The Manual on International Law Applicable to Military Uses of Outer Space

Launched in May 2016, the Manual on International Law Applicable to Military Uses of Outer Space (MILAMOS) Project aims to develop a widely-accepted manual clarifying the fundamental rules applicable to the military use of outer space in peacetime.

From the provision of cellular phone signals to navigation, from banking to weather forecasting, disaster monitoring and agriculture, space technology and the utilisation of space-generated data have become intertwined with our daily lives. Devastating consequences would follow if access to outer space were to be interrupted or interfered with through actions undertaken during armed conflict.

Many international efforts have been directed towards preventing an arms race in outer space and establishing transparency and confidence among States in the conduct of their space activities. Unfortunately, none of these efforts has addressed the issue of belligerent behaviour during hostilities and the difficult question of when and under what circumstances it is lawful for nations to resort to hostilities in or through space.

The Manual on International Law Applicable to Military Uses of Outer Space

The MILAMOS Project was originally conceived and publicly inaugurated at McGill University in May 2016. The Project, as proposed, promoted and presented to various stakeholders and financial benefactors, is to develop a widely-accepted manual (the McGill Manual) that clarifies the fundamental lex lata (existing) rules applicable to military uses of outer space by both States and non-State actors in times of peace, in times of rising tensions, and in times of armed conflict.

The resultant manual will fill the legal lacunae with respect to issues that for decades have been the source of debate and disagreement among policy makers, legal practitioners, military strategists, and academics. The target audience will be much broader than just the military establishments, and the scope and practical use of Manual will be beyond periods of armed conflict.

From the outset, the Manual is intended to cover the legal ramifications of all military uses of outer space, to reflect legal viewpoints from across the globe, and to attract a broad audience in academia, the legal profession, and policy circles. Reflecting the fact that many space objects may be used simultaneously for military and non-military purposes (i.e. are “dual-use” capable), and that many space activities may entail a military use of outer space despite not being performed or owned by military establishments or personnel (if armed forces contract services from the private sector), the McGill Manual will be intended for use by a wide spectrum of space operators, stakeholders, experts, and interest groups (officials from various ministries or department of government, private space actors, civil society, academics and others) with an interest in the security and sustainability of space activities.

Methodologically speaking, the Manual will examine the broad range of military uses of outer space (as widely understood) and determine, through an intensive and interactive process of deliberations and consensus-forming between members of a select Group of International Experts, the relevant principles and rules of international law that apply to such military uses of outer space.

The McGill Manual would treat disciplines of general international law, international space law, international law on the use of force and international humanitarian law as equal and essential parts of the Manual. In objectively determining the applicability of lex lata rules of international law, legal maxim will be used after careful examination and having taken into account the applicable rules of various branches of international law as well as specificities of the outer space environment, which are invariably different from other terrestrial domains.

Analogies from other domains, as well as the processes and successes of other manuals, may be drawn as a guide to identifying the applicable rules, but only after very careful analysis of the nature, scope, impact and implications of each space activity/action that directly or indirectly are military in nature. Partners from across the globe are actively engaged to ensure that the McGill Manual accurately captures the nuances and perspectives of different States and relevant stakeholders, and is reflective of the wide spectrum of interests and concerns relating to the military uses of outer space.

The Peaceful Uses of Outer Space

In 1959, the UN General Assembly established the Committee on the Peaceful Uses of Outer Space (COPUOS) in Resolution 1472 (XIV). This committee identified areas for international cooperation in the peaceful uses of outer space, devised programs to be undertaken by the United Nations, encouraged research on matters relating to outer space, and studied legal problems arising from the exploration of outer space.

During the 1960s and 1970s a number of agreements were adopted to prevent the weaponisation of outer space. These include the Partial Test Ban Treaty, formally titled the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (1963), the Outer Space Treaty, formally titled the Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967), the Rescue Agreement, formally titled the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (1968), the Agreement Relating to the International Telecommunications Satellite Organization “Intelsat” (1971), the Liability Convention, formally titled the Convention on International Liability for Damage Caused by Space Objects (1972), the Launch Registration Convention, formally titled the Convention on the Registration of Objects Launched into Outer Space (1975), the Moon Agreement, formally entitled the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979).

Although these treaties ban the placement of weapons of mass destruction in outer space, they do not prevent states from placing other types of weapons in outer space. As a result, many states argue that existing treaties are insufficient for safeguarding outer space as “the common heritage of mankind”. In order to address this, the final document of the UN General Assembly’s Special Session on Disarmament mandated that negotiations should take place in what is now the Conference on Disarmament (CD), “in order to prevent an arms race in outer space” that are “held in accordance with the spirit of the Outer Space Treaty”.

In 1985 the CD established an ad hoc committee to identify and examine issues relevant to a PAROS treaty, Prevention of an Arms Race in Outer Space (peaceful uses of outer space) such as the legal protection of satellites, nuclear power systems in space, and various confidence-building measures. The United States of America resolutely opposed giving the committee a negotiating mandate, preferring bilateral talks with the Soviet Union. The committee convened each year through 1994. No further committee meeting occurred due to objections made by the United States of America. In 1990, the United States of America stated that it “has not identified any practical outer space arms control measures that can be dealt with in a multilateral environment”. With its large missile defense program and technical advantages in potential space weaponry, the United States has consistently refused to negotiate PAROS in the CD.

On June 10, 2014, Russia introduced to the Conference on Disarmament an updated draft of its working paper with China, “Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects”.