Space: The Final Next Frontier

By Bonny Birkeland. Full Text.

This Note explores the implications of the use of force in outer space under the current space and jus in bello regimes. By looking at the use of kinetic and direct energy ASATs under a proportionality calculus, this Note proposes a new consideration framework which outlines what a State actor would have to consider before targeting a satellite in order to comply with the proportionality principle. This Note begins by laying down the conceptual basis for developing this new proportionality framework in three dimensions. First, it discusses the existing space corpus juris. Second, it explores the emerging ASAT threat and several ASAT technologies which will then be evaluated under the new proportionality framework. Third, it explores the legal scholarship on armed conflict; in particular, the literature on proportionality and its considerations. Next, this Note highlights the gap between space law and the law of armed conflict. Specifically, it discusses the regimes’ deficiencies due to imperfect analogies to other earth-warfare domains, the lack of clear legal definitions for concepts in space law, and the uniqueness of the outer space environment. This Note argues jus in bello does apply, and it is imperative that it applies to outer space. It then outlines a framework which incorporates four considerations an actor should take before employing ASATs, including determining the operational nature of the satellite, where the target is situated, the anticipated harm to the environment and civilians, and the military advantage expected to be gained. This Note ends by demonstrating these four considerations’ workability through its application to two ASAT technologies. This solution provides a workable framework which properly balances the unique characteristics of outer space with State interests and the proportionality principle.