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The Legality of Military Action in Outer Space

Outer space is a neutral territory designated free from the appropriation under international law. However, the increasingly valuable military and economic significance of outer space have induced spacefaring nations to largely disregard international custom and treaty law in the name of preserving national security. Modern warfare relies on military assets in outer space, especially satellites, which are used for intelligence, remote sensing, navigation, and monitoring. The high strategic value of outer space means protecting and targeting assets in outer space is key to military dominance in this day and age. The United States Air Force stated that “the ability to gain [outer] space superiority is critically important, and maintaining… [that] superiority is an essential prerequisite in modern warfare.”[1] Accordingly, the United States Department of Defense has invested heavily in anti-satellite and space-based weapons capabilities research. And while the technology itself is highly controversial, it presents major business opportunities for those able to overcome moral, legal, and logistical roadblocks.

Outer Space Law

The five treaties that regulate extraterrestrial activity include: Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967); The “Rescue Agreement” (1968); The Liability Convention (1972); The Registration Convention (1976); and The “Moon Agreement” (1984). The purpose of this group of treaties is to ensure that the “exploration and use of outer space… the Moon and other celestial bodies shall be… for exclusively peaceful purposes.”[2] The United Nations crafted the treaty regime in recognition of the “legal problems which may arise in the carrying out of programs to explore outer space;”[3] and to that end the Space Treaty designated outer space as “free from appropriation,” and limited operations within the territory to a “peaceful uses.” Additionally, the Space Treaty bans nuclear weapons from outer space but does not explicitly regulate conventional weapons. And since the late 1960s, increased regulation of conventional weapons in outer space has been resisted by the United Nations Security Council and the United States in particular.

National Security Versus International Law

US military strategy in outer space has called for “superiority”— the ability “to exploit a territory while selectively disallowing it to adversaries.” In contrast, the United Nations Committee has repeatedly declared that “outer space is, on conditions of equality, freely available for exploration and use by all.” And in 1967, the Space Treaty designated that outer space as free from national appropriation and military use. Notwithstanding international law, the U.S. has historically pursued an official military policy of outer space superiority which stands in diametric opposition to international law.

For example, the Bush administration took the official policy position that it would “preserve its rights, capabilities, and freedom of action in [outer] space; dissuade or deter others from either impeding those rights or developing capabilities intending to do so… and deny, if necessary, adversaries the use of [outer] space capabilities hostile to US national interests.”[4] Moreover, the Bush administration rejected treaties “limiting its actions” in outer space and opposed “the development of new legal regimes or other restrictions that seek to prohibit or limit the US access to or use of [outer] space.” The administration insisted that “proposed arms control agreements or restrictions must not impair the rights of the United States to conduct research and development, testing, and operations or other activities in space for US national interests.”

The Obama administration would later pursue international transparency and confidence-building measures to encourage responsible action in, and the peaceful uses of, outer space. The administration officially invited UN proposals for arms control measures on the condition that any proposal be “equitable, effectively verifiable, and enhance the national security of the US and its allies.” However, no treaties were ever realized as a result of the Obama administration’s official policy. And the U.S. ultimately rejected several internationally formulated arms-control proposals as “fundamentally flawed.”[5]

More recently, the United States has boldly declared intentions to create and deploy a military force into outer space with the explicit purpose of controlling the territory. President Donald Trump stated that the United States is going to have “the Air Force and… Space Force—separate but equal.”[6] The administration then directed the Department of Defense and Pentagon to “immediately begin the process necessary to establish a space force as the sixth branch of the armed forces.”[7] And in a speech before the Pentagon, Mike Pence, U.S. Vice President, argued that new armed branch is necessary because outer space “has fundamentally changed in the last generation; what was once peaceful and uncontested is now crowded and adversarial.”[8] In summation, the Trump administration feels that national security in outer space. Accordingly, the Trump administration has (in characteristically emphatic fashion) decided to respond to that concern by seeking military control of the territory.

Policy Analysis and Prediction

Although President Donald Trump envisions another “separate but equal” branch of Uniformed Service dedicated to projecting US military power into outer space, that vision likely contravenes the text and purpose of both the UN Charter and the Space Treaty. Militant national policy in outer space is legally problematic because the United States, Russia, United Kingdom, and China are signatories to the Space Treaty, which designates that outer space is “free from appropriation,” and stipulates that all activities in outer space are governed by the UN Charter. Consequently, if signatory nations over outer space, it would constitute an “armed attack” on neutral territory.[9]

Spacefaring nations (and the US in particular) will likely continue to pursue military applications in outer space due to the profound strategic value of the territory. However, the US Space Force cannot operate within the limits of the Space Treaty, and there is absolutely no legal basis for the international community to tolerate the military appropriation of any part of the vast, sharable resource of outer space. Furthermore, the extreme logistical and financial demands associated with defending assets in outer space means the most effective and efficient way to ensure the continued peaceful use of outer space would be through regulation— not military control. Therefore, the preservation of peace in outer space would be more readily regulated by reversing the trend of weaponizing Outer Space. However, for the moment it seems that the United States is on a crash course for an invasion of outer space—and whatever consequences that may bring.

[1] Air Force Space Command stated in its 2003 Strategic Master Plan.

[2] Space Treaty IV.

[3] December 12, 1958, by Resolution 1348 (XIII), the United Nations General Assembly (d)

[4] the 2006 US National Space Policy

[5] See e.g. the Russian-Chinese joint draft treaty on the Prevention of the Placement of Weapons in Outer Space (PPWT)

[6] DefenseOne blog

[7] Times Magazine

[8] BBC.com/news

[9] Nicaragua Case, ICJ (defining “armed attack” as uniformed military crossing an international boundary.”

Craig R. Chlarson