Integration of military and civilian space assets: legal and national security implications.

• Author: Waldrop, Elizabeth Seebode

1. INTRODUCTION

   Statesmen and soldiers must consider the legal and moral ramifications of using civilian systems for military purposes. Such military use may turn them, as well as their supporting infrastructure, into a bona fide target for future opponents.

   - Brigadier General Charles J. Dunlap, Jr., U.S. Air Force (1)

   While maintaining its own space assets and capabilities, in the past few years the U.S. military has increasingly relied on commercial and civilian space assets, owned and operated by foreign, domestic, and even international entities. As part of a larger general trend toward military "outsourcing," such non-military organizations may provide cheap, technologically advanced space commodities in a number of areas, e.g. launch, communications, remote sensing, and weather. Even in situations in which the military relies on its own space assets (such as navigation, launch, and surveillance), partnerships with and investment in non-military (and even non-domestic) entities are common and openly encouraged. This work will briefly look at the nature of these partnerships, and then examine the national security and legal implications of such "dual use" of space technology, including the effect on technology transfer and the law of war.

   This article will first explore the depths of the military, civilian, and commercial "marriage" in space, looking at the "actors" and the "partnerships" in various settings. The use of space by each of these entities has evolved, and an examination of their current roles in space activities will be discussed, by survey of the various space services provided by these sectors: communications, remote sensing, launch, and navigation.

   The next section of the article will examine national security and legal implications of military investment, use, and reliance on space systems that are not exclusive military assets. States have made efforts to protect their interests in space by protecting access to space, space technology, and space services in a number of ways. From a military perspective, national security in large part depends on predictable, guaranteed access to space, which in turn depends on a strong domestic space industry. Therefore, the tension between competition and technology transfer to foreign companies and States (proliferation) is important to consider. The Cox Report and Boeing (Sea Launch) affairs, with their allegations of improper technology transfer to China and Russia respectively, will serve as case studies for this section, both to illustrate these tensions and to pinpoint sources of additional legal restrictions. This section will also explore the suggestion that the interdependence of military and commercial systems in space has caused national security and competition to become mutually reinforcing, rather than competing, goals.

   Additionally, as armed forces increasingly rely on space services (often the same services used by civilians), States will develop means to guarantee continued access to those services. This article will examine contractual guarantees and licensing restrictions, using military leasing of communications satellites and governmental "shutter control" clauses for remote earth sensing satellites as examples of such efforts. States must be careful how they seek to protect their national security interests in space, since the methods they choose may be subject to legal challenge. In this context, the impact of the World Trade Organization (WTO) on the space industry will be discussed. Next, the article will survey limits on "dual use" technologies imposed by policy and politics, specifically examining the Presidential restriction on the use of Selective Availability (SA) in the Global Positioning System (GPS), the division of the radio frequency spectrum, and the issue of space debris.

   The implications of relying on non-exclusively military space assets in time of peace and war will also be examined, by surveying legal rules and restrictions on such use. A brief survey of relevant international law, including the UN Charter, treaties, customary law, and the Law of Armed Conflict (LOAC), follows. In more detail, the right of self-defense (including so-called "anticipatory self-defense") will be discussed. While most analyses stop at this level, it is important to look at the operational context of military commanders applying these concepts through Rules of Engagement (ROE). The implications of space law and policy on ROE will be canvassed.

   Finally, widespread military use of civilian systems in time of war also brings with it other, perhaps unintended, consequences and issues. This section will consider the true status of "neutral" nations knowingly providing space services in support of armed conflict, and whether civilian control of militarily-used space systems renders the civilians unlawful combatants under the law of war.

2. THE MILITARY AND CIVILIAN "MARRIAGE" IN SPACE (A SURVEY)

   1. Space Actors

      1. The Military

         The original "space powers" were the Soviet Union and the United States (U.S.). As early as 1945 both nations had considered the potential use of satellites for military purposes, but it wasn't until 1954 that the U.S. Air Force was first authorized to develop a reconnaissance satellite. (2) However, the Soviet Union preempted the early, rather lethargic, U.S. satellite-development effort when, in October 1957, it successfully launched Sputnik I. The Soviet Union's placement of the first satellite into orbit around the earth sparked a sense of urgency in the U.S. to prove its mastery of the space dominion, arguably initially for prestige purposes. (3) However, satellites soon became important to the U.S. from a practical perspective as well, when in 1960 the era of U.S. aerial reconnaissance flights over the Soviet Union ended, and the U.S. was forced to depend on reconnaissance satellites to obtain strategic information about its adversaries. (4) Thus began the U.S.' consistent reliance on space systems that has only deepened in the ensuing four decades.

         During the Cold War, the Soviet Union and the U.S. governments developed and operated many military satellites and dominated the world's space activities. According to one account, in the 1970s an estimated 60% of Soviet payloads served direct military missions; by the early 1980s, 75% were of the same nature. (5) Space was also of growing importance to the U.S. military, as evidenced by the 1982 creation of a separate Space Command within the U.S. Air Force. (6) By 1985, reportedly the U.S. and the Soviet Union together had put over 2,000 military payloads into orbit. (7)

         In the earliest years of the "Space Age", satellites were mainly useful in maintaining peace and stability through reconnaissance, intelligence-gathering, early warning, and as the National Technical Means (NTM) of verification for monitoring arms control compliance. Thus, for example, the 1972 Anti-Ballistic Missile (ABM) Treaty provided for the use of NTMs (with satellite observation as a critical component) to verify compliance with strategic arms limitations. The ABM Treaty recognized the importance of the role played by NTMs and therefore prohibited interference with them. (8) However, recent years have seen increasing military reliance on satellites as "force multipliers" or "force enablers" improving the performance, lethality, and effectiveness of ground, air, and naval forces and weapons, both during peace and war. (9)

         Space systems and capabilities enhance the precision, lethality, survivability, and agility of all operations--air, land, sea, and special operations. [...] Space assets contribute significantly to overall aerospace superiority and support the full spectrum of military actions in theaters of operations. (10) In fact, space systems have become so important to the U.S. that the government has declared:

         [p]urposeful interference with U.S. space systems will be viewed as an infringement on our sovereign rights. The U.S. may take all appropriate self-defense measures, including, if directed by the National Command Authorities (NCA), the use of force, to respond to such an infringement on U.S. rights. (11) Several U.S. government publications have similarly called space a "vital national interest," a traditional governmental term of art for objectives of such importance that armed force would be used to protect them. (12)

      2. The Military-Civilian "Marriage"

         1. Civilian Governmental Programs

            From the outset, U.S. civilian governmental space programs were largely kept separate from military efforts--to avoid any public questioning of the stated U.S. commitment to the peaceful use of space and to avoid international, political opposition to military programs. (13) However, even at the earliest stages of development, it was obvious that military-civilian governmental cooperation in space programs was necessary to capitalize on technical expertise and to avoid wasteful duplication of effort. (14) In fact, in the 1960s the civilian governmental National Aeronautics and Space Administration (NASA) was very dependent on U.S. Air Force personnel and facilities. (15) The covert National Reconnaissance Office (NRO), the DOD agency primarily responsible for space intelligence programs whose very existence was kept secret until 1992, interacted with the military and with NASA, transferring selected technologies and sharing launch facilities and command and control ground stations. (16)

            This "separate but intertwined" nature of military and civilian governmental space programs is still evident today, and cooperation between the two sectors has been increasing in recent years. One need only look at the sheer number of governmental agencies (the Department of Defense (DOD), Department of Transportation (DOT), Department of Commerce (DOC), and National Aeronautics and Space Administration (NASA), to name but a few) involved in the U.S. space program to see the immense overlap. (17)...