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NSRC 2020

 
NDAA signing
President Trump signed into law the fiscal year 2020 National Defense Authorization Act in December, which formally established the US Space Force. (credit: US Air Force photo by Airman 1st Class Spencer Slocum)

The US Space Force and international law considerations


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President Trump’s signing of the Fiscal Year 2020 National Defense Authorization Act has put into action the United States’ ambitions of an independent Space Force, ushering its military ascendancy in the outer space and attaching a new facet to its hard power. The US Space Force will formally be the sixth military service branch, absorbing its predecessor, the Air Force Space Command.

The Space Force and its activities have to pass the litmus test of the Outer Space Treaty.

The addition is the latest in a series of new developments and shuffling at the Pentagon. The House of Representatives passed a fiscal year 2018 defense authorization bill that contained a proposal for a service called the Space Corps, but it did not survive negotiations with the Senate. In June 2018, President Trump directed the Department of Defense to kickstart the creation of an independent combatant force at a meeting of the National Space Council. He signed Space Policy Directive-4 calling on the Secretary of Defense to create a legislative proposal for the organizational change, which was finalized in the latest defense authorization bill.

The intent behind the move is to “deter aggression and defend the US, its allies and interests from any hostile acts in and from space.” In the words of the President, this stems from the necessity to have “dominance” and “multi domain war-fighting capability” in outer space. Pursuing ambitions on such lines is akin to walking on a tightrope. They must be tested on the touchstone of legality and global peace and security.

The Space Force and its activities have to pass the litmus test of the Outer Space Treaty. At the outset, nations have the space freedom to explore, use, and access the outer space and its celestial bodies. Pursuant to Article IV of the Treaty, that freedom is not unrestricted, and does not allow nations to place nuclear weapons or weapons of mass destruction in orbit or elsewhere in outer space, nor to establish military bases, test any kind of weapon, or conduct military maneuvers, especially on the Moon and celestial bodies. The restriction, however, does not cover the use of “any equipment or facility,” including the employment of military personnel for scientific or “other peaceful means.”

The creation of a Space Force will have wide political, diplomatic, environmental, and ethical ramifications. Critics opine that the bureaucratic and budgetary costs outweigh the apparent urgency to have a Space Force.

Over time, ambiguities have surfaced regarding the question of militarization and, more specifically, a space force, putting them into a gray area. Weapons of mass destruction flying suborbital trajectories, intercontinental ballistic missiles, military reconnaissance satellites, and observations from celestial bodies are military activities that pass the scanner with ease. The determination of what constitutes “peaceful,” and whether it is equivalent to “non-aggressive” as the US deems it to be, is also a contentious question. A 2018 Department of Defense report stresses building offensive capabilities to “degrade, deny, disrupt, destroy and manipulate adversary capabilities.” It is pertinent to note that any use of force against article 2(4) of the Charter of the United Nations, simply put, not in pursuance of the right to self-defense against an overwhelming threat and under the authorization of the Security Council, is likely to violate the axioms of international law and trigger international liability under Articles VI and VII of the Treaty. Of course, the peculiarities of the use of force in space, orchestration of strike capabilities, destroying of one’s own satellites, and so on will have a different threshold of what is peaceful or aggressive.

The creation of a Space Force will have wide political, diplomatic, environmental, and ethical ramifications. Critics opine that the bureaucratic and budgetary costs outweigh the apparent urgency to have a Space Force. Further, Congressional assent will also determine how the nascent organizational change will be enacted. Furthermore, escalated risk of space debris as a byproduct of military activity will, at least in theory, flout the caveat against unreasonable interference and harmful contamination in the outer space spelled in Article IX of the Treaty, notwithstanding the rare invocation of the article and whether liability will accrue thereupon, as seen from the targeting of the USA 193 satellite in 2008.

Given these prescriptions and prohibitions, even though the idea of a Space Force is legally sound, there is a very small legal window for effectively realizing the ambition of “dominance” in the outer space. The US will have an obligation to keep the United Nations and the international scientific community abreast with the nature, conduct, locations, and results of the activities of its Space Force as well as grant access to other nations for projected visits to its stations, installations, equipment, and vehicles in the space, if any. The aforementioned obligation taints the aspiration of “unfettered access” and space control that the US has. It also cements international cooperation as the sine qua non of any development in space and ensures equal access to the global commons.

The militarization of space is not a new phenomenon and can be traced back to the years of the Cold War.

The North Atlantic Treaty Organization has recognized space as an operational domain, giving an implicit nod to the ambitions of the member nations to invest and develop space warfare capabilities. China and Russia have had aerospace and strategic forces coordinating their militaries’ activities in the space. Moreover, in times when economic and military hegemony is oscillating between the US and China, both having robust reconnaissance and maneuvering infrastructure, it will be interesting to see how the latter realizes its cislunar “Space Dream.” Reactions have also poured in from Russia and France over the dubiety of the US Space Force and a need to retort via space military buildups by those and other nations. Amidst the roulette, power imbalances and dilemmas among nations, especially developing nations with inchoate space technology, are likely.

The militarization of space is not a new phenomenon and can be traced back to the years of the Cold War. The Space Race between the USSR and the US, prominently the launches of Sputnik 1 as the world’s first artificial satellite in outer space by the USSR and the American Explorer 1 as a close second, are owed to the respective military agencies. Most contemporarily, GPS had its origins as a strictly military navigation tool. NewSpace, as some call entrepreneurial space companies, is a full-fledged aerospace industry with growing technical capabilities and economic markets. A bureaucratic and military nod possibly will not suffice for the effective realization of a robust space force. There must be a proportionate inventory to support the force and development in all allied domains, like anti-satellite missiles and ballistic weapons, that can support the force and also withstand international law scrutiny.

The question remains whether the US Space Force will be an “envoy of mankind” in quest of international peace and security or, paradoxically, mar the same.


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