Chapter 11

Sea, Air, & Outer Space Operations

I.  Introduction

A.   Unlike some other areas of national security law, which focus on questions of “what” is permitted or prohibited or “how” to legally obtain a certain result, the topics of Sea, Air, and Outer Space operations also add the question of “where.”  Specifically, what an individual or State may do in a particular domain depends on where the action takes place (i.e., land, sea, air, or outer space). 

B.    This chapter will first discuss the various legal divisions of the land, sea, air, and outer space.  Next, it will turn to the navigational regimes within each of those divisions.  Third, it will present the competencies of States to conduct operations within these various regimes.  Finally, the chapter will discuss specific issues related to military operations in each of these domains during periods of armed conflict.

II.  SOURCES OF LAW

There are many sources of law governing Sea, Air, and Outer Space Operations.  But there are three foundational treaties that serve as bedrock sources of law in the domains of Sea, Air, and Outer Space:

A.   1982 United Nations Convention on the Law of the Sea (UNCLOS III).

1.    Opened for signature on December 10, 1982, UNCLOS III entered into force on November 16, 1994 (with 60 State ratifications).^[1]  Previous conventions on the law of the sea had been concluded, but none were as comprehensive as UNCLOS III.  UNCLOS I (1958) was a series of four conventions (Territorial Sea/Contiguous Zone; High Seas; Continental Shelf; and Fisheries/Conservation).  The 1958 Conventions’ major defect was their failure to define the breadth of the territorial sea.^[2]  UNCLOS II (1960) attempted to resolve this issue, but “failed, by only one vote, to adopt a compromise formula providing for a six-mile territorial sea plus a six-mile fishery zone.”^[3]  UNCLOS III, which was negotiated over a period of nine years from 1973 to 1982, created a structure for the governance and protection of the seas, including the airspace above and the seabed and subsoil below.  In particular, it provided a framework for the allocation of reciprocal rights and responsibilities between States—including jurisdiction, as well as navigational rights and duties—that carefully balances the interests of coastal States in controlling coastal activities with the interests of all States in protecting the freedom to use ocean spaces without undue interference (a.k.a. “freedom of the seas”).^[4]  The resources of the deep sea bed beyond the limits of national jurisdiction are declared to be “the common heritage of mankind.”^[5]  The high seas are reserved for peaceful purposes.^[6]  This is generally interpreted to mean that such use is in compliance with the jus ad bellum principles of the UN Charter.^[7]

2.    On July 9, 1982, the United States announced that it would not sign the Convention, objecting to provisions related to deep seabed mining^[8] (Part XI of the Convention).^[9]  In a March 10, 1983, Presidential Policy Statement, the United States reaffirmed that it would not ratify UNCLOS III because of the deep seabed mining provisions, which it characterized as wealth redistribution and forced technology transfer.^[10]  Nevertheless, the United States considers the navigational articles to be generally reflective of customary international law, and therefore binding upon all nations.^[11]  In 1994, the UN General Assembly proposed amendments to the mining provisions.^[12]  On October 7, 1994, President Clinton submitted the Convention, as amended, to the Senate for its advice and consent.^[13]  On February 25, 2004, and again on October 31, 2007, the Senate Foreign Relations Committee voted to send the treaty to the full Senate with a favorable recommendation for ratification.  The most recent effort to send the treaty to the full Senate for advice and consent stalled in June 2012 after 34 Senators voiced opposition to the treaty.  To date, no action has been taken by the full Senate on UNCLOS III.^[14]

B.    1944 Convention on International Civil Aviation (Chicago Convention).^[15]  This Convention was intended to encourage the safe and orderly development of the then-rapidly growing civil aviation industry.  While it does not by its terms apply to State aircraft (i.e., military, police, or customs),^[16] it does create an important standard that all aircraft must follow when flying.  While recognizing the absolute sovereignty of the State within its national airspace,^[17] the Convention provides some additional freedom of movement for aircraft flying over and refueling within the national territory of a foreign state.^[18]  The Convention also attempts to regulate various aspects of aircraft operations and procedures.^[19]  The Convention created the International Civil Aviation Organization (ICAO), which “aims . . . to develop the principles and techniques of international air navigation and to foster the planning and development of international air transport . . . .”^[20]

C.    1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon, and Other Celestial Bodies (Outer Space Treaty or OST).^[21]  This treaty limited State sovereignty in outer space,^[22] and declared outer space to be the “province of all mankind.”^[23]  It also prohibited certain military operations in outer space and upon celestial bodies,^[24] including the placing in orbit of any nuclear weapons or other weapons of mass destruction^[25] and the installation of such weapons on celestial bodies.^[26]  Outer space was otherwise reserved for peaceful uses.^[27]  “The United States has interpreted use of outer space for ‘peaceful purposes’ to mean ‘non-aggressive and beneficial’ purposes consistent with the Charter of the United Nations and other international law.^[28]

II.   Legal Divisions

A.   The Earth’s surface, sub-surface, and atmosphere are broadly divided into national and international areas.^[29]  For operational purposes, international waters and airspace (waters outside the 12 NM territorial sea and the corresponding airspace) include all areas not subject to the territorial sovereignty of any nation.  All waters and airspace seaward of the territorial sea are international areas in which the high seas freedoms of navigation and overflight are preserved to the international community.  These international areas include the water and airspace over contiguous zones, exclusive economic zones, and high seas.^[30]

B.    National Areas.

1.    Land Territory.  This includes all territory within recognized borders.  Although most borders are internationally recognized, there are still some border areas in dispute.

2.    Internal Waters.  These are all waters landward of the baseline,^[31] over which the coastal State “exercise[s] the same jurisdiction and control . . . as they do over their land territory.”^[32]  The baseline is an artificial line generally corresponding to the low-water mark along the coast.^[33]  The coastal State has the responsibility for determining and publishing its baselines, and the legitimacy of these baselines is determined by international acceptance or rejection of the claims through state practice and declarations.^[34]  UNCLOS III recognizes several exceptions to the general rule:

a.    Straight Baselines.   A coastal State may draw straight baselines when its coastline has fringing islands or is deeply indented (e.g., Norway with its fjords).^[35]  The lines drawn by the coastal State must follow the general direction of the coast.  Straight baselines should not be employed to expand the coastal State’s national areas.  Straight baselines are also drawn across the mouths of rivers^[36] and across the furthest extent of river deltas or other unstable coastline features.^[37]  Straight baselines are overused,^[38] and the United States strictly interprets the few instances when straight baselines may be properly drawn.^[39]

b.    Bays.   Depending on the shape, size, and historical usage, the coastal State may draw a baseline across the mouth of a bay, making the bay internal waters.  The bay must be a “well-marked indentation,” and “more than a mere curvature” in the coastline.^[40]  A juridical bay (i.e., one legally defined by UNCLOS III) must have a water area equal to or greater than that of a semi-circle whose diameter is the length of the line drawn across its mouth (headland to headland), and the closure lines may not exceed 24 nautical miles (NM).^[41]  Historic bays (i.e., bodies of water with closures of greater than 24 NM, but which historically have been treated as bays) may be claimed as internal waters when the following criteria are met:  the claim of sovereignty is an “open, effective, continuous and long-term exercise of authority, coupled with acquiescence (as opposed to mere absence of opposition) by foreign States.”^[42]  The United States does not recognize many claims to historic bay status,^[43] such as Libya’s claim to the Gulf of Sidra^[44] (closure line in excess of 300 NM) or Canada’s claim to Hudson Bay (closure line in excess of 50 NM).^[45]

c.    Archipelagic Baselines.   UNCLOS III allows archipelagic States (i.e., those consisting solely of groups of islands,^[46] such as Indonesia^[47]) to draw baselines around their outermost islands, subject to certain restrictions.^[48]  The waters within are given special status as archipelagic waters, which are more akin to territorial waters than to internal waters.

3.    Territorial Sea.  This is the zone lying immediately seaward of the baseline.^[49]  States must actively claim a territorial sea, to include its breadth (i.e., it does not exist until claimed by the coastal State).  The maximum breadth is 12 NM.^[50]  Most States, including the United States, have claimed the full 12 NM.  Some States have claimed less than 12 NM, and some have made excessive claims of greater than 12 NM.^[51]

4.    Off-Shore Elevations.

a.    Low-tide Elevations.  These are “naturally formed area[s] of land which [are] surrounded by and above water at low tide, but submerged at high tide.”^[52]  Low-tide elevations do not generate any maritime zones.  However, if they are located within the territorial sea, they may be used to extend the baseline,^[53] which is used for measuring the territorial sea and other zones.  Straight baselines may also be drawn out to the low-tide elevation if “a lighthouse or similar installation, which is permanently above sea level” is erected upon such areas of land.^[54]

b.    Rocks.  These are naturally formed areas of land which are surrounded by and always above water (i.e., even at high-tide).  A rock is similar to an island, except that the former is not capable of sustaining human habitation or economic life.^[55]  Rocks are entitled to a territorial sea and a contiguous zone, but not to an exclusive economic zone (EEZ) or a continental shelf,^[56] which may have serious economic consequences.  Consequently, various coastal States have sought to classify reefs or rocks as islands in order to assert jurisdiction over fishing and petroleum resources out to 200 NM and beyond.^[57]

c.    Islands.  These are naturally formed areas of land which are surrounded by and always above water (i.e., even at high-tide), and are capable of sustaining human habitation and economic life.  Islands are entitled to all types of maritime zones (i.e., territorial sea, contiguous zone, EEZ, and a continental shelf).^[58]

5.    National Airspace.   This area includes all airspace over the land territory, internal waters, and territorial sea.^[59]

C.    International Areas.

1.    Contiguous Zone.  This zone is immediately seaward of the territorial sea and extends no more than 24 NM from the baseline.^[60]

2.    Exclusive Economic Zone (EEZ).  This zone is immediately seaward of the territorial sea and extends no more than 200 NM from the baseline.^[61]

3.    High Seas.  This zone includes all areas beyond the exclusive economic zone.^[62]

4.    International Airspace.  This includes all airspace beyond the furthest extent of the territorial sea.^[63]

5.    Outer Space.  The Outer Space Treaty and subsequent treaties do not define the point where national airspace ends and outer space begins, nor is there any international consensus on the line of delimitation.^[64]  Many in the international community recognize the edge of space as 100 kilometers (62 miles) above mean sea level.^[65]  The United States has consistently opposed establishing such a boundary in the absence of a showing that one is needed.^[66] 

6.    Polar Regions

a.    Antarctica.  The Antarctic Treaty of 1959 applies to the area south of 60 degrees South Latitude, reserving that area for peaceful purposes only.^[67]  Specifically, “any measures of a military nature, such as the establishment of military bases and fortifications, the carrying out of military maneuvers, as well as the testing of any type of weapon,” are prohibited.^[68]  However, the Treaty does not prejudice the exercise of rights on the high seas within that area.^[69]  “The United States recognizes no territorial, territorial sea, or airspace claims in Antarctica.”^[70]

b.    Arctic region.   The United States considers that the waters, ice pack, and airspace of the Arctic region beyond the lawfully claimed territorial seas of littoral nations have international status and are open to navigation.^[71]  All ships and aircraft enjoy the freedoms of high seas navigation and overflight on, over, and under the waters and ice pack of the Arctic region beyond the lawfully claimed territorial seas of littoral states.^[72]

III.  Navigational Regimes

A.   Having presented the various legal divisions, it is now necessary to discuss the navigational regimes within those zones.  The freedom of navigation within any zone is inversely proportional to the powers that may be exercised by the coastal State (see the following sections on State Competencies).  Where a State’s powers are at their greatest (i.e., land territory, internal waters), the navigational regime is most restrictive.  Where a State’s powers are at their lowest ebb (i.e., high seas, international airspace), the navigational regime is most permissive.

B.    National Areas.

1.    With limited exceptions that are discussed below, States exercise full sovereignty within their national areas, which include land, internal waters, territorial seas, and the airspace above these features.^[73]  Therefore, the navigational regime is “consent of the State.”^[74]  Although the coastal State’s consent may be granted based on individual requests, it may also be manifested generally in international agreements such as:

a.    Status of Forces Agreements.  These agreements typically grant reciprocal rights, without the need for securing individual consent, to members of each State party.  Such rights may include the right-of-entry and travel within the State.

b.    Friendship, Commerce, and Navigation (FCN) Treaties.  These treaties typically grant reciprocal rights to the commercial shipping lines of each State party to call at ports of the other party.

c.    Chicago Convention.  State parties to the Chicago Convention have granted limited consent to civil aircraft of other State parties to enter and land within their territory.^[75]  The Chicago Convention “generally is not applicable to State aircraft.  However, [it] imposes requirements with respect to entry by State aircraft into foreign airspace and with respect to the issue of due regard for the safety of navigation of civil aircraft.”^[76]

2.    The DoD Foreign Clearance Manual^[77] sets out the entry and clearance requirements for both aircraft and personnel, and overflight rights where applicable, for every State.

3.    Exceptions in the Territorial Sea.  Although the territorial sea is considered a national area, the need for greater freedom of navigation than consent of the coastal State convinced the international community to recognize the four exceptions below.  Note that these exceptions do not apply to internal waters, for which consent of the State remains the navigational regime.  The only exception to the requirement of state consent in internal waters is distress, as described in NWP 1-14M Section 2.5.1.

a.    Innocent Passage.  Innocent passage refers to a vessel’s right to continuous and expeditious transit through a coastal State’s territorial sea for the purpose of traversing the seas (without entering a State’s internal waters, such as a port).^[78]  Stopping and anchoring are permitted when incident to ordinary navigation or made necessary by force majeure (e.g. mechanical casualty, bad weather, or other distress).^[79]  “Passage is innocent so long as it is not prejudicial to the peace, good order, or security of the coastal nation.”^[80]  There is no provision in international law that would permit a coastal State to require prior notification or authorization in order to exercise the right of innocent passage.^[81]  Moreover, UNCLOS III contains no requirement that passage through a State’s territorial sea be necessary for it to be innocent; it does, however, enunciate a list of twelve activities deemed not to be innocent, including: threat or use of force; weapons exercise or practice; intelligence collection or act of propaganda; the launching or recovery of aircraft or any military device (e.g., landing craft or Unmanned/Uncrewed Aerial Vehicles); willful act of serious pollution, fishing, research, or survey activities; intentional interference with communications systems; or “any other activity not having a direct bearing on passage.”^[82]

(1)  The United States takes the position that UNCLOS III’s list of prohibitions on innocent passage is exhaustive and intended to eliminate subjective determinations of innocent passage.^[83]  If a vessel is not engaged in the above listed activities, its passage is deemed innocent.^[84]

(2)  The U.S. view is that innocent passage extends to all shipping, and is not limited by cargoes, armament, or type of propulsion (e.g., nuclear).  Note that UNCLOS III prohibits coastal State laws from having the practical effect of denying innocent passage.^[85]

(3)  Innocent Passage does not apply to aircraft.  The airspace above the territorial sea is considered “national airspace,” which aircraft can generally enter only with the consent of the coastal State (i.e., in accordance with the Chicago Convention).^[86]

(4)  A submarine in innocent passage must transit on the surface, showing its flag.^[87]

(5)  Challenges to Innocent Passage.

(a)   Merchant ships must be informed of the basis for the challenge and provided an opportunity to clarify intentions or to correct the conduct at issue.  Where no corrective action is taken by the vessel, the coastal State may require it to leave or may, in limited circumstances, arrest the vessel.^[88]

(b)  A warship/State vessel must be challenged and informed of the violation that is the basis for the challenge.  Where no corrective action is taken, the coastal State may require the vessel to leave its territorial sea and may use necessary force to enforce the ejection.^[89]

(6)  Suspension of Innocent Passage.  A coastal State may temporarily suspend innocent passage if such an act is essential for the protection of security.  Such a suspension must be: (1) non-discriminatory; (2) temporary; (3) applied to a specified geographic area; and (4) imposed only after due publication/notification.^[90]

b.    Right-of-Assistance Entry.  Based on the long-standing obligation of mariners to aid those in distress from perils of the sea, the right-of-assistance entry gives limited permission to enter into the territorial sea to render assistance to “those in danger of being lost at sea.”^[91]  The location of the persons in danger must be reasonably well-known—the right does not permit a search.^[92]  Aircraft may be used to render assistance, though this right is not as well-recognized as that for ships rendering assistance.^[93]

c.    Transit Passage. 

(1)  Transit passage applies to passage through international straits,^[94] which are defined as:  (1) routes between the high seas or exclusive economic zone (EEZ) and another part of the high seas or exclusive economic zone;^[95] (2) overlapped by the territorial sea of one or more coastal States;^[96] (3) with no other high seas or exclusive economic zone route of similar convenience;^[97] (4) natural, not constructed (e.g., not the Suez Canal);^[98] and (5) must actually be used for international navigation.^[99]  The U.S. position is that the strait must only be susceptible to use, and not necessarily actually be used for international navigation.^[100]

(2)  Transit passage is the exercise of the freedoms of navigation and overflight solely for the purpose of continuous and expeditious transit through the strait in the normal modes of operation utilized by ships and aircraft for such passage.^[101]  In the normal mode of transit, ships may travel in formation, launch and recover aircraft and uncrewed aerial vehicles (UAVs) if that is normally done during their navigation (e.g., for force protection purposes), and submarines may transit submerged.^[102]  Aircraft may also exercise transit passage (i.e., aircraft may fly in the airspace above international straits without consent of the coastal States).^[103]  Transit passage may not be suspended by coastal States during peacetime.^[104]  The U.S. view is that, unlike Archipelagic Sea Lanes Passage, the right of transit passage exists from coastline to coastline of the strait, and in the approaches to the strait.^[105]

(3)  Straits regulated by long-standing international conventions existing prior to UNCLOS III remain governed by the terms of their respective treaty (e.g., the Bosporus and Dardanelles Straits are governed by the Montreux Convention of July 20, 1936, and the Straits of Magellan are governed by article V of the Boundary Treaty between Argentina and Chile) rather than by the regime of transit passage.^[106]

d.    Archipelagic Sea Lanes Passage (ASLP).

(1)  Archipelagic Sea Lanes Passage (ASLP) is the exercise of the rights of navigation and overflight, in the normal mode of operation, solely for the purpose of continuous, expeditious, and unobstructed transit between one part of the high seas/exclusive economic zone and another part of the high seas/exclusive economic zone through archipelagic waters.^[107]  ASLP “is substantially identical to the right of transit passage through international straits.”^[108]

(2)  Qualified archipelagic States may designate Archipelagic Sea Lanes (ASLs) for the purpose of establishing the ASLP regime within their Archipelagic Waters.  States must designate all passage routes normally used as routes for international navigation or overflight through or over archipelagic waters,^[109] and the designation must be referred to the International Maritime Organization (IMO) for review and adoption.  In the absence of designation by the archipelagic state, the right of ASLP may be exercised through all routes normally used for international navigation.^[110]  Once ASLs are designated, transiting ships and aircraft^[111] may not deviate more than 25 NM from the ASL axis, and must stand off the coastline no less than 10% of the distance between the nearest points of land on the islands bordering the ASL (unlike transit passage, which arguably exists coastline to coastline.^[112]  The regime of innocent passage applies to archipelagic waters outside ASL.^[113]  ASLP may not be hampered or suspended;^[114] however, if ASLs are designated, innocent passage outside the lanes—but within Archipelagic Waters—may be suspended in accordance with UNCLOS III.

C.    International Areas Including International Waters.  In all international areas/waters (areas outside the 12 NM territorial sea/airspace), the navigational regime is “due regard for the rights of other nations and the safe conduct and operation of other ships and aircraft.”^[115]  Although reserved for peaceful purposes,^[116] military operations, such as surveillance and military exercises, are permissible in international areas, to include the EEZs of coastal states.  The U.S. position is that military operations consistent with the provisions of the UN Charter are “peaceful.”^[117]  The United States has fought to maintain high seas freedoms in international waters through its Freedom of Navigation Program.^[118]  This Program is implemented consistent with the “Maritime Claims Reference Manual”[119] – a DoD publication that sets out in detail the maritime claims (excessive and otherwise) of all States, including specific points of latitude and longitude, and the U.S. position with regard to those maritime claims.

IV.  State Competencies

A.   General.  The general rule is that the Flag State exercises full and complete jurisdiction over ships and vessels that fly its flag.^[120]  The United States has defined the “special maritime and territorial jurisdiction” of the United States as including registered vessels, U.S. aircraft and U.S. space craft.^[121]  Various Federal criminal statutes are specifically made applicable to acts within this special jurisdiction.  The power of a State over non-Flag vessels and aircraft depends upon the zone in which the craft is navigating and whether the craft is State or civil.

1.    State Craft.  State ships include warships^[122] and ships owned or operated by a State and used only for government non-commercial service.  State aircraft are those used in military, customs, and police services.^[123]  By policy, the United States has incorporated uncrewed vehicles (surface, underwater, and aerial—USVs, UUVs, and UAVs, respectively) that are either autonomous or remotely navigated into the definition of State craft.^[124]  State craft enjoy complete sovereign immunity.^[125]

2.    Civil Craft.  These are any craft other than State craft.  States must set conditions for the granting of nationality to ships and aircraft.^[126]  Craft may be registered to only one State at a time.^[127]

B.    National Areas.

1.    Land Territory and Internal Waters.  Within these areas, the State exercises complete sovereignty, subject to limited concessions based on international agreements (e.g., SOFAs).

2.    Territorial Sea.  As noted above, the navigational regime in the territorial sea permits greater navigational freedom than that available within the land territory or inland waters of the coastal State.  Therefore, the State competency within the territorial sea is somewhat less than full sovereignty.

a.    Innocent Passage.

(1)  Civil Craft.  The coastal State’s power is limited to:

(a)   Safety of navigation, conservation of resources, control of pollution, and prevention of infringements of the customs, fiscal, immigration, or sanitary laws;

(b)  Criminal enforcement, but only when the alleged criminal act occurred within internal waters, or the act occurred while in innocent passage through the territorial sea and it affects the coastal State;^[128]

(c)   Civil process, but the coastal State may not stop ships in innocent passage to serve process, and may not arrest ships unless the ship is leaving internal waters, lying in the territorial sea (i.e., not in passage), or incurs a liability while in innocent passage (e.g., pollution).^[129]

(2)  State Craft.  State vessels enjoy complete sovereign immunity.^[130]  However, the Flag State bears liability for any costs that arise from a State vessel’s violation of laws that would otherwise be applicable to civil vessels.^[131]  The coastal State’s only power over State vessels not complying with its rules is to require them to leave the territorial sea immediately,^[132] arguably by using “any force necessary to compel them to do so.”^[133]

b.    Transit Passage and Archipelagic Sea Lane Passage.

(1)  Civil Craft.  The coastal State retains almost no State competencies over civil craft in transit passage or ASL passage, other than the competencies applicable within the contiguous zone and EEZ.  These include customs, fiscal, immigration, and sanitary laws, and prohibitions on exploitation of resources (e.g., fishing).  Additionally, the coastal State may propose a traffic separation scheme, but it must be approved by the International Maritime Organization (IMO).^[134]

(2)  State Craft.  State vessels enjoy complete sovereign immunity.  The Flag State bears liability for any costs that arise from a State vessel’s violation of laws that would otherwise be applicable to civil vessels.

C.    International Areas/International Waters.

1.    Contiguous Zone.  The contiguous zone was created by UNCLOS III solely to allow the coastal State to prevent and punish infringement of its customs, fiscal, immigration, and sanitary laws “within its territory or territorial sea.”^[135]  Thus, the contiguous zone serves as a buffer to prevent or punish violations of coastal State law that occurred on land, within internal waters, or within the territorial sea, and arguably not for purported violations within the contiguous zone itself (unless the deleterious effects extend to the territorial sea).  Thus, a vessel polluting while engaged in innocent passage in the territorial sea could be stopped and arrested in the contiguous zone.  However, all States continue to enjoy the right to exercise the traditional high seas freedoms of navigation and overflight in the contiguous zone.

2.    Exclusive Economic Zone.  Within this area, the coastal State’s jurisdiction and control is limited to matters concerning the exploration, exploitation, management, and conservation of the resources of this international area.^[136]  Although coastal State consent is required to conduct marine scientific research in its EEZ,^[137] the coastal State cannot regulate hydrographic surveys or military surveys conducted beyond its territorial sea, nor can it require notification of such activities.^[138]  “[I]n the EEZ all nations enjoy the right to exercise the traditional high seas freedoms of navigation and overflight . . . and of all other traditional high seas uses by ships and aircraft which are not resource related.”[139]  The United States position is that nations can also conduct military activities, such as surveillance, in a coastal state’s EEZ.  This is based on customary international law, as well as the contextual reading and drafting history of UNCLOS III.  Some coastal states, specifically China, oppose this view.^[140]

3.    High Seas.

a.    Civil Craft.  On the high seas, the general rule is Flag State jurisdiction only.^[141]  Non-Flag States have almost no competencies over civil craft on the high seas, with the following exceptions:

(1)  Ships engaged in the slave trade.^[142]  Every State is required to take measures to suppress the slave trade by its flagged vessels.  If any other State stops a slave vessel, the slaves are automatically freed.

(2)  Ships or aircraft engaged in piracy.^[143]  “Piracy is an international crime of universal jurisdiction consisting of illegal acts of violence, detention, or depredation committed for private ends by the crew or passengers of a private ship or aircraft in or over international waters against another ship or aircraft or persons and property on board.”^[144]  This act must occur on the high seas or outside the territorial jurisdiction of a state.^[145]  Note that the pirates and the victim must be located onboard an aircraft or vessel.^[146]  Terrorist acts committed for purely political motives, vice private gain, have not generally been considered piracy.^[147]  International law has long recognized a general duty of all States to cooperate in the repression of piracy.  Under customary international law and the provisions of UNCLOS III, any State craft may seize and arrest pirates,^[148] and any State may prosecute pirates under a theory of universal jurisdiction, provided the State has domestic laws criminalizing such behavior.

(3)  Ship or installation (aircraft not mentioned) engaged in unauthorized broadcasting.^[149]  Any State which receives such broadcasts, or is otherwise subject to radio interference, may seize and arrest the vessel and persons on board.

(4)  Right of approach and visit.^[150]  The right of approach and visit—like an automobile traffic stop to check license and registration—may only be conducted by State ships and aircraft.  Under international law, an authorized ship or aircraft may approach any vessel in international waters to verify its nationality.  Unless the vessel encountered is itself a warship or state vessel, it may be stopped, boarded, and the ship’s documents examined, provided there is reasonable ground for suspecting that:  (1) the vessel visited is engaged in slave trade,^[151] piracy,^[152] or unauthorized broadcasting;^[153] (2) the vessel is either stateless (i.e. without nationality, under the premise that a vessel that belongs to no State belongs to all States) or quasi-stateless (e.g. flying under more than one flag);^[154] or (3) the vessel, although flying a foreign flag, actually is of the same nationality of the visiting State ship or aircraft.^[155]  The visiting State ship may ask to see the visited vessel’s documents.  If the documents raise the level of suspicion of illicit activity, this may serve as the basis for a further search of the vessel.

(5)  Hot Pursuit.^[156]  Like the right of visit, hot pursuit may be conducted only by State ships and aircraft.  A craft suspected of committing a prohibited act inside the territorial sea or contiguous zone of a coastal state may be pursued and captured outside the territorial sea or contiguous zone.  The pursued ship must have violated a law or regulation of the coastal State in any area in which those laws or regulations are effective.  For example, the ship must have violated a customs rule within the territorial sea, or a fishing regulation within the EEZ.  The pursuit must commence in the area where the violation was committed, and it must be continuous.  Pursuit must end once the ship enters the territorial sea of another State.  The international nature of the crime of piracy may allow continuation of pursuit if contact cannot be established in a timely manner with the coastal State to obtain its consent.  In such a case, pursuit must be broken off immediately upon request of the coastal State.^[157]

(6)  Terrorism/Nonproliferation.  Over the past 30 years, States have attempted to combat the problem of criminal interference with aircraft and vessels.  To deter terrorists, these legal strategies are supported by strengthened security, commitment to prosecute terrorists, and sanctions against States that harbor terrorists.  Nations have entered into multilateral agreements to define the terrorism offenses.  These conventions include the Tokyo Convention, Hague Convention, Montreal Convention, and the Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (the SUA Convention) and its related Protocols.  Specifically, the 2005 Protocol to the SUA Convention provides legal authority for the interception of vessels suspected of transporting Weapons of Mass Destruction.  United Nations Security Council Resolutions 1540, 1874 (North Korea) and 1929 (Iran) also provide additional legal authority.

b.    State Craft.  State vessels are absolutely immune on the high seas.^[158]

c.    Maritime Interception Operations (MIO).^[159]  Nations may desire to intercept vessels at sea to protect their national security interests.  As discussed above, vessels in international waters are generally subject to the exclusive jurisdiction of their flag state.  However, there are several legal bases available to conduct MIO, none of which are exclusive.  Judge Advocates should be aware of the legal bases underlying the authorization of a MIO when advising a commander about such operations.  Depending on the circumstances, one or a combination of the following bases can be used to justify permissive and non-permissive interference with suspect vessels:

(1)  MIO pursuant to a United Nations Security Council Resolution;^[160]

(2)  Flag state consent;^[161]

(3)  Vessel Master’s consent;^[162]

(4)  Right of approach and visit;^[163]

(5)  Stateless vessels;^[164]

(6)  Condition of port entry;^[165]

(7)  Bilateral/Multilateral agreements;^[166]

(8)  Belligerent rights under the law of armed conflict (LOAC);^[167]

(9)  Inherent right of self-defense.^[168]

V.  The Law of naval warfare

      A.     The information above focused on the law during peacetime operations.  Nothing stated above nor in the law of the sea impairs a State’s inherent right to self-defense.[169] While hostilities at sea are generally governed by principles of LOAC, the law of naval warfare is specific to military operations conducted on, above and below the sea and has a distinct nature of its own.[170] Law of naval warfare rests on three pillars: (1) rules and principles governing the conduct of hostilities, (2) prize law, and (3) the law of maritime neutrality.[171] There are physical and operational differences in the nature of warfare conducted at sea versus on land. Additionally, there is an aspect unique to naval warfare that is inherently economic in nature (prize law).[172] These differences translate into legal distinctions between LOAC and law of naval warfare when it comes to principles of distinction (persons vs. platforms), treatment of enemy merchant ships and the nature of perfidy, just to name a few. 

       B.    Law of naval warfare has historically applied to International Armed Conflicts (IAC).[173] Most of the treaties pertaining to law of naval warfare were signed prior to the development of Non-International Conflicts (NIAC). The U.S. position is that any state vessel, including warships and naval auxiliaries, may be used to conduct attacks against non-state armed groups during a NIAC.[174] In situations involving NIAC, the law of naval warfare does not apply in its entirety.[175] It is the policy of the United States to comply with the law of war during all armed conflicts, no matter how characterized, and in all other military operations.^[176]  

        C.    For a deeper understanding of the law of naval warfare, legal practitioners should consult The Commander’s Handbook on the Law of Naval Operations for an overview of the rules of international law concerned with the conduct of naval warfare.[177]  Another resource that should be consulted is The Newport Manual on the Law of Naval Warfare.[178] Although not an official policy statement of the DoD or U.S. Navy, The Newport Manual constitutes a restatement of law specific to naval warfare, and, as such, contains more thorough descriptions of the current state of the law and details the legally significant differences between naval and land warfare. These documents complement each other and contain discussions on topics such as: neutral water and territory, neutral commerce and vessels, acquiring enemy character, belligerent right to visit and search, belligerent right to capture, blockade, exclusion and war zones, submarine warfare, naval mines and torpedoes, prize procedures, and deception during armed conflict at sea.^[179]

VI.  THE LAW OF AIR WARFARE

A.   Introduction

1.    The focus of this chapter has primarily been on the rules governing peacetime operations.  In the context of air operations this is sometimes called the law of air mobility.^[180]  This should not be mistaken to exclude combat aircraft.  The same rules apply to them whenever they perform a non-combat operation in a peacetime environment.  However, in wartime, many of these rules may not necessarily apply, especially in areas of active hostilities.  Judge Advocates should nonetheless be familiar with these rules if they are deploying to units supported by air assets. The ability to deliver supplies or to send combat aircraft to a target can be impacted by the law of air mobility.^[181] 

2.    In terms of the rules governing air warfare, there is no separate treaty specifically governing air combat.  An attempt to create a separate treaty resulted in the 1923 Hague Rules of Air Warfare, but these rules were never ratified.^[182]  However, many of its principles may have become customary international law.^[183]   Certain rules particular to air warfare have been codified in both Hague Law and Geneva Law, such as the rules governing bombardment of undefended places and the rules governing medical aircraft.

B.    Sources of Authority

1.    Article 89 of the 1944 Chicago Convention allows for the Law of War to take precedent over the treaty obligations during an armed conflict.^[184]  Nonetheless, certain restrictions on state and military aircraft passing through neutral airspace without permission may still apply.^[185]  With no treaty specifically devoted to air warfare, Judge Advocates must apply existing law to operations occurring within the air domain. 

2.    Service guidance can be found in Air Force and Navy documents.  Judge Advocates should consult the most recent edition of the Air Force Operations and the Law which discusses the LOAC applied to air operations as well as the specifics of air targeting and weaponeering.  The Navy’s Commander’s Handbook on the Law of Naval Operations, also contains references to air and space operations.

3.    The Program on Humanitarian Policy and Conflict Research at Harvard University published the Manual on International Law Applicable to Air and Missile Warfare (AMW Manual), which consists of 175 “Black-letter Rules” agreed upon by a group of experts and associated commentary.^[186]  The manual has been described as a “tremendous accomplishment” that “can provide a baseline,” but ultimately “an effective practitioner in this area of the law requires much more knowledge than the AMW Manual can provide.”^[187]

C.    Planning Air Operations

1.    Judge Advocates must not only be aware of the applicable LOAC and rules of engagement but should also become familiar with the Joint Planning Process for Air (JPPA) and the Joint Air Tasking Cycle (JATC), which generates the daily Air Tasking Order (ATO).^[188]

2.    Command and Control of Air Operations.  Doctrinally, air operations are either controlled: (1) directly by the joint force commander (JFC); (2) by the designated service component commander; or (3) by a joint functional air component commander (JFACC).^[189]  The JFACC is the most common; however, operations may rely on service component commanders as well.^[190]  Generally speaking, the JFACC will be the service component commander with “the preponderance of forces to be tasked and the ability to effectively plan, task, and control joint air operations.”^[191]  In many cases, the designated JFACC is the Air Force service component commander.

3.    Joint Air Operations Center (JAOC).  Each service has its own organic structure for command and control of air assets.  However, when a JFACC has been established, he or she will operate from a JAOC, which serves an “integrated command center” staffed by members of all participating components.  Common elements of a JAOC are the strategy division (SD), combat plans division (CPD), intelligence, surveillance, and reconnaissance division (ISRD), air mobility division (AMD), and combat operations division (COD).^[192]  Each of the JAOC’s major activities relies on expertise from liaisons (e.g., battlefield coordination detachment [BCD], US Army Air and Missile Defense Command [AAMDC] liaison team, Naval and Amphibious liaison element [NALE], Air Force liaison element [AFLE], special operations liaison element [SOLE], Marine liaison element [MARLE]) to coordinate requests or requirements and maintain a current and relevant picture of the other component operations.^[193] 

4.    Deliberate and Dynamic Targeting.  Air targeting operations generally fall into two broad categories: deliberate targeting operations and dynamic targeting operations.^[194]  Deliberate targeting is the procedure for prosecuting targets that are detected, identified, and developed in sufficient time to schedule actions against them in tasking cycle products such as the ATO.^[195]  Dynamic targeting is the procedure for prosecuting targets that are not detected, identified, or developed in time to be included in deliberate targeting, and therefore have not had missions scheduled against them.^[196] 

5.    Legal Considerations.

a.    “The law of war and other legal considerations, such as rules of engagement (ROE), directly affect all phases of targeting and ultimately targeting decisions.  Those involved in targeting should have a thorough understanding of these legal considerations and be able to apply them during the targeting process.”^[197] 

b.    In addition to the LOAC and ROE, there are other restrictions that impact targeting in the air context.  The first restriction is target lists.  “The no-strike list (NSL), restricted list (RTL), joint prioritized effects lists (JPEL), and joint prioritized target list (JPTL) are compiled and maintained by the combatant command or, in coalition operations, by senior coalition leadership elements.”^[198]  The second restriction is collateral damage methodology (CDM).^[199]  The third restriction is the Joint Air Operations Plan (JAOP), which may contain restrictions from the commanders.^[200]  The fourth restriction is Special Instructions (SPINS), which are issued by the JFACC through the CAOC and may contain ROE-like restrictions.^[201]  Fragmentary Orders (FRAGOs) or Fire Support Annexes to OPORDs may also contain guidance on targeting.^[202]  Finally, coalition forces may have their own restrictions that must be considered as well.^[203]

c.    Regardless of the targeting phase, the following legal considerations must be made:^[204]

(1)  Is the target a valid target?  The question of whether a target is valid can frequently be answered by the theater-specific ROE or by analyzing the target using LOAC principles.

(2)  Has positive identification (PID) of the target been established and maintained?  Based upon the principle of necessity and distinction, most combatant commands have specific requirements for sensors that can establish positive identification.  Commonly more than one form of intelligence will be required.  It is important for judge advocates to know the source of the PID and that it has been continuously maintained.  If PID is lost, it must be regained in accordance with theater PID requirements before the target can be engaged.

(3)  Are there any restrictions that would limit the ability to strike this target such as ROE, NSL, RTL, etc.?  The judge advocate must consult the NSL and RTL to determine whether the nominated target appears on either list.  Some CAOCs’ systems have data­bases that generate any conflicts with NSL and RTL once the target has been plotted.  However, the databases should not be relied upon; it is a good idea to also review the collateral damage estimate produced by the targeteers during the dynamic targeting process.

(4)  What is the expected collateral damage and does it exceed the expected military advan­tage? As mentioned above, the targeteers will nearly always generate a collateral dam­age estimate.  Both targeteers and judge advocates use this estimate to determine the expected strike results versus expected collateral damage and to determine ways to minimize civilian casualties, if possible, through weapons choice, delivery parameters, and fusing options.  This estimate is also used to determine the appropriate strike approval authority. Higher expected collateral damage generally corresponds to a higher strike approval authority.

(5)  Has the target nominator received strike approval from the proper authority?  Usually captured in the ROE, the judge advocate will determine whether the target nominator has received approval to strike the target from the appropriate strike approval authority.  The more sensitive a target is, the higher the strike approval authority will be.  Further, during coalition air operations, use of coalition strike assets usually requires approval from that nation’s designated strike approval authority.

D.   Air Combat Zones.  The DoD Law of War Manual recognizes the right of belligerents to prohibit or establish special restrictions upon flight activities in the immediate vicinity of hostilities to prevent such activities from jeopardizing military operations.^[205]  Such prohibitions or restrictions do not absolve the imposing nation from its obligations under the LOAC.^[206] Nonetheless, the declaration of air combat zones may assist in decreasing the risk of attacking aircraft that are not being used for military purposes by an adversary.

1.    War, Operational, Warning, or Exclusionary Zones.  These zones are designed primarily to warn away civil or neutral aircraft to reduce the risk of being mistakenly attacked.  They are historically based on similar zones established at sea.  Such zones can be “exclusionary” by preventing the operating of any aircraft within the zone (similar to a No-Fly Zone, discussed below), but they cannot interfere with certain enemy exports on neutral aircraft unless a blockade has been established.  Moreover, these zones must be distinguished from the belligerent right to control the immediate vicinity of hostilities where air operations are taking place.^[207]

2.    No-Fly Zones (NFZs).  Since states enjoy the right of sovereignty over their national airspace, the infringement of that sovereignty can only occur when either: (1) another nation acts in self-defense; or (2) if the Security Council takes action.  The Security Council has passed resolutions creating NFZs over Iraq in 1990, Bosnia-Herzegovina in 1992, and most recently Libya in 2011.

3.    Air Defense Identification Zone (ADIZ).  The DoD Law of War Manual defines an ADIZ as “an area of airspace over land or water in which the ready identification, location, and control of aircraft may be required in the interests of national security.”^[208]  The legal basis of an ADIZ is a State’s right to set conditions and procedures for entry into its national airspace.  U.S. practice requires identification only from those aircraft penetrating an ADIZ with the intent to enter US national airspace.  The United States does not apply or accept ADIZ identification requirements on aircraft that do not intend to penetrate national airspace.  This is because an ADIZ, by definition, extends beyond national airspace, which a state is entitled to control, and into international airspace, where aircraft are entitled to freedom of navigation.  Practitioner’s Tip:  Although foreign aircraft enjoy freedom of navigation in the U.S. ADIZ, U.S. military aircraft may intercept foreign military aircraft that approach U.S. national airspace.^[209]

E.    Air-to-Air Considerations.

1.    Attacks against Military Objectives in the Air.  The general rules on conducting attacks also apply to attacks against military objectives in the air.^[210]  Generally speaking, enemy military aircraft may be made the object of attack.^[211]  The challenge in air-to-air engagements is positively identifying that the object targeted is a valid military objective.^[212]  In modern air combat, aircraft can engage each other at great distances, and modern weapon systems can increase the range of engagement beyond that which the human eye is capable of seeing.^[213]

2.    Protection of Civil Aircraft.  During an armed conflict, civil aircraft are generally considered civilian objects, but they can lose their protection if they constitute a military objective.^[214]  An enemy civil aircraft may become a legitimate target if it fails to comply with military instructions.^[215]  Failure to comply does not, of itself, render the civil aircraft a target, but it may be evidence to suggest hostile act or hostile intent.^[216]  This protection of civil aircraft in armed conflict must be distinguished from the protection of civil aircraft in peacetime contained in Art 3bis of the Chicago Convention.^[217]

3.    Protection of Medical Aircraft.  Specific rules found in the 1949 Geneva Conventions address the protection of aircraft that are engaged exclusively in specified medical functions.^[218]  These aircraft must be exclusively employed for the removal of wounded, sick, and shipwrecked, and for the transport of medical personnel and equipment to warrant protection and fly at heights, times, and routes agreed upon by the belligerents.^[219]  However, known medical aircraft must be respected and protected even if no pre-arranged agreement exists.^[220]

4.    Protection of Aircraft and Aircrew Hors De Combat.

a.    Surrender by Enemy Aircraft.  While it is possible for an enemy aircraft to surrender, it may be difficult to know when an opponent has surrendered, and moreover, it may be difficult to enforce the surrender.  This does not preclude the possibility of accepting the surrender where feasible.  “Persons who are conducting attacks against enemy military aircraft must assess in good faith whether surrender is offered in good faith and can feasibly be accepted based on the information that is available to them at the time.”^[221]

b.    Downed Aircrew.  Generally, aircrew parachuting from an aircraft in distress are treated as hors de combat unless they engage hostile acts or attempt to evade capture.  At sea, downed aircrew are to be treated as shipwrecked and must not be attacked.  In addition, there are obligations to search for and collect them under the Second Geneva Convention of 1949.  Rescue of downed aircrew is considered a combat activity, especially when the purpose is to prevent capture.^[222]

F.    Air-to-Ground Considerations.

1.    Attacks against Military Objectives on the Ground.  The general principles of the LOAC apply to air attacks on ground targets with a few key exceptions specific to the unique nature of air attack and air weaponry.^[223]  Historically, the law disfavored aerial bombardment of ground targets due to its inaccuracy.^[224]  However, as bombardment became more precise and advantageous, these early prohibitions gave way.  Air attacks on ground targets are held “to the same legal standard as other means and methods of warfare, not a higher standard.”^[225]

2.    Aerial Bombardment.  The aerial bombardment of towns, villages, dwellings, or buildings that are undefended is prohibited by Hague IV, art. 25.^[226]  The term “undefended” does not mean that it simply lacks defensive capabilities, but rather that the undefended location can be seized or occupied without the use of force.^[227] The prohibition of bombing undefended places does not preclude attacks on military objectives within civilian population centers.  The rule must be read in conjunction with the protection accorded to civilians and civilian property and the other principles of the law of war.^[228]

3.    Aerial Weaponry and Precision.  As noted above, there have been many advancements in the technology and capability of aerial weaponry.  However, the LOAC does not require the use of specific weapons based on their accuracy.^[229]  A commander is not required to use a precision-guided munition (PGM) if another weapon can be used that still meets the requirements of LOAC.  Commanders are obligated to take certain precautions to ensure that attacks reduce the risk of harm to the civilian population and the selection of a certain weapon system may be among various precautions that a commander may take to reduce the risk of that harm.^[230] Ultimately, the selection of weapons must be governed by the general principles of LOAC.

4.    Enemy Ground Forces Hors De Combat.

a.    Surrender by Enemy Ground Forces.  The surrender of enemy ground forces to aircraft is difficult, as aircrew may not know for certain whether an enemy is actually surrendering.  Further, it may be impossible for the aircrew to accept the surrender (i.e., the aircraft cannot land and take the enemy force into custody.)  Nonetheless, there may be means by which the aircrew can facilitate a surrender by communicating steps for enemy units to take to communicate the intent to surrender to friendly ground forces.^[231]  The feasibility of accepting surrender must be considered in addition to whether a surrender is genuine, clear, and unconditional.^[232]

b.    Identifying Enemy Ground Forces Hors De Combat.  Identification by aircraft of an enemy combatant on the ground placed hors de combat is also challenging.  Aircrew may not be certain that enemy combatant is dead or injured or merely taking cover or feigning injury or surrender to avoid attack.  Aircrews must “assess in good faith whether persons have been placed hors de combat based on the information that is available to them at the time.”^[233]

G.   Measures Short of Attack.

1.    Interception.  During an armed conflict (and peacetime), a party may choose to intercept aircraft.  All interceptions should be conducted with due regard for the safety of such aircraft.^[234]  Interception helps to: (1) determine whether the aircraft is a military objective or warn away civil aircraft entering an area of operations; (2) enforce blockages or NFZs; (3) enforce right of visit and search; or (4) maneuver to position for possible attack.  Interception is only restricted in armed conflict in neutral airspace and during passage through neutral straits or neutral archipelagic sea lanes.^[235]

2.    Diversion.  Diversion and search of civil aircraft may be conducted outside neutral airspace as part of the belligerent right of visit and search.  Interference with civil aircraft of neutral States must be justified by military necessity. Certain aircraft are exempt from the belligerent right to divert aircraft for purposes of visit and search: (1) neutral military aircraft; and (2) neutral civil aircraft accompanied by neutral military aircraft of the same nationality.^[236]

3.    Capture.  Enemy civil aircraft may be seized and used by a belligerent.  Neutral civil aircraft engaged in activity in violation of neutrality are also liable for capture.^[237]

H.   Unmanned Aerial Vehicles.^[238]

1.    UASs are generally governed by the same rules and principles as crewed aircraft; however, the application of these rules may be challenging.  Moreover, certain UAS operations, both using them and countering the threat they pose (cUAS), are governed by specific laws, regulations, and policies.

2.    International Legal Considerations.   

a.    Use During Peacetime.  The airspace divisions and navigation regimes previously discussed are applicable to UAS operations.  Additionally, while UASs that are state aircraft are not required to follow ICAO guidelines,^[239] the DoD policy is to follow ICAO guidelines when “practical and compatible with the mission.”^[240]  Moreover, UASs operating in foreign national airspace must comply with relevant international agreements and host nation laws.^[241]

b.    Use During Armed Conflict.  The LOAC applies to UASs in the same way it applies to crewed aircraft.^[242]  As such, the LOAC and ROEs will guide the legal analysis of particular operations.  Moreover, because of UASs’ ability to transit to locations and for durations crewed aircraft cannot, UASs may offer additional ways for commanders to comply with the LOAC.^[243] 

3.    Domestic Legal Considerations. 

a.    Use of UASs.  The use of UASs within the United States is restricted not only for safety concerns under Federal Aviation Administration (FAA) regulations, but also out of concerns over the use of military aircraft to carry out law enforcement or intelligence functions.  “The primary purpose of [DoD] domestic aviation operations are to support Homeland Defense (HD) and Defense Support of Civilian Authorities (DSCA) operations, and military training and exercises.”^[244]  In 2018, the Secretary of Defense provided guidance for the domestic use of UASs in U.S. national airspace.^[245]  This guidance streamlines the approval process for domestic use of UASs, including delegating authority for the use of smaller UAS (sUAS) to the Secretaries of the military departments; authorizing geographic combatant commanders to approve the use of sUAS in support of force protection and incident awareness and assessment; and authorizing state governors to approve national guard use of sUAS for search and rescue and incident awareness and assessment.^[246]  It further directs that “[a]ll domestic use of DoD UAS will be conducted in accordance with [FAA] policies, regulations, and memoranda of agreement (MOA) concerning UAS operations in U.S. National Airspace, unless otherwise permitted by law or agreement.”^[247]  Particular care should be paid to the privacy and civil liberties requirements for domestic UAS operations, including any intelligence laws, policy, and oversight.^[248]  The Secretary of Defense guidance also provides a useful matrix for the approval authorities for domestic use of DoD UAS.^[249]

b.    Countering the Threat of UASs.  The proliferation of UASs has also brought unique force protection challenges.  UASs are aircraft, so the rules regarding protection of aircraft are applicable to UASs.  For example, the Aircraft Sabotage Act criminalizes the destruction of aircraft or aircraft facilities.^[250]  However, the Secretary of Defense is authorized to take actions “necessary to mitigate the threat” that a UAS “poses to the safety or security of a covered facility or asset.”^[251]  Discussion of “threats” is provided in classified guidance or mission specific ROE/RUF.^[252]  Counter-UAS capabilities must undergo a weapons review for compliance with the LOAC.^[253]  When implementing cUAS capabilities into installation protection procedures, particular attention should be paid to those that utilize the electromagnetic spectrum as they may require coordination with the FAA and the National Telecommunications and Information Administration.^[254]

VII. SPACE OPERATIONS

A.   Introduction

1.    “Space is fundamental to U.S. prosperity and national security.”^[255]  Yet, with the growth of space capabilities, “[o]perations in the space domain are increasingly contested, degraded, and operationally limited.”^[256]  “Space is no longer utilized by only the most technologically advanced countries; people worldwide rely on services provided by, or dependent upon, space assets.”^[257]  As such, “[s]pace underpins the U.S. way of life and U.S. way of war.”^[258]  For the DoD, “[s]pace operations support and enable the joint force to conduct operations.”^[259]  “[DOD] space policy is centered to deter adversaries, defend against threats, and pursue resilient space architectures that contribute to achieving space mission assurance and objectives.”^[260] In carrying out this mission, the United States conducts space activities and operations that “comply with the law of war and any other applicable treaties or international agreements to which the US is a party, with all applicable domestic law and policy, and with any applicable host nation laws.”^[261]

2.    The FY20 NDAA created the U.S. Space Force (USSF) as the sixth branch of the U.S. military.^[262]  The USSF was established within the Department of the Air Force with a four-star general, known as the Chief of Space Operations (CSO), as the senior military member and a member of the Joint Chiefs of Staff.^[263]  The mission of the USSF is to organize, train, and equip forces to “protect U.S. and allied interests in space and to provide space capabilities to the joint force.”^[264]

3.    United States Space Command (USSPACECOM) is the newest of the eleven unified commands.^[265]  Its mission is to conduct “operations in, from, and through space to deter conflict, and if necessary, defeat aggression, deliver space combat power for the Joint/Combined force, and defend U.S. vital interests with allies and partners.”

B.    Sources of Authority

1.    The primary treaty governing military operations in space is the 1967 Outer Space Treaty.  That treaty made international law, including the UN Charter and the LOAC, applicable to the space domain. 

2.    In addition to the OST, key legal principles are also found in three other treaties: the Rescue and Return of Astronauts Agreement; the Liability Convention; and the Space Objects Registration Convention.^[266]  The 1979 Moon Treaty has not been ratified by most space-faring nations, including the United States.^[267]  The United States has specifically rejected claims that its provisions reflect customary international law.^[268]

3.    Several other agreements restrict activities in outer space.  For example, the 1963 Limited Test Ban Treaty includes an agreement to not test nuclear weapons or carry out other nuclear explosions in outer space,^[269] and the 1977 Environmental Modification Convention prohibits military or other hostile use of environmental modification techniques in outer space.^[270]

4.    There are several resources available for Judge Advocates advising on space operations.  These include Chapter IV of Joint Publication 3-14; section 2.11 of the Commander’s Handbook on the Law of Naval Operations, chapter 5 of the Air Force Operations and the Law; and chapter XIV of the DoD Law of War Manual.

C.    Military Operations in Outer Space

1.    Peaceful Purposes.  The preamble to the Outer Space Treaty recognizes that it is in the common interest of all mankind to use space for peaceful purposes.^[271] The United States has expressed the view that outer space should be used for only peaceful purpose, interpreting “peaceful purpose” to mean “non-aggressive and beneficial.”^[272]  Therefore, it is not a violation to use satellites in space for observation or information gathering or to take lawful military action in self-defense.^[273]

2.    Weapons Restrictions

a.    Art. IV of the OST places certain restrictions on military activity in outer space.  First, there is a restriction on stationing nuclear weapons and other weapons of mass destruction (WMD) in outer space or on celestial bodies.^[274]  This does not prohibit the transit of nuclear weapons through outer space, only the stationing of nuclear weapons in outer space.  Other arms control treaties have banned or limited the production, testing, or deployment of systems that place nuclear weapons or other WMD into full or fractional earth orbit.^[275]

b.    The OST does not restrict any other weapons.  This would include anti-satellite weapons (ASATs) or other conventional weapons.^[276]  However, there may be other risks if a state elects to destroy another state’s satellite in orbit.^[277]

c.    Testing of weapons in outer space is not prohibited by the OST; however, other treaties, most notably the Limited Test Ban Treaty, prohibit the peacetime testing of nuclear weapons in space.^[278]

3.    Maneuver Restrictions

a.    The OST declares outer space free for use and exploration by all States.  No state can prohibit access to space and most states understand and accept the overflight of objects in orbit over terrestrial territory.^[279] 

b.    Outer space and celestial bodies are not subject to national appropriation by claim of sovereignty.^[280]  The United States distinguishes the prohibition on national appropriation from the lawful use of particular locations in space.  For example, States, and private entities, may claim resources from outer space, the moon, and other celestial bodies without violating the principle of non-appropriation.^[281]

c.    States must conduct their activities in space with “due regard” for the interests of other states in outer space.^[282]  Article IX requires States to make “appropriate international consultations” before conducting activities that would cause potentially harmful interference with the activities of other States Parties in the peaceful exploration and use of outer space.^[283]  The United States has proposed “safety zones” to assist in the notification and coordination between partner nations to prevent harmful interference.^[284]

d.    States may build military “bases” or space stations in outer space itself, but not on the moon or other celestial bodies.^[285]

e.    These restrictions may not apply to a conventional armed conflict conducted in outer space.^[286]  For example, in an international armed conflict, belligerent states may choose to deploy ASATs to eliminate the enemy’s use of outer space for communication, reconnaissance, navigation, or targeting.  States may also elect not to use of this capability due to the risk to friendly or neutral space systems by the creation of space debris.^[287]

D.   Military Operations on the Moon and Other Celestial Bodies

1.    Article IV of the OST places certain prohibitions on military activities on the moon and other celestial bodies.  It prohibits (1) the establishment of military bases, installations, and fortifications; (2) the testing of any type of weapons; and (3) the conduct of military maneuvers.^[288]

2.    Article IV also recognizes the unimpeded right to: (1) the use of military personnel for scientific research or other peaceful purposes on outer space missions; and (2) the use of any equipment or facility necessary for the peaceful exploration of the moon and other celestial bodies.^[289]

E.    Other Considerations

1.    Growth of Private Space Action.  The United States has championed the case for the use of space by private entities.  Many of the recent changes to U.S. space policy have focused on developing a robust private space sector.^[290]  While essential for the continued growth of space technologies and capabilities, it increases the number of actors and objects in space.  Moreover, as reflected in Article VI of the OST, States “bear international responsibility” for the activities of private entities conducted in outer space.^[291]  As private actors continue to grow and develop space capabilities—adding to the contested, congested, and competitive nature of space—States will have to adjust national laws and policies to adequately monitor this activity.^[292]  In remains to be seen what, if any, role the DoD will have in this process.

2.    The Rescue and Return Agreement requires that State Parties immediately rescue foreign spacecraft personnel who land in their territory, and safely and promptly return them to the launching State.  The treaty also provides a measure of protection for space objects; a State party to the treaty must retrieve objects in its territory when requested by the launching State, but only to the extent practicable.^[293]

3.    Space Debris.  Space debris is not illegal per se under international law.  There is no requirement that objects be deorbited or transferred to another orbit prior to the end of their useful life.  The Outer Space Treaty declares that States shall avoid “harmful contamination.”^[294]  All operations in space create some form of space debris.  Much of this debris will remain in orbit for hundreds or thousands of years depending on height of its orbit.  Even small pieces of debris, including debris that is too small to be tracked by current sensors, can potentially disable or destroy an operational satellite.^[295]  The Department of Commerce has the primary role in monitoring space debris,^[296] but the DoD continues to monitor objects for impacts on U.S. national security interests.^[297]