WAR ON THE FINAL FRONTIER: CAN TWENTIETH-CENTURY SPACE LAW COMBAT TWENTY-FIRST-CENTURY WARFARE?

Author:Ford, Mitchell
 
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  1. INTRODUCTION II. HISTORY OF SPACE AGREEMENTS III. SHORTCOMINGS OF THE CURRENT LEGAL REGIME IV. THE DEVELOPMENT OF ANTI-SATELLITE TECHNOLOGY V. OTHER DEVELOPMENTS IN SPACE WEAPONRY VI. SPACE LAW AFTER THE OUTER SPACE TREATY VII. CONCLUSION I. INTRODUCTION

    Moving into the 21st century, advances in technology have shifted the landscape of modern warfare, making space the next frontier for military exploitation. (1) Knowing the vital role space will play in the future of warfare, spacefaring nations have rushed to stake their claims in the vast beyond, hoping to obtain their piece of the ultimate high ground. (2) However, much like the westward expansion of the United States, expansion into outer space is fraught with the dangers of lawlessness that could destabilize the global community and spark an international arms race. (3)

    The battle for space began in the 1950s with the Soviet launch of Sputnik I (Sputnik), and since then there has been a manic race to gain space superiority. (4) The genesis of Sputnik ultimately culminated in the first treaty governing the use of space called the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, or commonly known as the Outer Space Treaty. (5)

    Since the signing of the Outer Space Treaty in 1967, differing interpretations of the Outer Space Treaty have resulted in many different approaches in carrying out the treaty, rendering it almost powerless to ensure a non-militarized space. (6) Furthermore, with the technological advances made in the past 40 years, the potential use of space for strategic military advantages is a pressing threat to the global community that must be addressed in order to curb an extraterrestrial arms race. (7) Of particular concern is the testing of antisatellite weaponry, which, if used, could have a catastrophic impact on the global economy and current warfighter technology. (8) Over the last ten years, several new potential treaties and agreements have been proposed. However, because the countries with the greatest space capability recognize that space supremacy is what will be the ultimate factor in determining future military power, the current proposals have failed to materialize into an agreement of any real potential for international acceptance. (9)

    This comment will explore the history of space agreements, the shortcomings of the current legal regime governing the international use of outer space, and document the space threats that have arisen as a result of the inadequate legal framework for dealing with a global community that is now far more technologically advanced than the time when the Outer Space Treaty was ratified. After identifying the current threats, this comment will discuss the most recent proposals to deal with the growing threats associated with space and point out key problems with any agreements currently in place. Lastly, this comment will try to identify potential solutions to these problems that could work to deter a devastating arms race that would destabilize the global community and potentially result in unnecessary conflict.

  2. HISTORY OF SPACE AGREEMENTS

    The battle for space began in October 1957 after the Soviet's launch of Sputnik. The launch shocked the West, spreading alarm and prompting a space race that the global community hoped to temper with the creation of the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS). (10) UNCOPUOS is the primary vehicle for negotiating multilateral agreements relating to outer space, and currently has 83 member states as of 2015, including the primary space players: the United States, China, and Russia. (11) The most important agreement reached through this body was the Outer Space Treaty. (12)

    The Outer Space Treaty is the foundational space treaty that serves as the "constitution" for international space activity and provides the framework for the present day legal regime regulating outer space. (13) The Outer Space Treaty, entered into force on October 10, 1967, has been ratified by 89 countries, and was created for the purpose of fostering an environment of international cooperation in scientific and exploration endeavors in space. (14)

    Aiming to foster an environment of mutual cooperation among participating nations, the Outer Space Treaty provides that the exploration and use of outer space "shall be carried out for the benefit and in the interest of all countries." (15) Furthermore, the Outer Space Treaty establishes that outer space is free for exploration and scientific investigation by all States and the States shall facilitate and encourage international cooperation in these endeavors. (16)

    Article IV of the Outer Space Treaty addresses the military use of space. (17) The provision states that the moon and other celestial bodies shall be used by all participating parties exclusively for peaceful purposes. (18) Further defining the contours of the provision, the Outer Space Treaty forbids the establishment of military bases on celestial bodies and does not allow celestial bodies to be used for testing of weapons of any type. (19) Article IV also addresses the nuclear weapon concern at the time of drafting, stating that States shall not place nuclear weapons or any other weapon of mass destruction in space in any manner. (20)

  3. SHORTCOMINGS OF THE CURRENT LEGAL REGIME

    As ambitious and admirable as the Outer Space Treaty is in its attempt to secure the peaceful use of space, it is fraught with ambiguities that cripple its effectiveness and prevent it from carrying out its purposes in a time that needs it most. (21) Perhaps the biggest obstacle in maintaining a peaceful use of space is the term "peaceful purposes" in Article IV. (22) The Outer Space Treaty, along with other international space law treaties, fail to provide a conclusive definition of the term. (23)

    The initial interpretation of "peaceful purposes," accepted by both the United States and the Soviet Union at the Outer Space Treaty's inception, was "non-military." (24) This "non-military" interpretation was supported by the fact that the phrase "peaceful purposes" in the Outer Space Treaty was derived from the 1959 Antarctic Treaty, which served as a significant model for the Outer Space Treaty. (25) Article I of the Antarctic Treaty states "Antarctica shall be used for peaceful purposes only." (26) The Article's subsequent sentence then prohibits the use of Antarctica for "any measures of a military nature, such as the establishment of military bases and fortifications, the carrying out of military maneuvers, as well as the testing of any type of weapons." (27) Because the Outer Space Treaty and the Antarctic Treaty use the same "peaceful purposes" language, it is plausible to assume that the "peaceful purposes" language in the Outer Space Treaty was designed to entail the Antarctic Treaty's provision prohibiting the use of Antarctica for any use that is military in nature. (28)

    Even though the Soviets maintained that all military activities in space were not peaceful and possibly unlawful, they continued to send military payloads into space and became increasingly dependent on space technology for military planning. (29) These actions by the Soviets ultimately prompted the United States to modify its interpretation of "peaceful purposes" from "non-military" to "non-aggressive." (30) By interpreting "peaceful purposes" to mean "non-aggressive," the United States was able to conduct activities in space so long as the activities did not violate Article 2 of the UN Charter which prohibits the "threat or use of force." (31) As time progressed, the Soviets and other member states abandoned the initial interpretation of "peaceful purposes" through their space activities and lack of formal protests regarding other countries' military use of space, demonstrating that space could be used for military purposes. (32) Currently, the meaning of "peaceful purposes" is generally accepted by the majority of member States to mean "non-aggressive," with the United States maintaining that all States possess the right to defend themselves against threats in outer space. (33)

  4. THE DEVELOPMENT OF ANTI-SATELLITE TECHNOLOGY

    Within weeks of the Soviet's launch of Sputnik, the United States was already working on the first concepts of Anti-Satellite (ASAT) technology. (34) In the years since, Russia, China, and the United States have all participated in developing ASAT technologies, with India also expressing ambitions to develop an ASAT weapon. (35)

    The threat of ASAT weapons has become an increasingly important issue as spacefaring countries have become increasingly dependent on satellite technology for critical sectors, like the military, economic, and energy sectors. (36) This increasing dependence on satellite technology has resulted in satellites becoming a prime target for military adversaries. (37)

    However, while we have seen an evolution in satellite and counter-satellite technology in the years since Sputnik, the Outer Space Treaty has proven ineffective to deal with the growing ASAT problem and no new developments in international space law have materialized to deal with this growing threat to global stability. (38)

    One of the primary problems preventing the Outer Space Treaty from effectively preventing the escalating problem of ASAT technology is that--regardless of whether a country adopts a "non-military" or "non-aggressive" view of "peaceful purposes" --countries can still employ the use of ASAT technology without violating the treaty. (39) Regarding the use of space other than the moon and other celestial bodies, the Outer Space Treaty only prohibits States from placing in orbit any objects carrying nuclear weapons or any other weapons of mass destruction. (40) An ASAT, however, falls under neither of these categories. (41) With regard to other military activity and the use of...

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