An Army view of neutrality in space: legal options for space negation.

DAVID L. WILLSON [*]

I. INTRODUCTION

Commanders do have options with regard to space control and denying the use of space to the enemy and those assisting the enemy. Because the gap between technology and the law has widened significantly in recent years, military attorneys who advise commanders on space matters have to step away from traditional thought processes and think "outside the box." This may involve looking back at some very old legal theories to enable commanders to accomplish their mission. The response, "sorry sir you cannot do that because it is illegal," is rarely acceptable. The military attorney's goal should be to find legally acceptable solutions wherever possible to support the commander's objective. This article is a concrete example of the type of legal support military attorneys should advocate. It provides an analysis of a potential real-world problem a commander might face by examining the current law as well as some antiquated law. In doing so, it serves as one limited example of how legal solutions, instead of just opt ions, should be provided for the commander.

Imagine the following scenario. You are a commander planning for a major battle. As the plan develops you attempt to anticipate the moves of your adversary, President Osama Shareif, ruler of Northland. The U.S. is either engaged in or on the verge of armed conflict with Northland. You receive the intelligence preparation of the battlefield (IPB) describing Northland's capabilities relating to space support. You are informed that they are able to utilize satellites in planning, coordinating, and launching extremely precise and lethal attacks. Northland is using satellite communications to coordinate all of their troop movements, and satellite imagery less than thirty-two hours old revealing to locate your troops and weapons. Northland is also using satellite navigation to guide their planes, tanks, and helicopters, and using missiles equipped with satellite guided navigation equipment allowing them precision targeting and stealthy tracking avoidance.

More disturbing to you is the discovery that the satellite support is coming from a commercial company, HERCULES, located within the borders of Passivaland, a neutral country. You thought Passivaland was an ally, or at least, would not get involved in support of Northland. What can you do to prevent this company within Passivaland from providing support to Northland? You realize that provision of the satellite services mentioned above would require three different satellite systems, probably owned by three different companies. But you also realize that the time is quickly approaching when individual companies or consortiums will offer one-stop shopping for all available satellite services.

Your goal is to deny Northland access to any and all satellite services. There are numerous methods of accomplishing this goal. One such method, destroying and interfering with Northland's ability to access satellite services, was the method used in Desert Storm. Attacking Northland directly using force or interfering with its ground systems would be the best military option,[1] but for political reasons this option is not available. Nonetheless, you must concentrate on interfering with or destroying HERCULES' ability to provide these services. You realize that you may not attack the satellite system in space or the ground components located in Passivaland without legal justification, because Passivaland is a neutral country.

This article will analyze legal theories that might allow the U.S. to use force against assets such as HERCULES' satellites and ground components. If the U.S. can establish that HERCULES is providing direct support to Northland with the knowledge of Passivaland, and if Passivaland is otherwise legally responsible for the activities of HERCULES, then Passivaland is no longer entitled to protection under the laws of neutrality. In such a case, the U.S. could then use force against the satellite in space, or ground components in Passivaland, provided there are no other less intrusive options available to stop the assistance to Northland. These other options might include diplomatic and other nonviolent actions to put Passivaland on notice.

This article argues that during armed conflict, the United States may legally interfere [2] with a neutral country's commercial satellites (and ground support systems) [3] if they are supporting enemy operations. Central to the argument is a showing that States are responsible for all space-related activities originating or controlled from their territory. [4] Typically, under the laws of neutrality, a State is not required to restrict the actions of private citizens and commercial companies located within its borders. [5] Yet the treaties relating to outer space hold the launching State responsible for the activities of all space objects, despite commercial ownership and operation. [6]

The article continues in Section II by providing background into the capabilities of satellites, how their use may threaten the United States, and how they can be rendered inoperable or destroyed. Section III analyzes numerous treaties, which support the argument that States are ultimately responsible for the satellites listed on their registry despite the satellite belonging to a commercial or private company. Section IV examines the theory of neutrality and the obligations of a neutral State. Section V discusses U.S. options for use of force, such as self-defense and the right of angary.

II. BACKGROUND

A. The Commercialization of Space 

Satellites and the support they provide are now an integral part of the United States military arsenal, and a vital link for support to commanders and troops on the battlefield. For example, communications, navigation, and remote sensing provide vital support and are now the eyes, ears, and communication links for commanders. Because satellite support is so critical to the United States, one of the U.S. military goals is to attain complete control and dominance of space. [7] In order to attain this goal the United States will not only have to consider the negation and protection of military satellites, but commercial satellites as well.

As commercial space systems provide global information and nations tap into this source for military purposes, protecting (as well as negating) these non-military space systems will become more difficult. Due to the importance of commerce, and its effects on national security, the United States may evolve into the guardian of space commerce--similar to the historical example of navies protecting sea commerce. [8]

Many rogue States, such as Iraq, Iran, and North Korea, now have access to satellite support allowing them enhanced war-fighting capabilities. The playing field is quickly leveled when an adversary gains access to satellite images that reveal what the battlefield looks like. He can use these images to determine grid coordinates and use satellite navigation for precision guided missiles (PGMs). Additionally, his command and control (C2) will be greatly enhanced with the use of reliable secure satellite communications. [9] Lieutenant General Costello, Commander, Space and Missile Defense Command and Army Space Command, recently commented that satellites now make it impossible for armies to hide on the battlefield. [10] The element of surprise is lost when your adversary has continuous updated pictures of the battlefield produced by satellites.

The threat of equality on the battlefield became very evident to the United States during the Persian Gulf War. Prior to the ground war in 1991, Iraq was purchasing satellite images of the Middle East from France and Russia. Many of the images were provided by the French commercial company Systeme Probatoire d'Observation de la Terre (SPOT). [11] Had Russia and France not agreed to stop selling these images to Iraq, General Schwarzkopf's "Hail Mary" maneuver may have not been as successful. [12]

The commercialization of space is rapidly increasing. It may be extremely difficult, if not impossible, in the near future to deny an adversary's access to commercial satellite services. [13] Support will soon be available to anyone who can pay for it, to include third world rogue countries and terrorists. The proliferation of space services increases the importance of having thought through the legality of attacking a commercial satellite system registered [14] to a neutral State whose company is located within the borders of the State.

Communication and remote sensing are two important services provided by commercial satellite providers to the civilian and military sectors. These services enable a military of any size to be quicker, more mobile, and more lethal. Many countries do not have the technology or resources to develop and own space systems. Even countries that can afford space assets rely on commercial space support, because it is cheaper. Leased commercial satellite services can quickly enhance a smaller country's military capabilities and reduce a superpower's advantage. [15] "Advanced technologies can make third-class powers into first-class threats." [16] In order for the U.S. to retain its advantage in space, it must deny its adversaries access to these services during periods of armed conflict. [17]

Space is rapidly becoming a very profitable and congested frontier. As of January 29, 1999, there were 2561 satellites orbiting Earth, and 2671 as of June 21, 2000. [18] The U.S. has 741 satellites registered and the Commonwealth of Independent States (Russia et al.) has 1335. The remaining 595 satellites belong to smaller countries and international organizations. [19] These figures are deceiving. Satellites may be owned and operated by a private company, but must be listed on the registry [20] of the country from which they were launched. [21] Well over 250 of the 2671 satellites in orbit in June 2000 were operated by international organizations, non-governmental organizations, or private corporations. The number of satellites in orbit has more than doubled in the last three years, and will probably be around 10,000 in ten years. [22]

Military budgets are getting thinner, and the reality is that the commercial sector can provide satellite services cheaper than States can. Even the U.S. military uses commercial satellites for a large portion of its space support. [23] During Desert Storm twenty-five percent of the U.S. military communications was provided over commercial satellite systems. [24] One day we may find ourselves defending against armed attacks supported by commercial satellite companies, possibly even the same companies supporting our forces. [25] Not too long ago, the security implications were just coming into perspective.

Today commercial [companies] routinely gather photographic data that, until a few years ago, even intelligence agencies could only dream of. What's more, they are selling the photographs to anyone who can afford them. The photos not only are valuable for the study of earth resources but also can reveal the position and status of such militarily significant objects such as tanks, ships and airplanes. [26]

Today, fourteen years after this paragraph was written, the commercial satellite market is booming, with no apparent end in sight.

Operation Desert Storm was the first war in which satellites played a major role for the U.S. ground commander. [27] Prior to the war, President Saddam Hussein's ground forces were matched in size with the Coalition forces, and Iraq possessed relatively modem weapons purchased with oil money. A critical difference between the two was that the Coalition forces had space systems allowing them to see, hear, and speak to each other--a capability which Iraqi forces lost within the first hours of the war. [28] Martin Faga, Assistant Secretary of the Air Force for Space at the time of the war stated, "[t]he world watched and learned. Many ... will want and will eventually obtain their own space assets ... adversaries will seek to dilute the effectiveness of ours." [29] U.S. Space Command takes the increasing importance of space commercialization to its logical conclusion: "As commercial space systems provide global information and nations tap into this source for military purposes, protecting (as well as negating) these nonmilitary space systems will become more difficult." [30]

B. Communication

"Satellite communications offer unique attributes of mobility, security, and terrain independence with powerful advantages for military use." [31] A military command with reliable and secure communication has greater command and control (C2) despite adverse conditions such as weather, terrain, or distance. [32] Denying our adversaries this capability has proven extremely useful in winning battles and saving lives. Communication satellites, as stated earlier, played a pivotal role in the Gulf War. [33] The Coalition forces had a clear advantage over Iraq by being able to communicate with each other, despite the fact there were numerous militaries from different nations fighting together. Prior to the ground war, Iraq had three International Telecommunications Satellite Organization (INTELSAT) communications terminals and one Intersputnik terminal that allowed President Saddam Hussein to communicate with his southern forces. [34] He was capable of the same command and control as the U.S. and Coalition forces p rior to the destruction of his communication terminals, destroyed by air strikes and ground attacks. [35] Imagine if the communication terminals were mobile, destroying them would have been much more difficult. For purposes of the analysis under this hypothetical destruction of Northland's communication ground stations (stationary or mobile) is not an option or cannot be accomplished. This could be due to the mobility of the stations, the inability to locate them, or they may be located on protected property such as a hospital, or are used by the civilian community for vital communications.

C. Navigation

Satellites can be used in missile navigation for precision targeting. [36] Prior to the use of satellites for navigation, missiles had to be programmed to follow preset navigational path to their targets. Today, Global Positioning System (GPS) components installed in missiles allow them to travel to their targets without relying on preset terrain features, thus avoiding radar and warning systems. [37]

This same technology is commercially available to any country. "GPS computer components, available commercially, could be added top the brains of Iranian cruise missiles or boost the accuracy of Chinese ballistic missiles...."[38] Military forces worldwide are buying U.S. GPS technology. [39] Adversaries may be able to use our own GPS to target U.S. troops and weapons. [40] GPS selective availability has now been turned off and all users enjoy the same degree of accuracy--seven meters. [41] In addition, GPS, available to anyone, may soon become accurate to within one or two meters. "Indeed, civil GPS technology is becoming so widely available the GPS location of targets soon will be combined with detailed photographs taken by such commercial remote-sensing satellites as the French SPOT, ...." [42] GPS may also be used by troops and aircraft for position location and to navigate across featureless terrain such as a desert.

D. Remote Sensing

Remote-sensing is the collection of images of the Earth's surface using satellites. [43] It is used by militaries for a near real-time image of the battlefield including troop and weapon positions. [44] Satellite images provide commanders a view of the battlefield, allowing them to more accurately plan their attack based on enemy troop and weapon positions. Remote sensing in the hands of an adversary is dangerous to the U.S. because of the loss of surprise and stealth. As suggested earlier, Iraq's blindness to the battlefield allowed General Schwarzkopf to carry out his "Hail Mary." As of 1995, Russia, Canada, Japan, France, Brazil and India possessed international remotesensing satellites. [45] The French company SPOT offers to clients a videomoving map, which provides, "simulat[ed] low-level flight over the imaged terrain, intended for mission planning or familiarization for military aircraft and cruise missiles." [46]

The key to remote sensing is resolution. Attaining greater resolution leads to a clearer picture and more useful information. "Presidential Directive 23 (PDD 23), issued in 1994, states that dissemination of imagery with resolution of one meter or less might be harmful to U.S. national security." [47] Space Imaging, a U.S. based company, offers one-meter color imagery over the internet. [48] SPOT, a French commercial imagery company, advertises tenmeter resolution, but its capability has been described as being closer to five-meters. [49]

Present space capabilities pose a threat to the U.S. when placed in the hands of an adversary. The U.S. must be prepared to deny or negate the enemy's ability to capitalize on these capabilities whether it is their own, leased, or purchased from a commercial company. This denial or negation will likely include pursuing avenues ranging from political protests to the threat or use of force against commercial industry and possibly neutral territory. General Thomas D. White, the Air Force Chief of Staff in 1955 stated, "[t]he United States must win and maintain the capability to control space in order to assure the progress and pre-eminence of the free nations. If liberty and freedom are to remain in the world, the United States and its allies must be in position to control space." [50]

One method for controlling space is negation. "Negation is the ability to deny, disrupt, deceive, degrade, or destroy an adversary's space systems and services. It involves military actions to target ground-support sites and infrastructure, ground-to-space links, or spacecraft." [51] The first step in developing a legal argument to justify negation is determining who or what is legally responsible for the space activities the U.S. intends on negating.

III. STATE JURISDICTION AND SOVEREIGNTY OVER SATELLITES

The State is ultimately responsible for all space activities originating or controlled from its territory. This section discusses who may be held responsible for the activities of satellites in space. With reference to our hypothetical example, it is important to establish Passivaland's responsibility for the activities of the commercial company HERCULES located within the borders of Passivaland. Under the laws of neutrality the Nation-State is normally not held responsible for the activities of commercial companies located within its borders. [52] International law only requires the neutral State to restrict the actions of its citizens or commercial entities in very limited circumstances. If Passivaland, under the laws of neutrality, were able to claim immunity from responsibility for the actions of HERCULES, the U.S. would be limited in its recourse against HERCULES. This is because the ground components are located within Passivaland's borders and the satellite is considered to be under the jurisdiction a nd control of Passivaland. [53] Establishing that Passivaland is responsible for the activities of HERCULES may allow the U.S. to claim Passivaland has breached its status as a neutral and attack its territory or assets, including a satellite in space.

Under international law, the protection afforded neutral territory is "inviolability." [54] In addition to this provision, several other principles emerge from an analysis of the four relevant treaties dealing with outer space. The next two sections analyze these other principles, drawn from the following treaties: The Multilateral 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); [55] the Convention on Registration of Objects Launched Into Outer Space (Registration Convention); [56] the Convention on the International Liability for Damage Caused By Space Objects (Liability Convention); [57] and the Agreement on the Rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched Into Outer Space (Rescue Agreement). [58] These treaties constitute the near-totality of law relating to outer space. An analysis of these treaties reveals the signatories' clear intent to hold the S tate, and not the individual or commercial entity, responsible for all activities in and from space.

A. Outer Space Treaty

The Outer Space Treaty, the first treaty relating exclusively to space, was the precursor for the other treaties listed above, as well as others. [59] This Treaty is important because it holds States responsible for supervision, jurisdiction, control, and damage caused by all space objects the State has registered regardless of who owns and operates the object. [60] Article VI imposes upon States the responsibility to supervise all "national" activities conducted in space by a government or private entity. [61] This article ensures "parties cannot escape their international obligations under the treaty by virtue of the fact that activity in outer space or on celestial bodies is conducted through the medium of non-governmental entities or international organizations." [62] Additionally, Article VI requires authorization and supervision by the State of registry for non-governmental activities in space. [63]

This article supports the conclusion that States are ultimately responsible for space objects, thus allowing the U.S. to hold Passivaland directly responsible for the space activities of the commercial companies located within its borders, such as HERCULES. These concept is similar those developed in the United Nations Convention on the Law of the Sea III (UNCLOS III). Under UNCLOS III, all ships shall sail under the flag of one State only, and every "State shall effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag." [64] This includes the State maintaining a register of all ships, which fly its flag. [65] The drafters of the Outer Space Treaty clearly intended to hold States responsible for supervising all space activities, outer space being akin to international territory similar to the high seas, just as States are responsible for the conduct of ships flying their flag. [66]

While Article VI requires that States take responsibility for and supervise activities in space, Article VII holds States liable for all damage caused to property by satellites and other space objects registered to them. [67] Commercial ownership and operation of the object does not matter, the State is liable. [68]

Finally, according to Article VIII, regardless of where in space an object is, the State on whose registry it appears retains jurisdiction and control over it. [69] The registry, discussed below under the Registration Convention, is the document created by a State upon launching an object into space. [70] If the launch is a private commercial launch, the object is registered to the launching State. If two or more States are involved in the launch, they shall decide among themselves which one will register the object. [71] This article along with Articles VI and VII of the Outer Space Treaty, require States to take responsibility for and supervise all space-related activities, whether conducted by the government or private industry. The three remaining space treaties outline in more detail the specific liability and responsibility of the State as first articulated by the Outer Space Treaty.

B. Rescue Agreement, Liability Convention, and Registration Convention

The Rescue Agreement, Liability Convention, and Registration Convention all reinforce the basic principle of State responsibility established in the Outer Space Treaty. The State, as mentioned above, cannot avoid responsibility for activities in space by claiming the space object is owned and controlled by a private or commercial entity, [72] such as HERCULES.

The primary focus of the Rescue Agreement, enacted in 1968, was to facilitate international cooperation and peaceful exploration of space by obligating States to assist each other in the rescue of astronauts and fallen or stray space objects. [73] States having knowledge of a fallen space object must notify the launching authority and assist in the return of the object to that authority. [74] The term "launching authority" is defined as "the State responsible for launching." [75]

The Liability Convention of 1972 holds States absolutely liable for the activities of their space objects which cause damage to the surface of the earth, or to aircraft in flight. [76] The Convention further establishes fault-based liability for damage to another States' property in space. [77] The type of damage foreseen was one object running into another in space or an object falling out of orbit. The liability established by the Convention is joint and several where there is more than one State involved or responsible for the object. Regardless of ownership, government or private, the launching State is liable. [78] "A launching State shall be absolutely liable to pay compensation for damage caused by its space object on the surface of the Earth or to aircraft in flight." [79] Many countries, such as the United States, regulate the space- related activities of the companies within their borders by requiring licenses and insurance.

Finally, the Registration Convention, which entered into force in 1976, requires States register all objects either launched from their territory or whose launch they have procured, and report the existence of this registry and contents to the Secretary General of the United Nations. [80] The Registry was established to create a central depository of all objects launched into space to facilitate the enforcement of the other treaties. [81] The State of registry is the State on whose registry a space object is carried in accordance with Article II of the Convention. [82] Where there is more than one State involved, the States will decide who will register the object. [83]

Based on the treaties discussed above, the State of registration is responsible for all objects, commercial and government, launched into space. Passivaland, therefore, would be responsible for the activities of HERCULES. The U.S. can hold Passivaland responsible for the activities and conduct of HERCULES in supporting Northland.

C. No State Responsibility or Sovereignty over the Satellite.

As outer space becomes more commercialized, and in turn more profitable, arguments against State jurisdiction and control over commercial companies involved in space activities will appear with increasing frequency. With the influx of commercial companies entering the space arena creating new venues for economic growth and revenue to launching States, such States may be reluctant to impose burdensome restraints on these moneymaking ventures within their territories.

Today due to the vast commercialization of space and the amount of money involved, restricting or limiting the activities of a commercial company m another country may be more difficult than it was during the Gulf War. [84] Regardless of the commercialization of space, space assets will most likely continue to be considered national assets when owned by private organizations. [85] If this were not true, if one day States are not held responsible for space objects, the U.S. would not have to worry about violating neutral territory, but only about claims for loss when the satellite of the organization is destroyed. What about States who are not signatories to the various treaties, are they then immune from responsibility? Probably not, treaties such as the Outer Space Treaty, Liability Convention, Registration Convention, and Rescue Agreement, appear to be so widely accepted that they would are probably considered customary international law and would thus be applicable to all nations, even non-signatories.

In our hypothetical scenario, before the U.S. can pierce Passivaland's sovereignty by attacking the HERCULES satellite or its ground components, the legal authority and justification must be established by showing Passivaland's breach of neutrality. HERCULES, as stated, is operated by a private organization but registered in Passivaland. It is being used to provide communication, navigation, and remote sensing support to Northland. Northland is using these satellite services to launch attacks against U.S. troops. Since Passivaland is neutral, we must analyze the laws of neutrality to determine if the support to Northland from the HERCULES Company may be regarded as a breach of Passivaland's neutral status. Under international law neutral territory is inviolable and may not be invaded or attacked. [86]

IV. LAW OF NEUTRALITY

"Neutrality may be defined as the attitude of impartiality adopted by third States towards belligerents and recogni[z]ed by belligerents, such attitude creating rights and duties between the impartial State and the belligerents." [87] Under this definition, a neutral State must refrain from any participation or support in an armed conflict that may appear as partiality to one of the belligerents. This may include restricting activities from within its territory, which support one or more of the belligerents. [88] Neutral territory is protected by law and is inviolable as long as the neutral State remains impartial. [89] Belligerents are required to respect neutral property and may not move troops or munitions of war onto or across neutral territory. [90] Belligerents are also prohibited from entering neutral territory without authorization, and may suffer possible consequences for this action. [91] However, as discussed shortly, the neutrality principles do not necessarily apply to the citizens or private commercial companies of the neutral State.

A. Obligations of a Neutral State

The laws of neutrality originate from international law and the laws of war. The main body of law relating to neutrality comes from the Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, 1907. [92] The State must prevent its territory from becoming a base camp for military operations and prevent belligerents from using its territory or resources for purposes of the war. [93] The neutral State may not allow a belligerent to move troops or supplies through the neutral territory; erect communications stations on neutral territory; use any facility of this kind established on the neutral territory prior to the war; and may not allow combatants to form on the neutral territory to assist the belligerents. [94]

The neutral State must also prevent its territory from becoming, in effect, an intelligence bureau transmitting messages from its territory to aid one belligerent or provide intelligence on military operations. [95] The neutral State is not required to restrict a belligerent's use of public utilities owned by the State, a company, or private individual, if the service is public and available equally to any of the belligerents. [96] Although the neutral State may not assist or support a belligerent, it is under no obligation to "prohibit all exports of possible war materials to belligerents." [97] In this regard, the neutral State is not required to prohibit private citizens from providing supplies to belligerents, including munitions of war. Although the State is not required under the laws of neutrality to restrict the activities of its citizens or private commercial companies, it may be in the State's best interests to avoid the perception of partiality.

Further, when the issue is space support, the usual neutrality concept of allowing States to take a hands-off position with regard to their citizens' activities in support of a belligerent, does not apply. As discussed previously, the four treaties relating to outer space require the launching or registering State to take responsibility for all national space activities. As a result, Passivaland is responsible for the activities of all space objects listed on its registry. Passivaland is liable to the international community for the activities of HERCULES and must supervise and, if necessary, restrict the use of its satellites. The actions of the HERCULES satellites cannot be considered actions of a private citizen acting independent of the government of Passivaland. The actions of HERCULES' satellites are directly attributable to Passivaland.

B. Actions of Private Citizens of the Neutral State

A discussion of the duties of the neutral citizen will assist in understanding violations of neutrality. The neutral State has no obligation, in most situations, to restrict or forbid a private company or individuals from providing public communication services, supplies, munitions, or even military intelligence such as photos or information to one of the belligerents. [98] Although the State is not required to restrict the activities of its citizens, the private support to a belligerent such as the dispatch of military intelligence from within neutral territory could easily be attributed to the State. A belligerent may not be able to detect from where the military intelligence is coming. It may not be readily apparent that a private citizen or company is providing the intelligence instead of the State, or that the support is not State sanctioned. The neutral State should take caution to avoid even the appearance of partiality, or it may be accused of acting as a belligerent and lose the protection of neutra lity. [99] An aggrieved belligerent could probably make a good argument for self-defense and a neutrality violation after attacking the neutral's perceived support for the opposing belligerent.

C. Violations of Neutrality

It is the combination of Passivaland's responsibility under the Liability Convention for satellites on its registry, and the type of support being provided by the satellites that may cause the State to lose its neutral status. What type of satellite support would constitute a violation of the laws of neutrality, thus causing Passivaland to lose its protection as a neutral? It can be argued that providing remotely sensed images of U.S. troop and weapon positions is a clear violation and may even be considered an act of aggression against the U.S. Providing unsecure communication or navigation support services probably would not violate neutrality because they are akin to a public service utility available to anyone without discrimination. Before analyzing these types of support under the laws of neutrality, it is important to note that the present laws of neutrality were written in 1907 and relate to the media of support in existence at the time, such as sea going vessels and telegraphs. [100] The 1977 Protoc ols to the Geneva Conventions provide more recent rules relating to neutrality, such as the protection of neutral citizens, though neither of the Protocols address space support. [101]

A violation of neutrality has been defined as "nothing more than a breach of a duty deriving from the condition of neutrality." [102] Violations of neutrality may be slight or grave depending on the circumstances. A slight violation may only provoke a complaint, but a grave violation may cause the aggrieved party to declare the right to use self-defense against the neutral State. [103] No clear distinction exists between acts constituting a violation of neutrality and those that do not, nor between those categorized as slight versus grave. The neutral State must be wary as to how its actions or the actions of its citizens will be perceived. Ultimately, the aggrieved belligerent will determine whether neutrality has been violated and what action to take in retaliation. It may choose to complain to the government of the neutral State or to an international organization such as the United Nations Security Council. On the other hand, it may also choose to use force and claim self-defense. Realistically, the aggr ieved belligerent will determine on its own whether there has been a breach of neutrality and react according its best interests, taking into consideration the anticipated response of the international community.

Any activity aiding one belligerent and not the other may be perceived as a violation. If a neutral State provides military intelligence concerning one belligerent to another, the neutral State will clearly be perceived as violating the laws of neutrality. [104] During World War I, many neutral States, including the U.S. before its entry into the war, took various steps to prevent telegraphs and wireless installations within their territories from either being used by belligerents or used by private citizens to pass coded messages to one of the belligerents. [105] Neutral States took these steps to avoid the perception of partiality. [106]

Technically, telegraphs and other wireless apparatus of the past, just as the GPS or satellite communications of the present, could be seen as equivalent to public utilities that could be provided lawfully to belligerents in a nondiscriminatory fashion. The use or availability of such services to one or more belligerents would not appear to cause a violation of neutrality. It is the perception created by the alleged support, as in the case during World War I, which will be the driving force behind the aggrieved State's decision to retaliate. Providing navigation and communication services may be perceived by some as a violation, but is not likely so in fact.

On the other hand, a strong argument can be made that providing satellite imagery (remote sensing) would be a violation of neutrality because it can be considered military intelligence. Navigation and communication services, because of the manner in which they are provided, are not direct support. The type of communication envisioned in this context is not secure satellite communications typically utilized by military. Instead it would be unsecure commercial satellite communications available to the general public. The navigation and communication services are better categorized as indirect support or services similar public utilities.

An example of direct support would be a one-on-one interaction between a customer and the support provider similar to an operator connecting a call for a customer, or providing secure assured satellite access and bandwidth for communications. This is distinguished from indirect support or a service wherein the customer merely has an account for communication access, similar to a cell phone, whenever needed, but which is not specifically guaranteed or secured. Communication and navigation services are similar to public telephone services. The company providing the service does little to directly support a particular customer other than maintains the satellite and ground systems. On the other hand, the provision of satellite imagery requires that the satellite be in position, the lens aimed, an image captured, in most cases analyzed, and then sent to the customer. A telephone company does not provide this direct service to each individual user, but maintains and operates the system for use by all of its custom ers.

As the law of neutrality states, "A neutral Power is not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private individuals." [107] Although the supplier may be able to deny the service to a particular user, the support is not personal and direct but simply made available to the public. [108] Therefore, allowing access to or providing the opportunity for navigation or communication services to a user in most cases is indirect support. Neutral States are not required to restrict belligerents from using their public utilities, which in this case would include satellite communications and navigational services. [109]

In our hypothetical example, a few key questions emerge at this point. First, is it possible for HERCULES to prevent Northland from accessing its satellite system, thus denying the service or support? Second, if Passivaland (HERCULES) can deny Northland access to communication and navigation services and refuses to, has Passivaland violated the laws of neutrality? The answer to the second question goes back to the foregoing analysis on whether the service is defined as direct or indirect support. This may be more a political matter than a legal one. An argument may be made either way under the current laws of neutrality. Some may argue that any support provided to one of the belligerents by a neutral or from within its territory that is knowing and preventable is direct support and thus a violation.

On the other hand, some may believe in a strict interpretation of the law under Hague Convention (V), [110] and argue that the neutral State is not obligated to restrict the actions of its citizens. If the service is available to anyone without discrimination, and HERCULES takes a neutral and indirect role, similar to a telephone company, the answer should be "no." In this case, then the U.S. would be required to rely on other legal or political avenues to prevent the use by Northland.

In a recent U.S. Department of Defense legal assessment (DOD Assessment) regarding information operations, the General Counsel's office take the position that if a neutral allows (or does not prevent) a belligerent from using its information systems, the aggrieved belligerent will have a limited right of self-defense to prevent such use by its enemy. [111] Whether this theory implies a loss of neutral status and protection for the neutral State is not clear from the paper. The DOD Assessment poses as a solution using jamming techniques in theater to deny the satellite (or information systems) support to one belligerent. [112] This is a viable option and would not appear to violate the rights of a neutral.

In our scenario though, a theater denial of these services and/or attacking our adversary directly to negate the space support is not a viable option. We must negate by affecting the ground stations in Passivaland or the satellites. Based on the techniques suggested by the DOD Assessment for negating neutral support (jamming in theater), there is probably no need to conduct an analysis under the laws of neutrality. A neutral nation would be hard pressed to argue that its neutral status or territory had been violated based on one belligerent jamming information systems or satellite support to its adversary in theater. One concern would be the effect the jamming had on critical civilian infrastructure, though this is a topic that could consume another entire article.

The DOD Assessment implies, through examples, that providing precision navigation and weather information services would constitute a violation of neutrality by a neutral nation, or at least provide the aggrieved belligerent a limited right of self-defense. The assessment did not provide enough detail to discern the specifics of this position. One can only speculate that the DOD Assessment merely analyzed the type of information that would be provided by navigation or weather support and then determined that providing this information would violate one's neutral status. If this is in fact the DOD Assessment's view, it is incorrect as has been shown above in the analysis of direct versus indirect support.

For example, the U.S. cannot deny the use of its GPS system or degrade its accuracy to an individual, a group, or even a region through the system without affecting all users. [113] As the assessment states, individuals or areas can be jammed in response to the use of the system by a belligerent. Surely DOD Assessment is not implying that a neutral who operates a navigational system is required to actively jam all belligerents use of that system in-theater in order to retain their neutral status. Navigational support and weather information, available to anyone with the equipment to receive it, would be examples of indirect support that would not cause a neutral nation to be in violation of the laws of neutrality. Article 7 of Hague Convention (V) states that a neutral is not bound to prevent the shipment of supplies by private citizens to one or more of the belligerents, even if the supplies are munitions. [114] In this case, as discussed earlier, it would be a stretch for the U.S. or any other nation as a belligerent to argue a violation of neutrality based on navigational support such as that provided by GPS. Without more information on the extent or type of weather information support to which the DOD Assessment refers, it cannot be determined if there would be a violation of neutrality.

The third medium of support in our hypothetical is remote sensing (satellite imagery). Remote sensing is the production or creation of an image of an area or object on the earth using a satellite. [115] The image produced by the satellite is downloaded to the ground station where it is either analyzed or forwarded for analyses. [116] This type of support clearly violates the laws of neutrality. Passivaland's (HERCULES') satellite is being used to provide military intelligence concerning the U.S. military activities to Northland. This is direct support. In order to produce images of the battlefield the satellite must be positioned and focused on a particular area or object. Northland, therefore, must articulate the areas to be photographed and HERCULES must take specific steps to provide those images. [117] These steps include capturing the image, downloading, and analyzing it.

Providing military intelligence to a belligerent is a serious breach of neutrality. [118] These images provide the enemy a clear view of the battlefield and vital information relating to troop and weapon positions. Remote sensing eliminates the element of surprise. Article 3 of Hague Convention (V) states, in part, that belligerents may not use communication devices located on neutral territory for purely military purposes if the devices are not open for public use. [119] This statement may be interpreted in many different ways. However, the essence is that neutral territory may not be used as a base camp or intelligence bureau for one or both of the belligerents. Providing remotely sensed images of the battlefield to one belligerent concerning the movements of the other would clearly violate this rule.

The laws of neutrality, as with much of international law, are inadequate when applied to modern technology. International law has failed to remain constant with technology and probably never will. In order to provide further analysis for our scenario, we will examine one recent international treaty, the Constitution and Convention of the International Telecommunication Union (CCITU), as well as the two proposed (but never ratified) international agreements--the 1923 Hague Rules of Aerial warfare, and the Hague Radio Rules. These sources will assist in analyzing how providing space support may cause a non-belligerent nation to lose its neutral status.

Article 34 of the CCITU allows members to "stop the transmission of any private telegram which may appear dangerous to the security of the State or contrary to their laws, to public order or to decency, provided that they immediately notify the office of origin of the stoppage or any such telegram or part thereof, except when such notification may appear dangerous to the security of the State." [120] Members may also "cut off any other private telecommunications which may appear dangerous to the security of the State or contrary to its laws, to public order or to decency." [121]

Although these articles apply in peacetime, they would still apply to our scenario because the U.S. is not at war with Passivaland. The U.S., under Article 34, can cut off or stop private transmissions between Passivaland and Northland under the premise that the transmissions threaten U.S. national security. The U.S.'s only requirement is to provide notification to Passivaland, unless the notification may further endanger the security of the U.S. The U.S. must also notify the other members of the ITC through the Secretary General of the United Nations. What means or methods can the U.S. use to stop or cut off these transmissions? Article 34, and the CCITU as a whole, do not identify the means or methods. For example, may the U.S. interfere with or destroy the satellite ground components in Passivaland or even the satellite under the CCITU? This also is not clear from the treaty. The CCITU merely states that the threatened nation may stop the transmission.

Although they were never ratified, the 1923 Hague rules of Aerial warfare and the Hague Radio Rules [122] refer to the regulation of air space and radio waves. These media are more similar to satellite operations than the present adopted rules that relate to the laws of telegraph usage and sea vessels (under the laws of the sea). An analysis of these sources will enable a prediction of how the law might be interpreted today.

Under the proposed Hague Rules of Aerial warfare Rules, espionage was defined as collecting intelligence on one belligerent from an aircraft with the intent to provide it to another. [123] The neutral State was bound, within its means and jurisdiction, to prevent "aerial observations of the movements, operations, or defenses of one belligerent, with the intention of informing the other belligerent." [124] A neutral citizen in an aircraft taking notes or photographs of the battlefield for one of the belligerents is clearly analogous to a satellite from a neutral State engaging in the same activity. The difference is technology now allows this form of espionage to be conducted from the safety of another territory, not in enemy airspace subject to attack. Supplying remotely sensed images of troop and weapon positions to a belligerent, either from an aircraft in enemy airspace or from a satellite, would be a violation of neutrality under the Hague Rules of Aerial warfare.

According to the proposed Hague Radio Rules, a neutral State was not required to restrict or prohibit the use of radio stations within its territory, except if necessary to prevent the transmission of information to a belligerent relating to military forces or operations. [125] The commission drafting the Rules added that the neutral State must take the necessary steps "to prevent the transmission of information destined for a belligerent concerning military forces or military operations." [126] This is not to say this rule would prohibit the use of satellite communication and navigation services by belligerents. International law did not require this restriction. Rather, States imposed it unilaterally during World War I. [127] This imposition of the restriction and proposal of the rules indicates the intent of States to remain neutral, thus avoiding even the appearance of providing partial support.

It is thus clear from an analysis of international law, as well as proposed but never adopted rules of law, that providing remotely sensed images of the battlefield to a belligerent violates the laws of neutrality. In contrast, supplying satellite navigation and communication services does not violate the laws of neutrality. [128] But let us change our hypothetical scenario just slightly. Assume the satellite navigation system used by Northland is not owned by a commercial company in Passivaland but by the government of Passivaland itself. Would this change the neutral status of Passivaland based on the navigational support? The proverbial lawyer's response would be, "it depends." The DOD Assessment would appear to say "yes." Looking at the current GPS capabilities described above, the answer is "no." The GPS system cannot be used to deny or degrade user accuracy for a single user, a group of users or even a particular region. The selective availability of the system which creates the accuracy error is eithe r on, affecting the entire world, or off. [129] Therefore, we cannot claim that a nation has lost its neutral status for providing satellite navigational services.

Does this concept hold true when all of the satellite services are combined? As noted earlier, navigation systems can be placed in missiles causing them to have greater stealth and target precision. [130] If Passivaland provides a combination of navigation services and satellite imagery to Northland and knows the services are being used for precision targeting of troop and weapon positions, it has violated the laws of neutrality. In this situation, Passivaland may even be considered a belligerent because of the severity of the violation. Consequently, this same argument may be applied to communication services being used for command and control. If Passivaland is aware its satellites are being used for communicating troop movements and this use can be prevented, the argument can be made that Passivaland has violated its neutral status, or at the very least has created that perception. When the communication support is used to relay intelligence derived from satellite imagery there is a clear argument for a n eutrality violation.

The Hague Rules of Aerial Warfare allow the offended belligerent some recourse in response to violations of neutrality. The following are some examples of actions deemed appropriate under the 1923 Rules. Neutral aircraft were subject to capture, if after being warned by a belligerent condemning their activity, they continued to engage in violations of neutrality. [131] The aircraft could then be condemned, and possibly destroyed, depending on the military necessity. [132] In addition, a commander could fire on a neutral aircraft that disregarded warnings and flew over a sensitive area. [133]

Although not binding law, but a reflection of the law at the time, the U.S. Naval War Code of 1900 allowed for the capturing of neutral vessels carrying messages for the adversary. The captors considered these vessels to be in service to the enemy and thus no longer neutral. [134] Neutral vessels or aircraft were subject to capture if while traveling on or over international territory (the high seas) they were caught dispatching military intelligence to one of the belligerents. [135]

What actions then may the U.S. take to prevent Passivaland from supporting Northland? Prior to any action involving force, the U.S. should file diplomatic protests with Passivaland. The United Nations Security Council should be consulted as well. If there were insufficient time to pursue these options, the use of force would be authorized. [136] Under the proper circumstances, the U.S. may use force in response to support to a belligerent by a neutral. "Vessels or aircraft so engaged [in violations of neutrality] are liable to capture and... to be destroyed." [137]

A caveat to the foregoing conclusion is that a country in support of a United Nations peacekeeping force during a U.N. sanctioned action is not inviolation of neutrality laws. [138] During the Persian Gulf War the U.S. and other Coalition forces leased satellite communication services from INTELSAT who moved its satellites into position to support the Coalition forces. [139] Clearly a State acting in support of a U.N.-sanctioned operation would not be violating its neutral status by providing satellite support. In this instance the country opposing the U.N. operation would probably consider all nations supporting the operation as adversaries and thus lawful targets. A decision not to attack the alleged neutral that is providing support would most likely be a political decision of survival versus a legal decision based on the laws of war and neutrality.

V. U.S. OPTIONS AND THE USE OF FORCE

U.S. options in response to the actions of HERCULES range from diplomatic protests and requests for sanctions against Passivaland, to interference or destruction of the satellite and ground systems. If the threat to the U.S. were not imminent, diplomatic protests to the United Nations Security Council and the leaders of Passivaland would be the best options. For purposes of this analysis assume we will assume these actions have failed. Either Passivaland claims it cannot restrict the activities of HERCULES, or it refuses to restrict commercial activities within its borders, claiming the laws of neutrality are not being violated.

By protesting to the U.N. Security Counsel and Passivaland, the U.S. has put Passivaland and the world on notice that it considers Passivaland's actions or inaction's to be a violation of the laws of neutrality. If the U.S. resorts to the use of force the argument justifying it will thus be strengthened.

The U.S. right to use force to prevent HERCULES from providing support to Northland is the next step in the analysis. The U.S. may consider jamming or spoofing the satellite signals. [140] These are excellent options provided they are effective to prevent HERCULES' assistance to Northland. [141] If not, the U.S. must ultimately consider the use of force. On the other hand, an argument can be made that the interference of a satellite signal by jamming or spoofing is a form of force--an argument beyond the scope of this article, however. If the U.S. believes Passivaland has breached its neutral status by supporting Northland, then the U.S. could attack the satellite in space or the ground components in Passivaland.

A. Right of Angary

If we now assume, continuing our hypothetical scenario, that Passivaland has not violated its neutral obligations, what legal avenues are available, if any, for the U.S. to use force to prevent Passivaland's satellite support to Northland. Recalling that international law has failed to keep pace current with technology, we are forced to look to the laws and theories in existence, regardless of how old they may be. Angary (jus angariae) is one such legal theory we will explore. Under the right of angary, or jus angariae, the U.S. may take control of or destroy Passivaland's satellite if shown to be a military necessity, regardless of whether Passivaland has violated the laws of neutrality. "[T]he modern right of angary is a right of belligerents to destroy, or use, in case of necessity, for the purpose of offence or defence, neutral property on their territory, or on enemy territory, or on the open sea." [142] This right applies to all types of property to include vessels and other forms of transport, arms, pr ovisions and other personal property, as long as it will serve a military need. [143] A belligerent may exercise this right against neutral property under the same circumstances it may use against enemy property in time of war. The neutral owner, though, must be fully indemnified. [144]

This theory of law is similar to the theory of military requisition. [145] Requisition is a negotiation for services or supplies in return for compensation between an occupying military and the local authorities of the occupied nation. Angary is an outright taking with a requirement of compensation to the aggrieved party under conditions not amounting to occupation. [146] This right, although not presently listed in a military code, appeared in the U.S. Naval War Code of 1900. [147] It stated that taking and destroying neutral naval vessels was within the authority of a belligerent provided there was a military necessity, and that the owners were fully compensated. [148]

According to von Glahn, the right of angary may be employed when a military necessity exists. [149] The necessity will override the legal rights of the neutral State. [150] Consequently, Article 53 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, relating to requisition, prohibits the destruction of real or personal property belonging to an individual or the State, unless absolutely necessary by military operations. [151] Both concepts, angary and requisition, appear to have been developed to allow a belligerent to obtain the supplies needed to continue its mission. Angary has been used in the past to obtain neutral ships to transport supplies as well as to sink the ships to prevent the adversary from advancing. An incident of angary occurred in 1918 during World War I when the U.S. and British took eighty-seven Dutch vessels under the proclamation of March 20, 1918. [152] The U.S. and British Governments in an exercise of the right of angary requisitioned the ships . The government of the Netherlands protested "but the United States defended on the theory of extreme emergency, which made the principle of angary applicable." [153]

Many scholars believe the right of angary is obsolete because no case has arisen in recent history. [154] However, the right should not be considered obsolete until it is made absolutely clear by States that it no longer exists. [155] "[B]elligerents will not easily renounce the use of any right unless it is absolutely clear it does not exist, or no longer exists." [156] Many scholars agree the right of angary has always been a part of customary international law, and thus should not be considered obsolete. [157] Such principles are created by a State or States, and appear to become customary when accepted by a majority of the international community. Therefore, any concept or theory in international law assumed to be obsolete could be reintroduced by any nation.

The right of angary is applicable today despite the fact it has not been invoked in decades. The U.S. may claim angary to legally justify the destruction of Passivaland's satellite in international territory, provided a compelling military necessity can be shown. Of course, destroying one or more satellites can quickly become very costly. Because of prohibitive cost, political considerations, and fear of creating a war in space, destruction of the satellite would probably be a last resort. The U.S. should attempt spoofing, jamming, or seizing the satellite for its own use, if possible, before destroying it. [158]

It is possible because of the similarity in the two theories that requisition evolved from angary. The theory of requisition, discussed above, could be considered the modern form of angary. In order for theories such as angary and requisition to be applicable to modern technology they will have to be revised or completely redeveloped. International law has not remained current with existing technology, and probably never will. New laws must be created and old ones modified to provide the international community guidance during times of peace and armed conflict.

B. Self-Defense

The U.S. may use force against Passivaland in self-defense if this course of action is necessary to prevent Northland from attacking the U.S.

The support to Northland from within Passivaland's borders, whether Passivaland refuses to prevent it or is unable to, may create for the U.S. a military necessity requiring it to act in self-defense. There are very limited circumstances in which the U.S. can use self-defense as its legal shield to justify attacking Passivaland as a neutral. As stated, this support has caused Passivaland to lose its neutral status, at least as it applies to the satellite(s) and its supporting systems. The U.S. is legally justified under the inherent right of self-defense to use force against the satellite or the ground systems in Passivaland if those systems are used to mount an attack against the U.S. [159] been launched or is imminent The threatened State is then justified in using force to quash the attack. [160]

The use of force in self-defense is an appropriate response in our hypothetical scenario. Assuming an attack is imminent, and that striking Northland will not adequately prevent it, the U.S. can justify the use of force against Passivaland in self-defense. For example, if HERCULES was supplying images of U.S. troop or weapons positions to Northland, and Northland was using the images to attack U.S. troops and weapons, the satellite and ground systems would become military objectives and lose their protection as neutral property. [161] Although remote sensing is considered direct support where military intelligence is provided, it could be argued that that alone it is not enough to justify self-defense, due to the lack of imminence of the attack. [162] There is much room for argument though as to what constitutes an imminent attack. Self-defense has been claimed in the past, whether legally or not, where imminence clearly was not a factor. [163] In this case it seems clear however that the U.S. would be well within its right to use force in self-defense.

C. Military Necessity, Proportionality, Immediacy 

1. Military Necessity

In the analysis of the use of force in self-defense against objects that are not strictly military targets and do not belong to the enemy (i.e. the satellite and its ground components), the rules of military necessity, proportionality, and immediacy must be considered. [164] Under the rule of necessity, force must be the only option remaining and no peaceful means of addressing the situation may be ignored. "Force should not be considered necessary until peaceful measures have been found wanting or when they clearly would be futile." [165] This statement defines the parameters for the use of force in self-defense.

Obviously if all other methods have failed or are futile, the requirement of necessity in self-defense will automatically be satisfied. Necessity in the hypothetical justifies the U.S.' use of force against the territorial integrity of Passivaland in order to quell the attack. This is due to imminence of the attack and the futility of employing other methods of thwarting the attack. The U.S. has explored all other options and they have failed or are futile. This imminent situation combined with Passivaland's violation of their neutral status opens the door for the U.S. to use force against the satellite(s) and the ground stations.

2. Proportionality

A second rule in the law of self-defense, proportionality, "require[s] the military means used bear a proportional relationship to the military end pursued."[66] Even in a war of self-defense, a State may use whatever legal means necessary to defeat the enemy. [167] Therefore illegal means or weapons, such as chemical weapons, may not be used regardless of the situation. An extreme example of a disproportionate response would be dropping a nuclear bomb on a sniper.

Protocol I states that an attack that may cause incidental loss of civilian life or damage to civilian property must not be excessive in relation to the military advantage gained. [168] In light of this rule, the satellite would appear to be, proportionally, the best target due to the probability of little or no collateral damage to civilians and other property. [169] One argument for destroying the ground stations rather than the satellite is that a satellite system may consist of a constellation of hundreds of satellites and be difficult to destroy. In choosing this option the U.S. may be forced to destroy many of satellites. [170] Additionally, the physical destruction of a satellite in orbit will create space debris, which may collide with other satellites possibly disabling or destroying them. This would be considered collateral damage if the satellites destroyed by the debris do not belong to the U.S., or fratricide if they belong to the U.S. Either way, this consequence must be seriously considered.

3. Immediacy

Finally, immediacy requires there be no extended length of time between the initial attack by the enemy and the action taken in self-defense. [171] International law leaves the exact amount of time open to interpretation. The instances of self-defense claimed by the U.S. and Israel, discussed above, [172] are clear examples where the State claimed the right but immediacy or the imminence of the attack did not seem to be a factor in the equation. Destroying a satellite is probably not a task that can be accomplished quickly and would therefore not prevent any attacks close at hand. If the U.S. can justify legally attacking Passivaland territory in self-defense then this would be the best option.

VI. CONCLUSION

The commercialization of space has and will continue to create many complex legal issues. The hypothetical scenario presented in this article is just one of many situations that may occur in the future due to increasing commercialization. There are many more factors to consider which have not been mentioned or considered in this article. States may be forced to resort to old theories of law as well as to create some new ones if treaties and customary international laws do not remain current with technology. Can the U.S. legally attack commercial property located in neutral territory? Yes, under the right circumstances the U.S. is legally justified in using force against the territorial integrity of the neutral State. The crucial link to the justification for such an act is the treaties relating to outer space. These treaties impose upon States the responsibility for space activities related to their territory by registration. This responsibility will allow the U.S., or any other country, to protest to the U. N. and the neutral State, and claim that the neutral State has violated its neutral obligations through satellite support to a belligerent. The violated State is then within its right, out of necessity if the neutral State does not take action, to deny the belligerent's use of the satellite by force that is necessary and proportional.

Determining when a nation has violated its neutral status comes down to determining the extent of its knowledge of the support to a belligerent, its ability and willingness to deny that support, and the extent of the measures it must take to deny the support. Practically speaking, a neutral State will consider other factors as well, deciding whether to stop the support. These include potential lost profits, and the short and long term consequences of stopping or not stopping the support.

States are ultimately responsible for all national activities in space. This is a vital tool for controlling commercial companies who operate in space. This tool may dissipate as more and more commercial satellites are launched and controlled by international consortiums consisting of companies from multiple countries. It may also get to the point where we cannot determine the space assets from which the support is coming from or which State is responsible.

Our hypothetical scenario assumes some facts that may or may not be realistic at present, and it does not consider many other factors. For instance, does the U.S. now have the ability to accurately determine who or where a case of satellite support came from in every instance? Would there ever be a situation where the satellite support could not be negated by merely attacking the adversary using it rather than the source providing the support? Many satellite support companies have ground support centers all over the world that can access information from the satellites. Given this, could we totally prevent the support by destroying some ground components? Additionally, commercial entity providing satellite support to our adversary may also be providing support to us. And finally, would the analysis be the same in a peacetime scenario in which we need to negate the neutral commercial satellite support to rogue elements of a peace process or to terrorists?

These are just a few of the many issues that will arise and become more complex as technology and the uses of outer space develop. Unless international law and technology are correlated with each other, which seems quite unlikely, the law will continue trailing behind. The discussion of the selected theories has hopefully laid a foundation for further analysis of the international law applicable to space and the operation of satellites.

(*.) Major Willson (B.A., C. W. Post College; J.D., Touro School of Law; LL.M, The Judge Advocate General School) is the International & Operational Law Attorney. Army Space Command, Colorado Springs, CO.

(1.) This was the case during the Persian Gulf War, the U.S. destroyed Iraq's ground towers cutting off their ability to use satellite communications. See generally infra note 28, and accompanying text. Some of the services require the State to be able to access them, but satellite images can be transferred to a State very easily.

(2.) Interference consists of a wide spectrum of actions from jamming (the blocking of a transmitted signal by overpowering it with noise) and spoofing (the deliberate alteration or replacement of a signal with a false one), to destruction of the satellite or the ground components supporting it. See generally Lieutenant Commander J. Todd Black, Commercial Satellites: Future Threats or Allies?, 52 NAVAL WAR COLLEGE REV. 99, 109 (1999), available at http://www.nwc.navy.mil/press/Review/l999/winter/art5-w99.htm (copy on file with the Air Force Law Review).

(3.) The word satellite as used throughout this article may refer to more than one satellite. Satellite services may be provided for a single satellite or an entire constellation of satellites. See id. at 108.

(4.) See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 (entered into force Oct. 10, 1967) [hereinafter Outer Space Treaty]. This treaty lays the foundation for most other treaties relating to outer space, and holds States responsible for activities in space. Id. at art. VI.

(5.) See Hague Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, Oct. 18, 1907, 36 Stat. 2310, T.S. No. 540 [hereinafter Hague Convention (V)], cited in U.S. Army, Field Manual 27-1, Treaties Governing the Law of Land Warfare 18 (Dec. 7, 1956) [hereinafter FM 27-1].

(6.) See generally discussion infra Section III. "Launching State" refers to the state from whose territory the satellite was launched. Convention on the Registration of Objects Launched into Outer Space, Jan. 14, 1975, art. I, 28 U.S.T. 695, 1023 U.N.T.S. 15 (entered into force Sept. 15, 1979) [hereinafter Registration Convention].

(7.) See United States Space Command, Long Range Plan: Implementing USSPA CECOM Vision for 2020 (March 1998) 20 [hereinafter Long Range Plan], available at http://www.peterson.af.niill/usspace/. "Control of Space is the ability to assure access to space, freedom of operations within the space medium, and an ability to deny others the use of space, if required." Id. Remote sensing is the collection of images of the earth's surface using satellites. See infra note 43, and accompanying text.

(8.) Long Range Plan, supra note 7. "The United States must win and maintain the capability to control space in order to assure the progress and pre-eminence of the free nations. If liberty and freedom are to remain in the world, the United States and its allies must be in the position to control space." Long Range Plan, supra note 7, at 20 (quoting General Thomas D. White, former Air Force Chief of Staff).

(9.) See BOB PRESTON, PLOWSHARES AND POWER: THE MILITARY USE OF CIVIL SPACE 221-24 (1994) [hereinafter PRESTON].

(10.) Lieutenant General John Costello, Remarks at The Judge Advocate General's School, U.S. Army, Charlottesville, VA (Mar. 11, 1999).

(11.) See PRESTON, supra note 9, at 27. SPOT is a French-owned satellite system used to produce images of objects on the Earth.

(12.) PRESTON, supra note 9, at 35. General Schwarzkopf moved VII and XVIII Corps 300 to 500 miles to the extreme west prior to the liberation of Kuwait. He did this after Saddam's ability to see, through the use of satellites and aircraft, was denied. He referred to this move as the "Hail Mary." See James T. Hackett, Why the Kinetic Energy Anti-Satellite Program is Needed, MISSILE DEFENSE MONITOR 2 (Aug. 21, 1997), available at (copy on file with the Air Force Law Review).

(13.) Id.

(14.) All objects launched into space must be registered to a particular country, similar to the flag registration of ships. Registration Convention, supra note 6, at art. II.

(15.) PRESTON, supra note 9, at 305.

(16.) Long Range Plan, supra note 7, at 2 (quoting Richard Cheney, Vice President of the U.S., and Former Secretary of Defense).

(17.) See United States Space Command, Vision for 2020, http://www.spacecom.af.mil/usspace/visbook.pdf [hereinafter Vision 2020] (copy on file with the Air Force Law Review).

(18.) U.S. Space Command, Satellite Boxscore (June 21, 2000), at http:www.spaceconi.af.mil/usspace/boxscore.htm (copy on file with the Air Force Law Review). This internet site, periodically updated, identifies the number of satellites and space debris presently orbiting the Earth, and which country or organization is responsible for the object.

(19.) Id.

(20.) The registry is the document States are required to maintain listing all space objects launched and/or controlled from their territory. If two or more states participate in the launching of an object they will decide which state shall register the object. For a discussion of the Registration Convention, and the registration process, see infra notes 78-83 and accompanying text.

(21.) Article II of the Registration Convention requires that the launching State register the space object unless there are two or more launching States, then the States shall jointly determine which one will register the object. Registration Convention, supra note 6, at art. II.

(22.) See Black, supra note 2, at 99 (citing Robert Ropelewski, Satellite Services Soar, AEROSPACE AMERICA 26 (Nov. 1996).

(23.) The U.S. uses satellite communication "for 75% of its long-distance military communications." PRESTON, supra note 9, at 224 n.28 (citing Hackett and Ranger, Proliferating Satellites Drive U.S. ASAT Need, SIGNAL 156 (May 1990)).

(24.) See PRESTON, supra note 9, at 132.

(25.) See generally Richard A. Morgan, Military Use of Commercial Communication Satellites: A New Look at the Outer Space Treaty and Peaceful Purposes, 60 J. AIR L. & COMM. 237, 239 (1994) [hereinafter Morgan]. Morgan's article helpfully explores the extent to which the U.S. military may use commercial satellite systems without violating international law. He states that during the Persian Gulf War the U.S. leased satellite communication services from a commercial company. The International Telecommunications Satellite Organization (INTELSAT) moved its satellites into position in order to support and provide communication services to the Coalition forces. Id. at 237 n.8. "INTELSAT [is] an international treaty organization with over 125 member countries, provid[ing] global telecommunications services of every type." DAVID W.E. REES, SATELLITE COMMUNICATIONS, THE FIRST QUARTER CENTURY OF SERVICE 29 (1989), cited in Morgan, at 253. Organizations such as INTELSAT and the International Maritime Satellite Organizat ion (INMARSAT)--a 72-nation international organization that provides satellite telecommunications services primarily to the maritime community--provide military satellite services to all of their signatories, which include countries such as Iraq, Iran, Libya, Somalia, and many others. Morgan, supra note 25, at 246, 253, 256. Many smaller countries are using commercial satellite companies and organizations to fulfill their military space needs. Morgan, supra note 25, at 246-7.

(26.) William J. Broad, Private Cameras in Space Stir U.S. Security Fears, N.Y. TIMES, Aug. 25, 1987, C3.

(27.) See Major Douglas S. Anderson, A Military Look Into Space: The Ultimate High Ground, 1995 ARMY LAW. 19, 20 [hereinafter Anderson].

(28.) See Martin C. Faga, Keynote Remarks to the National Space Outlook Conference, National Space Club (June 18, 1991), quoted in PRESTON, supra note 9, at 3. At the time of this symposium, Martin Faga was the Assistant Secretary of the Air Force for Space, and arguably had the best perspective on the contributions of military space to the Persian Gulf War.

On numerous occasions during the war, senior military officers would stop me in the halls of the Pentagon. The gist of their comments was that they had known space was valuable but had never realized how much it would contribute and how critical it would be to performing the mission.

Id. at 3.

(29.) Id

(30.) See Vision 2020, supra note 17. This document contains the U.S. Space Command's vision for 2020. It discusses the present and future impact space has on the U.S. military, and provides a general guide as to where the command and military space operations are headed. The vision discusses four concepts that must be implemented in order to attain the vision, space dominance. They are: control of space, global engagement, full force integration, and global partnerships. Under the concept of controlling space there is a need to protect space assets even when those assets are commercial. "Due to the importance of commerce and its effects on national security, the United States may evolve into the guardian of space commerce similar to the historical example of navies protecting sea commerce." Vision 2020, supra note 17. Commercial satellite services, equivalent to the U.S.' capabilities, are quickly becoming available to anyone who can pay for them. Black, supra note 2, at 99. The U.S. has pledged to augment i ts own capabilities through use of commercial satellite technology. See, e.g., National Science and Technology Council, National Space Policy (Sept. 19, 1996), available at http://ast.faa.gov/licensing/regulations/nsp-pdd8.htm (copy on file with the Air Force Law Review). Further, "[i]f the U.S. military can use commercial systems to augment its capabilities, so can an adversary with access to similar systems." Black, supra note 2, at 99. It may be difficult for any country including the U.S., to convince a commercial satellite company, that is reaping profits from the sale of their services, that it should deny these services to one of the belligerents to a conflict. The convincing may be simple if the company is located within the territory of one of the belligerents, the company will become a target. The issue becomes more complicated when the company is located within neutral territory, as stated earlier in the thesis. Diplomatic protests, possible threatened civil action or economic sanctions may be opti ons, but they are not immediate and probably not feasible or at least attractive options in an armed conflict. This leaves armed attacks of the satellites and/or the ground components supporting the satellites, as the quickest and best option.

(31.) PRESTON, supra note 9, at 221.

(32.) HACKETT, supra note 23, at 156.

(33.) HACKETT, supra note 23, at 126.

(34.) HACKETT, supra note 23, at 134. INTELSAT is an international organization that provides satellite communication services to its members. Morgan, supra note 25, at 253.

(35.) HACKETT, supra note 23, at 126-7.

(36.) Lisa Burgess and Neil Munro, Enemies could use GPS for their favor, ARMY TIMES (Dec. 13, 1993) 40.

(37.) Id. at 40. See also PRESTON, supra note 9, at 253. GPS navigation installed in a missile allows the missile to fly over random flight paths enroute to its target, rather than following a flight path based on terrain features which may be tracked. Missiles without GPS must follow a flight path, which has been mapped out using terrain features for the missile to recognize. During the Gulf War U.S. missiles became vulnerable because the Iraqi's were able to predict the flight paths after a number of strikes. The two primary navigation systems available in the world today are the United States' GPS and the Russian Global Navigation System (GLONASS). Black, supra note 2, at 102-3. The U.S. basic GPS, which is operated by the Department of Defense, used to be two services, the Precise Positioning System (PPS) and the Standard Positioning System (SPS). GPS is now one service and all users enjoy the same seven meter accuracy. See infra note 41. The PPS system was used strictly by the U.S. military, had a 16-met er accuracy, and was used for precise weapons delivery. The SPS, which was available to anyone, only had a 100-meter accuracy; therefore it was not suitable for weapons delivery. PRESTON, supra note 9, at 250. The PPS is still equipped with a system, known as selective availability which may be used to deliberately degrade the SPS to create an error up to 100-meters, which may be implemented in a time of crisis. One concern with implementing selective availability is that it could be disastrous to civilian users who would not anticipate the increase in degradation. Commercial ships, vehicles, and airplanes use the SPS service for navigation and landing. U.S. Policy Statement on the UPS, reprinted at XXII ANNALS OF AIR AND SPACE LAW 457 (1997) (stating, UPS consists of a constellation of satellites supported by ground stations, data links, and command and control facilities operated and maintained by the Department of Defense. The SPS is the civil and commercial service provided by GPS). Differential GPS, crea ted by civilian users, is a technique that was developed to circumvent the 100-meter navigation error. This system provided the civilian users roughly the same accuracy as the PPS, 16-meters. See Jeffrey A. Rockwell, Liability of the United States Arising Out of the Civilian Use of the Global Positioning System (1996) (unpublished LL.M. thesis, McGill University) (on file with the Nahum Gelber Law Library, McGill University). The Differential GPS, as stated above is no longer necessary, because pursuant to the Clinton Administration 1996 announcement in May of 2000, UPS 16-meter accuracy was made available to all. This allows all GPS users the same 16-meter accuracy, and thus precise targeting.

(38.) Burgess, supra note 36, at 40.

(39.) Burgess, supra note 36, at 40. ("[M]ilitary researchers in China, Iran and India are working to include U.S.-developed navigation technology into their next-generation missiles.")

(40.) PRESTON, supra note 9, at 256-7. The U.S. must ensure that GPS is not used in peacetime by terrorists for navigation, or in wartime by belligerents for precision attack. Anyone with knowledge of explosives, model airplanes and the GPS could build a pilotless aircraft equipped with explosives and send it to a target in the U.S.

(41.) Interview with Captain Ronald A. Chernak, Navigation Payload Analyst, 2 Space Operations Squadron, Schriever AFB, Colorado Springs, CO (Jan. 3, 2001) [hereinafter Chernak]. Selective availability was turned off on May 1, 2000 as ordered by President Clinton. An accuracy difference still exists though between civilian and military users. Civilian users only have access to the single L1 frequency providing an accuracy of approximately seven to nine meters. The accuracy for military users is approximately 5-7 meters. The military has access to the L2 frequency, which is encrypted. The L2 combined with the Ll frequency eliminates most of the error caused by signal defraction in the Earth's ionosphere. Id.

(42.) Ken Taormina, marketing manager for Martin Marietta's intelligence-related business, quoted in Burgess, supra note 36 at 40. See generally PRESTON, supra note 9, at 27.

(43.) HAMILTON DESAUSSURE, Remote Sensing Satellite Regulation By National and International Law, 15 RUTGERS COMPUTER & TECH. L.J. 351 (1989).

(44.) Id.

(45.) PRESTON, supra note 9, at 29.

(46.) PRESTON, supra note 9, at 316.

(47.) Black, supra note 2, at 100.

(48.) Space Imaging at http://www.spaceimaging.com/leve12/leve12products.htm.

What does one-meter data show? What objects can you 'see' in the images? In a one-meter resolution image, objects that are one-meter in size on the ground can be distinguished, provided those objects are well removed from other objects and have separate and distinct visual characteristics. For example, objects such as swimming pools, cars and trucks, boats and tennis courts, which are all recognizable because of their context within their surroundings, can easily be detected. White stripes in parking lots and crosswalks are also visible because of the sharp contrast against the black asphalt. One-meter imagery cannot 'see' individual people. A large number of people grouped together, on the other hand, could be seen, such as in a football stadium but there, we only know these are people because we are familiar with the context.

Id. Space Imaging also offers 0.82-meter panchromatic (black and white) imagery. Id.

(49.) Black, supra note 2, at 100. See also Spot Imaging at http://www.spotimage.fr/home/present/welcome.htm (copy on file with the Air Force Law Review).

(50.) See Long Range Plan, supra note 7.

(51.) Long Range Plan, supra note 7.

(52.) For example, "[a]neutral is not bound to prevent the export, on behalf of one or the other of the belligerents, of arms, munitions, or any other war material by private persons.... , unless, of course, it wishes to prohibit such exports at its own discretion." GERHARD VON GLAHN, LAW AMONG NATIONS: AN INTRODUCTION TO PUBLIC INTERNATIONAL LAW 845 (6th ed. 1992) [hereinafter VON GLAHN].

(53.) See Outer Space Treaty, supra note 4, at art. VIII.

(54.) Hague Convention (V), supra note 5, at art. 1 ("The territory of neutral Powers is inviolable.").

(55.) Outer Space Treaty, supra note 4.

(56.) Registration Convention, supra note 6, at art. II.

(57.) Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187 (entered into force Sept. 1, 1972) [hereinafter Liability Convention].

(58.) Agreement on the rescue of Astronauts, the Return of Astronauts, and the Return of Objects Launched into Outer space, Apr. 22, 1968, 19 U.S.T. 7570, T.I.A.S. 6599, 672 U.N.T.S. 119 (effective Dec. 3, 1968) [hereinafter Rescue Agreement].

(59.) Of the space treaties, the Outer Space Treaty-considered the "Magna Carta" of space law-enjoys the broadest subscription and the highest regard. It entered into force in 1967 and enjoys the support of over one hundred nations, including the United States. The treaty's main purpose is to ensure the peaceful use of space and the moon and other celestial bodies, as well as protect the common interests of all mankind in the exploration and use of outer space. See generally Morgan, supra note 25, at 296. See also, Anderson, supra note 27, at 24; Major General Walter D. Reed and Colonel Robert W. Norris, Military Use of the Space Shuttle, 13 AKRON L. REV. 665 (Spring 1980); and GLENN H. REYNOLDS & ROBERT P. MERGES, OUTER SPACE: PROBLEMS OF LAW AND POLICY 62 (2nd ed. 1997) [hereinafter REYNOLDS & MERGES]. The Outer Space Treaty accomplished a great deal. "It provides limits on military activities beyond earth, prevents the extension of terrestrial sovereignty to space or celestial bodies, and establishes a fra mework for the further development of law governing activity in outer space. ..." Reed & Norris, supra note 59, at 675.

(60.) Outer Space Treaty, supra note 4, at arts. VI, VIII. See also REYNOLDS & MERGES, supra note 59, at 74 (arguing that Article VI of the Outer Space Treaty "would prohibit, as a matter of treaty obligation, strictly private, unregulated activity in outer space or on celestial bodies even at a time when such private activity becomes most common-place.")

(61.) Outer Space Treaty, supra note 4, at art. VI (stating, "States Parties to the Treaty shall bear international responsibility for national activities in outer space, ... whether such activities are carried on by governmental agencies or by non-governmental entities. ..."). See also, Youseff Sneifer, Federal Product Liability Litigation Reform: Recent Developments and Statistics: Comment: The Implications of National Security Safeguards on the Commercialization of Remote Sensing Imagery, 19 SEATTLE U.L. REV. 539, 549-50 (Spring 1996). The right of private entities to participate in space activities while being supervised by their state of registry was the result of a compromise between the Soviet Union and Western states. The Soviets advocated the ban of private activity in space, while the Western States advocated the right of private commercial ventures. See NATHAN C. GOLDMAN, AMERICAN SPACE LAW: INTERNATIONAL AND DOMESTIC 72 (1988).

(62.) Paul Dembling & Daniel M. Arons, The Evolution of the Outer Space Treaty, 33 J. AIR L. & COMM. 419. 436 (1967) [hereinafter Dembling & Arons]. Dembling and Arons both worked for NASA at the time of this article, Dembling as the General Counsel, and Arons as an Attorney-Advisor. The article discusses State responsibilities for activities in outer space.

(63.) Outer Space Treaty, supra note 4, at Article VI (stating, "The activities of non-governmental entities in outer space...shall require authorization and continuing supervision by the appropriate State Party to the Treaty.").

(64.) United Nations Convention on the Law of the Sea, Dec. 10, 1982, arts. 92, 94, 1833 U.N.T.S. 3 (entered into force Nov. 16, 1994) [hereinafter UNCLOS III]. The U.S. has signed but not ratified the treaty.

(65.) Id. at art. 94.

(66.) Dembling & Arons, supra note 62, at 437. Dembling and Axons analyze the treaty through an accumulation of U.N. documents and summaries of the delegates' testimony made during the creation of the treaty. It was the intent of the delegates to hold the State wholly liable for all space activities connected to their territory. The delegates, aware that Article VII would place liability on individual states, did not object to it. Dembling & Arons, supra note 62, at 438. A French delegate stated: "The questions of liability ... were extremely complicated, and if any reference to them was included in the Treaty under discussion, it should be very brief and simple and should merely establish the principle concerned." U.N. Doc. A/AC.105/C.2/SR. 67 at 10. "The discussions which took place at the formal meetings were summarized and published in the form of Summary Reports." Dembling & Arons, supra note 62, at 438 n.38. The Indian delegate questioned the word "internationally," as used to modify the word "liable," arguing that "internationally" would be acceptable if it meant "absolutely," in referring to the State's liability. A number of other delegations agreed with this view. The committee decided that the term "absolute liability" would not be acceptable because it was still being refined in discussions relating to the drafting of the treaty on liability, later to become the Liability Convention. The committee drafting the Liability Convention, not yet in existence at the time of the draffing of the Outer Space Treaty, determined that the term "absolute liability" was subject to limitations and qualifications. A proposal was then made by several delegations, on the Outer Space Treaty committee, to make reference in the Outer Space Treaty to the existence of a treaty on liability. This was determined to be too dangerous because a reference to a treaty that did not yet exist might weaken the present treaty. Dembling & Arons, supra note 62, at 439. The bottom line was that the committee for the Outer Space Treaty and others intended to hold States absolutely liable for space activities but had difficulty with the terms.

(67.) Outer Space Treaty, supra note 4, at art. VII ("Each party to the Treaty that launches or procures the launching of an object into outer space ... and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty....").

(68.) Outer Space Treaty, supra note 4, at arts. VI, VII.

(69.) Outer Space Treaty, supra note 4, at art. VIII (stating, "A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object...."). The Registration Convention requires that once an object is launched into space, the responsible State shall create a registry which will be made known to the Secretary General of the United Nations. See Registration Convention, supra note 6, at art. II. For further information on the Registration Conventions, see infra notes 80-83, and accompanying text.

(70.) See Registration Convention, supra note 6, at art. II.

(71.) Registration Convention, supra note 6, at art. II.

(72.) See generally supra note 62 and accompanying text.

(73.) Rescue Agreement, supra note 58, at Preamble.

(74.) Rescue Agreement, supra note 58, at art. 5.

(75.) Rescue Agreement, supra note 58, at art. 6.

(76.) Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, art. II, 24 U.S.T. 2389, 961 U.N.T.S. 187 (entered into force Sept. 1, 1972).

(77.) Id. at art. III.

(78.) See id. at arts. II, III, V. Article V specifies "[w]henever two or more States jointly launch a space object, they shall be jointly and severally liable for any damage caused. A State from whose territory or facility a space object is launched shall be regarded as a participant in a joint launching." Id. at art. V.

(79.) Id. at art. II.

(80.) Registration Convention, supra note 6, at art. II. Article II reads, in part, as follows:

1. When a space object is launched into earth orbit or beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall inform the Secretary-General of the United Nations of the establishment of such a registry.

2. Where there are two or more launching States in respect of any such space object, they shall jointly determine which one of them shall register the object in accordance with paragraph 1 of this article, bearing in mind the provisions of [the Outer Space Treaty and any other binding treaties]....

3. The contents of each registry and the conditions under which it is maintained shall be determined by the State of registry concerned.

Registration Convention, supra note 6, at art. II. Under article III, the Secretary-General of the U.N. maintains a Register, to which there is full and open access, containing the information furnished by the states relevant to objects they have launched. Registration Convention, supra note 6, at art. III.

(81.) Registration Convention, supra note 6, at Preamble.

(82.) Convention, supra note 6, at art. I(c).

(83.) Registration Convention, supra note 6, at art II(2).

(84.) Black, supra note 2, at 107. Lieutenant Commander Black argues that States may not be able to control commercial entities involved in space. It is very conceivable that in the future States will seek to limit their liability to damage caused by space objects launched and controlled by commercial entities within their territory, especially in the wake of the commercialization of space. Certainly commercial entities faced with increasing taxes and restrictions will seek to limit their ties to individual States and expand their freedoms in space.

(85.) Again, similar to the flagging of ships under UNCLOS III, supra note 64.

(86.) See supra note 54.

(87.) LOUIS HENKIN ET. AL., INTERNATIONAL LAW CASES AND MATERIALS 875 (3d ed. 1993) [hereinafter HENKIN].

(88.) FM 27-10, supra note 54, [para] 512. "Traditionally, neutrality on the part of a State not a party to the war has consisted in refraining from all participation in the war, and in preventing, tolerating, and regulating certain acts on its own part, by its nationals, and by the belligerents. It is the duty of belligerents to respect the territory and rights of neutral States."

(89.) A State need not declare its neutrality, it is assumed if the State is not a belligerent. See FM 27-1, supra note 54, at 18. Article 2(4) of the U.N. Charter prohibits "the threat or use of force against the territorial integrity or political independence of any state...." U.N. CHARTER, art. 2(4).

(90.) This flows from the principle of "inviolability." See Hague Convention (V), supra note 5, at art. 1. The Army explains article 1 as follows:

The foregoing rule prohibits any unauthorized entry into the territory of a neutral State, its territorial waters, or the airspace over such areas by troops or instrumentality's of war. If harm is caused in a neutral State by the unauthorized entry of a belligerent, the offending State may be required, according to the circumstances, to respond in damages.

FM 27-1, supra note 5, at 18. See also U.S. Army, Field Manual 27-10, The Law of Land Warfare, [para] 515 (Jul. 18, 1956) [hereinafter FM 27-10].

(91.) FM 27-1, supra note 5, at 18. One consequence may be the requirement to pay damages. Information operations shed a new light on this area of law, neutrality, and the concepts of borders. In the past some nations, when in a neutral status, have refused to allow belligerents engaged in a conflict to fly through their air space. Computer attacks typically transcend numerous borders undetected.

(92.) See Hague Convention (V), supra note 5.

(93.) 2 L. OPPENHEIM, INTERNATIONAL LAW [sections] 294, 361 (H. Lauterpacht ed., 1952) [hereinafter OPPENHEIM].

(94.) Convention (V), supra note 5, at arts. 2-4. These articles provide as follows:

Article 2: Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power.

Article 3: Belligerents are likewise forbidden to--(a) Erect on the territory of a neutral Power a wireless telegraphy station or other apparatus for the purpose of communicating with belligerent forces on land or sea; (b) Use of any installation of this kind established by them before the war on the territory of a neutral Power for purely military purposes, and which has not been opened for the service of public messages.

Article 4: Corps of combatants cannot be formed nor recruiting agencies opened on the territory of a neutral Power to assist the belligerents.

Hague Convention (V), supra note 5, at arts. 2-4. The laws of neutrality are antiquated. The international community will have to decide whether allowing any military communication facilities constitutes a violation of neutrality. Cellular communications and satellite communications make it so a nation cannot easily accuse a neutral of aiding an adversary. Additionally, the use of various forms of communications have become so intertwined between commercial, civil, and military uses that a nation would be hard pressed to label a communication link as being strictly military.

(95.) "It was added by the Commission of Jurists who drafted the Rules that the neutral Power must take the necessary action 'to prevent the transmission of information destined for a belligerent concerning military forces or military operations."' HOWARD S. LEVIE, 2 THE CODE OF INTERNATIONAL ARMED CONFLICTS 829-30 (1986) [hereinafter LEVIE]. "In 1939 several neutral States adopted legislation prohibiting the transmission of information concerning the position, movement, or cargo of national and foreign shipping." OPPENHEIM, supra note 93, [sections] 356 n.3.

(96.) Article 8 of Hague Convention (V) states: "A neutral Power is not called upon to forbid or restrict the use on behalf of the belligerents of telegraph or telephone cables or of wireless telegraphy apparatus belonging to it or to companies or private individuals." Hague Convention (V), supra note 5, at art. 8

(97.) HILAIRE MCCOUBREY & NIGEL D. WHITE, INTERNATIONAL LAW AND ARMED CONFLICT 298 (1992). Similarly, Hague Convention (V)' article 7, provides that "A neutral Power is not called upon to prevent the export or transport, on behalf of one or other of the belligerents, of arms, munitions of war, or, in general, of anything which can be of use to an army or a fleet." Hague Convention (V), supra note 54, at art. 7.

(98.) VON GLAHN, supra note 52, at 845, citing Hague Convention (V). FM 27-10 construes article 7 of Hague Convention V as follows:

Commercial transactions with belligerents by neutral corporations, companies, citizens, or persons resident in neutral territory are not prohibited. A belligerent may purchase from such persons, supplies, munitions, or anything that may be of use to any army or fleet, which can be exported or transported without involving the neutral State.

FM 27-10, supra note 90, [para] 527.

(99.) OPPENHEIM, supra note 93, [sections] 356.

(100.) See FM 27-1, supra note 54, at 18.

(101.) See Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), Dec. 12, 1977, art. 48, 1125 U.N.T.S. 3. (entered into force Dec. 7, 1978) [hereinafter Protocol I]; Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Dec. 12, 1977, art. 48, 1125 U.N.T.S. 609 (entered into force Dec. 7, 1978) [hereinafter Protocol II].

(102.) OPPENHEIM, supra note 93, [sections] 358.

(103.) OPPENHEIM, supra note 93, [sections] 359.

(104.) OPPENHEIM, supra note 93, [sections] 356.

(105.) OPPENHEIM, supra note 93, [sections] 356. "In 1939 several neutral States adopted legislation prohibiting the transmission of information concerning the position, movement, or cargo of national and foreign shipping." Id. [sections] 356, n.3.

(106.) Id. [sections] 356.

(107.) See Hague Convention (V), supra note 5, at art. 8.

(108.) See generally PRESTON, supra note 12, at 123, 235.

(109.) Hague Convention (V), supra note 5, at art. 8.

(110.) See Hague Convention (V), supra note 5, at art. 8.

(111.) Department of Defense Office of General Counsel, An Assessment of International Legal Issues In Information Operations 9 (2d ed., Nov. 1999) (unpublished manuscript on file with the Air Force Law Review).

(112.) Id. At 9.

(113.) See Chernak, supra note 41.

(114.) Hague Convention (V), supra note 5, at art 7.

(115.) See supra note 43, and accompanying text.

(116.) See PRESTON, supra note 9, at 315.

(117.) PRESTON supra note 9, at 317, 326.

(118.) See generally note 95, and accompanying text.

(119.) Hague Convention (V), supra note 5, at art. III. For the language of article III, see supra note 94.

(120.) Constitution and Convention of the International Telecommunication Union, Dec. 22, 1992, art. 34(1), S. Treaty Doc. No. 104-34 (1996) (as amended through 1994).

(121.) Id. at art. 34(2).

(122.) Reprinted in THE LAWS OF ARMED CONFLICT: A COLLECTION OF CONVENTIONS, RESOLUTIONS, AND OTHER DOCUMENTS 207 (Dietrich Schindler & Jiri Toman eds., 1988) [hereinafter Schindler & Toman].

(123.) Id. at 212.

(124.) Id. at 215.

(125.) See LEVIE, supra note 95, at 829.

(126.) Id. at 829-30.

(127.) See supra note 105, and accompanying text.

(128.) "Unneutral service, especially by ships or aircraft, is rendered to a greater or lesser degree where 'Subjects [of a neutral Power], prompted either by the desire for profit or by their own sympathies, give material help to one of the belligerents, or perhaps to both.'" H.A. SMITH, THE LAW AND CUSTOM OF THE SEA 104-5 (1954), quoted in McCOUBREY & WHITE, supra note 97, at 311.

(129.) See Chernak, supra note 41.

(130.) See generally supra note 37, and accompanying text.

(131.) Schindler & Toman, supra note 122, at 215-16.

(132.) Schindler & Toman, supra note 122, at 215-16.

(133.) MCCOUBREY & WHITE, supra note 97, at 309.

(134.) CAPTAIN CHARLES H. STOCKTON, UNITED STATES NAVY, THE LAWS AND USAGES OF WAR AT SEA: A NAVAL WAR CODE 13 (1900) [hereinafter WAR CODE] ("A neutral vessel carrying hostile dispatches, when sailing as a dispatch vessel practically in the service of the enemy, is liable to seizure...."). This Code was written by Captain Stockton for, and published by the U.S. Government, to assist Naval commanders.

(135.) See LEVIE, supra note 95, at 831.

(136.) See MCCOUBREY & WHITE, supra note 97, at 308.

(137.) MCCOUBREY & WHITE, supra note 97, at 311. Mr. McCoubrey states that these assets may be destroyed if they cannot be conveyed to an appropriate prize jurisdiction. In the case of a satellite, it is unlikely it could be sent anywhere, thus destruction would be the only option. In this regard, the destruction to which the author refers is due primarily to the fact that out of military necessity the belligerent has no recourse but to destroy the ship.

(138.) See FM 27-10, supra note 90, [paragraph] 513.

(139.) See Morgan, supra note 25, and accompanying text.

(140.) Jamming is the "blocking of a transmitted signal by overpowering it with noise, and spoofing [is] the deliberate alteration or replacement of a signal with a false one." Black, supra note 2, at 109.

(141.) One drawback to jamming and spoofing is that satellite services in many cases are provided by a constellation of satellites and therefore they would all have to be jammed or spoofed. Black, supra note 2, at 109.

(142.) OPPENHEIM, supra note 93, at 761. As von Glahn puts it, the law of angary

developed when belligerents lacked sufficient vessels for their purposes. They claimed, under these circumstances, a right to seize neutral merchant ships in their ports and to force them and their crews to carry troops, provisions, and materiel to certain places on payment of freight charges in advance.... Unlike the original law, the modern concept applies only to property and does not permit the use of neutral crews of ships or trains seized under this right.

VON GLAHN, supra note 52, at 866.

(143.) As Oppenheim states, "All sorts of neutral property, whether it consists of vessels or other means of transport, or arms, ammunition, provisions, or other personal property, may be the object of the right of angary, provided it is serviceable to military ends and wants." OPPENHEIM, supra note 93, at 762.

(144.) "The conditions under which the right may be exercised are the same as those under which private enemy property may be utilized or destroyed; but in every case the neutral owner must be fully indemnified." OPPENHEIM, supra note 93, at 762.

(145.) Requisition consists of, "Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or other public authorities, or to social or cooperative organizations, [and it] is prohibited, except where such destruction is rendered absolutely necessary by military operations." Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12,1949, art. 53, 6 U.S.T. 3516 (entered into force Oct. 21, 1950) [hereinafter Geneva Convention IV].

(146.) Occupation exists when one State physically occupies the territory of another by use of military forces. See FM 27-10, supra note 90, [paragraph] 412.

(147.) See WAR CODE, supra note 134.

(148.) See WAR CODE, supra note 134, at 13. The War Code's Article 6 contained the following provision:

If military necessity should require it, neutral vessels found within the limits of belligerent, authority may be seized and destroyed or otherwise utilized for military purposes, but in such cases the owners of neutral vessels must be fully recompensed. The amount of indemnity should, if practicable, be agreed on in advance with the owner or master of the vessel. Due regard must be had to treaty stipulations upon these matters.

WAR CODE, supra note 134, at 7-8. See also, FM 27-1, supra note 54, art. 53 (relating to the seizure or destruction of civilian property when a military necessity exists).

(149.) VON GLAHN, supra note 52, at 868.

(150.) VON GLAHN, supra note 52, at 868 ("[W]henever a seizure is legitimized by a prize court, military necessity has triumphed over the undoubted legal rights of neutrals, despite the inevitable payment of compensation for seized property.").

(151.) Genera Convention (IV), supra note 145, at art. 53.

(152.) The Taking of Ships in American Ports, 35 AM. J. INT'L L. 500 (1941).

(153.) Id.

(154.) OPPENHEIM, supra note 93, at 760-61.

(155.) OPPENHEIM, supra note 93, at 761. Oppenheim compares the incident in 1918 when during World War I Dutch ships were requisitioned by the Allies. Although he states that this was not angary under the old right, he claims that this incident is an example of the modern right of angary, and "[f]or this reason it cannot with certainty be said that the right is obsolete." Accord VON GLAHN, supra note 52, at 866 (agreeing that the Dutch incident constituted angary). See also, note 3, wherein Oppenheim cites Rolin, who argues that the right of angary on the open sea is inadmissible, and the requisitioning of neutral property on the high seas must be justified by military necessity and not angary.

(156.) OPPENHEIM, supra note 93, at 760.

(157.) Rainer Lagoni, Angary, Right of, in 1 ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW 166 (R. Bernhardt, ed., 1992).

(158.) "A duty to pay compensation for any damage done in the exercise of the right of angary is now generally recogni[z]ed." OPPENHEIM, supra note 93, at 762-63. The amount of compensation the U.S. would be required to pay must be taken into consideration prior to any action.

(159.) Article 2(4) of the U.N. Charter prohibits States from using or threatening to use force against the territorial integrity or political independence of another State. U.N. CHARTER, art. 2(4). For the language of article 2(4), see supra, note 89. This prohibition may be overcome under the right of self-defense, which is the inherent right of each State in customary international law to defend itself. This right is codified in Article 51 of the U.N. Charter. Article 51 states that nothing in the Charter shall impair the inherent right of self-defense if an armed attack occurs against a member of the U.N. U.N. CHARTER, art. 51. There are essentially two schools of thought with respect to what actions justify a claim of self-defense in international law. The pre-U.N. Charter theory and the post-U.N. Charter theory.

The first view embodies the theory that the adoption of the U.N. Charter did not alter or restrict the inherent right of self-defense as it existed in customary international law. The State retains the power to decide when self-defense is appropriate. The scholars holding this theory argue that the words "armed attack" in Article 51 do not prevent a state from using force to meet an unlawful force which does not amount to an "armed attack." For instance, a heavy troop concentration on the border may justify "anticipatory" or "preventive" uses of force to meet and quell the attack before it actually occurs. VON GLAHN, supra note 52, at 131. Therefore, the use of force against a state can be justified even though there has been no armed attack. The customary international law concept of self-defense is that States may use military force in anticipation of an armed attack. See REX J. ZEDALIS, On the Lawfulness of Forceful Remedies for Violations of Arms Control Agreements: "Star Wars" and Other Glimpses at the Future, 18 N.Y.U. J. INT'L L. & POL. 98 (1985). These scholars also argue that Article 51 of the U.N. Charter should not be interpreted to restrict the inherent right of self-defense. Professor Phillip C. Jessup, at one time sitting as a judge on the International Court of Justice, stated that the "right of self-defense by its very nature must escape legal regulation." PHILLIP C. JESSUP, A MODERN LAW OF NATIONS 163 (1952), quoted in, ROBERT F. TURNER, Coercive Covert Action and the Law, 20 YALE J. INT'L L. 427, 433 (1995).

Advocates of the second school of thought argue that Article 51 has narrowed the right of self-defense, allowing force to be used only in response to direct or imminent attack. This view, also receiving much scholarly support, is consistent with Article 2(4) which outlaws the use of force against the territorial integrity of another State, and Article 2(3), which requires a "peaceful settlement of disputes." U.N. CHARTER, arts. 2(3), 2(4).

(160.) HENKIN, supra note 87, at 421. The use of force against the territorial integrity of another state may therefore be legally employed, but the State concerned "will have to prove the gravity and imminence of such an attack in order to justify an action of self-defense..." STANIMIR A. ALEXANDROV, SELF-DEFENSE AGAINST THE USE OF FORCE IN INTERNATIONAL LAW 100 (1996). Most agree today that with the existence of weapons of mass destruction and the minimum amount of time required to launch such an attack, the party claiming self-defense does not have to wait "like a sitting duck" until the attack is already in progress. See id., at 149, 154.

(161.) Protocol I defines military objective as follows:

Attacks shall be limited strictly to military objectives, . . . [M]ilitary objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offer[] a definite military advantage.

Protocol I, supra note 101, at art. 52(2).

(162.) See Space Imaging, supra note 48 (the company advertises several days as a quick turn around on an order).

(163.) In 1981 Israel bombed an inactive nuclear reactor in Iraq claiming self-defense. Israel argued that Iraq was going to use the reactor to make nuclear weapons to threaten Israel. In 1985 the U.S. bombed targets in Libya claiming self-defense in response to State-sponsored attacks in Europe. The U.S. argued that Libya was responsible for bombing a nightclub in Germany which killed American servicemen and intelligence reports indicated further attacks against the U.S. were being planned. See STANIMIR A. ALEXANDROV, SELF-DEFENSE AGAINST THE USE OF FORCE IN INTERNATIONAL LAW 159 (1996).

(164.) YORAM DINSTEIN, WAR, AGGRESSION AND SELF-DEFENCE 202 (2d ed. 1994).

(165.) See O. SCHACHTER, The Right of States to Use Armed Force, 82 MICH. L.R. 1620, 1635 (1984), cited in DINSTEIN, supra note 164, at 202.

(166.) LAW AND RESPONSIBILITY IN WARFARE: THE VIETNAM EXPERIENCE 40 (Peter O. Trooboff ed., 1975). See also, Article 51 through 59 of Geneva Protocol I, which relate to attacks on civilian objects, unprotected objects, and using precaution in attacks. Protocol I, supra note 101.

(167.) DINSTEIN, supra note 164, at 231-32.

(168.) Protocol I, supra note 101, at art. 51. Paragraph 5 states in part

Among others, the following types of attacks are to be considered indiscriminate:

(b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

Protocol I, supra note 101, at art. 51(5).

(169.) As stated earlier, this analysis does not consider the technical aspects or shortcomings of destruction of the satellite. One possible consideration is the extent to which the civilian sector depends on the use of the satellite for basic needs such as navigation or communication and what effect destruction would cause.

(170.) Black, supra note 2, at 108. This would create enormous debris possibly interfering with friendly satellites.

(171.) DINSTEIN, supra note 164, at 203.

(172.) See supra note 163.