The Woomera Manual and Military Space Activities and Operations
The ongoing armed conflict in Ukraine has clearly demonstrated the critical role satellites in outer space play in the conduct of contemporary armed conflict. The conflict itself has been termed the first commercial space war given the heavy reliance by both Ukraine and Russia upon space assets to conduct their operations. This was especially evident in the early days of the conflict when third-party commercial space operators were supplying significant imagery to assist Ukrainian military action. At the same time, Russia undertook a series of cyber-attacks that targeted the Viasat KA-SAT network which provided most internet services to Ukraine. As a result, in February 2022, the U.S. company Starlink stepped in to provide internet resources to Ukraine, initially at no cost.
As the war has progressed, Ukraine has come to rely heavily upon third party commercial space infrastructure to conduct its military operations. This puts third State private commercial operators in an unusually fraught position. The CEO of Starlink, Elon Musk, has repeatedly stated that the Starlink satellite system is intended for peaceful civilian purposes and “was not meant for wars.” Yet the military continues to rely on Starlink. In one incident, a major attack by remotely controlled Ukrainian surface vessels upon Russian naval ships ported in Crimea was halted when the vessels lost satellite internet connectivity and went “dark,” subsequently washing ashore. Initial claims were that Starlink “turned off” the satellite linkages, but it soon emerged that they were never turned on, as Musk never allowed access to Starlink in Russian controlled Crimea.
As a consequence of the general reliance on satellite internet assets by Ukraine, Russia has undertaken significant jamming activities directed at third party satellites that are supporting Ukraine. More recently, Russia has threatened to position anti-satellite nuclear weapons in full orbit of the Earth. Such a threat poses not only a strategic escalation in the conflict with Ukraine but would also constitute a major step in undermining broader international security.
These actions related to space systems raise significant legal questions of international law and especially the law of armed conflict (LOAC). Such questions concern the application of peacetime space law. For example, does Russia have a legal right to deploy nuclear weapons in full orbit around Earth? Other issues concern the prohibition on the use of force, such as whether there are circumstances in which jamming may violate the prohibition and if so, what that means to the States of third-party private satellite operators. Further, does LOAC actually apply to outer space, and if so, what rights and obligations manifest for belligerents and third parties?
The Woomera Manual
The development of the Woomera Manual on the International Law of Military Space Activities and Operations canvassed these issues and many more. Spearheaded by the University of Adelaide, The University of Nebraska, The University of Exeter, and the University of New South Wales – Canberra, the Woomera Manual was a multi-year research project that grappled with the law relating to actual and potential military activities and operations in space. Headed by Editor-in-Chief Professor Jack Beard (The University of Nebraska), with co-Editors Professors Dale Stephens (The University of Adelaide) and David Koplow (Georgetown Law), the project brought together over 50 participants in the form of core experts, executive consultants, associate experts, technical experts, peer reviewers, rapporteurs and research assistants from across the world to research, discuss and articulate the applicable law to military activities and operations in space.
The Woomera Manual takes its place alongside other international operational law manuals such as the San Remo Manual on the Law of Naval Warfare, the HPCR Manual on the International Law Applicable to Air and Missile Warfare, the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, and the Newport Manual on the Law of Naval Warfare. All these manuals share common characteristics concerning their international contributions and their goal to provide an accurate restatement of the law in their respective fields of focus.
The Woomera Manual is named after a South Australian township that was the base of many Australian and international rocket launches in the 1960s and 1970s. With 48 rules and associated commentary, the Woomera Manual deals with three distinct themes: peacetime military activities in space; military activities in space in times of strategic tension and crisis; and finally, military space operations during a time of armed conflict.
Historically, international operational law manuals have often released majority/minority positions based on the views of contributors on a number of legal propositions. The Woomera Manual does not take this approach. Critically, the methodology of the Manual relies heavily upon treaty interpretation and available State practice to inform its conclusions. This involved considering the travaux preparatoires underpinning the treaty negotiations for the space treaties (for example, all major space nations are parties to the 1967 Outer Space Treaty (OST)), official statements and documents released by States, actions taken in the context of military space activities, and positions taken in official military manuals. Consistent with the approach taken by the International Law Commission, the Manual discerns meaning from State action as well as inaction. This overarching approach does mean that some topics are left partially “open” due to the lack of State practice. However, the editors felt that this approach strengthened the integrity of the rules and commentary provided.
Drafting Challenges
There were numerous challenges in this project. The space law regime eschews national appropriation of space and celestial bodies, which means that sovereignty cannot be claimed over these objects. Such a proposition is laudable, however, much of international law is based upon conceptions of sovereignty. The principle that space objects have no nationality means that the concept of sovereign immunity in space is not as easily accommodated as, for example, in the case of warships on the high seas.
Yet, the OST and space law generally do provide for legal connections between a State and a space object, and also allow for the exercise of jurisdiction in a particular manner. These connections are carefully articulated in an introductory section of the Woomera Manual and form the foundation for subsequent analysis of the applicable law. Hence, when undertaking any kind of activity with and between space objects, there is always a need to ascertain who “really” is being impacted, given that multiple States may have a recognised legal interest over a space object.
Similarly, the OST provides that the actions of private entities may be attributed to a State in circumstances that are considerably broader than those that apply under the normal State responsibility principles in the terrestrial environment. Does this mean that the actions of a private company can plunge a State into an armed conflict on the basis of common Article 2 of the 1949 Geneva Conventions? This topic occupied considerable focus during the development of the Woomera Manual. Despite the broadness of the treaty provision and the consistently unlimited manner in which space lawyers have traditionally applied this principle in terms of State responsibility (and liability), the Manual takes the position that this principle cannot have this extended reach when dealing with issues of use of force or armed attack.
The Woomera Manual carefully articulates the growing consensus on cyber operations and their legal significance, taking into account the various views published by States that actions which do not result in physical damage, but still cause a loss of function, may be considered a use of force or attack in the cyber context. However, it concludes that electro-magnetic jamming of satellites is unlikely to be considered either a use of force or an attack. In accordance with Article 31(3)(b) of the Vienna Convention on the Law of Treaties, the Manual closely assessed State reactions to having their satellites jammed by others. In over 60 years of State practice, no State has ever asserted that the jamming of their satellite was a use of force, let alone an armed attack. This conclusion is reflected in the Manual (noting that State practice does make a specific exception to this proposition when it comes to early warning satellites, which is also duly recorded).
Despite there being only one single reference to outer space contained in one treaty relevant to LOAC, the Woomera Manual took the position that the general targeting principles of LOAC do apply to space in a time of armed conflict. This reflects the majority view of States, for example as expressed in a joint contribution from EU States, an Australian position paper, and the U.S. Department of Defense Law of War Manual. Such a position is also consistent with the jurisprudence of the International Court of Justice. This conclusion raised many challenging questions concerning lex specialis interpretations and the intersection of general space law and LOAC, though ultimately the Woomera editors successfully navigated such issues.
Fundamental LOAC concepts such as military objective, proportionality, and precautions in attack apply to potential space warfare, although this may involve a different range of practical considerations in an environment so different to that of Earth. For example, the Manual concludes third party civilian satellites that had become military objectives, through their use for military purposes, could be legitimate targets. Further, considerations of proportionality also apply to space. This is an especially significant rule in space as—unlike the limited physical impact of kinetically targeted warships that sink to the bottom of the ocean, or military aircraft that fall from the sky—destroyed satellites and other lawfully targeted space objects create significant debris that continue to stay in orbit at speeds up to 15,000 miles per hour, creating havoc for anything in their path. The Manual concludes that under the obligation to take precautions, appropriate selection of means and methods to neutralise enemy satellites would be critical to ensure that other space users are not unduly impacted by such targeting. There are in fact many ways short of kinetic attack that an adversary satellite may be effectively neutralised, and these are discussed within the Manual.
Consultation with States
The Woomera Manual was subject to an intensive State consultation process. With the kind support of The Netherlands Government that facilitated the process, States visited The Hague in June 2022 to comment on the then-draft version of the Manual. Twenty-four States attended and provided extremely valuable contributions to the draft content based upon their own views of the law and experience in the field. The three editors, plus the two rapporteurs, directed the event. There was considerable discussion on numerous aspects of the Manual, especially the issue of strict State attribution of private entity activity under the space law regime, the modalities of counterspace targeting including the cyber context, the boundaries between space law and other bodies of law under the lex specialis interpretative maxim, and the legal significance of State silence or inaction.
Critically, States attending this consultation collectively applauded the efforts of the project to articulate the law in this field with many publicly stating in session that they welcomed this project. Equally important, a number of States positively commented upon the reticence of the editors to arrive at legal solutions when there was no existing State practice at this time.
Conclusion
As humanity reaches further into space, we will be faced with novel problems requiring a carefully calibrated response. This is a matter for States to determine based upon the legal and operational realities of the time. In the meantime, the Woomera Manual provides a useful and reliable starting point for ensuring a degree of legal certainty in the conduct of military activities and operations and strives to ensure that legal miscalculation in space is minimised.
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Dale Stephens is a Professor of Law at the University of Adelaide Law School, Adelaide, Australia, and one of the editors of the Woomera Manual.
Joanna Jarose is a PhD Candidate and Sessional Lecturer at the University of Adelaide Law School, Adelaide, Australia, and was co-rapporteur for the Woomera Manual State consultation process.
Photo credit: Expedition 20 Crew, NASA
