President’s Message

Much work to be done to develop space law

TIM WHITE, PRESIDENT, LAW SOCIETY OF SA

Outer space fascinates us for many reasons - its endless size, questions of what might be out there, the prospect of discovering new planets, the marvel of human space travel and countless other aspects.

Increasingly, lawyers are advising companies and countries about their activities in space. Clearly the establishment of the Australian Space Agency in Adelaide in July 2018, which officially opened on 19 February 2020, offers a unique opportunity for SA lawyers to maximise their involvement in this expanding area of law.

Considerable expenditure continues to occur in Australian in this industry. Just one example of this was the Australian Government’s announcement in September 2019 to commit $150 million towards the project with NASA on a joint campaign to return to the Moon and travel to Mars.

I recently talked about the expanding militarization of outer space in one of my regular columns for The Advertiser. The USA announced late last year that it has formed a “Space Force” to work along side its other land, sea and air forces. When announcing the establishment of Space Force, President Trump gave a clear indication of the USA’s future intentions when he referred to outer space as being “the world’s newest war-fighting domain.” Perhaps surprisingly, there currently exists no agreed modern laws governing the conduct of countries, in outer space, at the time of an international armed conflict. There are certainly international space treaties that many countries have adopted but they say little about what acts a country can perform during a time of war. Instead, the operative international law is the Additional Protocol 1, which commenced in 1977. Clearly weapons and the means of warfare have progressed enormously since the AP1 was adopted and according its applicability to weapons in space remains questionable.

Given the seemingly endless means of modern warfare there are significant challenges that face any drafters of laws that try to “control or regulate” the conduct of countries in outer pace. A current “hot topic” among international academics is whether electronic data is or is not a military objective. This issue is vital because at the time of war only military objectives can be attacked. So if electronic data is not a military objective, it cannot be attacked directly. 1 This important issue, in additional to many others, was considered by leading international military academics in Tallinn, the capital of Estonia. It resulted in the publication of the Tallinn Manual 2 (TM), which deals with a large range of cyber operation threats that may arise in military conflicts .The majority opinion arising from the TM, in short, was that data is not a military objective and as a consequence of that it can not be directly targeted. In addition to the issue of military objectives, there are many other restrictions that determine what a country can attack during an international armed conflict.

One such important principle is that any offensive action must not amount to an indiscriminate attack. In essence, an indiscriminate attack is defined as one which is not aimed at a specific military objective. Accordingly, even if data is a military objective, any attack on data must be distinct, direct and targeted. This principle raises a major complication

with any cyber attack given the highly interconnected relationship between civilian and military networks, computers and systems. An attack on military data, in many instances, will have flow on and often adverse effects to civilian objects and/or personnel. As a result, any cyber attack must be highly sophisticated and direct, only impacting on and affecting military data.

Would the introduction of a virus to an enemy’s computer network be likely to constitute an indiscriminate attack? Given that many military networks rely on civilian assets or are intertwined with civilian data you would expect it would be very difficult to create a virus that only affected military data. Any virus that is introduced to attack military data must not “bleed” into civilian networks. Indeed it must remain very direct and specific with its impact. This, in many instances, will be impossible. Consequently, many attacks on data, utilizing a virus, will be prohibited due to their indiscriminate impact.

The University of Adelaide is playing a lead role in developing a comprehensive guide on military space laws, via the development, in conjunction with other universities, of the Woomera Manual, which aims to elucidate and clarify international law that applicable to military space operations. With Adelaide academics at the forefront of this mission, and the city of Adelaide becoming a space industry hub, there huge opportunities for South Australian industries and professions, including the legal profession, to be involved in this exciting area. B