Incremental steps for achieving space security: the need for a new way of thinking to enhance the legal regime for space.

• Author: Park, Andrew T.

1. INTRODUCTION II. AN EXAMINATION OF THE CURRENT LEGAL REGIME FOR SPACE IS NECESSARY TO DETERMINE HOW TO IMPROVE IT A. The Origins of the Space Regime B. The Evolution of the Space Environment 1. New Actors Due to the Commercialization of Space 2. The Reality of Space Weapons C. The Inability to Attain Consensus on Major Definitional Aspects of Weaponization 1. What Is a Space Weapon? 2. The Ambiguity of Peaceful Purposes 3. The Lack of Limitations on Dual-Use Technologies III. THE CURRENT LEGAL REGIME FOR SPACE CAN ONLY BE ENHANCED IF U.S. INTERESTS AND CONCERNS ARE ADEQUATELY ADDRESSED A. In Order to Counter the Inevitability Argument, Arms Controllers Must Acknowledge That Norms Alone Will Be Insufficient in the Future 1. The Self-Fulfilling Prophecy of the "Need" for Space-Based Military Defense 2. The True Need: A Legal Regime with Teeth B. The Arms Control Community Must Reconcile the Specter of an Increasing Number of Space Threats with a Nation's Inviolable Right to Self-Defense 1. Application of Self-Defense in Outer Space: The Issue of Protective Jurisdiction 2. Is the U.S. Threat Assessment Exaggerated? C. Can Space Weaponization Provide Stability and Control? 1. The Quest for Space Dominance 2. Cost/Benefit Analysis of Space Weaponization 3. Partial Space Weaponization IV. INCREMENTAL, PRACTICAL STEPS AND THE SPIRIT OF COMPROMISE ARE NECESSARY TO ENHANCE THE CURRENT LEGAL REGIME BEYOND A STRICTLY RULE-BASED REGIME FOR THE SAKE OF SPACE SECURITY A. A New Forum of Discussion B. Strengthening the OST C. Confidence Building: Transparency and Monitoring Space Security Policy V. CONCLUSION I. INTRODUCTION

   Although the realm of outer space has long represented the future of humankind, the development of space technology and the subsequent proliferation of space participants in recent years--encompassing civil, commercial, and military realms--has served notice to the world that the future is rapidly approaching. That said, with the potential weaponization of space on the horizon, (1) policymakers and pundits around the world are quick to acknowledge that the realm of outer space is the next strategic frontier for international security. (2) Unfortunately, the concept of space security today is still as amorphous as the realm of space is vast. For instance, the public for the most part has failed to differentiate between the militarization and the weaponization of space. (3) Ever since the launching of the first military communication satellites into orbit, the realm of space has been militarized. (4) This reality is evidenced by the fact that militaries around the globe "rely heavily on satellites for command and control, reconnaissance and monitoring, early warning, treaty verification, and navigation with the Global Positioning System (GPS)." (5) While the realm of outer space may be heavily militarized, it is not yet weaponized. (6) Despite this lack of public awareness, the reality of the situation is that the technological superiority and the insecurities of the United States are the true driving forces of the space security dilemma. Ever since the attacks of 9/11, the U.S. government has felt the need to maintain a heightened sense of awareness of the nation's security, or lack thereof, as evidenced by the establishment of the Department of Homeland Security and the accompanying Homeland Security Advisory System. (7) Over the course of President George W. Bush's Administration, the debate conducted in the late 1950s regarding the military uses of space has re-emerged between the hawkish advocates of missile defense and the dovish members of the space arms control community. (8) On one end of the spectrum, space weapons supporters, primarily from the United States, argue that "vulnerability to ballistic missile attack and [the high degree of] dependence on space for various military operations makes defensive measures necessary...." (9) On the other end, members of the arms control community believe the weaponization of space will spiral into a destabilizing arms race making the world less safe and more prone to war. (10) Unfortunately, each side has become so entrenched in the validity of their own ideological belief that the channels of communication between the two sides have been all but closed. (11)

   In light of all these factors muddying the waters of the space security debate, the largest yet most overlooked problem in the space security dilemma is the inadequacy of the current international legal regime for space. The Bush Administration has already demonstrated its resolve by officially withdrawing from the thirty-year old Anti-Ballistic Missile Treaty (ABM), (12) which leaves the 1967 Outer Space Treaty (OST) (13) as the primary current legal bar on space weaporization. (14) Over the course of his final term, President Bush is likely to pursue space weapons with even greater intensity for both missile defense and anti-satellite mechanisms (ASAT). (15) Indeed, the future of space security will depend greatly on how effectively the weaknesses of the current legal regime are addressed (16) and on whether the United States and the international community can set aside their differences and come together in an effort to strengthen the current legal regime. If they cannot, outer space will become even more susceptible to the exploitation of these space stakeholders and their need to protect and promote their space interests. Consequently, the purposes of this Article are: (1) to identify the glaring holes in the current legal regime for space and how they came about; (2) to understand the major impediments to achieving progress in strengthening the regime; and finally, (3) to suggest incremental steps of strengthening the legal regime with the end goal of enhancing space security.

2. AN EXAMINATION OF THE CURRENT LEGAL REGIME FOR SPACE IS NECESSARY TO DETERMINE HOW TO IMPROVE IT

   Since the legal regime for space has long been unable to keep pace with the challenges of the ever-increasing use of space, (17) it is vital to reassess its current state in an effort to understand why it is so porous and how it can be improved. First, we must look to the origins of the current regime and the technological and political environment at the time of the promulgation of the regime. By analyzing how the space environment has evolved since then, we can begin to understand why the shortcomings of the current regime exist, and hopefully, how to address them.

   1. The Origins of the Space Regime

      On October 4, 1957, the United Soviet Socialist Republic (U.S.S.R.) stunned the world--and in particular, the United States--by launching the first artificial Earth satellite into orbit. (18) This monumental event not only marked the dawn of the space age, but it also served as the first salvo of the U.S.-U.S.S.R. space race. (19) Shortly thereafter, in 1958, the United Nations formed an ad hoc group called the Committee on the Peaceful Use of Outer Space (COPUOS) for the purpose of governing the then nascent realm of space. (20) With the inception of COPUOS a regime had finally been established to study and address the legal issues arising from the exploration of outer space. (21) Since then, COPUOS has become a permanent part of the United Nations--working through the Outer Space Affairs Division--and has grown from eighteen to sixty-seven nations. (22)

      Soon thereafter, the U.N. General Assembly adopted the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space (23) in 1962 (24) for the purpose of facilitating "broad international co-operation in the scientific as well as in the legal aspects of exploration and use of outer space for peaceful purposes." (25) Today, the international legal regime consists of several general principles expressed in five space treaties, a number of arms control treaties, and some general principles of international law. (26)

      Although international space law has derived many of its policies from the basic principles set forth by COPUOS, few in the international space law community would argue that the OST is the most significant legal text governing the realm of outer space. (27) Part of the reason the OST--which entered into force in October 1967--is so revered is that it not only became the first treaty to govern access to space, but more pertinently, it was the first to address the issue of space weaponization. (28) The fundamental premise of the OST is that space is not open to national appropriation but should be reserved for the pursuit of the common interest of mankind and for "peaceful purposes." (29) The underlying goals of the OST are to avoid colonial competition in space and to avert an extension of the Cold War's dangerous military rivalry. (30) The OST provides the basic framework for international order in outer space, introducing principles that have since been elaborated on in later treaties. (31) However, due to the few number of states that are capable of operating in space, the OST has been largely untested, and its principles have been by and large aspirational. (32)

      Other agreements are relevant to the weaponization debate, and while they must be acknowledged, they primarily serve as a backdrop for the legal regime for space created by the OST. In particular, the Limited Test Ban Treaty of 1963 banned nuclear weapons testing in outer space while several subsequent treaties and declarations regulated different forms of military activity in space. (33) Finally, four other General Assembly resolutions are worth noting to fill out the remainder of the legal landscape of the weaponization issue: the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Use and Benefit and in the Interest of All States (34) and the resolutions on Direct Television Broadcasting, (35) on Remote Sensing of the Earth from Outer Space, (36) and on the Use of Nuclear Power in Outer Space. (37)

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