 Good afternoon everybody. Thank you for coming. Hopefully we're going to have a very interesting discussion today about a topic that may seem a bit boring to start but our goal here today is to make it not so boring and actually make it interesting. Before we begin, for those of us who are not familiar with Secure World Foundation, we are an endowed private operating foundation dedicated to the long-term sustainability of space activities and the use of space for benefits on Earth. I'd also like to give a thank you to Robert Baxter. He's the president of the Military Law Society here at GWU. They're a student organization that's part of the law school and they're helping us co-sponsor this event. And also a reminder that today's discussion is on the record. The topic for today's discussion is how international law applies or doesn't apply to military activities in space. There's a myth going around that there isn't a law in space and that you can basically do whatever you want. In reality, there's actually quite a bit of international law that applies all over the, where we have human activities. What's true is that to date, there's not been a lot of definition on how some of the existing international law applies or doesn't apply to specific activities in space and military activities are part of that. The speakers are going to go through kind of an overview of what kind of, what bodies of international law apply to military activities and how some of the challenges have been tackled, other domains such as drones, autonomous weapons systems and cyber. And then we're going to talk about what the issues are in the space world and how we might try and take some steps towards improving the situation. The reason that we're bringing this up is that there are a number of initiatives going on at the moment, national bilateral and multinational discussing space security, space safety, space sustainability. And in several of them, the issues such as what is the definition of self-defense have come up and emerged as a sticking point. So we think that it's about time to try and have a more international discussion of what some of these issues are to try and, perhaps at some point in the future, come to a resolution. The goal for today is not to actually solve this entire problem, but more to establish some foundational concepts. When you first came in, you were given a couple of handouts. They're relevant to this discussion. The first one talks about the spectrum of law from peace to armed conflict. And the other one shows some examples from the real world of cyber. They will be referred to by a couple different speakers during the course of the events. I'll just briefly introduce the speakers. You guys all have their full bios. To my left is Wing Commander Duncan Blake, the Royal Australian Air Force. Next to him, Mr. Gary Brown, who's currently head of communications here in Washington, the international community of the Red Cross, and is an expert in cyber law. Next to him is Dr. Cassandra Steer, executive director of the Aaron Space Law Center in McGill University in Montreal. And finally, but definitely not least, Dr. Peter Hayes, who's an adjunct professor here at GW University. So with that, I'll give the floor over to the first speaker, Duncan, who's going to give us an introduction to the topic and a little bit, I believe, on autonomous systems. Thank you. As Brian said, I'm a member of the Royal Australian Air Force. I have to start with a disclaimer, so I have to say the conclusions of my own in my personal capacity, not intended and should not be thought to represent official ideas or any agency of the Government of Australia, and I've used publicly available information. I've got that out of the way. So you have a legal framework graphically represented on the hand out in front of you, and that is as applicable in the land, sea, air, space, or cyber domains. State activities leading up to and during war that have been conducted on land are relatively easy to characterise by reference to legal concepts within that framework. It's not been as easy to characterise those activities in other domains. This is especially true in respect of the application of the law of armed conflict or LOAC, which is the Lex Specialis, a Latin phrase indicating that it is the body of law specifically applying in given circumstances, in this case armed conflict, and which displaces other laws that would normally be applicable to the extent of any inconsistency. Manuals of international law in various domains have made a very substantial contribution to clarifying the application of LOAC, and before we go any further, it is important to give a brief introduction to the background of these manuals. From the mid 19th century to early 20th century, which is a very formative period for this area of law, there were many attempts to bring states to consensus on new instruments to expand the application of LOAC. Then as is still the case now, states will wary of anything that appeared to limit their military options and capabilities, wary of apparent arms control instruments. However, one particular arid diet individual, Gustaf Moynier, one of the founders of the Red Cross movement and of the Institute of International Law, realised that the challenges of developing new law about technical aspects of weapons need not stand in the way of clarifying existing law about behaviour in the context of armed conflict. Those two distinctions need to be emphasised. The first is the distinction between developing new law and clarifying existing law, and the second is the distinction between regulating technical aspects of weapons versus defining lawful and unlawful behaviour. Gustaf Moynier proposed and led a gathering of international legal experts to draft a manual clarifying the application of existing LOAC to the conduct of warfare, and in 1880 a group of international legal experts drafted the Oxford Manual in relation to the Laws of War on Land. He led another group in 1913 to draft a second Oxford Manual in relation to the Laws of Naval Warfare. Given the status of the international legal experts, their independence from parochial interests of states and their rigorous adherence to clarifying the existing law rather than seeking to progressively develop the law, these manuals had a big impact on compliance with the existing law. They were successful in their expressed primary objective of providing commanders with a practical aid for the exercise of distributed command and control, especially in the context of a revolution towards maneuver warfare. Nevertheless, that approach was not repeated until the San Remo Institute of International Humanitarian Law initiated an effort in 1988 to produce a new manual of international law applicable to armed conflict at sea. Again, the primary audience has been commanders, especially naval commanders, and you only need to ask a few of them to assure yourself that the San Remo Manual is very well known. The San Remo Manual has also been very influential among legal experts and in courts and tribunals. Thus, in both respects, it's been a big success. In 2006, an academic centre at Harvard University initiated a project to draft a similar manual known as the Manual of International Law, applicable to air and missile warfare, and also known as the Harvard Manual, and I'll make some reference to the Harvard Manual. In late 2009, a group of international legal experts was brought together at the NATO Cooperative Cyber Defence Centre of Excellence in Tallinn, Estonia to discuss the legal framework applicable to hostilities in the cyber domain. They immediately rejected the need for development of new law and proposed instead to draft a manual of international law applicable to cyber warfare. The Tallinn Manual was completed in 2013 and Colonel retired Gary Brown is very qualified to talk about it. Back to the handout in front of you, there is a spectrum of activity and behaviour from peace to armed conflict and there is a legal regime for peace and a legal regime for armed conflict. Peace is the usual preferred state of affairs. Armed conflict is an aberration from that state of affairs and is a legal term of art. It encompasses use ad bellum, the law about the resort to force by states. Armed conflict also encompasses use in bellow or the law about how individual soldiers, sailors and airmen conduct themselves in conflict. It's also known as LOAC, international humanitarian law and the law of war. There are slight distinctions between those three terms depending on the context in which they're used, but we don't need to go into that right now. Where the legal regime for peace ends and the legal regime for armed conflict starts is uncertain. Within each of the regimes they are stratified by reference to legal concepts that can be grouped as either actions by an initiating state on the left on your handout or reactions by a responding state on the right on your handout. The handout is a simplification of the relationship between concepts and I've attempted to provide a graphical aid to understanding, but the legal concepts do not necessarily map out as neatly as the handout might suggest. The first state may behave in a way that is unfriendly but not unlawful and the other state may respond by conveying its displeasure, including in a formal diplomatic note known as a day marsh. Flying along the edge of another state's national airspace and collecting signals intelligence is unfriendly but not unlawful. Alternatively the other state may engage in what diplomats call retortion, that is unfriendly actions of their own that are nevertheless still compatible with all the international obligations owed by that state. For example using an aircraft to broadcast propaganda to fishing boats in the exclusive economic zone of another state is certainly unfriendly and may or may not be a breach of the state's international obligations depending on what treaties it has ratified and the frequencies that it uses. Actions by the first state that may be characterized as internationally wrongful acts involve a breach of an obligation owed by a state regardless of the source of the obligation. So it could be a breach of a treaty obligation or a rule of customary international law or an interference with a state's sovereign rights. The last one requires a bit more of an explanation. By virtue of its sovereignty a state may provide for its own well-being and development free from domination of other states provided it does not itself impair or violate the legitimate rights of other states or to put another way a state is free to do whatever it wants provided it doesn't interfere with other states. Anything that takes away this freedom is an interference with the state's sovereign rights. For example a state is free to fly along the high seaside of another state's national airspace and even free to spy on on other states from that position. Rule 119 of the Harvard manual talks about espionage specifically in the context of armed conflict and you can have a look at that if you want to know more. If the aircraft is prevented from seeing anything useful because of camouflage or because lots of very bright lights were turned on drowning out the picture then too bad it has not been prevented from doing something it is free to do. There is no right to useful intelligence generally and there there's an exception to that and we can talk about that if we have time. In order to be characterized as unlawful the interference must be so forcible that it effectively deprives that state of any real choice in the matter. Economic or political coercion does not amount to unlawful interference. An aircraft flying along the edge of the national airspace of another state that jams propaganda broadcasts within that state thereby violates the sovereignty of that other state. A state is free to broadcast what it likes within its own borders. If a state commits an internationally wrongful act the other state will have a right of action in an international legal tribunal. This could include the International Court of Justice at the Hague or specialized tribunals such as the International Tribunal for the Law of the Sea which sounds like a very civilized and ideal way of responding to an internationally wrongful act but it can take years to get a matter before such a tribunal and then still more years for the parties to argue the matter and then many months for the tribunal to make a decision. That is supposing that both states are subject to jurisdiction of the tribunal and that both states accept the decision. Even in that case there is often little that can be done to enforce decisions of the tribunal if the decisions are regarded as legally binding and enforceable on the parties in any event. Given these many limitations the majority of international disputes are not settled before international legal tribunals but by other means. In response to an internationally wrongful act a state may also of course take protective measures that is actions that only have an impact on themselves. Thus if a military aircraft keeps getting blocked in international airspace in spite of freedom of navigation the state could choose to use a stealth aircraft instead to avoid detection. The right to take protective measures seems obvious but it is worth stating because the question does sometimes come up. The other state may take counter measures in response to an internationally wrongful act. This is a legal term of art not to be confused with the way in which the military uses the term counter measures as in electronic counter measures. In a legal sense counter measures means that the other state may lawfully decide to stop performing an international obligation owed to the first state on the basis that doing so will induce the first state to stop its internationally wrongful act. There are a number of criteria for the lawfulness of counter measures. They must be directed at the wrong doing state. You can't direct them at third states. There must be a prior demand to cease and a genuine offer to negotiate but in the meantime you can take action to protect yourself. The counter measure must be commensurate with or proportional to the original wrong doing. The counter measure cannot involve the use of force and that leaves some discretion about the best course of action in the circumstances. So for example some responses to the interception and turn back of a state aircraft would be lawful counter measures and some responses would be unlawful. It would not be a lawful counter measure to create a large exclusion zone around the state aircraft such that it interferes with the freedom of navigation of third states. It would not be a lawful counter measure to shoot down the intercepting aircraft because a counter measure cannot involve a use of force. Although shooting down the intercepting aircraft might be lawful in other circumstances depending on the nature of the threat posed by the intercepting aircraft and I will say more about that later. It might be considered disproportionate to block all scheduled and non-scheduled civil and other flights from the intercepting state into the intercepted state. However it would probably be a lawful counter measure to disallow scheduled civil flights from the intercepting state to selected airports in the intercepted state notwithstanding the existence of a bilateral treaty between the two states allowing for access. There is another response to an internationally wrongful act that would itself amount to an internationally wrongful act but which is excused in the circumstances and that is distress. Distress describes the right of a state's agent to take reasonable measures in a situation of peril to save their lives or the lives of other persons entrusted to their care. I won't go into this in more detail for the purposes of time but the classic example is when a US EP-3 aircraft was damaged in an interception involving a Chinese aircraft in international airspace on the 1st of April 2001 and the EP-3 crossed into Chinese airspace and landed on Hainan Island without consent. Some actions may be more than an internationally wrongful act and may also amount to a threat or use of force. Article 24 of the Charter of the United Nations says that all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the United Nations. So force is generally thought to involve armed force violence and kinetic effects. The ICJ in the oil platforms case said that it's more than a border skirmish but could be less than an armed attack the implication being that there are some uses of force that do not give rise to a right to take action in national self-defense. The US took the contrary position in that case that any use of force would give rise to a right to respond in national self-defense. The political issue at stake is that if you set the threshold too low then conflicts are starting in circumstances when they perhaps don't need to. If it's set too high then you've got an unreasonable expectation of states restraining themselves. Not all activities are clear conventional acts of violence and the ICJ in the Nicaragua case said that it was a matter of scale and effects and that concept has been expanded upon and a number of criteria suggested specifically severity, immediacy, directness, invasiveness, measurability of effects, military character, state involvement and presumptive legality. So consider a remotely piloted aerial system that's conducting daily surveillance along a land border. The other state is aware of these surveillance flights and knows that the ARPAS has no weapons on board. If one day the ARPAS happens to slightly drift into the national airspace of another state it would be difficult to argue that that amounted to a use of force. Consider in contrast four armed fighter jets off an aircraft carrier sitting 13 nautical miles off the state's coast that turn abruptly and cross into the state's national airspace at right angles fly almost all the way to the coast and then immediately return to the aircraft carrier without doing anything. It would be easy to make the argument that such an activity amounts to a threat of force but it may be difficult to make the case that it amounts to an armed attack. Often it will depend on the circumstances and the consideration of factors that I mentioned previously. Generally there's no right to react with force in response to an initial action that amounts to a threat of force. There are three exceptions. The first is where it also rises to the level of an armed attack. The second is is controversial and I'm not actually going to go into it now for purposes of time and the third is the doctrine of necessity. Necessity is the right of a state to take reasonable measures to safeguard an essential interest of the state against a grave and imminent peril. An example might be where a large surveillance motley pilot aerial system with no weapons on board flies into another state's territory and over a populated area. It is shadowed by a fighter aircraft and when the ARPAS suffers a malfunction that puts it on a flight path towards a school the fighter aircraft destroys the ARPAS at a time that would cause the wreckage to fall in a sparsely populated area. Sometimes the application the doctrine of necessity can be very close to the right of national self-defense and that's set out in article 51 of the charter. If a state suffers an actual armed attack or anticipates an armed attack then that state has a right to take action to defend itself and to call upon other states to assist. An actual armed attack is straightforward, anticipatory self-defense is more difficult and implies where the necessity of self-defense is instant, overwhelming, leaving no choice of means and no moment for deliberation. Pre-emptive or preventative actions cannot be justified as anticipatory self-defense. The threshold for an armed attack is high and you look at the same sort of factors that I discussed previously and the response needs to be necessary and proportional. Article 51 contemplates the state may act in national self-defense until the Security Council has taken measures necessary to maintain international peace and security. So in the first place that would be measures not involving the use of armed force which could be complete or partial interruption of economic relations of rail, sea, air, postal, telegraphic radio, rather means of communication and the severance of diplomatic relations and if that doesn't work then authorising actions by air, sea or land forces. The constraints that come from a UN Security Council resolution are found in the first instance in the resolution itself. So even if you get a resolution that uses the magic words all necessary measures that's not carte blanche, you have to look at the resolution to determine what necessary means because necessary is a relative word necessary to what end. And it's not just a matter of the resolution itself either because there's a lot of intersecting law and the job of legal advisers to the arms forces becomes very, very complex when you're trying to deal with the intersection of a Security Council resolution, host nation law, domestic law, law of armed conflict, laws specific to a domain and so on. Once we're in a position of responding to an actual or anticipated armed attack or in circumstances where there's a resolution then we're undoubtedly in a situation where armed, where there's an armed conflict and law of armed conflict applies. Exactly where that point is can be difficult but once it does apply then it prohibits attacks on civilians and civilian objects and people and objects with special protection such as hospitals even if there are enemy wounded inside. However there are circumstances where such persons and objects may lose their protection such as where they directly participate in hostilities or are used for military purposes. It prohibits attacks that would cause excessive collateral damage, it prohibits weapons means and methods of warfare that would cause widespread long-term and severe damage to the natural environment, it prohibits states from using civilians and civilian objects as shields. The Harvard Manual explains the application of those and many other principles of LOAC to air and missile warfare in detail. That's sufficient for now as an introduction for the other three speakers. There's not sufficient time to talk about aggression and the crime of aggression although it's on your handout but please ask at the end if you want to if you're curious about that and thanks for your time and I look forward to your questions later. Thank you Duncan. We're now going to turn to Mr. Gary Brown who's going to talk about how some of this is panned out in the cyber world and his experience in putting together the TLIN Manual. Great thanks a lot. I thought maybe they had arranged us intentionally to go military guys you know kind of down here and then the professors up here but Duncan you set the bar really high so everybody cut me a break here I'm the dumb cyber guy and I really don't know anything about space law so you tell me how cyber is analogous to space and I'll listen intently what I can do is tell you a little bit about the development of cyber law where we are there I'll kind of break it up into into three parts and then I have one bonus segment if I get through the first three fast enough I'll talk about a little bit about the TLIN Manual first and then a little bit about what constitutes cyber warfare some about the law that applies once you're in armed conflict and then the secret bonus issue last. This is the TLIN Manual that was we've been referencing a little bit already this is was the work of of a long time a lot of a lot of smart people on it and I was fortunate enough to be there watching smart people at work and it's I think it's been quite valuable and it's been talked about a lot in the international community for a good reason. First of all it really and we knew this when we talked about it in TLIN it really doesn't have a lot to do with the activity that's going on in cyberspace right now because we very intentionally made it focus on war cyber warfare and not just cyber operations so there are a lot most of the things that happen now fall far below the level of anything that we would characterize as armed conflict so none of that is covered in this manual this manual talks about the stuff above the line but the idea was hey let's get the the easy part the easy part on paper and then we can talk about the hard part later so this was the focus of the manual. The reason I think it's gotten a lot of attention I mean it's just a bunch of scholars putting together a book it's nothing it doesn't represent the opinion of any nation or any any bigger organization it's just a scholarly manual but I think the reason it's gotten a lot of attention is we really are hungry for law in cyberspace so I guess this is much like space some people have argued that there is no law in cyberspace and you know maybe they're right but what we what we have is a lack of treaty law we have a lack of agreement among states about what would be what should be what should be normative behavior in cyberspace what should be appropriated or inappropriate in cyberspace and most importantly we have a lack of national practice that we can look to to develop customary international law and the reason we have a lack of national practices of course that activities undertaken by states which is where we get customary law right from the actions of states not from individual actors the actions of states in cyberspace are secret nobody owns up even when it's printed in the new york times attributed to certain states when activities happen still states don't own up to to what they did so there's been almost nothing that's been officially attributed to a state so we have a real hard time developing customary law in this area as a result this really the tolling manual really filled a void because we didn't have any law so people are looking at it to at least a reasoned opinion about what the law ought to be now how useful that is going forward as I I don't know because as I said most of the activity that's happening is below the level that the tolling manual covers but again it's a start I think it is a it is a start so the next thing I'll talk about a little bit is how we get to war in cyberspace this is a this is a tough issue you know sometimes it's easy if you already have a an armed conflict going on which you know unfortunately there are many of them generally at any given time it's it's understood and I think rightly understood that cyber activities will be part of the tactics that are used inside armed conflict and of course there isn't really any any conversation or any any discussion or disagreement about the fact that loaq the law of armed conflict would apply to those activities you're inside an armed conflict anything you do if you drop a bomb the law of armed conflict applies if you use if you employ cyber methodology law of armed conflict applies that's fairly easy and fairly straightforward the the problem is we don't always know when we get to armed conflict if there isn't a kinetic pre-existing armed conflict so the one of the big questions that plague us I think is the the danger that since we don't know where the line is that there might be an unintentional escalation or an unintentional cyber warfare that could result down the road when somebody was just trying to do something at a much lower level but it ended up being interpreted by their adversary is something much higher that results in in real armed conflict in a kinetic armed conflict so in this regard we have problems with both of course the attribution part makes it a problem when we're trying to figure out if something is an international armed conflict an armed conflict between two nation states even more difficult is determining whether or not something would constitute a non-international armed conflict which would be an armed conflict between a nation-state on one side and organized armed group on the other side the international law in this area is that that that organized armed group that non-state armed group has to have a certain level we're not exactly sure where it is but you know we know when we see it a certain level of organization before they can qualify and there has to be a certain level of intensity of the violence in the armed conflict and you can already see the problems we're trying to apply that in cyberspace what kind of organization do we have generally speaking cyber actors are loosely organized across the internet which is a wonderful wonderful communications platform for or for armed groups and they can organize loosely maybe not even meet in person but coordinate their activities does that qualify as an organized armed group not under the traditional way of looking at it it doesn't but maybe it will in the future and what about the intensity of violence what kind of violence results from cyber warfare well i don't know sometimes there can be consequences that result from cyber activities but many times we just think about things happening electronically or entirely contained within cyberspace and it's difficult to to lay a violence definition on most of those things so that that can be quite difficult just to get to that to that level and of course we have the the overarching problem which is one i think also you have in space of the attribution or non attribution of activities in cyberspace generally so if an activity happens we're not quite sure whether it came from the state we don't know whether it came from individual and even if we can trace back what you've seen maybe maybe you've seen some of the reports if you're into cyber space activities from companies like mandiant who have reported back in very great detail about the origin of certain cyber events and trace them all the way back to the computer and had taken pictures with the with the webcam on the on the computers and given the home address and the girlfriend and everything else that people were responsible for these activities some of whom as it turned out happened to be in the in the chinese army but what does that tell you it tells you that you found a person who does an activity it doesn't necessarily in every case tell you what organization is behind the activity it just tells you the individual and it doesn't necessarily tell you what the organization's motivation was so not even that we're not quite sure whether we're going to get to armed conflict okay so the third point is once we're inside an armed conflict there are big issues too i picked a couple i picked a couple of my favorites to talk about there are many many more i'm happy to talk about whichever ones you would happen to want to talk about one of them is just the definition of an attack inside armed conflict so we're in an armed conflict and now we're trying to decide does this cyber activity constitute an attack or not well most of the time in the kinetic world when we think about bombs and bullets we're pretty clear on what constitutes an attack right but in the cyber world not so easy and and the way we chose in the tolin manual and the working definition we used when i was at cyber command focused on the reasonable expectation of injury or death damage or destruction so some of those things very we're looking at kinetic results to get to the definition of attack for the most part the big debate that resulted in tolin from this was the idea that perhaps if we if we interfere with the functionality of a system maybe that should qualify as an attack too so this is kind of unique to cyber we don't normally think of just interfering with functionality as being an attack or a violent activity but if we just make something not work maybe that could be an attack is that true i don't know if it's true or not it gets to be very difficult one of the one of the examples i put on the on this chart which is my pretty chart two pretty charts here is the the sony hack which most of you have heard about most of the smart unclassified people that i talked to about the sony hack told me that what what it essentially consisted of was going into hard drives on the sony system and essentially disrupting or destroying the master boot record on hard drives if you're a computer guy you know what that means if you're not i can tell you it's essentially the same as being in a file room with a billion files in it that aren't filed in a particular order but you have this piece of paper that tells you where all the files are and somebody tore your piece of paper up so now all your files are still there nothing's nothing's been destroyed other than this index but you can't really find anything you can pop pop probably probably uh reconstruct the master boot record with a deep forensic analysis if you have the time and the money to do that but for the most part it's not really worth it because you've also got somebody inside your system and you know that they're still going to be sitting there when you're finished reconstructing the master boot record so is that is that a attack what was destroyed your stuff's still there it's all still there all the ones and zeros still reside on the drive you just can't find anything i don't know they're hard questions difficult and i think not quite the same as they are in the kinetic world the other quickly one of the things i'll talk about is just cyber disruption in general and that is really taking having very specific effects on people's lives and their everyday lives without anything being destroyed so you can think of things like if the train switching system were disrupted not to make trains crash but just to make it so we don't trust the the reliability of the switching system so we have to stop all real traffic in the united states because we're not sure if they'll crash so let's stop all the real traffic or what if we what if at the ports of baltimore long beach and galveston somebody got into the computer system that had to manifest all the container ships coming in and shuffled all the manifest so we had to physically crack open every container on the ships and find out what was inside before they were dispatched from the port what do you think that would do to people's lives in the united states again nothing destroyed nothing destroyed things just moved around so those disruptive actions are difficult to characterize under traditional international humanitarian law just not so easy the second one and i only want to take another minute or two the second one issue that i'll talk about under once you're inside an armed conflict is the difficulty of deciding what the means and methods of cyber warfare are you generally consider to be pretty easy in kinetic warfare but in cyber quite difficult when you think about it what exactly do you point to when you think about a cyber attack if somebody's taken an aggressive cyber action what is it you're going to point to to review for compliance with the law is it the computer is it the keyboard is it the hard drive is it the network itself is it the internet is it what what is it exactly that constitutes the weapon and the reason this is particularly difficult in cyber is that many activities undertaken by criminals and hackers and anybody else that that undertakes this kind of nefarious activity is something you might broadly refer to as command line tactics so we gain unauthorized access to a network or a system so now you're logged on as administrator someone is logged on as administrator to your system and now they own your system they can do whatever they want with it they can read your mail delete your mail copy your mail change your mail or delete all your files or in some cases even destroy physically destroy your machine so is the fact that they're physically resonant on the machine first of all is that an attack in itself and if it's not which thing is it that they're using that constitutes a weapon which thing is that they're their fingers you know I don't know it's difficult to fit in this traditional framework and you know I don't really have time but I'm going to tell you the bonus issue anyway and just very quickly I think though one of the hardest things to deal with in the law of cyber warfare is distinguishing between espionage and military activity very very challenging and I think for instance the the US Air Force my former service took the easy way out which was just saying here's the definition of attack and this all these things are attacked unless it's done for espionage purposes well I mean that that to me is the easy and not very effective way out because of course the person on the other end of the activity has no idea what your attention is behind doing it but I but I don't know that anybody has a better definition that's been able to distinguish those two I think it's a conversation we need to have thank you thank you very much uh so now we're going to move on to uh dr steer who's going to talk about some of the challenges we face in the space world so um it's been mentioned a couple of times you know people kind of question whether there is even anymore in space I don't know how many space law specialists there are how many people here are familiar with space law there's a specific background okay great so there are some people here backing up there is actually law in space um and I'm going to give a brief introduction of the the general principles of what applies in space law um and then talk about the militarization of space which is very controversial and to what extent the law of un-conflict or law act does or doesn't apply or to what extent we know whether it applies and then finally what um a manual on the application of international law to military activities in outer space might contribute so the basic principles of space law relating to military activities in particular so we have in 1963 um the UN already sat down soon after the footnote was launched they were already activities in space the UN uh sat down and came up with some general principles governing the activities of states in the exploration and use of outer space and these principles led to the 1967 outer space treaty which is kind of our core treaty when it comes to what's what's our basic public international law specifically in the environment of space and you could say that the object and purpose of that treaty is to maintain the peaceful exploration and use of outer space it was to prevent an arms race essentially if you look at the the time within which this was the beginning of the Cold War it was to prevent an arms race in outer space um to ensure the freedom of access by all states to the use and exploration of space and there are also a lot of ideals already stated in that treaty saying and any kind of scientific information that one state may gather should be made available to all states it's about a collaborative cooperative environment um the UN committing on peaceful uses of outer space and yes that's a thing as is the UN office of outer space affairs people don't believe me but it exists um it's it focused for a long time on how to um so we have the general principles we have a few treaties governing outer space but after a certain short burst of treaty making it kind of came to a bit of a deadlock and the committee on peaceful uses of outer space has attempted over time to keep developing that law particularly as our technology develops um as has the um the the the cd in the UN but it's been deadlocked for several years for political reasons so we've had repeated general assembly religious resolutions over several decades called the pyros resolutions or the prevention of arms race in outer space but as we know the general assembly resolutions are non-binding they're aspirational they're kind of an expression of what we all generally agree to but they're non-binding um so what are we having in terms of binding law well article one of the outer space treaty lays down as I mentioned the freedom of use and exploration of outer space for all states for the benefits and in the interests of all countries irrespective of their degree of economic or scientific development so also the attempt to include non-space varying nations um and to make the province of all mankind meaning as is laid down in article two of the outer space treaty specifically space can't be claimed as any state's territory it's not possible to appropriate space so it's non-territorial and a lot of people um make the analogy to the high seas nobody can claim that as their property it's the province of all of humankind which also means we all have to take care of it um article three says and all of that exploration and free use that we all have has to be uh has to be done in accordance with international law so that includes the charter of the united nations that therefore includes you know article two four out of these coden's against you know use of force um and it's stated in article three it must be in the interest of maintaining international peace and security and providing international cooperation and understanding so it's all this kind of against an arms race against having space for commonly battlefield which was already foreseeable article four of the outer space treaty specifies that it's a prohibition of weaponization and specifically nuclear weapons or weapons of mass destruction um we cannot face them in orbit we cannot station them on any celestial bodies which includes the moving planets things floating around up there um or in any other manner so they try to be as broad as possible but the question remains what amounts to a weapon of mass destruction could we have smart weapons which aren't weapons of mass destruction which might fall through a loophole there and suddenly be acceptable in outer space uh article six of the other space treaty states that all states are responsible for their activities in outer space including the activities of non-state actors for which they're responsible and article nine of the outer space treaty gives a fairly weak um obligation although it's the one that people tend to reach to the most often that all activities have to be um executed with due regard for the corresponding interests of other states so if the state believes that the space activities of another state would cause potentially harmful interference with activities in the peaceful exploration and use of outer space outer space um it can request consultation so there's an obligation but it's the kind of weak obligation under article nine space law is a part of public international law so everything that we know we need to know public international law everything we know about the law of armed conflict generally applies um you know some can as mentioned we have article two four uh in the UN Charter and all of the youth coagulants we have the possibility you know the two exceptions to article two four of course are self-defense article 51 or if the security council um allows under a resolution for collective self-defense um the law of armed conflict or international humanitarian law applies in general but we still have questions about how that applies specifically to the space environment and you can think also about environmental law particularly if you think about the kind of targeting that might take place in space um when you're talking about satellites as soon as you destroy something out of space the kind of space debris that gets created is incredibly hazardous i'm sure most people here have seen the film gravity one of the things i liked about that film was the whole premises it's not the scary aliens coming together sort of our greatest threats in our nearest space environment it's the jump that we've created out there so let's talk a little bit more about the militarization of outer space which is a controversial term um really we should be talking about the weaponized nation of outer space because that is what is briefly previously that's very clear but military technology has always been involved in our exploration of outer space um and the use of space as a strategic domain for conflict or defense uh here on earth um so there's a big debate when i mentioned in article three the underlying core principle that our exploration and use of outer space has to be for peaceful purposes there's been a debate for quite some time whether that excludes military use in total or only aggressive purposes so can we have military technology out there that's not doing aggressive things um one example might be monitoring another state as to whether or not they are developing a nuclear launch project so it could be for defensive or monitoring or in fact peaceful purposes but using military technology um and if you think also about gps i've had to use google maps to find my way here to the new university gps was a military technology originally and it's been expanded for civilian use um by comparison the russian glonar system and european galileo system and i believe also the chinese system were originally civilian but the technology started out as military technology so the prevention of a space arms race was very much underlying the the beginning of our space law treaties but what about today so we're not thinking just about um the Reagan era notion of star wars when you talk about having a huge system of satellites and shields um the strategic defense initiative at the time the technology wasn't sufficient to create something like that um and it was also criticized as creating a new arms race but if you think about the way wars are fought here on earth sounds like such a funny way to say it as if we're fighting one of the planets but to rest your warfare is already um i wouldn't say government there's a lot of military technology that that has an extremely important part in how intelligence is gathered for instance um i know some people talk about operations at the start of the first war as being the first space war it was the first time that space technology and satellite technology was such an integral part of being able to exercise the operation and and take stupid decisions and the biggest question which takes me to my next uh next question next topic is this idea of dual use technologies so i mentioned gps started out as military technology and became civilian but what we also have today is it costs a lot of money to put things up in space so there's a lot of um share payloads there's a lot of dual use so there are satellites up there that have used both for military intelligence gathering or monitoring and for you and i using our mobile phones both on the one satellite um so this creates questions as to what is the nature or use of that object can it be seen as a military object can it be targeted or not so we're thinking about to what extent international humanitarian law the law of armed conflict does or doesn't apply to space or more to the point to what extent we know that it applies what are the questions we still have to answer so the outer space uh tree and the other trees applying to outer space are the express outlets but as has already been mentioned so is the law of armed conflict so what happens if the two of those counter each other in any way which one prevails it's one of the biggest questions we have to consider and another problem is that it's not just new methods it means so there's a big crossover with cyber warfare um again because most of the technology is satellite technology but when we think about targeting a satellite it's going to be done through cyber technology so there's a lot of crossover with the questions that has been dealt with in the telemandy but also applies to space um we have another question about territoriality as i mentioned no one can appropriate space um and this was very much a hypothetical that came up a couple weeks ago i'd be very curious to see what our military experts say about this but in airspace you can extend uh it's not a claim of territory but it's an air defense identification zone so beyond your i can take exclusive economic zone you could say we want to extend another couple of hundred kilometers and we want to say it's not our territory but if anyone flies through that zone we want you to identify who you are and what your purposes are because there's a risk you may fly into our territory so it's not a territorial claim but it's an extension of a defense zone um and there's been contentions around whether these zones can overlap each other i'm curious whether we can think about the analogy of extending that upwards so airspace state has exclusive territory over its airspace up to we don't really know where because we don't really know where airspace ends and our space begins another question that plays probably smart professors who still living where they want to work it out would it be possible for a state to extend its uh not its territoriality but its defense zone further up into outer space and say if you fly through this zone we want you to identify yourself problem is that then comes into contention with the freedom of use in outer space everyone has the right to freely explore outer space and if you're suddenly claiming that i have to identify myself as i fly through a certain area that isn't your territory could become quite complex but we're not only thinking about in terms of war in space i mean it kind of sounds a little bit futuristic but there's three domains you could think of so the first is from space to earth so as i said operations as a storm they've been using satellite technology for intelligence gathering and monitoring for quite some time so space assets to contribute to or take part into the rest of your warfare the second is earth to space assets so when we start thinking about the possibility of targeting a belligerent part of the satellite and then the quite a problem we have of dual use satellites and identifying whether this is actually a military object or not um cyber warfare but also possibly just jamming the signals so we wouldn't have to lead to destruction of a space asset it could just be jamming the signals so that our enemy party can't receive the information that they're trying to get from that satellite and then you can think about space to space which is probably a little bit more futuristic at the moment but it may not be too far off when you're thinking about using satellites as weapons against each other or just with the purpose again of interfering with each other so in 2014 russia launched a object it didn't announce the board it didn't register it we don't know whether it was a satellite people started to think it was just some kind of experiment and then this satellite started to make some very interesting maneuvers moving towards other satellites now it could also have been a really great step forward in terms of being to uh being able to do honorable servicing and fixing a satellite or extending its life by sending this little robot out but there was also speculation that it may have been a weapon test we just don't know so given i mentioned given the technology says some crossover with cyber warfare and the questions arise again in the space domain what amounts to an armed attack what amounts to a use of force if you're talking about jamming or interfering a signal is that use of force and what would then be the acceptable countermeasures for something like that are we just going to end up jamming each other's satellites continually um and as many of you know one of the core principles of lower ground conflict is the principle of distinction so we have to be able to distinguish between military objects and protected objects as some can mention the hospital or a school but also protected persons as opposed to military personnel or those directly participating in facilities so when we think about astronauts for instance the astronauts on the international space station astronauts on article five of the outer space treaty are uh dedicated as envoys of human times they have a special protection we only took after them and there's also the astronaut agreement so if a russian astronaut lands on us territory the us is obliged to help them out and return them to to russia um but what happens to the status of these astronauts if they're two countries suddenly enter into conflict are they still envoys of humankind do they a lot of these astronauts tend to be military personnel do they suddenly become um military objects do they do they retain a certain protection which they expect shallow supplies what happens if an astronaut is not a military personnel we have more and more people paying for their own route to the ISS but we also have scientists taking part in these unexpositions what if they're not military personnel but they're involved in the use of space space technologies how do we know what stage they are or aren't directly participating in facilities and when their status might change um and i mentioned already dual use satellites i think this is one of the biggest questions that has to be answered when looking at targeting a military object is defined or if i use the wording of the uh additional protocol AP-1 according to its nature location purpose or use well the location in outer space it's not in anybody's territory um the use and the purpose making very difficult to identify when we have these dual use satellites it becomes very difficult to identify what is or isn't a military target and the same again with uh with rockets and launch vehicles essentially every single launch vehicle sending satellites up into space is a missile and it's very difficult to verify what its purpose is when it's launching it may just be launching a little cube set that some university has developed for scientific purposes or it may also be carrying another payload that we can't verify another big question is the balance of military necessity and collateral damage these are the biggest questions in the law of armed conflict um when you think about targeting a satellite and i mentioned these dual use so maybe the same satellite that i use to help me with my gps to find the university today also has transponders on it that's being used for military purposes if it were determined that it was a military object and that it was okay to target it and then i'm talking more than just jamming the signal but possibly destroying the the satellite what happens in terms of collateral damage if our communications were wiped out and we have had a conference not long ago that was called um satellites without satellites for a day just imagine wow we are so dependent on space technology people don't really realize it but our gps communication is also used for instance for civil aviation so the plane knows where it's going and where to land um all your internet communications your phone communications it's not just a matter of facebook there's actually some very serious technology that's dependent that if that were to be interrupted even just temporarily the collateral damage could be immense so it's very hard to balance out whether that is a serious military object or not oh sorry whether that fulfills military necessity or not is it even foreseeable what what the collateral damage could be and then again our specific problem with space debris if you are talking about kinetic weapons or destroying a uh a satellite or another space asset the problem of space debris and with the the kind of extended greater risk for collision i'm into the film gravity but there's something like a hundred potential collisions a day with the we have a thousand two hundred satellites up there plus all the other space junk if you were to destroy it by like satellites and create more space junk the environmental collateral damage would also be immense so just briefly how would a manual contribute to all of this well Duncan's already mentioned the history of the manuals we have the same rumor manual the the Oxford manual historically the telemanual these manuals are actually on the desks of military commanders when they're asking the questions in times of conflict i don't know if the telemanual has been actively used uh but these manuals are important documents put together by the people with the inside knowledge um we also need international rather than domestical so one way about going about this might be that uh national military's come up with their own manuals um to deal with these issues but then you have a potential for different interpretations crossing over legal regimes um a subjective interpretation as to when it might be triggered which was what we had in the pre world war two classical war on conflict uh an international manual recognized manual would also avoid the problem of legal black holes as i like to call them which is when the state says well it's a state of emergency we don't have to apply the law of un-conflict the way that it otherwise would apply um having an an internationally recognized manual would avoid this this potential problem um and there's also a need for particular rules rather than just general principles so we can't just rely on something like the martyr's clause which was originally the Hague convention 1907 it was uh also included in the additional protocols in cases not covered by the law in force the human person remains under the protection of the principles of humanity and the dictates of the public conscience the point was that you can't foresee all of the technology that humanity is going to develop we need a clause that says well there's a general human standard that applies but i'm not convinced that's enough when we're talking about this specific technology and this specific environment which is very different from anything we've dealt with in land uh air or sea warfare we also need more clarity because there's an increasing number of non-state actors taking part in our space activities um sharing lodges with the government on military dual use of technologies i mentioned but also government and military outsourcing some of their their technology and we all know space actors sending people up to the international space station there's more and more of these non-state actors involved how does the law of our conflict apply to their participation should a conflict begin between states um and then there's a question are we developing the law updating the law are we restating the law and and i think it's probably something we can discuss a little bit further in time when we have questions um essentially the reason we need a manual is that it's about regulating and restraining the ways in which space is used in conflict regulating and restraining military activities in space the base on depth of the law of our conflict is to regulate and minimize the impact of human conflict and this needs to be considered carefully i would argue urgently when it comes to the next battlefield thank you very much um and last but certain that least is uh pete haze and uh he's going to talk a little bit about how clarifying some of this might be useful from a strategic context well thanks very much ryan um it's a great pleasure to be with you and um i appreciate this opportunity i'd like to thank the secure world foundation and uh d.w. and uh duncan and all of you for coming out to this i need to also just reiterate that i'm also under those same kind of restrictions so uh these are personal comments only and they don't affect anyone's uh official position about anything so um yeah of course so um i i'd like to start with um just the disclaimer that i'm not a space lawyer i don't play one on tv so i probably have a quite different interpretation of some of the things that have been previously discussed and i'd like to go back to um my interpretation of the outer space tree uh based on what i see as the negotiating history um as well as a subsequent practice of the party so um i think there was some thought to the idea that we wanted to have constraints on a potential arms race in space that led to the outer space tree but i would submit it was much more about in that time era about um decolonization um ideas that were very widely shared among the states in the un and they wanted to ensure that the uh ills of colonization would not be extended to outer space so that's really the primary purpose behind the tree as i see it and i think when it um as professor steel mentioned you know you had a lot of rapid growth in space law in about the 10 years from the opening of the space age and subsequent to that there's been very very little so i would submit that that's because the uh major space actors reached the limits of what they were willing to agree to at the time of the outer space tree they tried that into international law and it's no accident comrades that we haven't gotten very far past that so what exactly does the outer space tree say about space weaponization it does not say that you cannot weaponize space it says you can't have nuclear weapons in earth orbit outer space or on celestial bodies so uh as the authoritative source for that i submit to you that when um d rusk testified in the united states senate when they were doing advice and consent to replication of the treaty he said that this treaty does not preclude the development of anx satellite weapons should those become necessary in the future the united states had already developed anx satellite weapons starting in 1958 so he was just merely stating the fact there's nothing about anx satellite weapons in the treaty and again in my judgment in terms of negotiating record record and the subsequent practice of the parties there's really nothing about that kind of weaponization of space and i would also highlight as professor steel did that weapons of massive destruction are not defined in the treaty so what is it isn't a mass destruction weapon is up to the space lawyers so um i i mean i would also tell you that i mean look the soviet union has tested their core real asat system 20 times at least united states tested many in my satellite weapons no one objected to the best of my knowledge to those events under the terms of the outer space treaty because it could not does it prohibit those kind of things that's a very significant point of international law here we might like that the treaty and all these kind of things we might think that that's a better way to approach things going forward in the future but in point of fact it does not and again practice of the parties is very important in this regard because they clearly interpreted that they could do those kind of things and not be in violation of the treaty i would also submit to you that when states are really serious about having better defined and enforced mechanisms with respect to it how the treaty will be implemented they put in place something like the standing consultative commission of the anaglistic missile treaty the joint inspection and compliance commission of the start one treaty those kind of things which are specifically intended to interpret what the obligations under the treaty are and to get the parties on board with those kind of obligations actually the treaty has a duty with respect to that none okay so that's a very significant point of departure as well the parties were really serious about having those kind of things in place they would have put something in place where in these many years subsequent to the treaty they would have said hey you know all this prior notification stuff and responsibilities for continuing supervision of all the activities of our licensees in space that require some kind of standing body to interpret all this stuff and make sure that the signatories are in compliance with the terms of the treaty okay so that is also instructed to me so again in my humble opinion we've reached the limits in international law in terms of what major space actors are willing to sign up to in terms of treaty law customary international law is also important as a my fellow panelists that talked about so again practice of the party is pretty important i note that none at least to the best of my knowledge i know there's a lot of state departments people here so you can correct me if i'm wrong but i don't know of anyone that objected to let's say the 2007 chinese um and i satellite tests in terms of that somehow violating the outer space treaty obviously the chinese didn't do any prior consultations uh you know seems to me that adding 25 to the amount of debris and lower in orbit might cause some kind of a harmful interference with others but you know it wasn't objected to on the grounds of somehow violating the treaty so i think that ought to be instructed to us as well um so that just forms a pretty significant impediment in terms of where we're going with specific law i'd like to just highlight a couple other things that were brought up by my panelists and i am going to yield a lot of my time back because i'm very curious about your questions so i duncan talked about um peace being the normal state of affairs that's another thing that i wish were true but our friends in um in the kremlin seem to have other ideas about that in fact they come up with this idea of hybrid warfare the primary purpose of hybrid warfare is to brutalize between peace and war so that many activities can be undertaken and it doesn't really and it's not very clear to many of the observers what exactly is going on maybe there's terrorist activities going on maybe there's unconventional warfare activities going on maybe conventional warfare activities with volunteers instead of regular forces etc etc so um when we look at uh major uh the space power actors who have these kinds of doctrines in operation and treasurely it doesn't give me great optimism when i think about how those might be applied in space especially in the context of all the issues with dual use systems and problems with attribution that have already been raised it's difficult enough when people are really interested in being transparent and providing as much information as possible about their space operations because space is big it's hard to track all this stuff small and smaller things can have more and more ability to do more and more things so when i overlay that with this idea that i now want to practice hybrid warfare and fuzz up the line between peace and war i think that's going to be very very difficult and i don't want to misconstrue my concepts i wish everyone in this room and others the best of luck in producing space law advancements i really truly believe they are needed but um i just want to highlight that in my judgment it's going to be exceptionally difficult the final thing i'll just raise is that um many of you have probably read clay mulch's book politics of space security strategic restraint in the pursuit of national interest so i think that's a brilliant book does a great job of talking about how the superpowers during space age did environmental learning and understood that um lighting off nuclear weapons in space was harmful to people in space and um more and more degree was less and less useful to folks so i agree with all that um i think clay kind of runs history forwards and backwards because i don't think the concerns that we have about those things today were as big a concern at the time those things were happening but i would just ask you to consider whether in fact this strategic restraint on the part of the united states is having the intended effect it would be great if all other major space actors were practicing a lot of restraint in what they are capable of doing as the united states has been doing for decades but um i don't see much evidence of that and in the context of the interpretation of the outer space treaty that i just gave you and the lack of other international law instruments to um at least slow down this kind of thing i think it's incumbent on us to rethink whether this is a useful approach and i would submit to you that when we don't have any kind of legal restraints when our practice of strategic restraint has not been reciprocated by our primary adversaries it's time to think about doing this another way during the cold war i should probably familiar to united states during several occasions pursued what's known as a uh two track arms control approach so probably the most famous example of that was with international or uh intermediate major nuclear forces i and f forces so-called uh i had the pleasure of delivering many of those warheads to europe uh back in the air force but um anyways what the united states said is hey we're either going to reach an agreement on these things or we're going to deploy them so it's your choice and so the unit had already deployed ss20s into europe that was approximately the cause for the uh ground launch cruise missiles in persian two missiles of the united states deployed in europe so um that actually wasn't successful we don't you know um have a specific um treaty with respect to um space in that regard we did get a i and f treaty so that was very important and it was also um the first one where we had um on-site inspections and not just national technical means so um and as long as the abroad national technical means i meant to mention this earlier but some people make the case that um because uh under the terms of the um mechanicalistic missile treaty 1972 and the um i forget which article that is but i talked about you're you're not supposed to interfere with national technical means euphemism for spy satellites uh first uh introduce that treaty um that that somehow extends to all other space stuff and um you can't do that it's it's bad i would submit to you that uh first of all we've withdrawn from that treaty as you know but that treaty language has been reiterated in other treaties but uh if you go back and look at the actual language it's very carefully crafted it says um that you're not supposed to interfere with national technical means when they are verifying compliance with the terms of this agreement so my question to you is how does one know whatever this space object is is uh verifying compliance with whatever it is that they're supposed to be doing so extending that kind of thin protection over all other space objects and extremely uh they read in my handle painted so i'm going to shut that off there and uh report to your questions thank you thank you very much uh so the time we have left i'm going to open up for questions and answers uh i will ask that uh you wait for the microphone to come around and please state your name and affiliation uh when uh when you're giving your question so no this mic's coming to you thank you i'm rob reyney from the big quarter zero force working international law a couple of you mentioned the notion of uh lex specie ellis and the principles of that entails particularly dr steer and nukin i want to see what you think of this is to the extent that we could articulate a conflict between outer space law and the law of armed conflict and maybe envoys of mankind is a good one you mentioned that as a possible example but even there i don't think the either the outer space treaty or the rescuer return agreement one uses the term astronaut or cosmonaut i think it's uh spacecraft personnel uh which isn't defined so what what is that just like space object just like outer space there's only undefined terms but to the extent we could find a real conflict would know you think more likely that the us and other major space actors would try to interpret international legal rights and obligations in such a way that they are consistent rather than inconsistent in therefore create a conflict and and need to invoke the lex specie ellis principle and maybe gary since you're sitting there maybe there's a an application of cyber as well whatever law may govern that domain if it's even a domain thanks sir for the question thanks sir for the question a very good question the lex specie ellis of course only applies to the extent of any consistency which is i think what your point is is if you can find consistency then why not find consistency we'd prefer to to do that i think um the outer space treaty does actually use astronaut but all of the other treaties use spacecraft personnel um i think it may be possible to to argue that there is consistency between astronauts being envoys of mankind um and the application of the law of armed conflict uh the but that's part of the reason maybe we need to clarify these sorts of things but you can imagine circumstances where they're given a special status in in international law uh and um i i think it would be relatively easy to argue that notwithstanding that they might be from the military military originally um while they're astronauts they're civilian personnel um and therefore protected um i think that's all i'll say on that and pass it over to others to me all i would say is i i agree absolutely inconsistency doesn't necessarily mean conflict between the two knowledge the point is more indeed to raise where there's lack of clarity and i think that's one of the reasons we need it manually because the questions come up we don't quite know exactly what happens to those undefined terms um and i agree totally more often than not you could find harmony within that rather than conflicts rather than trying to decide which of the two prevails um but it requires it requires clarity because there isn't there isn't clarity at all in the building some of the consultant and this is nearer object transformation program and i have a question about planetary defense and options for deflecting and destroying asteroids on an impact course with earth now what sort of legal regime would apply uh and i'm going to make this us only just to keep it simple it isn't simple uh if the u.s decided to launch a nuclear weapon which of course would be now called nuclear devices on a repurposed nuclear weapon on a rocket uh from a launch pad in the united states um to deflect or destroy an asteroid and this would be indeed space of course an impact course with earth and also what kind of legal regime would apply and what kinds of issues could you foresee coming up particularly with non-us actors um and would the legal regime and the issues raised be different if the mission were a civilian mission say nasa or a military mission say do d uh another great question um i'm glad that it's been asked um it would very definitely give rise to questions about the application the doctrine of necessity in international law seems to fit squarely within it the criteria that there is a grave and imminent peril threatening an essential interest of the state the only way for the state to safeguard against it but it can't seriously impair an essential interest of another state to which an obligation is owed um and um it can't be invoked if the international obligation in question excludes it or the state has contributed to the situation of necessity uh so seems to me that that it fits squarely within it there there is um you hear the phrase american exceptionalism and it's a little uncomfortable being an australian and raising that phrase in this forum but um if ever there was a case for american exceptionalism then something like this seems to fit well within it you know frankly there's there's not a lot of others that would be able to do something about an asteroid headed towards this planet now of course there would be differences in the international community about the means used to do something about the asteroid um but i think it unlikely that anybody but the united states could do something about it so again so you also asked what would the difference be for a military or a civilian operation like they said article six of the ad space treaty says that states are responsible for all national activities even if that's uh a non-state activity by organization which is under the control of jurisdiction of that state so you just apply state responsibility as we know it to be an international public international law um which would mean you'd have to fulfill these questions of necessity and um this year the uh actually just this weekend past the marathon likes uh a space or mood court competitions were placed here in DC the north american rounds and the problems that the students had to deal with was exactly the scenario you're describing um so perhaps you could speak to some of those students about the solutions they came up with but the majority of them argued exactly this that you'd have to fulfill the requirements of necessity you'd have to look at attribution if it weren't actually a military operation um but but i think the point is it's uh a nuclear weapons there was something else to say um in terms of the legal regime applicable the icj has also the international court of justice has also said an advisory opinion about the legality of nuclear weapons though they are illegal because they're by definition weapons of mass destruction there may be an exception if it's a case of um total emergency self-defense and you could imagine that this scenario might fall under that so i'll just add to that not as a lawyer but somebody does about the bit of the technology i think you can make a distinction between a nuclear weapon and nuclear explosive device just like you can make a distinction between a thousand pounds of dynamite used for mining expedition and a thousand pounds of high explosive package into a bomb with a casing designed to focus it in great trap and a weapon is something designed to have specific effects in a specific military context uh and a nuclear weapon uh would have to be significantly re-engineered in most cases to be useful against the kind of deflection scenario you're talking about um and then i think that would raise a very interesting question then is it still a nuclear weapon or not or is it a fall into this new category of a nuclear explosive device? Victoria? Victoria Samson, Secure World Foundation. I have one question for the space people and one for the cyber guy um space people uh i'm relatively at this issue in terms of the legal aspects of this but one of the things i've been hearing more and more often is the idea that with the 50th anniversary of the outer space treaty coming up now's a great time to start looking back at it um my concern and i'm going to repeat on this i think maybe issues that weren't brought up in the first time around were not done for a reason and anybody starting to discuss it again you're opening up a can of worms maybe i'm wrong i'd look to hear your opinions on that um because we're seeing it specifically in regards to the concept of finding self-defense in space that we're seeing looking at it and then um in terms of cyber i was really curious to hear you talk about escalation leading to kinetic conflicts because for space that's one of the big issues we look at how do you send the proper message so that escalation doesn't happen placed not without intent and i'm curious to know a cyber solve that issue so if you want to go first here uh it might be a simple answer yeah sure yeah cyber solved all these questions all the answers the uh there's been talk about having a hotline for instance um you know it's just to keep communications going that kind of thing the united states uh answer to it in 2011 in its international strategy for cyberspace the us said a sent uh to paraphrase some things in cyber we're not going to tell you what we'll consider to be aggressive acts and won't respond like we would to any other aggressive act against us so that that's kind of been the clearest statement from any country about uh escalation or what would be considered an aggressive act in cyberspace so not especially useful although um you know obviously the us engaging in some strategic ambiguity there wasn't but they didn't know they were being unclear it's that you know you don't necessarily want to show your entire hand to the to your adversaries potential adversaries so uh no uh we don't have a lot of answers yet until we define what certainly until we define what an attack is what a use of force is what an armed attack is in cyber i think you're not going to have a clarity on that issue so are we opening up another kind of worms i mean yes and but it needs to be opened up and i think part of the problem is i'm not convinced that we're going to get states to sit down and create a town space tree 2.0 or uh or update it or create a new tree that there's a reason that there's been that deadlock also within the union committee for peaceful uses of outer spaces that states have been unwilling around certain issues to to um bind themselves to hard law um which is why even there's a discussion about what where the soft law is law but um sometimes the draft articles on state responsibility might be one really good example sometimes it works more effectively not to push to have it become a treaty the draft articles on state responsibility were were drafted over carefully over quite a couple of decades by the international law commission and the content particularly of some of those articles is harder than what states will agree to if they were to come to the table together and yet it's become recognized as customary international law the international court of justice has referred to them many times just a few weeks ago they've actually stated that the entire draft articles are now recognized as customary law not just certain articles um so there may be some ways of developing these issues particularly when it comes to using space as a battlefield and what do we do with law of arm conflict we're not dependent on trees we also have customary law which is hard law um and then we also have soft law and we also have things like you know it's stated here on the cover of the talent manual prepared by the international group of experts that was put together under the the umbrella of uh of the nature of cyber defense uh let me see center excellence under NATO i wanted to say but it's not it's not a NATO exercise it's an international exercise very international experts involved um military experts public international experts law of arm conflict experts and these are the kinds of people you need to get sitting at a table to state the law in a manual that military commanders can then grow and use to then form state practice to form customary law over time it's a different way of forming the law trying to get the states together now in the next few years to create another treaty is it's unlikely yeah i mean that is one of the 64 million dollar questions in terms of you know whether it would be better to try that approach or more of this bottom up approach that most of the uh major space pairing actors have been um pursuing subsequent to the outer space tree um in my judgment the number one thing that really isn't um effectively addressed in the outer space treaty isn't even so much the security issues as the commercial issues of space um and in that regard um maybe there are some useful precedents with respect to um letting commercial actors into the international telecommunications union as well as the copious so um i would say that it would be useful if um there was an attempt to do this kind of top down approach you know in conjunction with the 50th anniversary or whenever if those kind of commercial actors could be explicitly brought into the regime because i think uh more and more they have um the majority of activity and what they do is really really important and having a regulatory regime that everyone can agree with respect to their activities is critically important and for those of us who'd like to see a lot more um kind of deep space commercial operations i would submit that that's critically important because right now there isn't a um DRT of any kind of reward commensurate with the risk undertaken by those parties so no one's willing to entertain those kind of risks unless there's better assurance that they're gonna get some kind of payout um in fact there's a payout can i reattach on that as well so maybe this is sort of the new normal in the development of international law because i'm hearing a lot of parallels with the the lack of development of law in cyber cyber warfare as well there really isn't any serious discussion about a treaty an international treaty happening with cyber warfare we can't even agree on domestic law and cyber space so it's really going to be difficult to get countries together so the most interesting work now is being done on what's being called cyber norms i'm not sure they meet the definition of what i would have called norms five years ago but but they're more they're aspirations essentially because you know let's face it we have norms in cyberspace we just don't like them because let's do whatever you can get away with right i mean that's that's what people have been doing since the beginning of the internet so that's what people continue to do but we're trying to establish some some polite behavior and some standards of polite behavior in cyberspace and that interesting work being done there uh internationally so maybe that's the way it'll go and maybe something similar will happen in space as well on the question of a i guess um a hierarchy of um norms or or rules in international law if you have states sign up to a treaty then that has a high level of value quite a lot of strength quite a lot of cachet if you like um but then there is measures short of that such as getting a group of international legal experts together uh and um one of the measures of success of something like that is is it actually used practically and the San Remo manual of international law applicable to armed conflicts at sea as i say to my knowledge um any naval warfare officer knows of the San Remo manual now um it's not a treaty document but the practical effect is is quite strong um and it's it's part of what has sometimes been called the secret life of international law it's a good phrase that i like the other thing about um the sort of levels of international law below treaty level is um there can be some cynicism about any any international law but if you don't have international law on on your side then you risk um not having domestic support and you know having the wrong message going throughout the twittosphere you risk not being able to get the hosting um bases in in other states when you're trying to form a military coalition you risk not being able to get the military coalition that you want you risk not being able to get the resolution that you want with the un security council um and you risk no support from other members of the international community in not in being able to support other diplomatic measures like sanctions and no sorts of things but perhaps the most significant thing is that until you have norms until you say you can't do this then you can't point to another state and say you've crossed a threshold and now we have a right to do something about it there are no norms you just can't do that i'm sorry Richard Easton independent scholar i want to make a comment about gps uh points been making that it started out as a military system which is a common misconception that gps from the very beginning the block one satellites had civilian signal as well as military and professor Richard Langley writes a column for gps world made the comment that in 1982 he was using the civilian signal so that was a year before the Korean airliner was shot down so it's it's a common misconception that ragan opened up gps for civilian applications but that's not correct when the very beginning it had a civilian signal the problem is only the department of defense was willing to fund it so so that may be where the misconception comes from and the predecessor system transit quickly had civilian applications jim jim armor with orbital atk but long time air force member and it's taken me a while to get out of the national security mindset and into the commercial world but now very interested in satellite servicing and the longer term asteroid mining and other logistics that you find in space i don't really have a well-formed question but an observation as we've worked some of these advanced commercial projects is that what we're really looking for is stability that we can work within we don't really care in a lot of ways what the rules are as long as there's rules and we have been found a great deal of success working within the u.s. domestic framework you know state department it u f a a f cc all of those frameworks have um been flexible enough to deal with the new kinds of businesses we're bringing forward and i think we're sort of looking for the u.s. government then to turn into the international domain and then set the norms that we're working on at a global level that's sort of hope springs eternal i mean i'm not sure how it's going to work out but i would be afraid to get commercial entities involved in the international forums because they are very focused on you know their own interest and those can drive less than humanitarian objectives which i would hope the larger goals would would attain um so i guess my question might be um we've had some success in all the seas and i i don't hear too much discussion about that kind of an approach for the space domain and i'm just surprised by that maybe it's ongoing and i haven't seen it um but i would be interested in comments to any of the comments that i'm addressing the question about law of the sea first it's it's an analogy that is often made in the space domain and uh kassandra and i were just at a conference um last week where there was some suggestion that the concept of a contiguous zone which is part of the law of the sea could be extended into outer space that has all sorts of challenges around it but perhaps it's useful that it would be a long way before we long time before we saw anything about that in terms of um commercial involvement in in in the space domain and particularly the strategic and security aspects of the space domain um it was a it was a something that i discussed specifically at the at this conference last week and and there are three seas that i'm sure many of the space community would have heard about that space is becoming more congested contested and competitive um i suggest that there are three four r's that should be the response to that and that is that space needs to become more regulated more resilient more redundant and there needs to be repercussions in outer space um and commercial entities could contribute to every one of those the challenge though would be to contribute to one of those without undermining another oh unsolicited i realize but i'll talk about the way the the law of the sea and algae has been applied in cyberspace so people try to apply it all the time we hear we hear about it all the time in cyber i i think when you think about because mostly where we're we're thinking we'd like to develop a high seas principle where people can undertake activities where they don't bother other people and that kind of thing is a big part of it and the way we develop the high seas was first we we define territorial sovereignty right and we we define the sovereignty along all the sea coast and whatever's not sovereign territory it's high seas so the first thing you need to do is define where your territorial sovereignty and so in cyberspace people talk about this and i think about you know who knows maybe somebody will correct me on being wrong all these years but i i think uh traditionally we talk about the law to sea starting with a three mile wide territorial sea because why can't answer that's the range of shore base canada say so it's as far as you can protect your sovereignty you can fire three miles and that's how far it extends so so the analogy i i offer in cyber to people is okay so your cyber sovereignty extends just as far as you can protect it that's not much maybe not any so i i don't know and it even brings into question the entire idea of having any kind of sovereignty in cyberspace whether or not it has any characteristics in common with mapping your territorial sovereignty so it's a it's a different question but the same analogy applies everybody loves the law to sea it's a great body of law and we'd love to see it apply i'm sure in the space as well as site it's a great question sir and um you know it's very difficult to struggle with the best approaches to this but um i would just submit that to me um the common heritage of mankind provisions in the law to sea treaty part of the biggest distinction between that and the outer space treaty me the outer space treaty has elements of that but that term of art hadn't emerged at the time of that treaty so um and that has a lot to do with you know how are you going to divvy up any wealth generated in space so under common heritage of mankind everyone has equal rights to that whether they assumed any risk in its development or not i mean that makes sense for a lot of things uh maybe that don't require so much effort to develop but i think space does require a lot of developments to um sort of a lot of effort to develop and um i see those kind of structures as being an impediment to doing more current development in space because as i mentioned i would like to see the people taking the risk getting the biggest potential benefits and that would be um not the case under common heritage so and the other thing i'll just mention is the seabed authority you know to do all this stuff under a lot of the sea at the best light knowledge they haven't really done anything so you know it's all kind of theoretical in that domain as well so um perhaps as that matures and you get some more test cases on how that's really going to be developed and uh who gets what where and how then those things could be applied to space i'm just about to leave it out for nasa following up on mr armors general armors question also long term air force for professor steer article six that you mentioned requires the states to oversee or approve and continuously monitor the activities of governments and non-government that's good and international law but what about domestic law to regulate that sort of thing there isn't any right the perfectly answers any question like that is it depends actually the u.s. there's a great deal of regulation um the u.s. has more domestic law governing space activities than any other state um and and for the most part because originally it was only states who had the way with all to to uh to become you know to enter these space activities that's why that language is in in that space treaty it wasn't foreseen that commercial actors would suddenly become the ones with the way with all the technology um but for the most part states and it does depend india for instance has almost no regulation and it's wanting to bend is becoming a very successful space very nation but but where that regulation is there states comply with their obligation of the outer space treaty and the organizations and commercial entities within that state comply with their national regulations it is an immense amount of licensing regulation that goes on if you want to procure a satellite finance a satellite launch a satellite um where's the risk for the insurance risk what happens if that satellite fails at launch what happens if it crashes into another satellite regulating the orbital star regulating the frequency specifically mining and satellite service those are right that's and that's and i agree that that's in that still needs to be developed um and it's ahead of point i wanted to to mention before as well that as if this is something that that i think will have a more and more first at a state level and then at international um and so in the atmosphere there is actually the notion of the province of all mankind which may or may not have been with the same mindset as um the heritage of all mankind in the law of the sea but i think that is going to be one of our greater challenges the the FFA has just said we will license a company that wants to land on the moon and and give you exclusive rights to that area that you're going to land on even though the FFA of the US can't claim territory over the moon so there's a there's an interesting clash between weighty genes and i think it will start at national and then go up to international because states essentially whether it be under the outer space treaty or under um principles of state responsibility and public international origin will recognize their responsibility so just to clarify that last point what was so the actual FFA response has not been published which is why it's it's hard to figure it out but best we can tell what they said was the FFA will basically protect that company from interference with its activities by other FFA licensed entities um which is totally within its power to do uh but the question is what do they mean to non FFA licensed entities other nations that's totally up for grabs um yeah exactly um we have one more time chris hi chris joneson secure world so i know that we uh i'm trying to wrap it up so i won't have a pass count charlie can try to keep it brief but legal scholars and practitioners can usually make two categories of statements you make positive statements normative statements and positive statements merely find the law and report the content of the law uh black letter law uh custom practice they may also make uh normative statements uh what the law should be what the content of the law should be uh like a horrendous what the phrase is when we look at existing domains for uh military activities um these traditional manuals it seems that those there's a lot of activity and phenomena that they can derive positive statements from moving into more um speculative areas cyber and outer space my concern is that uh we might be making more normative recommendations so is that something that was how did how was this balanced for cyber and how could possibly be balanced in the future as we consider um you know uh what is the definition of self-defense in space what's the law of armed conflict for outer space so thanks to the panel yeah we we were uh i really cautious and i think pretty successful at only talking about the lex lot i mean we really did try to discuss the law as it is now and not the laws we think it ought to be or as it might be some of the some of the different ideas of the of the application of existing law the disagreements are reflected in the commentary but it's always uh spelled out i think so this project very specifically was trying to apply applicable law leaving the difficult part of deciding what the law ought to be in the future to somebody else i think i guess the only thing i would say is is um i think a similar approach would be good for a manual of international law applicable to military uses about a space if one came to exist but there is um room for some discourse if you like about um lex ferenda the law as it should be and whether that takes place in the context of international legal experts getting together or or not i'm not sure just so long as those legal experts are absolutely clear about when they're talking about the law as it is versus what they think the law should be just checking whether i was able to classify information um so regales institute erin space law actually was a great deal of duncans expert input has made an application to get funding to develop a manual of the application of international law to military uses of outer space and the hope would be that it would be along the same lines as the san rimo internal manual and the kinds of people involved in that would be as i mentioned before you have to have the military experts you have to have the public international law experts um it's not i don't think it's a forum where you have someone ask you why is the u.s president is the commander of chief why is they know i'm representing the commander of chief of states or the heads of states on an on a group like that and my answer was because we're not writing a treaty this is not about representing state will because treaties are as much an expression of political will as they are of law creation but what this is is in the first place a clarification of the law and we call it a restatement and i agree totally with with duncan that's it's a long alliance of what the international law commission does their mandate is to clarify and progressively develop international law they've been hesitant to progressively develop but they've been explicit when they've done so um this is not an international law commission coming together but it's the body of experts who have the insight in the way we thought to develop to to state the law and clarify the law where as we spoke about where there are inconsistencies or lack of clarity in the different lecture channels that apply and there may be questions raised about where it could go but i think at this stage you wouldn't be saying it's up to us to develop the law all right with that um i'd like to uh thank everyone for coming and please join me in thanking our speakers