there by a space or though obviously it's helpful even if it doesn't expressly state or a conflict or a phone to the UN Charter, you know, we've seen a nice jager's prudence they talk about how intertwined use of Bellamy's in Bello is it would be incongruent to suggest that no act doesn't also apply via article three, but I think you need to use it to get there. And that's totally talked about the kind of for me the core issue is not so much does the whole body of law apply is what parts of law apply. And I think it's too simplistic to say all the hey regulations talk about landlord for their pool, they're irrelevant, or one that customary and to at least one of the provisions was deliberately worded to apply to apply them to air warfare. If you look at the wording it would actually apply to space warfare it's so broadly worded. So it's more a case of what parts do I need to apply not does know I could apply at all. And another, I guess, yeah another piece of this is a lot of when we, what we talk about in terms of the application of low act to military operations in space is intimately connected to operations on the ground, and to suggest that low act is trying to an armed conflict taking place. Again, in the earthly space so including air land see, and that you have an operation that is going to have an impact in those those areas, but some part of it takes place in space. I think it is fundamentally at odds with our basic notion of what low act is all about to say that, oh, well if you're able to do this through space. Well we're going to close our eyes while you're doing that the law is not going to worry about as soon as you leave the atmosphere until the time you come back in. So, turns off, I mean that's just absolutely fundamentally at odds with how we would expect low act to apply. And I would say that about, you know, launching a munition that might transit over, you know, some other portion, some other state or something like that so that that's one piece, and it's obviously not then from there, a big step to get to. Well, if that's the case then how could we say that if you're engaging in a conflict, entirely in outer space. That again, that's a tool for states to evade obligations. So it partly depends on your perspective and what you think, where you start in thinking about low act. I think, given the consequences for multiple civilian populations, let alone the those who are actually engaged in the fighting to suggest that somehow it's a, it's a free zone is highly problematic. And, you know, let's not forget, you know, customary law as well, which, again, we think about the particular treaty provisions that Hitoshi and Karen have already mentioned. It is true that there, there is specific treaty language in AP one, but the targeting rules in AP one are generally well accepted as customary law. It's a stretch to, to argue, there is a conflict going on. Oh, but look, I get to go over here and not follow any rules. Right, we've seen that story in the context of terrorism in the context of other things over the last 20 years, and it never goes well. Very good point. And, but it does kind of raise. So, in addition to the general applicability of the use in Bello. We still have our other space treaties and one of the questions that is often raised is what's the interplay between the outer space treaty is another treaty specifically about space. And in the use in Bello, should we enter into some sort of armed conflict where military is operating in space are parties to a conflict. So does anybody have any thoughts on that that general question of, is the use in Bello going to be the lex specialis for space to the complete exclusion of the outer space treaty. There are provisions of the outer space treaties and other treaties that will continue to apply. And how we should conduct the analysis there. So that's the topic, and I often talk about over this online remote drinking party every second week or so I think we are having. There is no sort of a straightforward answer to that you have to, as I said, you have to look at each individual rules and see how it works. For example, the treaty obligations that are that the state accepts as a sort of a general objective obligation towards, you know, number of other states, universally, then obviously those obligations will continue to apply. For example, the freedom of use of space, or the obligations to exercise sort of a national responsibility for space activities. Those obligations the states owed towards all the other states not just with respect to the state you are engaging with in hostilities with. So those obligations some obviously continue to apply. On the other hand, if you pick the obligations that are more of a reciprocal in nature. For example, the obligation to consult. For example, if you interfere or if you expect that they'll be harmful interference with the space, space activities of another state, or they paying a compensation for the damage that has that is caused by your own space activities. So those obligations was in situations around the conflict, you intend to cause problems you intend to cause interference, you intend to cause damage that's what you are doing in the situations around conflict so it'll be bizarre and obviously. I just want to tell you that those obligations would also continue to apply in situations around conflict. So those obligations would cease to operate, even though the actual treated so for may still remain intact, but it's operation assist operate with respect to the contact hostilities and to that extent to the extent that it's not compatible with the conduct hostilities. Here and can join us because join me join me and adding more comments because we talk a lot about this of a drink or remote drinking. Let me throw out a couple of examples because I think there actually are some really interesting questions that come up in specific situations that that can help advance the, the, you know, thinking process that Hitoshi presented to us which is sort of trying to come up with a way a methodology to think through some of these interactions. So for example, imagine that in the course of a of a conflict. There's an arm conflict going on between two states, and the space object of one of those states returns to earth, involuntarily by any variety of, for any variety of causes, and it happens to return to earth on the territory of the state. So under international space law, the rescue and return agreement, there is an obligation that when a space object arrives unexpectedly, you know, on your territory or in your waters or in an area where you're able to assist with that, you're obligated to assist with the recovery and return of that space up. Okay, that's, that's one one analytical piece. Well in arm conflict, if you gain possession of part of the adversaries military equipment arsenal, etc. That's yours. Right. War booty, any number of ways to think about that. So which is it, right in the middle of an arm conflict, a military satellite or other space object appears on your territory involuntarily in involuntarily lead space. It seems to me that it is inconceivable that the adversary would say oh yes I must abide by the rescue and return agreement and give you back your military satellite in the middle of our arm conflict. It's, it's not going to happen. The low act rule is going to provide the applicable guidance there. Interestingly, what would happen at the end, right, would all of a sudden when the conflict is over, space law would be like, Okay, now I apply, let's see what happens right Yes. That's one example another interesting one is military astronauts, right international space loss as the astronauts are envoys of mankind. And they have a variety of protections obligations for states how to protect them and so on. There's a conflict going on and that astronaut is a member of the uniform military of a state involved in that conflict. Are they a combatant. Are they a lawful target at all times as a result. It seems, there's certainly no provision in low act to say, Oh, a military astronaut. That's the one person in the regular armed forces who is not a combatant. We didn't, we didn't have that issue when the treaties were being drafted. But that's been, you know that that has produced some really interesting interesting discussions as well. In particularly in the context of is that person a lawful target at all times, or does it depend on what they're doing. Are they doing scientific research. In which case maybe we consider them certainly entitled to POW status but maybe, maybe we're not comfortable with the targeting concept. And then what does that mean for low act. But if we say lawful target at all times, what does that mean for envoys of mankind, right that one's a little harder to parse out than the rescue and return of the object so I just, I throw those out as, you know just examples. That can help, or at least identify ways we need to keep thinking about this. Yeah, I'm sorry, I just had sort of three things and say, hopefully no one has to advise us for real but if you do the kind of for me there's three big things to think about one is, does the actual space or provision is it is applicable now, because you know he mentioned about it's potentially harmful interference and the obligation to consult. It says appropriate. Now, if I was to say the splitter and I would say it's inappropriate for me to to to tip my hat or targeting in space therefore I would argue that provision is in applicable as a matter of law. The second thing is Laurie referred to is conflicting norms, you know these these are opposite so the rescue return agreement talks about personal space for having to be returned to their to the to the launching authority basically if they if they haven't been in your territory, low act would suggest that you can enter, you can basically intern them, and then you get into ready granular discussion well one is an obligation ones are right does that mean it's a conflict, we won't get into that. But then the third one is, and you know the liability conventions are a good example of this, these two norms are not in conflict, but one of them seems to be inconsistent with a state of obligerancy and so there's sort of three different things to think about. Thank you. Yeah, it's, it's, I mean, these are all fantastic points. And I'll just add that I do understand the reluctance particular uncertain states to extend the use and bellow into space, because there's no doubt that it does provide a positive authority to use violence. And the, the, the understanding of the space domain, and the use of violence in the space domain there there are significant concerns. And I do know that a number of states have been very reluctant to expressly extend that to what extent that affects the the opinion your us and customary law as to questions about extension. You know, very much an open question, but, but I think it's one of those topics that the deeper you dive into it the more interesting it gets, even if you might on the surface think that it's a relatively simple question. We did have one question that I think really segues nicely and by the way if we don't get to your questions during that that kind of subtopic we will bring them up at the end so please keep adding those questions to the q amp a. But one of the questions related to a bleak applicability of low act in outer space, given that most of low act is, or at least much of low act is focused on the prevention of human suffering. And at least as of now this could obviously change but as of now there's fairly limited human presence in outer space and so how that might affect the extension. So let's segue into our next topic which is really about the application of targeting law to outer space so once applicability has been determined. How targeting laws or the rest of use in Bella might actually apply in space presents many additional challenges and questions, particularly as it relates to the protection of civilians. We have provided an opening into that topic we have Professor blank. Great thanks. Yeah, the question actually is a is a is a perfect tip off for a couple of points that I want to raise to introduce this issue. As the question notes. Protection of civilians is of course a core purpose of the law of arm conflict. So civilians has also been a dominant theme, operationally in military operations over the past few decades and this is 100% appropriate obviously much of that discussion, both in terms of how the law applies but also in terms of how do you carry out the laws obligations how do you carry out the laws goals. As a practical matter, has focused over the last, certainly a few decades on urban warfare on densely populated areas and similar situations, obviously those scenarios poses enormous risk for civilians. You know, I think as the question asked when we start thinking about military operations in outer space, it feels at first like who we've got a little bit of a respite, right from the high intensity civilian protection issues that we have been so deeply immersed in because space is really, really, really far away from any areas with a lot of civilians. However, space presents a number of really interesting issues or complications in terms of applying targeting laws with respect to this specific goal of protecting civilians because even though it's really far away. It's like, it's like right here right you have a phone you have GPS guess what spaces in your pocket basically all the time. So, so it's an interesting juxtaposition of intimate involvement in civilian infrastructure and life and yet, you know, incredibly far away. Anytime we think about the application of targeting law to any situation, it inherently requires a deep understanding of civilian infrastructure civilian population patterns, the effects of any actions on those. So now we have to be able to take that understanding our ideas of a pattern of life assessment that we're so accustomed to now. And begin to take that, and I guess zoom out right into the outer space scenario. So space affects a lot of how we think about in terms of applying those core principles of distinction proportionality and precautions. So for example, what is a civilian object. Right. So what's a military objective. So many space objects have military uses that we actually need to think in a very discerning matter to ensure protection for objects that don't meet the definition of a military objective. We also need to recognize that states may feel that they have a fair amount of leeway in asserting characterizations that objects are military objectives given either military use or potential military use because almost anything in space can have a military use and some time with a couple of colleagues on the rumor manual once trying to come up with an example for the purpose of illustrating a particular issue. We were trying to come up with an example of an object in space that had no military use. And the best we could come up with was the Tesla that Elon Musk sent out into space, although theoretically if you could control it once it's out there. You can just grab it into something right it's almost impossible to come up with something where you can say absolutely no military use. And so what does it mean to have these overlapping civilian and military uses. When you have multiple payloads on one satellite what does that mean for the definition of military objective. As we get to this question of severability in terms of understanding. What is the military objective and sort of wears the line when it's intimately connected to other things we think about that sometimes with buildings. Is it the room, the bad guy is in, is it the entire building is it the wing of the building. Right we think about that well that's becomes significantly more complicated when you have a satellite on a, you know, on a payload on a satellite bus and there's several other payloads on there and they belong to different countries. And those countries are not involved in the conflict etc etc right we can make that as complicated as we want. That's one issue. Another one that I think is equally interesting and challenging is what does civilian harm mean. Right, we are pretty quick. When we think about proportionality and the use in bellow to say oh what's the civilian side of the equation, you know civilian death injury or destruction of civilian property. That's that sort of you know the automatic. There's a lot of questions about how far that goes in second and third order effects on land, and so forth. But it's then greatly magnified when we think about space because space objects provide services to civilians in many, if not all countries around the world. That means that actions taken against that space object can potentially cause harm to those civilians in that broad extended area. So, for me it raises a couple of questions. When we talk about protection of civilians, which civilians do we mean, right, which, what is the civilian population, is it earth. Right, I mean is it we normally in when we're talking about armed conflict, we're thinking about civilians in the areas of the conflict, and sometimes we hear people talk about, you know, our civilians their civilians, of course the law doesn't do that. But when we think about the, the impact of actions taken against space objects whether it's GPS whether it's a weather satellite whether it's a satellite that provides emergency communications for search and rescue for disaster relief, etc. Maybe with space we should be thinking a little bit about some kind of concentric circles or other ways to think about different layers of civilian harm so that we can grasp how far that goes. This also gets us thinking about what are the reverberating effects that should be included when we think about the type of harm. We normally think about foreseeability in this context. But how might that change as technology continues to develop space debris is an obvious one that pretty much gets you tangled up in knots, every time, because if you destroy a space object and you produce space debris. That's going to be there forever. Are you supposed to foresee the potential harm that some of that space degree debris could cause 40 years down the road. You know, my brain can't process that much. What about if you are attacking a satellite hosting a military sat com node, and that's going to destroy also a civilian transponder. And it's going to disrupt sat phone service in emergency and disaster areas. How do you understand the extent of that harm and then assess it for purposes of proportionality. So there's some really interesting questions who do you warn. Right, what does it mean to affect the civilian population. So as to trigger the obligation to provide an effective advance warning. These are, these are things that are not hard concepts when we think about, we know what the rule is. But we've got to think about lots and lots of examples in outer space to start to understand where we can apply the rule in a meaningful way and where we've got to start thinking about, huh, what does that mean. So, I leave it there I think there's interesting questions about what is civilian property. The consequences of, you know, launching state and, and any number of different states that might be involved in space activities, but I'll leave it there in terms of some interesting questions with respect to civilian. Yeah, we decided to focus on easy and very solvable problems here in this panel. And, and, and, and Professor blank your comments just got me thinking about Starlink and other satellite based internet services that are proposed to bring the internet to over half the world's population. If over half the world's population soul connection to to the internet and those services are through space objects which as you mentioned are almost certainly going to be utilized in one means or another by militaries. At some point, is it simply impossible to make that calculation. Is it, is it just so overwhelming. You know, like you mentioned with the space debris problem. It's hard for the mind to even make that concept. When you think about space debris that could be up there for thousands of years. How do you even contemplate proportionality in that context are other panelists any any thoughts on this comments because certainly they're very thought provoking. I mean, Laurie's raised a lot of very profound in the questions for low and, and like she said, a lot of these things that we know when you're doing targeting in a chaos or, you know, wherever else you're sort of advising on these aren't things you have to think about. You know, Major Zell know who's in the next panel gave a presentation yesterday that I'm sort of working my way through. One of the fundamental questions is this issue for stability and whether, you know, and in multiple rules of law, I mean the most obvious being proportionality, you know, so what is expected civilian harm. And you're in the question of what does that encompass in terms of who civilians know how far we're talking about, and what is expected. And if we talk about foreseeability, you know, a lot of it is can be phrasing, you know, based on how you phrase the question is it foreseeable that if you produce space debris that it will hit a satellite. Yes. Is it foreseeable that you're in a course of it in harm as a result. Well, you know, there has to be a lot of sophisticated mapping that goes into that. And, and as we know, you know, there's the disagreement amongst states and scholars on on to what extent is foreseeability to be expected, you know, the duty manual focuses more on direct time. And your as it's worded currently doesn't doesn't seem to be quite as limiting, but then, you know, like a lot of things foreseeability can be in the eye of the holder. I would add to comment to that. I absolutely agree with everything that has been said about Kieran and Lori. The two sort of interesting changes that we might expect to see is, first, the use of artificial intelligence. So at the moment, foreseeability of course is a huge challenge. And I have to think about what extent the use of artificial intelligence might actually facilitate the military is in government in calculating the actual amount of effect or type of the harm that may be caused by a single operation. Development we might see is the proliferation of satellites me providing great amount of resilient resilience to harm that may be caused to those satellites. Yes, there may be some impact. But if there are other redundant systems that are put in place, then perhaps you might expect there will be any harm that be caused to civilians. So perhaps in time, perhaps not right now, but in time, the satellites, particularly communication satellites and navigational ones may become more like undersea cables. Yes, technically speaking, they can be extremely target when they satisfy those conditions and requirements as already described. But the actual effect of it may become not so significant from military perspective. So those are the two additional technological developments we might see, which also change the way which we might think about how relevant rules of targeting might apply to operations against satellites. I want to throw out if I can respond to something that Karen said, you talked about when you're in the kayak and you're not normally thinking about a lot of these things this far out. These questions, I think raise another set of questions, which is, who does the commander need on staff, in essence, to be able to provide some of this information as we continue to move into a place where the interaction and the sort of intimate nature of space being involved or affected by almost anything that might happen in conflict right at some point. What kind of information does the commander need to have access to in order to be able to properly undertake some of these assessments so we see some of these discussions with respect to urban warfare. So what kind of expertise and advice needs to be provided about the nature of the civilian infrastructure. Do you need to have someone who understands how the power system works or the water system works or how XYZ action might have these follow on effects. That's also highly relevant in the with respect to space. We need to have the capability to understand not only what our action will do with respect to the adversaries capabilities and the civilians in our conception of what the conflict zone is not a formal term conflict zone obviously. But do we need to now understand like the network of satellites and what they do and be able to understand that if you take out. Starlink. You're thinking about your conflict here, but there's going to be you know hundreds of millions of civilians in a totally different place that your brain's not thinking about that are now unable to. Not and I'm not worried about them being able to get on Netflix right that's not in the civilian harm concept of proportionality. But what if it takes out airline navigation. That's pretty significant for civilian harm. Again emergency services things like that so that's another another piece is not just what you need to know but but how do you end up knowing it right who what sort of expertise needs now to be incorporated into the military staff. Okay, we've got about 15 minutes left on this panel and I want to make sure we get to some of our audience questions. The first one, I'm going to take because it kind of directly goes along with what you're just mentioning, Professor blank. And that's specifically about GPS satellites and I think they offer a good use case. Obviously, you know the the first Iraq war was often considered the first space war because of how much space assets were utilized, and perhaps no weapon was more associated with that then GPS guided munitions. So obviously GPS in the military, it was developed by the military has a very close association, but yet it's become as much as any other space asset something that's been utilized by the civilian world. And so I wonder if anybody just had thoughts on specifically GPS satellites, given how reliant both the civilian sector and the military sector are on this capability. I think that here and maybe pop some better suited to answer this question, but I, as I understand it, the recent number of GPS satellites that are currently available, even if you destroy one satellite it doesn't really affect the function operation of GPS. I think there's maybe some degradation in terms of accuracy, but certainly the GPS system itself and won't be that affected I think that's how I'm not an expert in space technology so here may be able to inform you of that more pops more accurately. So I mean there's a number of points there one is that you have to have some serious capability to take out GPS in terms of you know the number of satellites that are used and probably more recently you would degrade its degrade its functionality. And I think the most realistic scenario where deny GPS would occur would be you stop the downlink of GPS service, maybe over a large civilian, you know, metropolitan area that you're not necessarily control of yet but you're looking to take. And you think that would give you, you know, quite a big advantage. And the question there is, well clearly, you know, even if you're assuming that that, so do you get into complicated questions that is that attack or not. And therefore triggering targeting, but if you think that an attack is for effect focus, and you really expect there to be sort of you know death resulting from it then you know would be attacking the rest of the time signal would kick in. The problem there is, you know, and I've read into this. It's difficult to predict what the result would be. So, you know, you have an economic effects you have ambulance services relying in lots of states on GPS services you need to better position where where they need to grab someone and take them to hospital and what effect would that have. And we're getting back into that point that we were talking about earlier, you know, how do you quantify the risks there and, you know, how do you map all that out and anticipate what the harm would be. But I think, and also, often it's assumed that you take out GPS for what that's, you know, that's it. A lot of devices can switch to a different service whether that's Galileo whether that's GLONASS etc. It's a lot more complicated than just like a GPS is down. That's it. Okay. Well, just one. I want to add in one piece here but as a starting point I think there's been an automatic assumption that that we're past the military objective question right we're discussing this in the context with the GPS satellite of proportionality. I want to point that out that, you know, it seems that, and I don't dispute that a GPS satellite that the adversary is using to, in some way for its military operations, yes, is a military objective, but we have to understand the civilian uses. But, you know, I want to I want to throw out one other thing. We haven't talked at all about passive precautions here and what obligations a state needs to take to protect its own population in the course and what that might mean. And I raised that here with respect to this conversation about GPS satellites because I've heard some, you know, interesting by one of my colleagues an interesting idea that there should be some satellites that should be protected in the manner that we think about protecting objects that produce hazardous forces things like that. In essence, when it enables the adversary to abide by its distinction and proportionality and precautions obligations, if you take that out you're essentially making it impossible for the adversary, well not impossible, a lot harder for the adversary to uphold its obligations. So there's some, you know, I thought that was an interesting point you have to spool that went out a lot more. But I just wanted to throw the idea of passive precautions into the conversation because we hadn't raised that yet and it's highly relevant in terms of thinking about protection of civilians and what do states need to do to protect their own space assets as a way of if not necessarily fulfilling the black letter law of article 58 be of additional protocol one for those who article 58 for those who are parties to it, but even any customary law notions. You know, we can't. I think it's a, it's not reasonable to say you just, you know, don't worry about them if the adversary takes them out well that's just too bad for your civilian population that can't quite be the answer but it's hard to know what it would mean to take those precautions. And also we're passive precautions the question, you know, when does that obligation kick in, because if you've structured your, you know, your space infrastructure prior to a conflict, so that you know, complicate delivery, maybe deliberately to complicate the targeting picture, whether that's to disaggregate the number of satellites you've got so you know rather than have an exquisite capability in a small number, you put up in 100 satellites that do the same job, or you know you've deliberately put your hosted payload on another state satellites or whatever else, you know, is at what point are you thinking about article 58 and also realistically the way article 58 has been dealt with in the past, it seems to be a fairly weak obligation. And that doesn't mean it should be but state practice doesn't give it a lot of teeth. Okay, we have a question from Chris O'Meara he says for targeting, I argue that the continuation of use add bell and necessity. Excuse me to arm conflict can potentially help with the civil, the civilian military can undermine outer space use add bell and necessity requires defensive force to have a defensive purpose. It can be understood in my opinion that the use of defensive force must have some connection with the ongoing or anticipating armed attack for it to be necessary. This adds a use add bell and requirement that overlays and applies in addition to the IHL targeting requirements. That's there. I may be understanding the question or the theory incorrectly. But if the idea is that every every action taken in the course of an armed conflict, you have to stop and think, is this necessary and self defense. I don't think that's, that's not how I understand the law, because when you operate an armed conflict you don't only act defensively. So, to suggest that all your uses of force have to be defensive, I think is operationally illogical. If instead, you're, you're, you're thinking at a much higher altitude about. Let's think about a particular, you know, about the campaign as a whole is it in line with that initial core necessity of responding to repelling deterring and armed attack. And I just have that as a, a seasoning in essence on the campaign right so that that somehow however we know when we've stepped beyond that necessity, we've got to now be concerned. I would caution against applying a rule of necessity to justify specific actions, attacks, and so on taken in the course of armed conflict. I mean, because you end up in situations where you say, well, you know, can I move my forces from point A to point B, because I might, you know, create some harm, right. And I have to think about constant care, etc. But do I also have to think about whether it's necessary in or in this immediate movement in self defense. That's a level of granularity that I don't think the use that vellum addresses and I don't think I think it, it has a corrosive influence on the use in bellow. And maybe is conflating military necessity with usad vellum necessity which are not the same thing but like I said I might have misunderstood the, the theory of the question, but those are my. Okay, kind of a related question we have relates back to the usad vellum argument as well and question whether it's a bit circular. When we ask about future state practice in order to determine what we mean by a use of force or armed attack. Are we really just talking about reverse engineering what constitutes use of force or armed attack from what generates a self defense response. It seems we are heading into a tautological law, armed attacks justify self defense and we define armed attacks by what produces self defense responses. What do you and or somebody else have any thoughts on that question. Well, that's that was spring from what was discussed earlier that obviously was very inarticulate and express myself very well. So, I don't think I'm not entirely sure this is getting up but if it's about the the norms informing what's in an attack and that sort of being future looking. That was more about assessing what the environment is going to look like and that's going to feed into your factual analysis which you obviously have to do when you're applying the law in any context. I don't see that being a tautology there. Okay, there's a question. Yeah, sorry, I think this was responding to my inarticulateness. Originally, when I was talking about state practice and so let me say that state practice in this respect includes states who comment, condemn a firm, etc the actions of either the state that acted thinks it's the victim, etc. So we're not only talking about state practice with respect to the two in the arena, but looking at what do other states say before the UN, how does the UN Security Council respond. So what do states say in their general comments on that, and that's a very productive way to understand sort of the evolution of custom in this area. So, yeah, so I apologize if my earlier comments about developing the lack of state practice and how it might develop was confusing in that regard. So clarification. See, there's a question that has to relate to cultural heritage sites very interesting it says given section nine of the Artemis Accords that speaks to the protection preservation of cultural cultural heritage sites and objects beyond earth. So would you say that the 10th of the 1954 Hague convention and its protocols for the protection of sites and objects of cultural heritage during an armed conflict could have some extraterrestrial applicability in the military militarization of outer space. So in theory that there's a potential, you know, it's going to be difficult to get the agreed symbol of that for a start. But, but there is the possibility I think if you, you know, when we talk about conflict in space I think realistically we're mainly talking about the void between celestial bodies. There are obviously recent announcements that have been suggestions of various states are going to put up some kind of permanent or semi permanent, you know, kind of habitation up there for whatever reason. So that's a potential thing in the future. I don't think it's completely off the table. Okay, that was what the Hague convention was driving it and then you get back into the discussion that she was dealing with earlier about which treaties apply and all their customer equivalents based on, you know, normal rules of interpretation. Okay. Thank you very much. I apologize if we didn't get to everybody's questions in the comments but I want to make sure that I am not going over time. Thankfully, Professor cherry will invite me back someday and if I violate the time procedures I'm pretty sure I won't. So at this point I'm going to thank our panelists, a squadron leader Tinkler professor now soon for a blank for a fascinating discussion I very much enjoyed it. And I hope to have similar conversations in the future. Thank you very much and back over to you Colonel cherry. Thanks so much Jeff and I can assure you that you are one of Stockton Center's favorite sons and we will always invite you back. So I echo Jeff's comments thank you to our panelists. And we're going to go into 10 minute break. Before I do that I just want to remind you to use the Q&A. So, you can certainly pose them in a different way in the second session if they apply and make sure you also give a thumbs up to questions that you find particularly interesting thought provoking that will help our moderator. Professor Henshel and Heineken the next session selected questions to choose. We post the Stockton Center website which has a place where you can sign up for our email alerts. I also post the event page because this entire event today is being recorded and we posted sometime next week on the naval war college YouTube page. And on the event page for this event today. The video will be posted where you can just directly link to the YouTube page and that will be sometime next week. So, take a minute to refresh your coffee your tea, check to see if the ever given the tanker that's in the Suez Canal has been freed. I assume not. But never know it could happen today so thank you very much we will see you at 1040 Eastern time in 10 minutes. Hello everyone, welcome back. My name is Alfonso van Heusten and I serve as the assistant secretary general of the International Society for military law and the law of war. On behalf of the society I would like to extend our gratitude to the Stockton Center, but this wonderful opportunity to work together, and special thanks also to the society's US group chaired by the dance kind of John cherry for their invaluable support. Before we start today's second panel. I seize the opportunity to say a quick word about the International Society for military law and law for those of you who are not familiar with the organization. This society was founded in 1956 as an international non political and non profit making association of practitioners and academics interested or active in the field of the law found conflict military law and related domains. So we did a study and we disseminate these branches of the law by organizing conferences seminars and other events such as today's online panels. Furthermore, we publish a multi lingual peer reviewed journal known as the military law and the law of war review, but also a series called the rocker and other publications, such as the live manual on the international law. These operations. There's much more to discover such as the society's 22 national groups in sports specialized committees documentation center etc but in the interest of time. I simply refer to the society's website for that. The members are the most important resource of the society. If you wish to apply for membership of the society, you can do so by applying for membership of the national group of your country, if there is one, or you can also choose to fill out the membership application for available on the society's website. In order to join the society without joining a national group. It is my privilege to introduce the moderator of today's second panel, Professor will financial on Heineck from the University of Vienna in Frankfurt order for his impressive bio I again refer to the society's website. He is currently also the president of our society. Nevertheless in this particular context I wish to repeat that in the academic years 2003 2004 and 2012 2013. He was the Charles H Stockton Professor of international law at the US naval war college. The panel will discuss space law limits to military presence and activities in outer space. Mr President, the wolf. The floor is yours. Thank you so much. Good morning, ladies and gentlemen. And in particular, good morning or good afternoon to the panelists who have all shown a high degree of flexibility because we had to shift the two panels thank you for this. This panel will be organized in a slightly different manner than the first. It will be done the old European way. In other words, the panelists will give their presentations one after the other. And then we will have I hope sufficient time for questions from the audience. We will start the panel with Mrs Alina Morozova, who is the executive director of inter Sputnik international organization of space communications. As you may know an inter governmental satellite telecommunication audience with the headquarters in Moscow, Russia. There she is responsible for relations with the organizations member countries and the United Nations system, including, of course, the committee on the peaceful uses of outer space. Mrs Morozova will address legally binding limitations on military activities in outer space. In particular the well known treaties including the outer space treaty and the obligations of states with regard to their military activities in outer space. And she may also have the time to address some of Russia's initiatives in the field. The next panelist is Mrs Shane is a boy fear with the executive secretary of the European Center for space law within the European Space Agency. Before joining that center. She worked at the Institute of space law and telecommunications as a research and project coordinator. We'll address the question of non legally binding mechanisms and instruments in the context of military activities in outer space by giving an overview of the various non binding proposals and initiatives that are to provide a pragmatic solution to the gaps that may exist in legally binding instruments. And finally and certainly last but not least, there will be major Matthew Zellner, who is the chief of space operations and international law at the combined force space component command in Vandenberg Air Force Base California. In this role he advises a dual headed command with 16,000 personnel and 200 units at 58 worldwide locations providing space effects to terrestrial operations. Major Zellner will focus on the legal implications of labeled such as war fighting domain and the gray areas of the law we see on the operational level. And without further ado, Mrs Morozova, you have the floor. Thank you. Thank you very much for this kind introduction. Dear colleagues and friends. Good morning. Good afternoon and good evening to you, whichever place and time zone you are in now. First of all, I would like to warmly thank the organizers of this online conference for launching such a timeline topical discussion. It is an honor for me to take part in it. And within the framework of this panel, I would like to describe some limits which are imposed by international space law on military presence and activities in outer space. And let me start with reminding you that space law is generally associated with five United Nations treaties. The outer space treaty of 1967, which is the first and the most comprehensive treaty and has more than 100 states parties. This treaty provides a general framework for the regulation of space activities. It is the foundation for the other for UN space treaties which were adopted consequently. They are the Rescue and Return Agreement, the Liability Convention, the Registration Convention and the Moon Agreement. And these five UN space treaties, along with international law in general, govern all aspects of space activities. What is important irrespective of their nature, while of course military space activities have always been in the focus of the interests of all states. From the very beginning of space era, when the first artificial satellite was launched, states realized that outer space had just acquired a new practical value. It was indeed the ultimate height which ever was reached by humans. And this height could clearly offer significant strategic benefits to the first covers. More so at that time, both the Soviet Union and the United States successfully demonstrated their nuclear capabilities and that also influenced the formation of space law. That is why the UN General Assembly immediately adopted a resolution which urged states to ensure that sending objects through space must be exclusively for peaceful purposes. And later, this concept of the peaceful uses of space was reflected in a great number of resolutions, other UN documents and even state practice, and is now considered fundamental in space law. But the question is, and Professor Nestul has mentioned this question during the previous panel, what this concept practically means. It is generally accepted that peaceful does not mean non-military. More so, of course, the military use of space was of the top priority of those space-faring nations which started to explore outer space. It is generally accepted that peaceful means non-aggressive. And such interpretation shares the fundamental principle of the UN Charter which bends the threat or use of force but allows force for self-defense and if it is sanctioned by the Security Council. So we can assume that any military space operation is lawful as long as it does not constitute a prohibited threat or use of force and does not otherwise violate international law including space law. Regarding space law, legally binding rules which impose specific limitations on military space activities are provided in two out of five UN space treaties. They are the Ultra Space Treaty and the Moon Agreement. The Ultra Space Treaty establishes a legal regime for both outer space and celestial bodies which are treated somehow differently while the Moon Agreement only covers celestial bodies. And the title of this agreement should not be confusing. It does really address all celestial bodies within the Solar System but not only the Moon. As regards outer space, from the perspective of the Ultra Space Treaty, there is a ban on nuclear weapons or any other weapons of mass destruction. States are prohibited from placing in orbit around the Earth any objects which carry nuclear weapons or any other kinds of weapons of mass destruction. They are also prohibited from installing such weapons on celestial bodies or stationing such weapons in outer space in any other manner. So the list is not complete. This ban, however, does not address what is called ballistic trajectories of objects which can carry weapons of mass destruction. And this means that the mere transit of an object through space which has a nuclear warhead, which can be launched from point to point on the Earth, is not prohibited by the Ultra Space Treaty itself but is, of course, governed by other applicable rules of international law. It also worth saying that the UN Space Treaties do not define weapons of mass destruction. On the one hand, it is well established that chemical and biological weapons are considered also weapons of mass destruction. However, we have to keep in mind that there is no permanent human life in near space so far and hence the consequences of the use of such types of weapons might be very much different from those which can be on the Earth. On the other hand, once again due to the specificity of space and the laws of physics, the use of some other types of weapons in space may have much more destructive consequences than on the Earth where they are not considered as weapons of mass destruction. And finally, the Ultra Space Treaty itself does not prohibit the placement of conventional weapons in space but for some states limitations do exist. For instance, a long time ago Russia undertook a unilateral obligation not to be the first to place any weapons in outer space and since then has been encouraging other nations to follow this example. And as of today some 30 states have such a political commitment and for them placement of conventional weapons in space is also not permissible, at least until any other state does it. The legal regime of celestial bodies in terms of their military use according to the Ultra Space Treaty is stricter than that of Ultra Space. According to the wording of the Ultra Space Treaty, the Moon and other celestial bodies must be used exclusively for peaceful purposes. And we are still arguing about what peaceful purposes means and of course adding the word exclusively in this discussion does not make things easier. Once again, too many approaches exist on how interpret this notion of exclusively for peaceful purposes. The first one provides that celestial bodies are fully totally demilitarized and any activity of military nature is prohibited on celestial bodies. The other viewpoint adopts a narrower interpretation stating that only those military activities are prohibited on celestial bodies which are clearly listed in the Ultra Space Treaty. According to this treaty, besides the ban of nuclear weapons and other weapons of mass destruction, testing of any kinds of weapons is not allowed on celestial bodies. Also, the establishment of military bases, installations and falsifications and the conduct of any type of military maneuvers are prohibited. And as far as I am concerned, a stricter approach, that one saying that no military activity at all is possible on celestial bodies is widely spread. And this poses questions on how the Moon will be exploited soon, especially taking into account some mining projects and the desire that this activity is somehow protected. The legal framework of military space activities on celestial bodies was further developed in the Moon Agreement. It reduces additional limitations which are obligatory only for 18 states so we can compare the Ultra Space Treaty has more than 100 states while the Moon Agreement has 18 states. And the Moon Agreement prohibits weapons of mass destruction not only on but also in celestial bodies. Another limitation relates to orbits around or trajectory to around celestial bodies. They also must be free from weapons of mass destruction and prohibiting using trajectories by prohibiting using trajectories. This agreement seems to forbid any type of gravity assistance from being used to redirect such weapons. Consequently, objects carrying weapons of mass destruction must not transit along celestial bodies orbits and of course it is only applicable to those states which are parties to the Moon Agreement. The Moon Agreement also reiterates the prohibition of the threat of use of force as it is specified in the UN Charter and also prohibits any other hostile act or threat of hostile act. Neither the Moon Agreement nor Tragopropyrdra provide details of what content was given by the drafters of the Moon Agreement to this notion of a hostile act. And we can now only assume that there might be an act which is hostile in its nature but is less grave than the use of force and force being prohibited by the Moon Agreement. Another set of rules which comes close to the regulation of military operation in space is a mechanism, a two-fold mechanism of prior consultations. On the one hand, such consultations must be undertaken. On the other hand, they may be requested. And this mechanism is triggered when a state has reason to believe that a planned space activity may cause what is called potentially harmful interference to activities of other states. And though there is no definition of harmful interference in space law, military operations may clearly have an element of interference with space activities of other actors. For example, space debris can be regarded as causing such interference. Hence, if a state plans a military space operation that creates space debris on orbits which are used by other space actors, such a state is expected to undertake these prior consultations. But it is important to stress that space activities to which interference can be caused must be peaceful. If not, then this mechanism of prior consultations is not applicable. And finally, the Outro Space Treaty neither obliged states to enter into proposed consultations nor requires that states which are involved in such consultations reach any kind of resolution of the issue. And no prior consent is necessary for any states to proceed with its space activity. What is also unique in space law and it was to some extent mentioned during the previous panel is the regime of international responsibility for national activities in outer space. If we compare this regime with the customary law of state responsibility, the threshold for the attribution of a conduct to the relevant state or to the appropriate state using the language of the Outro Space Treaty is much lower. States are responsible not only for space activities of their governmental agencies, but they are also responsible for the activities of non-governmental entities, which term can include private companies and individuals. This responsibility certainly applies to any type of space activity that is licensed by a state. And it is also argued and I would say a well-spread understanding of space law that all space activities which are conducted on the territory of a state and all space activity activities which are conducted by these states nationals on any territory are national space activities of that state, which it is responsible for. And it is very important to understand that this type of international responsibility can result in legal consequences. Most so, it is a general rule that a launching state is international liable for damage caused by its space object on the earth, in airspace and in outer space. And this rule is relevant to military space operations in peacetime. So it was also mentioned during the first panel that this rule will be applicable when we are speaking about peacetime operations. And it is important here that liability can only be invoked if damage is caused by a space object, for example, as a result of a physical collision, and if damage is caused not by a space object. For instance, by the use of radio frequencies spectrum, I mean jamming or whatever, it will not be covered by the rules of liability. It does not however preclude the application of the rules of international responsibility of states. Another set of rules which is relevant to space objects is the registration regime of space law. The registration convention requires that the launching state registers its space object and more so submits information to the UN Secretary General. This submission of information by states which are not bound by the registration convention can be done and actually is done on a voluntary basis in accordance with the UN General Assembly resolution. What is important here, the registration regime covers all space objects, including dual use and military ones, and today states do register their military satellites. However, states have an extent of discretion how their general function is described, I mean the function of their military space object. For instance, some states register satellites which are known to serve nations security and defense purposes and describe them as telecommunication satellites without having a reference to their useful military space activities. And we can compare such a kind of a description with some other satellites which serve exclusively commercial purposes and they also registered as telecommunication satellites. So it is important to understand that states can freely describe their satellites as clearly military or just omitting this information, but what is important here, the UN register is a primary source of information and it is public. So whatever states submit to the UN register, it is open to anybody which is looking for information about whether this or that satellite can serve military or other purposes. Rescue and return obligations have also been referred during the first panel and the astronauts are considered the advice of humankind clearly during the peacetime, this type of obligations which are imposed on states and on astronauts to run the assistance to each other, equally applies to astronauts which are military or non military, we all know that even those who are involved in scientific operations on the international space stations are members of the military. And I also would like to agree with the first panel that it would seem reasonable to assume that the outbreak of an armed conflict could constitute a fundamental change of circumstances, which could also change the astronaut status from that one of an enemy of humankind to that of a combatant and the rescue and return obligation with regard of space objects were also touched upon and during the conflict the situation seems easier than with astronauts. The rescue agreement is considered to be suspended between the states which are parties to a conflict and the adverse space objects can be captured and destroyed provided that of course other applicable rules of international law are complied with When conducted military space operations they should also take into consideration other fundamental principles of international space law, which can be found in the outer space treaty, but of course, as it was mentioned, the main problem is to understand how to apply these principles correctly. And in this regard, let me just refer to some recent developments, at least two international projects are currently being implemented which are aimed to objectively articulate and clarifying international law applicable to military activities in outer space. The first one is called Milamos, where a group of international experts is drafting the manual on international law applicable to military uses of outer space. The other project is called VUMERA, where an international group of experts is working on the manual on the international law of military space operations. And we are lucky today to have experts from these two projects in our virtual room. I'm sure it's needless to explain the importance of such manuals for the promotion of the rule of law and for ensuring its common understanding. We have to admit that conflicts in space are not inevitable and international cooperation can help avoid tough scenarios and protect the unique space domain so it remains available for the benefit of the current and future generations of all states and ensures our common desire. This brings me to the end of my contribution and I look forward to further discussion. Well, thank you Mrs. Morozova for this brilliant overview over the existing heart law and the of the initiatives of the VUMERA and the Milamos manual. And now it's my pleasure to hand over to Mrs. Wafia. Thank you very much. Just to make sure that you can actually hear me. I didn't get to make a sound. Thank you very much. Naturally, I would like to extend my appreciation to the organizers of the webinar. I really think that this webinar actually constitute a very important resource to discuss topical issues, especially with the current context. And I also hope that everyone is safe and healthy wherever you may be. My name is Seinez Wafia and I would just like to make a short clarification that I am no longer the ECSL executive secretary but now being affiliated to the International Institute of Space and Telecommunications that is actually based in Paris. So the idea for me here today is really to develop further what has been said and also very well introduced by my co-panelist Elina. So we saw that there is indeed a legal framework establishing limits and constraints and that is present in international space law as a way to limit military activities in our space. But the question really is whether this framework is actually sufficient to regulate this kind of activities and I think that we can already get that question out of the way as the answer is unfortunately no. And this is an observation that I'm not making up but that can be found actually in several human resolutions that actually further specify that the legal regime applicable to outer space by itself does not guarantee the prevention of arms race in our space. And that there is, and here I quote, an actual need to consolidate and reinforce the regime but also to enhance its effectiveness. I believe that later in 2014, the UN General Assembly also rated that the current legal regime is no guarantee that an arms race will be prevented in our space and that there is a need to examine further means to prevent such a grave danger to the international peace and security. And so, of course, here, you know, the legal regime that is being referred to is really the one that was described earlier by Elina. And the goal here, you know, will be for us to go through some, not all of them, because there are people actually writing legal tests about this. So if you want to go into the details, it might take quite some time, but really to get you know the essence of existing soft law instruments that were brought up as a way to further draw the lines of military activities in our space. And I think we can directly jump in into a very recent initiative that was brought up between 2012 and 2013 with a group of actually 15 governmental experts called the GTE that was nominated and passed by the UN Secretary General pursuant to a UN general resolution. And if I remember correctly, you can also actually read the resolution, it's resolution 6568. And under this resolution, the group of government experts basically undertook a study on the transparency and confidence building measures in outer space activity. And a similar study was actually undertaking 20 years earlier, but unfortunately was not a success. And this group of government experts elaborated on the characteristics and the criteria for outer space, transparency and confidence building measures. And what they agreed upon was that those transparency and confidence building measures should be voluntary. And this is where the shift operates between, you know, legally binding instruments that we can find with the outer space treaty. And non legally binding instruments that you will see are becoming more and more used, not only in the context of military activities but also more generally in the context of space activities. I think we all heard about the long term sustainability guidelines that were recently endorsed. You see, it has nothing to do with military it has to do with a sustainable use of outer space but still, it was decided that the fashion and the format to do it would be a non legally binding instrument. But what the group of government experts also agreed upon was that although it should be on a voluntary basis, that this kind of instrument could not constitute a substitute to actual legally binding arrangements. And so actually this report of the group of government experts was approved by consensus through a typical UN General Assembly resolution which is UN resolution 6850. You can also read it. And I know we don't have much time but I would definitely suggest to anyone here in the audience to really have a look at those resolution really show actually the mindset of member states at that time. And the outcome consensus report was submitted to the 68 session, as I said, and then endorsed. The report includes actual recommendations to enhance transparency of our space activities through many different means, notably the exchange of information between countries, space policy and activities. Also risk reduction notifications. And something called visits by experts to national space facilities as a way to enhance the so called transparency set as a goal. And also, this group of experts recommended establishing increasing coordination between the office for disarmament affairs, and the office for our space affairs, but also with any other appropriate UN entities. So this is a first example of non legally binding instrument that was brought up following, you know, the actual observation that the current legal framework legally binding legal framework was actually not sufficient. Another, and I think probably the most important one instrument that was also brought up, you know, as a way to counter the shortcomings that were established and seen within the current legal framework existing is the international code of conduct for outer space activities. I believe it to be the most advanced non legally binding piece. And the objective behind this international code of conduct was actually to enhance safety and security in our space through the development and the implementation of transparency and confidence building measures. And in 28, actually the European Union initiated this procedure to develop this this code of conduct. And the code, the code was imagined as to function as a non legally binding treaty. Well, first as a legally binding treaty, but then obviously it was realized that a non legal binding instrument would probably be easier to implement without any formal enforcement mechanisms, especially in a multilateral setting. And the legal ground for this international code of conduct was actually the UN resolution 6175, which called member states to submit proposals on submit proposals to to following the failure of the Paris system. And so the legal framework under which this code of conduct was conducted is of course the EU comments for in and security policy. And also council conclusions from 28, 2010, and also the council decision from 2012. This code of conduct is based on three main principles. The first one is all countries in her right to use space for peaceful purposes. The second being the protection of security and reliability of space object in orbit. And last but not least, consideration for states, legitimate defense interests. Once agreed upon this, this code of conduct was expected to be applicable to all outer space activities conducted by states, but also corporations, universities. And the code is also intended to address both safety and sustainability of space environment, as well as the stability and security in outer space so it's not a code that is intended to regulate only military activities but more generally, the sustainable use of outer space. And since it is aimed at both safety and security in outer space. The EU actually stated that existing international for such as the conference on disarmament and the UN committee on peaceful uses of our space copers are actually not the appropriate for where the code of conduct should be discussed. By discussing the code of conduct outside these two international fora. It also includes UN member states, which are not members of these bodies. The EU also stated that it believes that the non legally binding and overarching nature of the code of conduct also means that it does not contradict any ongoing discussions or any, you know, legally binding treaty per se. The main goal is just to find an agreement on text that would be suitable and applicable to security benefits in a short term. So, just briefly to go over the actual state of this code of conduct. The reason is that this code of conduct actually received mixed reactions in the international community. And of course several emerging powers expressed concerns about not being involved in the process. And there was also some substantive issues that were found with the draft. Questions about vague terminology, the lack of definitions, and also the fact that it was not clear to which degree the code of conduct should be legally binding over states. And after you know extensive interagency with you. Also, from the side of the United States government. It was assessed that the draft international code could actually limit space operations and that the US would not actually abide by it. However, a proposal was made was made by the US to also propose a draft code of conduct that would be based on the European initiative without, you know, subscribing to the EU initiative per se. So, just, I don't want to go over my time but I think here the message to take home is that when you go over the actual overview of existing non legally binding instrument. I really think that an interesting point would be to take a bit of height and and really analyze you know this in the context of wider aspects and considerations pertaining to space law and notably what I evoked at the beginning of my statement. Regarding this you know tendency this trend of having soft law instruments to deal with the certain aspects of space activities. And this is really something that is symptomatic of the last decades. And that is also very symptomatic of military activities in general but not only. As I said, this is something that you will also find in environmental considerations. I mentioned the long term sustainability guidelines but you can also find the space the pre mitigation guidelines and so on. So, so there is really this inflation of soft law instruments that perhaps say something about the current state of of of hard law. And, and so, non legally binding instruments may really constitute, and I believe so a pragmatic solution to the prevention of an our civilization of space by actually making possible to overcome some of the rigidity that are implied by the use of a legally binding instrument. And there are actually many benefits to opting for non legally binding instruments. It's just that. And actually, some of the benefits of using soft law is just as simple as the flexibility. It's a speedest and the quickest process of negotiation and conclusion this is this is quite obvious. And some very interesting benefits such as the establishment also of, you know, climate of trust between states. But I also think that it's interesting to point that these exact benefits may also appear to be insufficient and unsatisfactory in the long term for the exact same reasons actually. So, I would say that this trend of soft law will only be demonstrated through the implementation of those soft law instruments at a national level. And this implementation at a national level was certainly, you know, show the adherence and the effectiveness of soft law instruments. So there are pros and cons to having soft law instruments and the context of military activities. And I do look forward to discussing this pros and cons with Copany list and also with the audience later on. So thank you for your attention. Well, thank you so much, Mrs. Boafia. And now I give the floor to major center, please. First, thank you to this group for having me and allow me to share this panel with such esteemed experts and also share in the institutions you all set up with such professionals and scholars. So thank you for that. These discussions are very badly needed. I think the world is probably behind and having these types of tough discussions and these are issues we truly do see every day. So thank you. I first like to disclaim that the views presented here and are my personal views and do not necessarily represent the views of the Department of Defense or its components. I also like to say that NATO, the legal Gazette issue 42 coming out, I believe on July 1 goes into a lot of these issues, the legal aspects of space. I have a co article in there talking about management of space data and transparency. So anybody that's interested can follow on from these and I'm sure the panelists agree that if we want to have afterwards discussions in personal capacities just let us know. But thanks to the two previous panelists who discussed kind of the state of existing potential future legal regimes to govern activities, including the militaries in outer space and my focus here will be more on the operational level. So taking what we have in terms of the law as they have laid it out and then applying it into day to day operations and activities and contingency planning, which is what we deal with. So first, I like to address there are some buzzwords that probably the audience has seen and heard in media interviews with senior leaders. And those are that space is a quote war fighting domain, and then also that states are quote militarizing space. So the question we get asked a lot is, is there any legal import to somebody using those phrases or saying those phrases, even potentially high up figures, technically know that that's the answer these are phrases used by people who may perceive space as such. But just by calling something a war fighting domain or say something's being militarized, that does not have any legal import in and of itself. State militaries were essentially the first actors in space, beginning in the 1950s as Miss Morozova discussed. And it could be argued that space is no more militarized now than it was 7550 25 years ago. I'm not saying it is or it isn't but there's certainly arguments on both sides. Now there are just more spacefaring states, which yes have capabilities. But there are also more commercial spacefaring companies, and while some provide functions to states and militaries, many are used by people every day, without probably knowing it. So, every time people use cell phones, a lot of times television, internet, looking at weather reports, etc. They are using space capabilities in the civilian day to day life. And at this point, roughly a third of space launches of all space launches now are commercial payloads and there are to this day thousands of satellites in orbit around the earth. So next I'd like to talk about the operational gray areas that we deal with that, due to the body of law and exactly what the previous panelists said. They leave those questions unanswered in the gray areas that then people have to deal with so looking at article nine of the OST, which was discussed but the term of art do regard is mandated for states, which it's good that it's mandated. And there is a standard however that standard is undefined. So nowhere in the treaty or in subsequent issuances in any sort of treaty has the term do regard been defined. Similarly, as was discussed harmful interference appears to be cautioned against. However, it is similarly undefined. And the remedy, as given in the outer space treaty is that international consultations are mandated. If a state believes it will cause harmful interference. And if another state desires it can request such consultations if it believes another state might might cause harmful interference. However, in practice no consultations directly from this provision have occurred. And then similarly, as discussed life do regard, it is undefined. The reasons why it was undefined during those treaty negotiations there's probably lots of reasons but what we have today now 60 plus years later 50 plus years later is that we have two terms that are very strictly discussed in the outer space but when you're talking about conducting operations, they are undefined in an international context. Similar to this, we have a lack of customary international law which impacts day to day operations. So some like additional protocol one of the Geneva conventions that I will discuss more below those provisions would extrapolate to space and Professor blank talked about that how you would essentially apply low act apply all those rules you'd extrapolate them to space. But there is not any robust customary international law legal regime specifically for space. So states could certainly create this at any point, whether through practices or an additional convention or treaty that perhaps reflects customary international law for state parties or would be truly binding international law. However, that customary international of development has not necessarily occurred strictly to space. I think this is unsurprising due to the length of time that states have been space very. So if you think about it and compare it to other domains. States have been acting in space for let's say up to 75 years at this point versus the land and sea domains, where people's in states have operated and contested for thousands of years. After this several thousands of years, did we get the UN Convention Law to see in the mid 20th century, or the Hagan Geneva conventions in the 20th century, essentially. And so, all of those thousands of years of operations finally coalesced in states coming to some agreement. In some cases after gravely harmful conflicts that it brought everybody to the table or at least most states the table to agree on how to conduct operations. And in space we've only been up there 75 years and so it is hard to imagine that everything will be answered. I'm never saying that all terrestrial and sea based operations are governed. But if you look at UN Convention Law to see they have very strict protocols with distances and what can occur there. And then I'd like to now shift towards talking about situations at the operational level, left of or short of armed attack or a use of force. We are not in conflict, and we use what we have available to legally govern military activities. So, we have the outer space treaty but as I just said, fairly vague in terms of its prescriptions and its definitions. As Ms. Morozova discussed are more specific like your liability convention, your registration convention, the International Telecommunications Union, but some arguably have limited applicability to military activities in outer space, and some of them deal with, let's say, financial prescriptions or liability where states will pay others for damage, as once has occurred under the liability convention with I believe Russia and Canada. However, those don't necessarily cover all of the law of armed conflict, and all of the aspects of actually conflict as going into space. However, we do know that international law would apply. So that means we still have as potentially legally valid responses the following. So the doctrine of self defense would apply. Now states differ on their spectrum of when some sort of response would be authorized. So you have let's say on one end of the spectrum, the UN Charter discussing that armed attack might be a threshold for the use of force and self defense. Then you have other nations that may believe a hostile act demonstrated hostile intent would actually justify a response and self defense. As we all know, or as most of us know on on this panel in this forum, there have been reams of articles and academic papers written over the decades on the thresholds of armed attack and whether that's the most grave uses of force or whether a simple use of force would apply. It's increasingly confusing because the UN Charter bans use of force front of use of force. So that seems to leave a gap in international law and that applies to space as well on where where that sliding scale lands. Additionally, you have the doctrine of countermeasures. So this is where a state would be able to utilize an unlawful act in response to an unlawful act. So let's say state a is committing some unlawful act in space that would authorize state be an ability to utilize a potentially unlawful act for the mere purpose of getting state a to stop its unlawful act. It has to be necessary and proportionate. It has to stop when the original unlawful act stops. But this is again fed from the Nicaragua case ICJ case and the international law that has developed since and extrapolating that kind of terrestrial terrestrial based body of law into space. Now one of the problems with that. And this again, I'm not trying to sound cyclical but that's why this is tough is in defining what is unlawful would then be a threshold issue to determine whether or not a countermeasure could apply. Or the second type of response, which is a retortion under international law, whereby state a commits an unlawful act in space and state be then commits a lawful act. However, it's detrimental in some way to state a, again, necessary proportionate and then trying to get state a to cease its unlawful behavior. The common examples used are an embargo a severing of diplomatic relations and whatnot. However, both of these doctrines and self defense for that matter, open up and expose the fact that there is a gap in defining what is unlawful exactly is behavior a behavior see where do we draw the line between unlawful where do we draw the line between arm attack use of force threat of use of force. All those issues are very difficult and at least states, not necessarily guessing. But there's no body of law that you can absolutely point to and say this is unlawful or this is lawful, sure there are and sure there are arguments of that. But when you get into those careers it became become very difficult. So that was talking about the left of conflict. Now we can talk about in conflict and as discussed in the panel, law of arm conflict or international human humanitarian law would apply. And again that's based off largely existing codified and or customary international law, such as Geneva Convention, the additional protocols. The space domain became part of an armed conflict. We would use it states would use it in my opinion. And for purposes of this what I'm going to go into we're going to assume that the treaties that I'm discussing would not be suspended, or a state would not opt out pursuant to this conflict. So again what we're left with is extrapolating existing law to outer space. So we look at additional protocol one. So these are big areas of analysis. And one of them is how to define a military objective. So at this operational level you're talking about in conflict and you have spacefaring states utilizing space assets in a true conflict. We would look at article 52 to distinction. Now it's worth mentioning with additional protocol one that Russia, China, most of Europe, Canada, Australia, and the US either ascribe to it as signatories or they've ratified it or they adopt at least the provisions I'm talking about here as customary international law. So with asking whether or not something on orbit to military objective in a conflict you take that existing body of international on you apply it. And so you would ask the question in article 52 to. And that is, and this is a mouthful and it's commonly talked to as maybe a dual use test but it has different parts to it or a two part test. And that is whether an objects, nature, location, purpose or use makes an effective contribution to military action. And who's partial or total destruction capture or nuclear neutralization in the circumstances ruling at the time offers a definite military advantage. So you have to analyze that space object, and you basically have to ask whether or not it could or does contribute to military action, and be able to articulate why or how somehow neutralizing it or destroying it. In those circumstances ruling at the time would offer state a in this case, a military advantage. And this is, you would have to apply this test to military potential military objectives, and you would certainly have to apply this test for dual use entities or those that are civilian owned or operated, but also have military signals running on it or military uses of it, and Again, like I talked about before, because of the impact in the the sheer volume of commercial space activities and assets on orbit, and how they contribute to military operations in many ways. There's a lot of this analysis that has to take place. Unlike let's say terrestrial operation or terrestrial environment object facility that may be, you know, dedicated at one point at the advent of a conflict and they flip a steel factory over, and it is completely used by the, you know, opponents military to build bombs let's say in space a lot of times it's a lot more difficult. Should you go into conflict because a commercial satellite provider might have, I don't know 30 users or 30 users of signals on it, and maybe one or two of the signals is actually leased by a military. And that takes me to part two of two don't worry about part two of this AP one discussion, and that is on collateral effects or collateral damage or proportionality. We found an AP one and articles 51 5b and also 57 to a three. And what this says is that attacks, the conflict are prohibited that quote may be expected to cause incidental loss of civilian life injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military that we anticipated. So what that leaves us with is an ex anti balancing test that decision makers, through whatever regimes they're in, according to their state practices, must balance the fact that what concrete and direct military impacts by stand to gain by doing x, y or z to a satellite or a space based system versus the injury to civilians or damage to civilian objects, and that damage to civilian objects, which it or personnel, which is all of what this is, because, as an aside, any sort of collateral damage to other military objects or people in a conflict are not considered in this proportionality regime or measurement. I think it that the focus is on civilian personnel civilian objects, you ask whether or not whatever you're doing is going to the damage to those civilian personnel or objects, if that's going to be excessive, compared to your direct and military advantage gain. So it's a true balancing test. Now one of the problems is, as as a theme for a lot of this, the term excessive is not actually defined or agreed upon an international law. It leaves a lot of interpretation for states. However, looking at, and I'll conclude with looking at three different, essentially situations where this would come up, where you try to use those measurements. So first, let's say something that you're wanting to put an effect on an adversary in a conflict that's temporary and reversible so think jamming and things like that where you don't actually cause any sustainable harm to the asset. You just temporarily interrupt the ability for the signals to be used. So you ask, and there's lots of debate in international law of how foreseeable, you have to try to figure out those civilian impacts are going to be. The Allen manual, which deals with cyber, proposes, you know, expected indirect effects, or Michael Schmidt, the scholar has talked about reasonably foreseeable effects. I like to cite squadron leader Tinkler who said before, the problem with those reasonably foreseeable effects is it's like a lottery ticket. It means that if I buy a lottery ticket. It's reasonably foreseeable that I could win the lottery. However, in practice, it's one in several millions. So, to anticipate that and try to measure that is a little difficult in terms of operations. So I've adopted the term maybe directly foreseeable would be a better aspect to balance that. And there it helps you understand that due to the signal environment and exactly what the previous panel talked about is so difficult to fully ascertain. To know on let's say a commercial satellite, if you have 30 signals running on it, if maybe only one's military, what are going to be your aspects to the others. And then the last two quickly to leave time for questions. If you have non temporary non reversible effects to satellites. That's difficult because we can maybe borrow cybers talk discussion on an attack threshold, and whether or not let's say having to replace component parts or reboot systems. Maybe we use that as standards for a proportionality analysis on making that balancing tests like I previously discussed. And then finally, a destructive debris causing events. While the liability convention would certainly apply again talking about the armed conflict part of it. It is hard to imagine that a military gain in a conflict would actually justify endangering an entire space domain for five 1050 plus years, whereby that space debris, even flex of paint which caused seven millimeter chips and ISS windows, where all that space free the thousands of pieces would stay up there for decades centuries depending on what orbital regime and impact, it would be hard to imagine that that balance would outweigh. So leaving time for questions I'll conclude there and thank you again for giving me the floor sir. Oh, thank you so much major. And yes, we have, well, nearly 15 minutes for q&a. And there have been some questions and I will just summarize them and then I would ask our panelists to provide their answers consecutively. So the first question is with regard to the vulnerabilities that obviously exist also in outer space, not only in the terrestrial environment, and will states not exploit those vulnerabilities irrespective of all the legal legally binding and legally non binding instruments we have heard about. In that context, there is the question of whether and to what extent such non binding codes of conduct and roots are actually being observed by responsible states rather than by others. So isn't it rather a matter that only those who may profit from such non binding instruments will, at least for a limited time, abide by them but in the long one they won't. The next question is about also related to the non binding instruments. We are witnessing a kind of fragmentation when it comes to military uses of outer space. So there are the original space lawyers, let me put it that way and then there are the others and this is also being shown by the fact that we have two new manuals, or we will have two new manuals the Merah manual on military activities and outer space and the Milaners and obviously the authors of the respective manuals take different positions, at least with regard to some of the aspects. And finally, with regard, I don't want to repeat the entire discussion on the applicability of the law of conflict. But the question is of course, let's assume it applies but what about major Selna contribution to the enemies war sustaining effort which has been endorsed in the DoD law of war manual and in other publications of the United States. And finally, you are referring to countermeasures I think this is a well taken point, but would you agree that countermeasures may involve a use of force remaining below the threshold of an armed attack. So I suggest that we will start with Mrs. Morozova again. Thank you for these questions and the opportunity to give additional comments. First regarding biting versus non-biting. Of course, when we speak about the ideal picture of the world, it would be the best ever situation that everything is written in stone I mean that we have hard law we have international treaties with global participation. We must be realists and, for instance, we have on the table the draft treaty on prevention of the placement of weapons in outer space and of the threat or use of force against outer space objects. There is a joint proposal by Russia and China which is left in paper for more than 10 years, and we clearly see different approaches of states with regard to how this issue should be settled. To my understanding, for instance, the Russian and Chinese project is very much focused on trying to regulate the object so to define weapons to prohibit weapons. And this is the major disagreement over the US and other states which says that the definition lacks being clear and inclusive and some states prefer to speak about regulation behavior, not objects. So these two positions are very much different and if we can find a compromise by drafting a piece of soft law, it is in any case a step forward. And there is a big political pressure placed in non-binding legal documents. For instance, UN General Assembly resolutions, of course they are non-legally binding, but I have never seen a state which ever admitted that it does not comply with any non-legally binding regulation. We should keep this in mind that the pressure is very high and the soft law instruments also tend to be complied with. More so we know that of course the process is very long when nations adopt soft law instruments in their national legislation. We can see state practice and we can finally met customary rules. Of course it was absolutely a valid argument saying that in space law we cannot have any customary rules so far because we are in space only for 60 years. But if we turn to UN Office for Outer Space Affairs, they have a questioner which they attend to different states and there exist responses by states which can be boiled down into at least three norms which are regarding customary freedom of exploration and use, non-appropriation, appropriation principle and the application of international law to space activity and outer space. So there is an opinion that customary rules really exist. So also non-binding instruments are important in several other respects. We also discussed the due regard and there is no standard but we can use some non-legally binding instruments to say that this is a practice. These are the standards or emerging standards and being in non-compliance with this non-legally binding documents may to some extent evidence the lack of due regard on this or that part. So I think we should not underestimate software sources. With regard to the difference between several manual, probably the readers of the manual will be the best judges. I must say that even within one project, for instance Milamos, experts do really have different views and it is clear that different manuals can see the issue from different angles. And this is actually the benefit for the users of this manual. They can see the mindset of the expert society and maybe it can be useful for them to make proper decisions. So this is from my part. Thank you. Thank you Mrs. Morozova. Of course this begs the question whether the Russian Federation and or the People's Republic of China will really abstain from exploiting existing vulnerabilities also in outer space only because there are some non-binding codes of conduct, etc. So this warfare to you the question of course was what is the value added of non-binding instruments and do they really contribute to the preparedness of states to be as transparent as you hope them to be? Thank you very much first professor for the question. I think my co-panelist Elina has already pretty much answered part of the question in this respect that soft law should not be underestimated. And that is precisely because where hard law can sometimes show some rigidities, this is where soft law actually intervenes. And I would say that there is this tendency, a very funny tendency to make the assessment that, you know, the existing corpus, your specialist is either outdated or indeed effective and self-sufficient and everything is great. But having this view is quite an extreme way of thinking, which I believe not to be suitable for the reality of how international public law works. There are different interests at stakes. Elina also mentioned a very high political pressure and this is being translated in the way states can actually emit legally binding or non-negally binding norms. And I think that indeed it would be amazing if everything could be set in stone very clear from the beginning and everyone would agree and shake hands. But unfortunately, it's not how things works. And I think that things will come over time through notably multilateral discussions. And there are people currently working. We mentioned the Milamos initiative, but, you know, recent history also suggests that not only initiatives from states like, for example, the Court of Conduct, but also, and I think here this is to open a bit the discussion that it's interesting to look also at other initiatives and not only this binary outlook, which is hard law or soft law, but also to look at other efforts from non-governmental also efforts that have been successfully influencing state behavior. And I'm thinking here, for example, about the Tallinn manual. And there are a lot of instances and examples that show that, you know, small initiatives here and there can actually influence state behavior. So I think we should look at the bigger picture and really, you know, overwrite this binary thinking of whether the current corpus ris bacillus is indeed outdated or is effective, is hard law the solution or is soft law the actual solution. It's really a matter of compromise here. And really, things will come over time. And this is, I think, the lesson that should be taken from this panel discussion. Well, thank you so much, Miss Boerfield. Major Zelna, you are the poor guy at the end of the panel who will have to answer all the remaining questions. Please go ahead. Yes, sir. And I'll be respectful. Everybody's time. I know we're running out of it. Two minutes left. Also, my last name's Zelna. I was always called last when a substitute teacher called Rolls. So I'm used to this. But so talking just the three issues, talking about vulnerabilities about states exploiting, I mean, that's kind of an issue of international law. And I think of in civil liability judgments, I learned back in law school that it's always just, at the end of the day, you just have a piece of paper. So it depends on the actors actually subscribing to the system and the regime. You know, the Russia, China measure and proposal they had, you know, that I know some of the objections were that it didn't include verification of procedures and anti-satellite weapons and whatnot. So if you don't have verification, again, then the issue is cyclical of not being able to verify whether or not people are exploiting the vulnerabilities, which is the whole issue in and of itself. On the war sustaining measures question, you would still take those through AP ones objective and proportionality tests. Additionally, you'd have necessity humanity. Any other of those low act provisions. So whether that's on orbit terrestrial, you would take it through those tests that I discussed. And I hope that that answered the question and I know we're running out of time. And then lastly, thank you so much for the question on countermeasures. That is exactly what I'm talking about. It's that gray area between lawful peaceful behavior. And then all the way to the other side uses of force armed attack under international law, which would then authorize, you know, forceful responses. So what countermeasures is dealing with are those sub uses of force. But when something's unlawful. So not prescribed by a treaty or in violation of some some sort of codified law or customary international law, but not reaching necessarily a use of force or an armed attack under international law. And so that is what I was talking about left of conflict that would provide some sort of recourse for an agreed nation. And that's all I have sir. Thank you so much. And thanks to all the panelists for their discipline and their flexibility. And now I can hand over to Colonel cherry. Thank you very much. I want to thank you very much and thank you to each of the panelists and the second panel. I agree I appreciate your flexibility and understanding and also fantastic presentation by all certainly cutting edge issues but the four of you presented them in a very approachable way by our for our audience. I also want to again thank Professor von Heinegg and Alphonse for their and their leadership in the international society of military law and the law war and for joining forces today with the Stockton Center and they've wore college for today's event. You know, of course I can't miss another opportunity to remind everyone in the audience to go to the Stockton Center website to send it for our mailing list for future events. And like I said, we have events may in April, May and June, gender and our conflict in April and then may we have our cushion conference, and then in June we'll be looking at the Arctic. The International Society of Military Law and the Law Wars also developing future events. So please check the society's web page and also follow them on LinkedIn for other information. And today's event will be posted next week on the Naval War College YouTube page. So if you want to watch it again, or you missed something, please feel free to log in and you can again find that on the event page for today's events. Thank you again to our first panel, and also to all of you for joining us today. Have a wonderful weekend and I bid you a lovely afternoon or evening from a very foggy Newport Island. Thanks again and take care.