War and Peace in Outer Space
Law, Policy and Ethics
Edited by
CASSANDRA STEER AND MATTHEW HERSCH
Assistant Editor
KIERNAN MCCLELLAND
With a foreword from Lieutenant General David D. Thompson, United States Space Force
Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and certain other countries.
Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America.
© Oxford University Press 2021
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above.
You must not circulate this work in any other form and you must impose this same condition on any acquirer.
Library of Congress Cataloging-in-Publication Data
Names: Steer, Cassandra, editor. | Hersch, Matthew H., editor.
Title: War and peace in outer space : law, policy, and ethics / edited by Cassandra Steer and Matthew Hersch.
Description: First edition. | New York : Oxford University Press, [2021] |
Series: Ethics, National Security, and the Rule of Law | Includes index.
Identifiers: LCCN 2020025855 | ISBN 9780197548684 (hardcover) | ISBN 9780197548707 (epub) | ISBN 9780197548691 (updf) | ISBN 9780197548714 (digital-online)
Subjects: LCSH: Space law. | Space law—United States. | Space security. | Anti-satellite weapons.
Classification: LCC KZD1145 .W37 2020 | DDC 341.4/7—dc23
LC record available at https://lccn.loc.gov/2020025855
DOI: 10.1093/oso/9780197548684.001.0001 1 3 5 7 9 8 6 4 2
Printed by Integrated Books International, United States of America
Note to Readers
This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate.
(Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.)
You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com.
Foreword by Lt. Gen D. Thompson, U.S. Space Force vii Editors and Contributors ix
Introduction: Why Space Law Matters in War and Peace 1
Matthew Hersch and Cassandra Steer
PART I. THE LAW OF WAR AND PEACE IN SPACE
1. International Humanitarian Law and Its Application in Outer Space 23
Cassandra Steer and Dale Stephens
2. Norm Setting and Transparency and Confidence-Building in Space Governance 55 Theresa Hitchens
3. The Rule of Law in Outer Space: A Call for an International Outer Space Authority 91
Icho Kealotswe-Matlou
PART II. THE ETHICS OF SPACE SECURITY
4. Peaceful Purposes for the Benefit of All Mankind: The Ethical Foundations of Space Security 109 P.J. Blount
5. U.S. Space Dominance: An Ethics Lens 123 Joan Johnson-Freese and Kenneth Smith
PART III. CURRENT AND FUTURE THREATS TO SPACE SECURITY
6. What Should the Space Force Do? Insights from Spacepower Analogies, Doctrine, and Culture 153
Peter L. Hays
7. The Legal Challenge of Arms Control in Space
Jinyuan Su
181
8. The Legality of Keep-Out, Operational, and Safety Zones in Outer Space
9. Prominent Security Risks Stemming from Space Hybrid Operations
Jana Robinson
PART IV. TOWARD STABILITY
10. A Proposed Transparency Measure as a Step Toward Space Arms Control
11. Outer Space and Crisis Risk
12. Diplomacy: The Missing Ingredient in
Foreword
In April 2018, I had the opportunity to participate in a conference on the use of military force and cooperation in space, hosted by University of Pennsylvania’s Center for Ethics and the Rule of Law (CERL), and led by Dr. Cassandra Steer, co-editor of this volume. It was an important event in many respects.
First of all, the conference dealt with a matter of great consequence. The space domain has been an area of human competition and potential conflict since the dawn of the Space Age more than 60 years ago. Early forays into space were conducted for the purposes of science, discovery and exploration; and nations and their leaders have understood what operating in space meant to national pride, prestige and standing on the world stage. Over the years, the use of space for commercial purposes and for the benefit of civil society has emerged as well, so much so that the free and open access to the domain has become important to economic vitality and public safety of many nations and the global community in general. Increasingly, the space sector provides technologies and capabilities that we have come to depend on in our daily lives.
The importance of space capabilities to the defense and security of nations drove early space activity as well – surveillance and reconnaissance, early warning, and communications among them. With time, space-based systems have created such a tremendous advantage for military operations, those systems and their supporting infrastructure have become prospective targets among potential antagonists. The spectrum of threats has evolved over the years ranging from reversible to irreversible, and non-kinetic to kinetic -- jammers, dazzlers, cyber-attack, direct ascent missiles and co-orbital interceptors. As with land, sea and air in the past, perhaps it was inevitable that as more actors became involved and the stakes grew, nations would take steps to protect their interests in space and seek to deny advantage to others.
The second reason this was an important event, was because it brought together participants from different communities and specialties who held a variety of positions and views on the subject matter. Public and private institutions, academia, government and think tanks were all represented. Policy experts and thought leaders from many perspectives came together to examine and debate the topic from all sides. While the underlying objective for the large majority was the same – secure, stable and peaceful use of the space domain – ideas on the
methods and approaches to achieving that objective varied greatly. The forum was therefore an opportunity to inform, educate, analyze and test the many ideas and methods to that end. It was an opportunity to challenge and shape one’s own views, and the views of others on this vitally important subject.
Finally, while debate was vigorous and forceful, it was also reasoned and measured, lacking in histrionics, scorn, derision and other pejorative techniques that seem to pass for debate in so many areas today. No question the discourse was rough and tumble, but rather than retreating to opposing camps, digging in and hurling invectives from one side to the other, participants focused on the content, subjecting all positions and supporting rationale to equal levels of scrutiny. The group questioned for understanding, challenged assumptions, and most importantly, allowed responses to those with different ideas and perspectives that were not innately naïve, reflexive or malevolent.
The essays in this volume are drawn largely from that 2018 conference and provide a wide range of perspectives on the topic of interest. The reader should find plenty of content to stimulate inquiry, gain understanding, challenge personal preconceptions, test the ideas of others, and sharpen their own thinking on the subject matter. Providing for the safe, stable and peaceful use of space benefits all and preserves the opportunity for current and future generations to advance scientifically and intellectually, as well as satisfying the need to explore and discover that which lies deep in the psyche of humanity. This begins with the acknowledgement that like land, sea and air before it, space has become an arena of human competition, a domain that provides potential advantage in conflict and one where the inherent right to self-defense must be recognized as well. With that understanding, it is imperative we seek to build broad consensus on norms of behavior and responsible operations in space in order to secure safe, stable and peaceful use, and preserve that use for future generations. It is my belief that this volume is intended for that purpose, and my hope that it will be used to that end.
The opinions expressed are those of the author and should not be construed as carrying the official sanction of the Department of Defense, Department of the Air Force, U.S. Space Force, or other agencies or departments of the U.S. government or their international equivalents.
David D. Thompson, Lieutenant
General United States Space Force
Editors and Contributors
Editors
Cassandra Steer is Lecturer in Space Law at the Australian National University (ANU), a Mission Specialist with the ANU Institute for Space, and a consultant specializing in space security and space law. Formerly she was Acting Executive Director at the University of Pennsylvania’s Center for Ethics and Rule of Law, Executive Director of Women in International Security-Canada, and Executive Director of the McGill Institute of Air and Space Law. She has a degree in philosophy from the University of New South Wales, and her law degrees and PhD from the University of Amsterdam, where she was also a lecturer and Associate Professor. Currently she is Associate Expert on the Woomera Manual on the International Law of Military Space Operations. She has also been a consultant to military lawyers in the Canadian Judge Advocate General’s Office and to the U.S. Department of Defense on these issues. She is author of the book Translating Guilt: Identifying Leadership Liability for Mass Atrocity Crimes (Springer, 2017), and several articles on international criminal law, the law of armed conflict, and space law (cassandra.steer@anu. edu.au).
Matthew Hersch is an Associate Professor of the History of Science at Harvard University specializing in the history of aerospace technology. He received his JD from New York University and his PhD in the History and Sociology of Science from the University of Pennsylvania, where he later taught in the School of Arts and Sciences and the School of Engineering and Applied Science. He has held fellowships in history and space technology with the Smithsonian Institution’s National Air and Space Museum, NASA, the University of Southern California, and Columbia University, and is the author of Inventing the American Astronaut (Palgrave Macmillan, 2012), and the co-author, with Ruth Schwartz Cowan, of A Social History of American Technology (Oxford, 2017) (hersch@fas.harvard.edu).
Assistant Editor
Kiernan McClelland is a PhD student in Political Science at Carleton University working under the supervision of Dr. Elinor C. Sloan. Kiernan’s research focuses on the strategic application of space power by Canada in the 21st century, the impact of anti-satellite technologies on modern military strategy, and the politics of planetary defense and planetary colonization. Kiernan has a Bachelor of Arts from Carleton University, and Master of Strategic Studies from the Centre for Military, Security and Strategic Studies at the University of Calgary (kiernanmcclelland@cmail.carleton.ca).
Contributors
P.J. Blount is a postdoctoral researcher in the Faculty of Law, Economics, and Finance at the University of Luxembourg and an adjunct professor in the LLM in the Air and Space Law at the University of Mississippi School of Law. He received his MS and PhD in Global Affairs from Rutgers University, his LLM in Public International Law from King’s College London, and his JD from the University of Mississippi School of Law. He served as a Visiting Scholar at the Beijing Institute of Technology School of Law for the Fall of 2017. He has published and presented widely on the topic of space security law and has given expert testimony on space traffic management before the U.S. House of Representatives Subcommittee on Space. Blount serves as the co-editor-in-chief of the Proceedings of the IISL and was a formerly editor-in-chief of the Journal of Space Law. Additionally, he sits on the Board of Directors of the International Institute of Space Law. He is a member of the State Bar of Georgia (pjblount@gmail.com).
Gilles Doucet is the President of Spectrum Space Security Inc., with expertise in satellite technologies, military space applications, space systems security assessments, international space security cooperation and governance (national and international). With over 35 years’ experience working with the Canadian Department of National Defence, he is a specialist in analytical methods and scientific analysis methodologies for military space applications, space security policy, legal and regulatory concerns, He holds a Graduate Certificate of Air and Space Law, from McGill University, and a BASc and MASc (Mechanical Engineering), from the Université d’Ottawa. Gilles is part of the Technical Experts Group for the Manual of International Law Applicable to Military Use of Outer Space. He is on the Legal Advisory Council of the non-profit foundation For All Moonkind, which advocates for the preservation of human cultural heritage in outer space (gillespdoucet@gmail.com).
Laura Grego is a senior scientist in the Union of Concerned Scientists’ Global Security Program, focuses her analysis and advocacy on the technology and security dimensions of ballistic missile defense and of outer space security. She has authored or co-authored numerous papers on a range of topics, including cosmology, space security, and missile defense, and is a technical advisor for the Woomera Manual on the International Law of Military Space Operations. She has testified before Congress and addressed the United Nations General Assembly and the United Nations Conference on Disarmament on space security issues and serves as an expert for print, radio, and television news. Before joining UCS, Grego was a postdoctoral researcher at the Harvard-Smithsonian Center for Astrophysics. She earned a doctorate degree in experimental physics at the California Institute of Technology and a BS in physics and astronomy at the University of Michigan (LGrego@ucsusa.org).
Peter L. Hays retired from the Air Force, supports the Secretary of the Air Force in the Pentagon, and is directly involved in developing and implementing major national security space policy and strategy initiatives. Professor Hays currently teaches graduate seminars at George Washington University, serves as the Space Chair at Marine Corps
University (MCU), and teaches seminars at the MCU School of Advanced Warfighting. He previously taught at the Air Force Academy, Air Force School of Advanced Airpower Studies, and National Defense University. Hays holds a Ph.D. from the Fletcher School and was an Honor Graduate of the Air Force Academy. Major publications include: Handbook of Space Security, Space and Security, and Toward a Theory of Spacepower (hayspl@gwu. edu).
Theresa Hitchens is a Senior Research Associate at the Center for International and Security Studies at the University of Maryland (CISSM), where she focuses on space security, cyber security, and governance issues surrounding disruptive technologies. Prior to joining CISSM, Hitchens was the director of the United Nations Institute for Disarmament Research (UNIDIR) in Geneva, and before that she was the Director at the Center for Defense Information, where she headed the center’s Space Security Project. She was also previously Research Director of the Washington affiliate of the British American Security Information Council (BASIC), where she managed the organization’s program of research and advocacy in nuclear and conventional arms control, European security and North Atlantic Treaty Organization (NATO) affairs. She has several publications on space security and holds a Bachelor of Science in journalism from Ohio University in Athens, Ohio (theresa.hitchens0@gmail.com).
Joan Johnson-Freese is a Professor and former Chair in the National Security Affairs Department at the Naval War College (NWC), where she also holds the Charles F. Bolden, Jr. Chair of Science, Space & Technology. In the capacity of a faculty member she teaches Security Studies and Regional Security to US military officers and security practitioners from the United States and over 50 other countries. Her research focuses on space security, Professional Military Education (PME) and Women, Peace & Security. She is the author of seven books on space security, the most recent (2016) Space Warfare in the 21st Century: Arming the Heavens, and over 100 published articles, many with a particular focus on the Chinese space program. She was a member of the Space Studies Board of the National Academies of Science from 2005–2013, has testified before Congress on space topics on multiple occasions, and regularly works with the media on space issues, including: The New York Times, Time, Popular Science, Popular Mechanics, ABC, CBS, NBC, CNN, and The Discovery Channel (joanjohnsonfreese@gmail.com).
Icho Kealotswe-Matlou is an independent legal and policy expert in space law. An admitted Advocate of the High Courts of South Africa and Botswana. She is a member of the Johannesburg Bar Council and the Botswana Law Society. Icho researches, writes and speaks frequently at academic and professional conferences. She is currently a nominated member of the Policy and Legal Committee of the South African Council for Space Affairs (SACSA). She recently served as co-drafter and reviewer of the book Global Space Governance: An International Study, released in 2018 by Springer. Icho is also a member of the International Institute of Space Law (IISL) and presides yearly over the Manfred Lachs Space Law Moot Court Competitions (African Region) since 2015 (ichomatlou@ gmail.com).
Paul Meyer is a Senior Fellow in Space Security at The Simons Foundation Canada as well as Adjunct Professor of International Studies at Simon Fraser University in Vancouver. A former career diplomat with Canada’s Foreign Service he served as Ambassador and Permanent Representative to the United Nations and Conference on Disarmament in Geneva (2003-07) and as Director-General of the Security and Intelligence Bureau of the Canadian Department of Foreign Affairs until his retirement in 2010. He serves on the Governance Group for “Space Security Index” an annual publication covering developments in outer space relevant to space security (pmeyer@sfu.ca).
Jana Robinson is currently Space Security Program Director at the Prague Security Studies Institute (PSSI). She previously served as a Space Policy Officer at the European External Action Service (EEAS) in Brussels, as well as Space Security Advisor to Czech Foreign Ministry. From 2009 to 2013, she worked at the European Space Policy Institute (ESPI), seconded from the European Space Agency (ESA). Dr. Robinson is a member of the International Academy of Astronautics (IAA), the International Institute of Space Law (IISL), and the Advisory Board of CSIS Missile Defense Project. Author of over 30 publications, including co-editor of 2015 Handbook of Space Security published by Springer (çjrobinson@pssi.cz).
Kenneth Smith is a Lieutenant Colonel in the United States Air Force, and the Materiel Leader and Program Manager for the Enhanced Polar System satellite acquisition program at the Space and Missile Systems Center, Los Angeles Air Force Base, California. Prior to his current assignment, Lt. Col. Smith attended the College of Naval Command and Staff, Naval War College, Newport, Rhode Island where he earned a Master of Arts degree in Defense and Strategic Studies as well as a graduate certificate in Ethics and Emerging Military Technology. He earned an MBA from UCLA Anderson School of Management prior to serving as an Assistant Professor for Marketing Analysis in the Department of Management at the U.S. Air Force Academy, Colorado Springs, Colorado. Lt. Col. Smith has satellite operations experience with the 4th Space Operations Squadron, Schriever AFB, Colorado, and has satellite acquisition experience with the Space Based Infrared System, Overhead Persistent Infrared programs, and military satellite communications special projects at the Space and Missile Systems Center, Los Angeles Air Force Base, California (kenny.smith45@gmail.com).
Dale Stephens is a Professor of Law at the University of Adelaide Law School. He is a former Naval Legal Officer. His operational deployments include East Timor and Iraq. He has been awarded the Conspicuous Service Medal (CSM), the (US) Bronze Star and the (US) Meritorious Service Medal. He attained the rank of Captain in the Royal Australian Navy before transferring to the Reserve in 2013. Professor Stephens holds both a Masters degree (LL.M) and Doctorate (SJD) from Harvard Law School. He is currently Director of the Adelaide Research Unit on Military Law and Ethics and Head of the SA/NT Navy Legal Panel. He is a fellow of the Australian Academy of Law (dale.stephens@adelaide. edu.au)
Editors and Contributors
Matthew Stubbs is Associate Professor and Deputy Dean of the University of Adelaide Law School and Editor in Chief of the Adelaide Law Review. Matthew is a member of the International Institute of Space Law, and serves as a Core Expert of the Woomera Manual on the International Law of Military Space Operations. His professional activities include being Chair of the Space Law and Human Rights Committees of the Law Society of South Australia and member of the National Human Rights Committee of the Law Council of Australia. Matthew is privileged to serve as a Legal Officer in the Royal Australian Naval Reserve (matthew.stubbs@adelaide.edu.au).
Jinyuan Su is Professor and Assistant Dean at Xi’an Jiaotong University School of Law, China. His research interests lie in outer space law, the law of the sea, and international aviation law. Dr. Su holds a PhD in International Law from Xi’an Jiaotong University. He was an Erin J.C. Arsenault Fellow (2014–2015) at the McGill Institute of Air and Space Law, a visiting research fellow (2009–2010) at the Lauterpacht Centre for International Law, University of Cambridge, and a visiting scholar (2008–2009) at School of Law, King’s College London. Dr. Su is a member of Governance Group of the Space Security Index (SSI), a lead drafter for the McGill project of Global Space Governance (GSG), a core expert in the project of Manual of International Law Applicable to Military Uses of Outer Space (MILAMOS), and a member (2016–2018) of the Global Future Council on Space Technologies of the World Economic Forum (WEF).
Why Space Law Matters in War and Peace
Matthew Hersch and Cassandra Steer
For the last three-quarters of a century, humanity has been a spacefaring civilization, capable of building machines and sending them on voyages beyond Earth’s atmosphere for good or ill. The individuals who built the first vehicles that could travel into space—liquid-fuel bipropellant rockets—were motivated both by a desire to explore and by an equally urgent desire to use the environment of space to wage war. Efforts to use space technology and the space environment to attack and to defend against attack have been present from the earliest experiments in spaceflight, yet spacefaring nations have traditionally approached the subject of warfare in space with judicious concern. A theater of battle unlike any other, the space environment, especially in Earth orbit, imposes demands on combatants and risks to combatants and noncombatants alike, that challenge diplomats, policymakers, and military leaders in profound ways.
This volume examines the legal, policy, and ethical issues animating current concerns regarding the growing weaponization of outer space and the potential for a space-based conflict in the very near future. A collection of diverse voices rather than the product of a single scholarly mind, it builds upon a conference that was held in Philadelphia in April 2018, hosted by the Center for Ethics and the Rule of Law, at the University of Pennsylvania Law School, and designed by co-editor Cassandra Steer. The conference was an exceptionally high-level invitation-only roundtable for the duration of two days, attended by approximately thirty experts on space warfare from Canada, Europe, and the United States. The majority of the contributing authors in this volume attended the conference, among them academics, military lawyers, military space operators, aerospace industry representatives, diplomats, and national security and policy experts. This was a unique gathering of international and interdisciplinary expertise on a topic that is often only discussed in the context of specific government departments, or within the limits of specific disciplines. Participants were unanimous that they benefited from the exchange of perspectives and knowledge, and we hope to have captured this in the volume before you. Authors who attended the conference have made direct use of
Matthew Hersch and Cassandra Steer, Introduction In: War and Peace in Outer Space. Edited by: Cassandra Steer and Matthew Hersch, Oxford University Press (2021). © Oxford University Press. DOI: 10.1093/oso/9780197548684.003.0001
the outcomes from discussions during the conference for the content of their chapters. Those authors who were not in attendance were briefed on the intention and outcome of the conference and were invited to contribute because of their unique perspectives and expertise.
The History of War in Space
Like the history of space exploration itself, the history of space warfare is one in which decades of theorizing as to the possibilities and challenges it would present preceded the development of the machines necessary to undertake it. Long before space vehicles flew, science fiction authors conjured scenes of violent space battles, but it was the geopolitical competition during and after World War II that spurred the development of the first rockets and space vehicles.
Despite the promises made by inventors, early rocket weapons seldom lived up to the most optimistic projections of their utility. Rocket bombardment weapons were already commonplace in Asia by 1000 ce and became part of the arsenal of many Western powers by the nineteenth century, but remained difficult to use, due primarily to the lack of any means of guiding them to their targets during their flight and the meager power of their solid propellants (the same combination of charcoal, sulfur, and potassium nitrate that powered early firearms). Such vehicles could not generate the thrust to enable humans to successfully navigate space or wage war through it, but their insufficiency did not prevent scientists and popular writers from hypothesizing about the role they still might play in future conflicts. At the turn of the twentieth century, theoretical and experimental work on liquid-fuel rocketry presented researchers with an even more powerful technology: one that might produce rockets with the thrust to send weapons and people into space.
One of the central ironies of the development of space technology is that many of the researchers most enthusiastic about peaceful exploration of the cosmos labored throughout their lives to enlist military organizations in their efforts to create it. Enthused by the science fiction novels of Jules Verne and other writers, rocket theorists during the first half of the twentieth century planned the construction of spacefaring vehicles based upon rocket technology while offering rocket weapons to national military organizations, virtually the only entities wealthy enough to support such research. During the late 1930s and early 1940s, Robert Goddard and Frank Malina in the United States, Herman Oberth and Wernher von Braun in Germany, and Sergei Korolev in the Soviet Union theorized about the civilian space exploration while attempting to raise funds for these expeditions by offering their nations weapons systems employing the
same components: rockets, guidance systems, and radio control.1 In most cases, they were unsuccessful: as weapons of war, rockets were fanciful technologies that had only limited use through World War II, modestly useful in particular circumstances but never the war-winning technologies their designers had hoped them to be.
The most influential peddler of rocket weapons, von Braun, succeeded in fielding several liquid-fueled military devices employing rocket motors, the most famous of which, the Aggregate-4 (A4, later Vengeance Weapon Two, or V2), could lob a ton of high-explosive two hundred miles with poor accuracy.2
A ballistic missile, it accelerated briefly at launch, coasting in an arc to the edge of space before striking its target, and relying upon gravity alone to guide it during its descent. Built by slave labor and launched by the thousands, the missiles likely hastened Nazi Germany’s defeat, soaking up resources and fuel badly needed to sustain Germany’s war machine and causing little damage to Allied forces or targets of strategic importance.3 The advent of nuclear weapons at the time of the V2’s development, though, offered a glimmer of a new weapon that would combine the V2’s range with the city-destroying power of the atomic bomb, making long-distance rocket bombardment and flight into space a potentially central element in future defense planning, though building a nuclear-armed rocket capable of long-range flight would take another ten years.
Ballistic rocket weapons like the V2 could fly high enough to briefly exit Earth’s atmosphere4 but could never achieve the speed necessary to fly across a continent or an ocean. So great was the velocity needed that a rocket achieving it could not only strike other countries halfway around the world but could, if it climbed high enough, accelerate its payload with sufficient speed to place it into orbit, perpetually falling around the curvature of the Earth’s surface without the need for further propulsion. As early as 1946, American defense planners recognized that the race to build nuclear missiles and the race to orbit a spacecraft were essentially the same, although it was not clear, at first, which application of rocket technology held more military promise. Nuclear weapons appeared, at first, too heavy to lift by rocket, while, in the absence of reliable long-range radio communications, orbiting platforms seemed to offer limited military utility.5
1 See generally Michael J Neufeld, Spaceflight: A Concise History (2018); Roger D Launius, NASA: A History of the U.S. Civil Space Program (1994).
2 See generally Michael J Neufeld, Von Braun: Dreamer of Space, Engineer of War (2007).
3 Id.
4 The Fédération Aéronautique Internationale recognizes the altitude of 100 km (62 miles) as the effective outer boundary of Earth’s atmosphere, though other calculations have placed this line closer to 50 miles, and significant atmospheric traces remain beyond the 62-mile limit.
5 J.E. Lipp, R.M. Salter Jr., & R.S. Wehner, Utility of a Satellite Vehicle for Reconnaissance 1 (1951).
Fueled by postwar superpower competition in the early years of the Cold War, research in the United States and the Soviet Union (soon followed by an array of other nations) set to work on solving these problems and building missiles suitable for both lobbing nuclear warheads across oceans and launching instrumented platforms into orbit around the Earth. Researchers increased the speed and range of rockets, in part, by stacking them atop or alongside each other and firing them in series. Some rocket pioneers, like Goddard, did not live long enough to see spacefaring rockets emerge; others, like Malina, abandoned military rocket research after World War II for moral reasons. (“I just hated the idea of, say, planning to use all this for bombarding people. So there’s no doubt that that played a heavy role,” Malina noted of his rocket research in a 1980 interview.)6 Korolev, in the Soviet Union, found himself the subject of political denunciation imprisonment during the war, only to be rehabilitated when his skills became valuable in the postwar quest to field large rocket weapons. Immediately preceding the Soviet Union’s successful launch of the first artificial Earth satellite, Sputnik 1, on October 4, 1957, the Soviets undertook a partially successful test of Sputnik’s launch vehicle, Korolev’s R.7, configured as an intercontinental ballistic missile (ICBM).7 American Atlas ICBM launches followed in 1958.8
With the subsequent successful launching of orbiting satellites of everincreasing sophistication, attention in both the United States and the Soviet Union shifted from conceptualizing rockets principally as a bombardment technology, to recognizing their ability to launch valuable instrumented platforms into orbit. With the advent, by the 1960s, of both nuclear-armed missiles with intercontinental reach, and an array of orbiting, remotely controlled satellites eventually able to observe enemy territory, predict weather, and facilitate communications among terrestrial military forces, the space environment had become a potential battleground itself, filled with expensive military assets whose loss could cripple a nation’s offensive and defense capabilities. In the United States, politicians and the media seized upon the notion of the “high ground” of space, likening it as Senator (and future President) Lyndon Johnson did, in 1958, to a highway overpass, from which nations might observe their enemies, coordinate their forces, and, supposedly, lob nuclear weapons upon adversaries as easily as children might hurl stones onto passing cars:
6 Frank J. Malina, Interview with Frank J. Malina (1980), 14, <http://resolver.caltech.edu/ CaltechOH:OH_Malina_F> (accessed Oct. 23, 2017).
7 Asif A Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945–1974 (National Aeronautics and Space Administration, NASA History Division, Office of Policy and Plans, 2000).
8 E.g., United States Aeronautics and Space Activities Annual Report to Congress (NASA Original Version), published as House Document Number 71, 86th Congress, 1st Session, Feb. 2, 1959, 13.
There is something more important than any ultimate weapon. That is the ultimate position—the position of total control over Earth that lies somewhere out in space. That is . . . the distant future, though not so distant as we may have thought. Whoever gains that ultimate position gains control, total control, over the Earth, for the purposes of tyranny or for the service of freedom.9
Comparisons between the space environment and other battle environments were, however, always strained, none more so than the “highway overpass” analogy. Space vehicles required inordinate amounts of rocket propellant to achieve a stable orbit, and once they did, virtually the same amount of fuel to change it, making such concepts as space fighter plane or space bomber almost nonsensical with current propulsion technology. Nor was space an optimal bombardment platform. Warheads released from orbit would not descend to Earth but continue in their orbital path. To return to the surface, a warhead would need to be decelerated by a rocket and descend low enough to pass through Earth’s atmosphere at high speed, a process that would not occur quickly and could not be performed with sufficient accuracy to ensure the warhead struck when and where it was supposed to. As will be discussed in full detail in chapter 2 [Hitchens] and chapter 7 [Su], the 1967 UN Outer Peace Treaty banned the placement of space-based weapons of mass destruction in Earth’s orbit and on the moon, a relatively easy concession to make for technology of limited military utility. The use of Earth orbit (or in an even more odd contemporaneous plan, the moon) as a platform to launch nuclear weapons never materialized for practical reasons, but over time, the value of military satellites to peacetime and wartime military operations has led to concerns for a potential space warfare, since it was already apparent that these satellites would be likely targets for future attack from the ground, air, or space environment.
The capacity to destroy both ICBMs and satellites in orbit arrived early in the first Space Age but found no operational use for reasons both technical and political. Ballistic missiles and orbiting satellites follow predictable paths easily identified by radar and already plotted by early computers. In space, nuclear weapons would produce neutron and X-ray radiation that would destroy electronics and shatter the fragile structure of early warheads. Launched quickly enough and pointed in the right direction, one missile could easily destroy another, by detonating a nuclear weapon close enough to it to damage or detonate the warhead of the target missile. Satellites, too, could be disabled in this way: the intercepting vehicle would not need to match the satellite’s speed, only place itself close
9 “Speech to Democratic Congressional Conference, January 7, 1958,” reproduced in Lloyd C. Gardner, From the Colorado to the Mekong, in Vietnam: The Early Decisions 37–57, 50 (Lloyd C. Gardner & Ted Gittinger eds., 1997).
enough to it for the instant required to detonate its warhead. If the interceptor were able to approach the target close enough, a conventional fragmentation warhead would easily disable it.10
By 1963, both the United States and the Soviet Union had developed (but did not deploy) weapons capable of disabling objects in space, either by matching the orbit of the target and then disabling it with a conventional explosive or fragmentary warhead (in the case of the earliest Soviet interceptor, the V-1000),11 or ascending to an intercept trajectory and disabling with a nuclear warhead (the Nike-Zeus, tested successfully with a dummy warhead). The effect of such weapons in space is impossible to contain, as the 1962 Starfish Prime test proved, in which the United States exploded a 1.4-megaton hydrogen bomb at an altitude of 248 miles and disabled at least six satellites, including British, American, and Soviet TV broadcast and telecommunications satellites.12 Thus, wary of an arms race to develop weapons that would destroy a vital and increasingly useful technology, impacting both sides as well as allies, neither superpower rushed to field these devices.
During the 1960s, there was a controversy surrounding antimissile weapons: such systems would require the detonation of large numbers of nuclear weapons over U.S. soil in order to work, could be easily fooled by countermeasures, and might destabilize the balance of power between the United States and the Soviet Union sufficiently to encourage preemptive war. American arms negotiators concluded that a defensive system that allowed any nation to defend itself fully against attack would likely undermine confidence in the concept of mutually assured destruction that had been the basis for postwar peace between East and West since 1949.13 As further discussed in chapter 10 [Doucet], in 1972, the Strategic Arms Limitation Talks led to a treaty between the United States and the Soviet Union (since abrogated), which all but banned antiballistic missile weapons, which were fielded in limited numbers in the 1970s before being withdrawn.14
While work on missile defense ebbed and flowed, research continued on techniques for defending militarily valuable space assets from attack and denying the use of the assets of other nations. Development in the United States of the
10 Bell Labs, ABM Research and Development at Bell Laboratories, Project History (Oct. 1975).
11 ABM and Space Defense (Mar. 3, 2016), <https://web.archive.org/web/20160303165344/http:// fas.org/spp/starwars/program/soviet/990600-bmd-rus.htm> (accessed Mar. 1, 2020).
12 James Moltz, Crowded Orbits: Conflict and Cooperation in Space 119 (2014).
13 Bell Labs, supra note 10, at I–26. See generally Lawrence Friedman, The Evolution of Nuclear Strategy (1987).
14 Interim Agreement Between the United States of America and the Union of Soviet Socialist Republics on Certain Measures with Respect to the Limitation of Strategic Offensive Arms, signed at Moscow, May 26, 1972 (SALT I).
space shuttle, an orbital space plane designed to rendezvous with and service satellites in orbit, alarmed Soviet planners concerned about the inspection and capture of its most valuable satellites.15 The Soviet Union experimented briefly with military space stations armed with defensive canons repurposed from Soviet military aircraft, although few were fielded.16 This is because while firearm ammunition contains the fuel and oxidizer to combust in a vacuum, traditional firearms operate poorly in space without air or water to cool them, quickly overheating. Self-destruction mechanisms for satellites also seemed of limited use; in the worst-case scenario, a nation might be tricked into destroying its own satellites to prevent their inspection or capture. In the United States, meanwhile, research increasingly turned away from nuclear warheads as weapons for destroying satellites to small, highly maneuverable vehicles capable of destroying satellites through high-speed impact. The experiments produced a small, multistage interceptor rocket, dropped at high altitude from a fighter plane, that was successfully tested in the United States in 1985,17 and a sea-launched missile tested on a low-orbiting satellite in 2008.18 These tests and their impact upon space policy and law are further detailed by Doucet in chapter 10 [Doucet].
The ability to disrupt the satellite of another nation is available to virtually any nuclear-capable spacefaring power, but tests of antisatellite vehicles have not yet produced a widely deployed weapon of real value. Tests in which the United States and the Soviet Union destroyed their own satellites in orbit did not eliminate them so much as fragment them, replacing a single controllable craft with a cloud of fast-moving debris so large that it was likely to disable other satellites, both friendly and hostile. In 2007, the People’s Republic of China conducted a test of its antisatellite (ASAT) missile, destroying a Chinese satellite orbiting five hundred miles above the Earth and producing approximately a million pieces of debris.19 In the lowest stable Earth orbits, between one hundred and three hundred miles in altitude (where piloted spacecraft and most reconnaissance satellites operate), residual nitrogen and oxygen molecules would cause enough
15 Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945–1974 (National Aeronautics and Space Administration, NASA History Division, Office of Policy and Plans, 2000), 835–6.
16 Id. 594, 597; Anatoly Zak, Here Is the Soviet Union’s Secret Space Cannon, Popular Mechanics (Nov. 16, 2015), <https://www.popularmechanics.com/military/weapons/a18187/here-is-thesoviet-unions-secret-space-cannon/> (accessed Mar. 1, 2020).
17 B. Keller, Air Force Missile Strikes Satellite in First U.S. Test, New York Times (Sept. 14, 1985), <https://www.nytimes.com/1985/09/14/us/air-force-missile-strikes-satellite-in-first-us-test.html> (accessed Apr. 20, 2020).
18 Navy Hits Satellite with Heat-Seeking Missile, Space.Com (Feb. 21, 2008), <https://www.space. com/5006-navy-hits-satellite-heat-seeking-missile.html> (accessed Apr. 20, 2020).
19 NASA, Fengyun-1C Debris: One Year Later, Orbital Debris Quarterly News, 3 (Jan. 2008), <https://orbitaldebris.jsc.nasa.gov/quarterly-news/pdfs/odqnv12i1.pdf> (accessed Apr. 20, 2020), in P.J. Blount, Targeting in Outer Space: Legal Aspects of Operational Military Actions in Space, Harvard National Security Journal Features 1, 18 (2012).
friction to slow debris particles enough to eventually re-enter the atmosphere. Above this altitude though, screws, nuts, and even flecks of paint, traveling at 18,000 miles per hour, would become bullets capable of puncturing anything in their path. At higher altitudes, debris from a satellite’s destruction might remain in orbit for hundreds or even thousands of years. Were this debris to strike other satellites, or even other pieces of existing debris, a cascading series of explosions (described first by NASA scientist Donald Kessler in 1978)20 would produce a cloud of debris sufficient to deny use of Earth orbit to all spacecraft virtually forever. Much like poison gas in World War I, use of antisatellite weapons might harm one’s own forces and one’s own interests as much as those of the enemy. The impact of the Chinese test, and more recently India’s ASAT test, are discussed from various perspectives by Steer and Stephens in chapter 1 [Steer and Stephens], Su in chapter 7 [Su], Doucet in chapter 10 [Doucet], and Grego in chapter 11 [Grego]. In light of these concerns, recent attention has turned to various means of approaching, inspecting, and disabling satellites without destroying them, through the use of maneuverable orbital vehicles and directed energy weapons capable of blinding or stunning the craft and rendering them in operative temporarily or permanently. And the technology to do so continues to proliferate and will soon be within reach of all spacefaring powers—nations that have developed Earth orbit launch capability—a group that has expanded to include over a dozen countries around world.21 The legality of various forms of antisatellite technologies is discussed in chapter 7 [Su] by Su, while Doucet in chapter 10 [Doucet] offers a possible solution to the challenge of drafting international agreements which limit the undesirable consequences of such technologies for all users of space.
A Critical Moment
Historically, strategic restraint has been the dominant approach among nations active in space, all of whom understood that continued access to and use of space
20 Donald J. Kessler & Burton G. Cour-Palais, Collision Frequency of Artificial Satellites: The Creation of a Debris Belt, 83 Journal of Geophysical Research 63 (1978).
21 The first nations to develop indigenous satellite launch capability were the USSR (1957), the United States (1958), France (1965), Japan (1970), China (1970), Great Britain (1971), the European Space Agency (representing Western European powers) (1979), India (1980), Israel (1988), Iran (2009), and North Korea (2012). See, e.g., Spacefaring Japan—First Nations to Launch Satellites, <http://www.spacetoday.org/Japan/Japan/FirstSat.html> (accessed May 17, 2020). In addition, several nations achieved orbital launch capability through importation of foreign launch vehicles or in joint development programs with spacefaring powers, including Canada (1962), Italy (1964), France (1965), Australia (1967), and New Zealand (2018), while the dissolution of the USSR created additional spacefaring powers in Russia and Ukraine. Additional States possess suborbital space launch capability or are acquiring orbital capabilities.
required holding back on threats or activities which might jeopardize the status quo of peace in space. However, recently there has been a discernible shift in international rhetoric toward a more offensive approach to defense in space, and a number of recent developments render this issue both timely and important. First, as mentioned, China, India, Russia, and the United States have deployed various tests in space, leading to speculation that they all possess sufficient ASAT capabilities such as jamming devices, malware, kinetic antisatellite weapons, and laser weapons, each of which could have devastating consequences. These tests suggest that there is an increasing tendency toward weaponization of space, despite the core principle of the 1967 Outer Space Treaty that space shall be used exclusively for peaceful purposes. In response, a discernable active stance toward space defense has entered the policy rhetoric of India, Israel, Japan, and the United States in recent years.
Second, the announcement in 2018 of plans to create a dedicated U.S. Space Force sparked instant responses from allied and competing nations alike. China and Russia in particular condemned the move as threatening peace and security in space. In 2019, President Emmanuel Macron announced that France will create a Space Force Command within its Air Force to “reinforce our knowledge of the situation in space, [and] better protect our satellites, including in an active manner.”22 Japan has also joined the ranks of those nations pouring more of their defense budget and resources into space.23 And since the official creation of the U.S. Space Force in 2019, and the attention given in the media to the creation of its logo, public awareness of the importance of space for security and the tensions surrounding military dominance in space has increased. These issues are all elaborated in chapter 6 [Hays] by Hays, who provides an exceptional in-depth discussion of questions facing the new Space Force, both doctrinal and practical, and in Johnson-Freese and Smith’s contribution in chapter 5 [Johnson-Freese and Smith], where the authors tackle the ethical issues of seeking space dominance. For some years now, various departments of the U.S. armed forces and the Department of Defense have undertaken assessments to determine the current and prospective role of the United States in space security, including whether and how the United States can gain dominance in the space domain, a position that raises concerns internationally. Perhaps as a counterweight to the U.S. approach of military dominance, in chapter 9 [Robinson] Robinson analyzes alternative international attempts to dominate the space sector by various competing powers and what should be done to limit these attempts.
22 Macron Announces Creation of French Space Force, France24 (July 13, 2019), <https://www. france24.com/en/20190713-macron-france-space-force> (accessed Apr. 20, 2020).
23 Japan Eyes New Defense Unit to Monitor Space in Fiscal 2020, Japan Today (Aug. 24, 2019), <https:// japantoday.com/ category/ national/ japan- eyes- new- defense- unit- to- monitor- space- infiscal-2020> (accessed Aug. 29, 2019).
Third, there is a geopolitical standoff on negotiating new international instruments regarding space security, the weaponization of space, or the use of force in space, as detailed in chapters by Kealotswe-Matlou, Hitchens, Su, and Doucet. The joint proposal by Russia and China, for a Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects (PPWT),24 has not received any support from Western States, including the United States. The 2019 meeting of the UN Group of Government Experts to discuss a possible treaty to prevent space weaponization did not amount to any concrete outcomes and was impacted in particular by the refusal of the United States to support such an initiative, as Hitchens, Kealotswe-Matlou, and Su explain from various international perspectives in their contributions to this volume. The UN General Assembly has adopted a resolution on “No First Placement of Weapons in Outer Space,” urging States to make binding, unilateral declarations that they will not be the first to place a weapon in outer space,25 however, as Su analyzes in his chapter, States are slow to respond. Moreover, negotiations surrounding a nonbinding International Code of Conduct for Outer Space Activities (ICoC) also reached an apparent stalemate following unsuccessful meetings in New York in 2016, despite hopes that this would become a key instrument in international space governance. Doucet, Meyers, and Kealotswe-Matlou urge the international community not to give up on such initiatives in their chapters, though their proposed solutions differ. These factors, combined with a lack of transparency about actual capabilities and intentions on the part of all major players in space, creates a cyclical escalation which has led some commentators to describe this as a return to a Cold War–type arms race and to the foreseeability of a space-based conflict. This is the quandary that Grego tackles in her excellent analysis of crisis management in space. Due to many unique characteristics of the space domain, an armed conflict in space would be catastrophic for all players, including neutral States, commercial actors, and international civil society. Yet it is the most technologically advanced States that stand the most to lose from a space-based conflict due to their high dependence on space. The questions then arise, how can the United States and its allies protect their space assets from being targeted, without contributing to further escalation of an arms race, to increased aggressive policy threats, or to the potential of a space-based conflict? What would ethical leadership require of the United States? Meyers argues for the need for more multilateral space diplomacy, and Kealotswe-Matlou is convinced that a dedicated
24 Draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects, Conference on Disarmament, CD/1895, June 12, 2014, GE.14-05066.
25 No First Placement of Weapons in Outer Space, GA Res. 69/32 (Dec. 2, 2014).
international body is needed to play this role. Where Blount provides an original analysis of the ethical components of the Outer Space Treaty and the ways in which we must adhere to these principles moving forward, Johnson-Freese and Smith argue that dominance in space is not achievable and should be the policy of any single nation.
There is a critical need for clear representations from States as to their position on national and international law applicable to space and well-informed policy positions on the emerging weaponization of space. Due to the specificity of the space domain, specialized expertise must be provided to decision makers, and interdisciplinary opinions must be sought from a multitude of stakeholders. Finding answers to these questions requires interdisciplinary engagement and collaboration, not only among substantive experts in different fields but also between public agencies and private commercial entities. To that end, authors included in this volume represent a wide spectrum of participants in the space sector, including academics, legal practitioners, military lawyers and operators, diplomats, and policy advisers.
Unique to this collection is the emphasis on questions of ethical conduct and legal standards applicable to military uses of outer space. No other existing publication takes this perspective, nor includes such a range of interdisciplinary expertise. In addition, the exceptional experience and expertise of the authors provide a collection unmatched in any academic publication broaching even some of these issues. We believe that the volume is therefore unique, valuable, and timely.
Scope of the Study
The chapters included in this volume explore the moral and legal issues discussed earlier in four major categories, as outlined in the four parts of the volume. The parts build upon each other in two ways: from general to specific, and from theory to practice. The first part provides a more general legal framework; the second tackles ethical issues; the third looks at specific threats to space security; and the fourth proposes possible legal and diplomatic solutions. In the following descriptions of each part, the specific expertise of each contributing author is highlighted.
The Law of War and Peace in Space
To date, the core principles of the 1967 Outer Space Treaty, that space must be used exclusively for peaceful purposes and that all space activities must be
