The Woomera Manual, which’s name is drawn from the village of Woomera, in South Australia, which has a long association with both Australian and multi-national military space operations, aims to be a widely-recognised and accepted objective statement of existing international law (lex lata) applicable to military space operations. It will be published by a major international publisher. Government lawyers (especially military lawyers), policy-makers, decision-makers and military space operators comprise the key target audience of the Manual. However, it is also expected to spark interest and debate among a wide range of international institutions and the general public, as well as serve as a platform for further academic discourse and research, particularly as legal principles and policies are further developed in response to changing political realities and the evolving global security environment. The project will be completed in 2021 and will draw on the knowledge of dozens of legal and space operations experts from around the world.
As we can read on the website of The University of Adelaide (Australia), “the Woomera Manual project is an international research project that is spearheaded by The University of Adelaide, The University of Exeter, the University Of Nebraska and the University of New South Wales – Canberra”. The mission is to develop a Manual that objectively articulates and clarifies existing international law applicable to military space operations. Then, we can read the following: “The success of the San Remo Manual on International Law Applicable to Armed Conflict at Sea, the Harvard Manual on International Law Applicable to Air and Missile Warfare, and the Tallinn Manual on International Law Applicable to Cyber Operations (versions 1.0 and 2.0) demonstrate how international experts and associated engagement with governments can offer an authoritative and clear articulation of international law in new domains for government legal advisers, decision-makers, and operators. The Woomera Manual aims to replicate – with respect to outer space – the successes of these earlier manuals”.
“Military forces have a strong reliance on space assets and in that regard our project will look at three particular phases: military activities in the time of peace, military activities in the time of rising tension, and outright armed conflicts” says Professor Dale Stephens, who then enounces that the team “will be looking at satellites and other space objects, but also looking a bit into the future, anticipating humanity’s settlement of the Moon and other celestial bodies, and anticipating the legal issues that might arise from that phenomenon”. Founding partner Professor Melissa de Zwart, Dean of the Adelaide Law School, University of Adelaide, then explains that “over the next few years, we will be having meetings in Australia, North America, Europe and beyond, and after that, we will engage in a process of State engagement which will give integrity and authenticity to the Manual”. For the Professor, conflict in outer space is not a case of “if” but “when” and “the legal regime that governs the use of force and actual armed conflict in outer space is currently very unclear, which is why the Woomera Manual is needed”. Before studying the Woomera Manual, let’s take a look at the legality of military activities in outer space.
I. The legality of military activities in outer space
The space sector has emerged for reasons related to the military sector. Are we today heading towards a militarization of international spaces (Antarctica, outer space or the high seas)? To be interested in outer space is to understand that this environment is free but framed (some will say limited). Space law is based on liberty and this freedom cannot be shared at best for the greatest number unless it has certain limits. The first limitation, and one of the most important when space activities appeared, was for the two superpowers of the Cold War and the United Nations, to establish the peaceful uses of outer space, the demilitarization or denuclearization of outer space.
All States without discrimination have an inalienable right to develop the uses of nuclear energy for civilian purposes, provided that they do not divert these peaceful uses to nuclear weapons. However, five countries have the right to possess these weapons, namely the United States of America, France, Russia, China and the United Kingdom of Great Britain and Northern Ireland. Around this position, a lively debate both legal and ethical has been raised. For its opponents, nuclear energy represents a long-term risk that cannot be controlled by science. Major nuclear accidents, radioactive waste and the diversion of nuclear energy for military purposes are unmanageable and exceptionally serious risks. On the other hand, the defenders of this energy present it as safe, even as a stakeholder in sustainable development. According to them, nuclear power is a reliable way to fight against global warming and also a solution to the energy shortage that the world is facing. By examining and analysing the reliability and credibility of all the arguments against and in favour of this industry, we find that the lawfulness and legitimacy of the use of nuclear energy are ill-founded. What about the use of weapons in outer space? The nuclearization of outer space?
If the Soviet Union was able on October 4, 1957 to orbit Sputnik 1, the first space object, it meant that it would also be able to use intercontinental ballistic missiles (an intercontinental ballistic missile or ICBM, is a guided ballistic missile with a minimum range of five thousand five hundred kilometres primarily designed for nuclear weapons delivery – delivering one or more thermonuclear warheads) against its adversaries, in particular the United States of America. The question of the militarization of outer space is a very delicate issue, the subject being highly strategic, and States not easily agreeing on it, often leaving room for further misunderstandings. Since a resolution of the United Nations General Assembly of December 13, 1958, it was desired to see outer space used exclusively for peaceful purposes. The General Assembly stated that it wished to avoid the extension of present national rivalries into the field of outer space, that the exploration and exploitation of outer space shall be done for the benefit of mankind, considered that such co-operation will promote mutual understanding and the strengthening of friendly relations among people. The Partial Test Ban Treaty, signed on August 5, 1963, also prohibits nuclear weapons testing in the atmosphere, beyond its limits, including outer space, or underwater, including territorial waters or high seas. This text has the merit of enacting prohibitions that extend as much to areas under the jurisdiction of States as to spaces removed from the sovereignty of States. It is also important to mention that resolution 1884 (XVIII), calling upon States to refrain from placing in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction or from installing such weapons on celestial bodies, was adopted unanimously by the United Nations General Assembly on October 17, 1963.
Article IV of the 1967 Treaty distinguishes the legal regime for the whole of outer space and special limits concerning the Moon and other celestial bodies. It states that “States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner. The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies shall also not be prohibited”. It refers to a total demilitarization of outer space and prohibits weapons of mass destruction, that is to say, atomic, bacteriological, chemical or equivalent effect. We can also think of environmental modification techniques for military or hostile purposes, as envisaged since the Convention of May 18, 1977, which prohibits the use of such weapons. The Environmental Modification Convention (ENMOD), formally the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, is an international treaty prohibiting the military or other hostile use of environmental modification techniques having widespread, long-lasting or severe effects. It opened for signature on May 18, 1977 in Geneva and entered into force on October 5, 1978. The Convention bans weather warfare, which is the use of weather modification techniques, such as cloud seeding, for the purposes of inducing damage or destruction. The Convention on Biological Diversity of 2010 would also ban some forms of weather modification or geoengineering.
This ban on certain armaments, particularly on Earth orbits, is obviously one of the most important for security on Earth. Recall that the Treaty of Outer Space (1967) was adopted at a time when arms limitation agreements were at the heart of diplomatic concerns, especially those of the two superpowers (The Treaty of Tlatelolco, signed on February 14, 1967, is the conventional name given to the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean; the Treaty on the Non-Proliferation of Nuclear Weapons, commonly known as the Non-Proliferation Treaty or NPT, signed on July 1, 1968, is an international treaty whose objective is to prevent the spread of nuclear weapons and weapons technology, to promote cooperation in the peaceful uses of nuclear energy, and to further the goal of achieving nuclear disarmament and general and complete disarmament; the Strategic Arms Limitation Talks (SALT) were two rounds of bilateral conferences and corresponding international treaties involving the United States of America and the Soviet Union, the Cold War superpowers, on the issue of arms control. The two rounds of talks and agreements were SALT I and SALT II and negotiations commenced in Helsinki, Finland, in November 1969). The total demilitarization of the Moon and celestial bodies is also provided for in the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (entered into force on July 11, 1984).
Article 3 of the Moon Agreement of 1979 states that “States Parties shall not place in orbit around or other trajectory to or around the Moon objects carrying nuclear weapons or any other kinds of weapons of mass destruction or place or use such weapons on or in the Moon. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on the Moon shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration and use of the Moon shall also not be prohibited”.
There are questions about the interpretation of the term peaceful: either non-military (broad interpretation) or non-aggressive (narrow interpretation). The United States of America prefers the narrow interpretation and constructs its argument by explaining that it is necessary to retain the right of self-defence, as expressed both in customary law and in Article 51 of the Charter of the United Nations. Chapter VII, Article 51 of the Charter of the United Nations concerning “Action with respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression” states that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.
The National Aeronautics and Space Administration (NASA) Act of 1958 also refers to the peaceful purposes of research and outer space, stating that “The Congress hereby declares that it is the policy of the United States that activities in space should be devoted to peaceful purposes for the benefit of all mankind”. The United States of America has always considered the action of reconnaissance satellites (a reconnaissance satellite or intelligence satellite, commonly, although unofficially, referred to as a spy satellite, is an Earth observation satellite or communications satellite deployed for military or intelligence applications) to be both military and peaceful. The Soviet Union, for its part, quickly defended the idea that certain activities are prohibited, even for the State acting under conditions of self-defence, based for example on the Geneva Protocol of 1925 on the use of biological weapons (the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, usually called the Geneva Protocol, is a treaty prohibiting the use of chemical and biological weapons in international armed conflicts. It was signed at Geneva on June 17, 1925 and entered into force on February 8, 1928. It was registered in League of Nations Treaty Series on September 7, 1929), the 1972 Convention on the Prohibition of the Manufacture, Stockpiling and Use of Bacteriological and Toxin Weapons (the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and on their Destruction, usually referred to as the Biological Weapons Convention, was the first multilateral disarmament treaty banning the production of an entire category of weapons. The Convention was the result of prolonged efforts by the international community to establish a new instrument that would supplement the 1925 Geneva Protocol. The Geneva Protocol prohibits use but not possession or development of chemical and biological weapons) or the Environmental Modification Convention of May 18, 1977 on Environmental Changes for hostile purposes. The Soviet Union has also come to recognize the peacebuilding function of reconnaissance satellites.
To summarize, all areas of outer space are devoid of certain weapons, in this case weapons of mass destruction, whether for storage, experimentation or even more use; on the other hand, certain areas, in this case the Moon and the celestial bodies, generally exclude all military activity: all weapons are prohibited in certain areas and certain weapons are prohibited in all zones. This conclusion makes it possible to develop or envisage certain military activities in outer space without the right being able to give an unambiguous answer to the question of the lawfulness of these activities.
II. THE WOOMERA MANUAL ON THE INTERNATIONAL LAW OF MILITARY SPACE OPERATIONS
The Woomera Manual aims at developing a Manual that will objectively articulate and clarify existing international law applicable to military space operations. According to the project, the instruments or Onusian Space Treaties do not expressly address the initiation and conduct of hostilities involving outer space, and little State practice exists on the subject. The Information Booklet of The University of Adelaide specifies that “Since the 1980s, the United Nations General Assembly has annually adopted a resolution urging States to refrain from actions that contribute to an arms race in outer space. Various initiatives, such as the proposed treaty to prevent the placement of weapons in outer space (PPWT), the proposed International Code of Conduct for Outer Space Activities (ICOC), and multilateral diplomatic efforts aimed at developing transparency and confidence-building measures (TCBMs) have not sufficed to ensure the sustainability and security of outer space”.
The Woomera Manual then adds that “The law governing the resort to force set forth in the UN Charter and the law of armed conflict have long been accepted by States as applicable to operations involving outer space. Yet, the manner in which these bodies of law should be interpreted in the context of outer space has not been comprehensively examined. This resulting lack of normative clarity presents the risk of State or non-State actors taking action involving outer space that might be misunderstood by others, or even characterised as unlawful. It also allows States that might wish to conduct hostile space operations to do so in a zone of uncertainty, which complicates responses by other States. Therefore, it is essential that space actors not only acknowledge that there is a rules-based order that applies to outer space, even in periods of tension and hostilities, but also that they have an understanding of when and how those rules apply”.
The Woomera Manual gathers together legal experts specialised in the fields of international space law, international law on the use of force and the law of armed conflict, together with technical experts. Experts contribute in a personal capacity on the basis of their own conclusions as to the state of the law, independent of the official position or preference of any State or organisation.
The Woomera Manual on the International Law of Military Space Operations aims to articulate and clarify extant law applicable to military activities associated with the space domain, especially that which is relevant in periods of tension (when States and non-State actors may consider using force) or outright hostilities. The Manual will examine the circumstances in which operations associated with space infrastructure would be considered unlawful as a violation of the law on the use of force. It will also consider the responses available to States in reacting to such operations. Further, the Manual will discuss how the law of armed conflict governs operations that are conducted from, to or through outer space, should armed conflict break out. Ultimately, the Manual is meant to support a stable, rules-based global order, even in periods of tension and armed conflict. That is what we can say about the Woomera Manual.