Does the U.S. Space Force Violate the Outer Space Treaty?

The National Institute of Standards and Technology estimates the economic benefit of the space-based Global Positioning System (GPS) for private sector use between 1984-2017 at $1.4T.[1] By some estimates, Newspace, the private spaceflight industry, will be worth another trillion dollars by the 2040s.[2] Despite or perhaps because of its enormous space interests, America has stated that space war is inevitable.[3] To protect those interests, the United States created the U.S. Space Command in 1985.[4] In 2002, U.S. Space Command integrated with U.S. Strategic Command.[5] And on December 20, 2019, U.S. President Donald Trump’s 2020 National Defense Authorization Act, converting U.S. Space Command into the U.S. Space Force, a discrete geographic combatant command and the sixth branch of the United States military.[6] The Space Force is meant to be “consistent with applicable law, including international law.”[7] Governing space law is premised upon the exploration and use of space strictly for peaceful purposes.[8] Conversely, part of the U.S. Space Force’s purpose is to project “military power in, from, and to space…”[9] Is the Space Force actually illegal?

Space-race sabre-rattling between the United States and Russia in the 1960s resulted in the creation of the dominant treaty governing space law, the 1966 United Nations Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, better known as the Outer Space Treaty (OST).[10] Guided by treaties governing the exploration and use of similarly harsh, terrestrial environments like the high seas and Antarctica, the OST declares outer space the province of all mankind and calls for cooperative use of outer space for peaceful purposes.[11] Like the Antarctica Treaty of 1959, which suspended claims of sovereignty in the Antarctic, the OST similarly precludes claims of sovereignty in space.[12] The elimination of sovereignty precludes national appropriation of space objects, natural resources found in space, and celestial bodies.[13] The restriction is meant to deter a space race motivated by national superiority, which would be inimical to the spirit of the OST.[14]

The OST is a shining example of diplomacy between competing states with vastly different agendas.[15] However, the diplomatic process resulted in ambiguities that are resolved by varying national interpretations.[16] For example, the United States and Russia disagree on the meaning of the “peaceful purposes” upon which the OST is premised. The United States interprets peaceful purposes broadly as “non-aggressive,” and Russia interprets peaceful purposes narrowly as “non-military.”[17] The United States’ interpretation is in agreement with Article IV of the OST, which expressly condones the use of military personnel for peaceful purposes.[18] Because there is no international consensus on the meaning of peaceful purposes, each state conducts their affairs in accordance with their own sometimes conflicting national interpretations.[19] Several problems follow from the uncertainty. For example, dual-use technology like satellites are not prohibited by the OST because they have a legitimate–albeit nonexclusive–peaceful purpose.[20] Destruction of satellites is similarly unprotected.[21] Because the use of military personnel for peaceful purposes is allowed under the OST,[22] and the United States’ interpretation of peaceful purposes does not exclude military activity, the Space Force is arguably legal under international law.

However, the legal calculus was recently complicated when President Trump signed Executive Order 13914 in April 2020.[23] The United States has already authorized private companies to commercialize and exploit resources in space.[24] The April order submits that exploitation of resources in space is consistent with the OST, and that absent further international agreement, space is not a global commons.[25] There are a host of other threats that exist in nebulous legal territory,[26] almost all of which have been exposed since the turn of the century. The OST is not well equipped to deal with such challenges.[27] To illustrate, In 2006, China targeted a U.S. satellite with a laser, which was interpreted as an anti-satellite experiment.[28] In 2007, China destroyed one of its own satellites in an ASAT weapon test, creating an international enormous amount of dangerous space debris.[29] Although China’s actions drew international condemnation,[30] the conduct was found not to violate the OST, and no country took legal action.[31] More recently, in 2018, Finland and Norway experienced airspace interruptions in GPS and suspected Russia of engaging in strategic disruption during a military exercise as part of the NATO war games.[32] The political insufficiencies of the OST are compounded by its inapplicability to private actors.[33] With technological development far outpacing the law, national legislation may be the only option for bringing space law into modernity.[34]

  1. Alan C. O’Connor, et. al., Economic Benefits of the Global Positioning System (GPS), RTI Report Number 0215471, ES-2-3 (2019), https://www.rti.org/sites/default/files/gps_finalreport.pdf (recommending interpretation of the $1.4T figure as calculated between 1984-2017 as a rough order of magnitude).
  2. Becky Ferreira, The new Space Race, and the desperately outdated laws that govern it, Document Journal (May 28, 2019), https://www.documentjournal.com/2019/05/the-new-space-race-and-the-desperately-outdated-laws-that-govern-it/.
  3. Adam Quinn, The New Age of Space Law: The Outer Space Treaty and the Weaponization of Space, 17 Minn. J. Int’l. L. 475, 477 (2008), available at https://heinonline-org.du.idm.oclc.org/HOL/Page?handle=hein.journals/mjgt17&id=479&collection=journals&index=.
  4. Sandra Erwin, Five things to know about U.S. Space Command, SpaceNews (Oct. 23, 2019), https://spacenews.com/five-things-to-know-about-u-s-space-command/.
  5. Quinn, supra note 3 at 475.
  6. Military.com, United States Space Force (last visited Mar. 27, 2020), https://www.military.com/space-force; Press Release, U.S. Dep’t of Def., Department of Defense Establishes U.S. Space Force (Dec. 20, 2019), https://www.defense.gov/Newsroom/Releases/Release/Article/2045981/department-of-defense-establishes-us-space-force/.
  7. Office of Press Sec’y, U.S. Space Force, Space Policy Directive-4 § 3(a) (Feb. 19, 2019), available at https://www.spaceforce.mil/About-Us/SPD-4 [hereinafter SPD-4].
  8. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies pream. cl. 2, adopted Dec. 5, 1979, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty].
  9. SPD-4, supra note 7 at § 3(e).
  10. Ferreira, supra note 2.
  11. Thomas Adams, Outer Space Treaty: An Interpretation in Light of the No-Sovereignty Provision, 9 Harv. Int’l. L. J. 140, 141-43, 147-48 (1968), available at https://heinonline-org.du.idm.oclc.org/HOL/Page?handle=hein.journals/hilj9&id=146&collection=journals&index=, Outer Space Treaty, supra note 8 at Art. I.
  12. Id. at 141-44, Outer Space Treaty, supra note 8 at Art. II.
  13. Id. at 142-44.
  14. Id. at 143, 155-56.
  15. Ferreira, supra note 2.
  16. Id.
  17. Adams, supra note 11 at 149-150.
  18. Outer Space Treaty, supra note 8 at Art. VI.
  19. Ferreira, supra note 2.
  20. Id.
  21. Id.
  22. Outer Space Treaty, supra note 8 at Art. IV.
  23. Federal Register, 2020 Donald Trump Executive Orders (last accessed Apr. 21, 2020), https://www.federalregister.gov/presidential-documents/executive-orders/donald-trump/2020.
  24. U.S. Commercial Space Launch Competitiveness Act, Pub. L. No. 114-90, 129 Stat. 704, 708 (2015).
  25. Mike Wall, Trump signs executive order to support moon mining, tap asteroid resources, space.com (April 6, 2020), https://www.space.com/trump-moon-mining-space-resources-executive-order.html.
  26. For example, space debris, kinetic energy weapons, anti-satellite (ASAT) weapons, and hacking and other cyber interference. See, e.g., Sarah Scoles, The Space Junk Problem Is About to Get a Whole Lot Gnarlier, Wired (Jul. 31, 2017, 10:00 AM), https://www.wired.com/story/the-space-junk-problem-is-about-to-get-a-whole-lot-gnarlier/ (explaining space junk and debris and forecasting major increases as space tourism emerges); see also, Jared Keller, The Pentagon’s New Super Weapon Is Basically A Weaponized Meteor Strike, Task & Purpose (Jun. 7, 2017, 6:38 AM), https://taskandpurpose.com/gear-tech/kinetic-bombardment-kep-weaponry (explaining kinetic weaponry); Carin Zissis, China’s Anti-Satellite Test, Council on Foreign Relations (Feb. 22, 2007), https://www.cfr.org/backgrounder/chinas-anti-satellite-test (explaining China’s recent ASAT test).
  27. Ferreira, supra note 2.
  28. Ferreira, supra note 2.
  29. Id.
  30. Zissis, supra, note 27.
  31. Jason Krause, The Outer Space Treaty turns 50. Can it survive a new space race?, ABA Journal (April 1, 2017, 5:00 AM), https://www.abajournal.com/magazine/article/outer_space_treaty.
  32. British Broadcasting Commission (BBC), Russia suspected of jamming GPS signal in Finland (Nov. 12, 2018), https://www.bbc.com/news/world-europe-46178940.
  33. Jill Stuart, The Outer Space Treaty has been remarkably successful — but is it fit for the modern age?, The Conversation (Jan. 27 2017, 11:59 PM), http://theconversation.com/the-outer-space-treaty-has-been-remarkably-successful-but-is-it-fit-for-the-modern-age-71381, see also, Krause, supra note 31 (expanding on the legal problems of “billionaires in space”).
  34. Krause, supra note 31.