Almost sixty years of exploration and use of outer space have brought unprecedented benefits to humanity. The disruption of the space infrastructure on which humanity now relies so heavily would have devastating global impacts. Space technologies, activities and issues are no longer matters just for States, but also for commercial space enterprises and non-State actors. Space infrastructure is becoming more vital to global economic, business and strategic systems.
Space, and the infrastructure in space, is highly valuable. Yet, by nature, as well as by law, it must be shared. Economic competition is now just as prevalent as cooperation. While space is remote and difficult to access, it is increasingly vulnerable, congested and contested. With the geo-politically polarised nature of the world today, it must be contemplated that hostilities between States could extend to, or indeed break out in, outer space. Conflict in, through or from outer space is unfortunately likely. Such conflict would have devastating implications for the space systems of all nations and for life on Earth for everyone. Though efforts have been made to prevent both an arms race in outer space and the breakout of conflict in the domain of space, and to establish transparency and confidence building measures in relation to the conduct of space activities, none of these efforts have adequately addressed the legal nature of the range of military activities currently being conducted, or which are envisaged in outer space.
Although an elaborate body of law regulates the initiation and conduct of hostilities (i.e., the law on the resort to war (jus ad bellum) and the law of armed conflict (jus in bello)) in the terrestrial context, the interpretation and extent of application of this body of law in outer space has never been comprehensively and objectively addressed or authoritatively stated. In light of various stalled efforts to address the issue of space security, there is wide consensus that the rule of law in outer space must be strengthened. There must be greater certainty on how to avoid, or at the very least minimise, the severe and widespread impact of such a conflict in outer space.
Against this backdrop, the McGill Centre for Research in Air and Space Law (CRASL), the University of Adelaide Research Unit on Military Law and Ethics (RUMLAE) and a dedicated team of subject-matter experts recognise the need for the development of a Manual on International Law Applicable to Military Uses of Outer Space (MILAMOS). The “McGill Manual” will articulate and clarify existing law applicable to the space environment regarding armed conflict and indicate what limitations international law places on the threat or use of force in outer space. With rapidly developing space technologies and applications, the project will examine what uses and objects are considered lawful in the event of a conflict in outer space.
As noted above, economic and strategic advantages gained from space, coupled with the reliance of States and their respective armed forces on space assets for communications (SATCOM), for intelligence, surveillance and reconnaissance (ISR), and for positioning, navigation and timing (PNT) make objects in outer space natural targets in the event of armed conflict. Due to the dependence on space applications and technologies, it is not difficult to foresee how a conflict involving space assets will impact civilian populations and vital national infrastructure, and prejudice the quality of life, and even survival, of the civilian population worldwide.
Under the current legal framework applicable to the space domain, certain military uses of space are compatible with the cardinal ‘peaceful purposes’ principle that comes from the 1967 Outer Space Treaty. However, the law does not expressly mention the initiation and conduct of hostilities involving space, and little State practice exists on the subject. Since the 1980s, the United Nations General Assembly has annually adopted a resolution urging States to refrain from actions that contribute to an arms race in outer space. Various initiatives, such as the proposed treaty to prevent the placement of weapons in outer space (PPWT), the proposed International Code of Conduct for Outer Space Activities (ICOC), and multilateral diplomatic efforts aimed at developing transparency and confidence-building measures (TCBMs), have amounted to little in securing tangible progress or concrete measures to ensure the sustainability and security of outer space. Late 2014, for the first time ever, the UN General Assembly reiterated that the current legal regime is no guarantee that an arms race will be prevented in outer space and that there is a need to examine further means to prevent such a "grave danger to international peace and security".
The McGill Manual will describe for States how existing international law substantively limits the use of force, as well as address the legality of lesser, yet still hostile, activities by States in outer space that fall short of the use of force. The word ‘military’ is therefore used in a specialised sense, excluding benign, peacetime activities undertaken by military entities. It is also used to cover government activities, regardless of whether the military or some other agency is the author of the activity, but not to cover commercial and other non-government activities.
Such a manual is essential in clarifying and emphasising that aggression in space, like in other domains, is prohibited. International law does define the legality and scope of responsible behaviour even in the in the midst of conflict and in situations that fall short of outright conflict, and there are legal consequences on States that breach their international obligations. Some acknowledgement by States of these simple concepts would amount to a significant transparency and confidence-building measure and this, in turn, would smooth the way for other measures to reduce the likelihood and consequences of warfare in space. Even if States do not overtly endorse these concepts, the successful completion of a manual with the input of eminent authors will provide States with a clear and authoritative statement of the law on the basis of which policy can be developed with confidence.
Recent history suggests that non-governmental efforts to clarify the application of LOAC to new domains and means and methods of armed conflict are more successful than attempts influence State behaviour. The process and success of the San Remo Manual on International Law Applicable to Armed Conflict at Sea, the Harvard Manual on International Law Applicable to Air and Missile Warfare, and the Tallinn Manual on International Law Applicable to Cyber Warfare demonstrate how international experts and engagement with governments have managed to produce quasi-legal documents that enjoy widespread recognition and authoritativeness yet avoiding many of the challenges inherent in multilateral negotiations between States on similar topics. These manuals provide a signpost to States as to how, in the opinion of the experts, existing law place constraints on State behaviour and shape the legality of State action. The evident success of these manuals naturally supports the conclusion that MILAMOS should be drafted and made available to provide an important framework governing any military activities in the space domain.
Under the direction of the McGill University Centre for Research in Air and Space Law and the University of Adelaide Research Unit on Military Law and Ethics, a dedicated team of subject-matter experts. The MILAMOS Project promises to be the first of its kind aimed at addressing issues of the security, sustainability and governance of activities in outer space.
The proposed Manual aims to be a widely known and accepted resource on the neutral and authoritative statement of international law applicable to military activities of outer space. The target audience is government lawyers, policy-makers, decision-makers and military space operators, but the profound impact on the social and economic wellbeing and security of the world means the Manual is also expected to spark interest and debate among the general public. The academic merit of the McGill Manual will be a platform for further academic discussion and research in years to come, particularly as legal principles and policies are best kept alive with follow-up research to ensure its relevance and suitability to changing political realities and the evolving global security environment.
The authority of the McGill Manual lies in the globally-acknowledged expertise of the people gathered to draft it. The success of the manual depends on effective coordination and administration of the project and on the provision of suitable venues or spaces in which the experts will gather to collaborate. Ultimately, the Manual will be the end-product, however throughout the duration of the project, several deliverables will be achieved along the way.
As invited contributors work toward producing various sections and chapters of the Manual, shorter research papers and scientific articles on preliminary findings will be published and provide opportunities for peer review and discussion. Media events and workshops can be held to disseminate findings and ensure the relevance and continuity of the project.
This website is publicly available to collate research findings and function as a resource centre for interested parties. The accessibility of preliminary discussions and findings will ensure the knowledge created throughout the project can be disseminated to and utilised by members of the general public, government officials and academic community. Intermediate outputs such as discussion papers and media events will also help to periodically highlight the extent and necessity of clarifying the law on armed conflict in outer space and draw attention to this globally influential project.
The McGill Manual will clarify how existing international law substantively limits the circumstances in which he use of force in space is permissible as well as the types of force and weapons that States may legitimately use in space. Adherence to, or even just acknowledgement of the existence of, the Manual will increase the transparency of State actions and help build confidence between States in a domain that has historically been shrouded in secrecy and strategic interests. Overall, the Manual will contribute to the progressive development of international law and foster international peace and security and the sustainability of outer space, which is in the interest of all States, and indeed a goal of all humanity.
The target audience of the McGill Manual will be government lawyers (especially military lawyers), policy-makers, decision-makers and military space operators, but the profound impact on the social and economic wellbeing and security of the world means the Manual is also expected to spark interest and debate among a wide range of international institutions and the general public. The Manual will also be a platform for further academic discussion and research in years to come, particularly as legal principles and policies are best kept alive with follow-up research to ensure its relevance and suitability to changing political realities and the evolving global security environment. Further, the process of drafting MILAMOS and eventual outcome will provide materials for education and training in the Strategic Space Law Program, a joint-course organised by McGill University and the University of Adelaide, that began in 2014.
In accordance with the expectations of the organisations which have provided grant funding, there will be interim reports on progress. The format of those interim reports is yet to be determined. The publication of preliminary findings may provide an opportunity to raise public awareness of the Manual and to promote engagement in the final outcomes. Publicity and media outreach events will make the general public and interested parties aware of the relevancy and social and intellectual benefits the Manual and process of producing the Manual will bring. As invited contributors work toward producing various sections and chapters of the Manual, there may be opportunities to publish short research papers and scientific articles associated with preliminary findings.
As a project that intersects various specialisations of law, policy and technology, the project is expected to bring together experts and stakeholders in various fields of research and study and facilitate interdisciplinary dialogue and exchange. Further, as a project that is built and dependent on a coalition of international collaborators and contributors, the project will foster academic exchange and institutional interaction that will benefit established academics as well as students who wish to be involved in the project and take advantage of the employment opportunities available to complement their own research and studies.
The concept of, and need for, such a manual was developed by Wing Commander Duncan Blake in his Master of Laws thesis submitted to the McGill Institute of Air and Space Law in 2014. On his proposal, the McGill CRASL and Adelaide RUMLAE jointly undertook to initiate the drafting of the Manual.
The first step for this purpose was taken by the McGill CRASL by convening, with the financial support of the Government of Canada, a Roundtable of Experts in September 2015, which became the foundational meeting for the MILAMOS project.
Efforts are continuously being made to secure sponsorship and support from various institutions around the world.
The MILAMOS Project is currently the subject of several applications for government grants. Further support can be by way of financial contributions and/or in-kind contributions to help with the organisation of planned workshops and events at various venues in space-faring States. It is hoped that the importance of the Project, and the implications that space security and sustainability will have on all States, will attract support and input from individuals, countries and organisations that are as representative of the world as possible.
The MILAMOS Project is made possible with the kind generosity and support of:
- Erin JC Arsenault Trust Fund at McGill University
- the Government of Canada
- Social Sciences and Humanities Research Council of Canada
- Institute for Defence Studies and Analysis, India
- University of Exeter, United Kingdom