The Legality of Intermingling Military and Civilian Capabilities in Space

Abstract

The United States’ practice of intermingling national security space functions with commercial space capabilities and services has come under fire. Professor David Koplow, in an article entitled “Reverse Distinction: A U.S. Violation of the Law of Armed Conflict in Space,” argued that such intermingling violates the obligation under the law of armed conflict (LOAC) to protect civilian objects against the effects of attack. The argument is getting attention. In February, Air Force Magazine wrote about the article’s indictment of U.S. policy and in April, Professor Koplow presented his argument at the United States Space Command Legal Conference. The next month, he again made his case during a meeting of the United Nations’ Open Ended Working Group on Reducing Space Threats. As the reach of his argument increases, so does the need for a response.

I disagree with Professor Koplow’s conclusions for two reasons. First, intermingling is justified by genuine military necessity. Second, State practice lends no support to Professor Koplow’s thesis but instead supports the opposite conclusion.

Keywords: outer space; LOAC; IHL; feasible precautions; military space; intermingling; military necessity; distinction; Ukraine; Koplow