Military use of the International Space Station and the concept of "peaceful purposes".

• Author: Petras, Christopher M.

Man has certain qualitative capabilities which machines cannot duplicate. He is unique in his ability to make on the spot judgments.... Thus by including man in military space systems, we significantly increase the flexibility of the systems, as well as increase the probability of mission success. (1)

1. INTRODUCTION

   For the first twenty-five years of the "Space Age" (1957-1982), outer space activities were almost exclusively performed by governments, acting individually or in concert through intergovernmental agencies, (2) and, while the potential military utility of space systems intended for civil or commercial uses did not go unnoticed, (3) "the development and use of space technology for military and civil applications... [generally] occurred in parallel" through separate military and civilian agencies. (4) Such was the case in the early 1960s, when the U.S. Air Force undertook development of a military space station--called the Manned Orbiting Laboratory (MOL)--on the basis that the then ongoing National Aeronautic and Space Administration (NASA) "Gemini" project did not provide necessary data on potential military capabilities in space. (5) By the end of the decade, however, the high cost of the continuing war in Vietnam, the onset of detente with the Soviets, and the recognition that the main military objectives of the MOL (i.e., reconnaissance and satellite detection and inspection) could be performed by less costly unmanned satellite systems, spelled the end of the project. (6) And so, with the cancellation of the Air Force's MOL in June 1969, manned spaceflight in the United States became the exclusive province of NASA. (7)

   After cancellation of the MOL program, the concept of a military space station garnered remarkably little enthusiasm among American military leaders. (8) A number of factors contributed to this lack of interest, including budgetary considerations, the government's "desire to minimize the visibility and notoriety of [its] military presence in space," and, perhaps most importantly, the lack of any "compelling arguments that having crews in orbit gives a State any particular useful military or strategic advantage." (9) Yet, in a 1983 Department of Defense (DOD) study on the relation of military space activities to space stations, which concluded that there were "no identifiable mission requirements that could be uniquely satisfied by a manned space station" and "no current requirements... [for which] a manned space station would appear to provide a significant improvement to DoD over alternative methods of performing a given task," the Department nonetheless recognized the possibility that the situation could ch ange over time and, accordingly, espoused its commitment "to developing a better understanding of the potential future uses for the role of man in space." (10) In fact, the concept of "Military Personnel-in-Space" remains, to this day, a part of official DoD policy:

   Military Personnel-in-Space. The unique capabilities that can be derived from the presence of humans in space may be utilized to the extent feasible and practical to perform in-space research, development, testing, and evaluation as well as enhance existing and future national security space missions. This may include exploration of military roles for humans in space focusing on unique or cost-effective contributions to operational missions. (11)

   Thus, the "coolness" of the U.S. military toward the notion of stationing personnel in space notwithstanding, manned spaceflight continues to have significant military implications, if for no other reason than "the capacity to place personnel in orbit... allows for the active management by the crew on orbit of various technological capabilities that can be used for military applications." (12) Furthermore, a State does not have to launch a military crew into Earth orbit in order to obtain militarily useful information from a crewed mission. (13) For example, in the case of photoreconnaissance: [d]epending upon the sensing or photographic equipment onboard a space mission, even a civil crew... could obtain and deliver highly valuable military information... [and,] [w]ithout access to flight telemetry and flight data products it would be impossible to know to what extent the crewed mission was or was not involved in information gathering of a military nature or of military value. (14)

   What's more, recent developments vis-a-vis the multi-billion dollar partnership of the United States, Russia, Europe, Japan and Canada, otherwise known as the International Space Station (ISS) (designated "Alpha"), have also given the notion of the "military man-in-space" renewed relevance in the context of current international law. Specifically, in March 2001, Russia's Mir space station circled the earth for the last time and, after a controlled decent, plunged into the Pacific Ocean. As a result, the ISS is now the only space station currently occupying outer space, and is therefore one of only two operational space platforms available for evaluating the military capabilities that can be derived from a human presence in space and performing in-space research, development, testing, and evaluation in support of national security' (15)--the other being the Space Shuttle. (16)

   Meanwhile, the newly appointed NASA administrator (17) has called for closer ties between his agency and DoD. (18) Additionally, the United States and its partners are currently formulating plans for commercialization of the ISS, (19) and insofar as these plans allow nonmilitary crews to perform ostensibly "commercial" activities with direct military applications for or on-behalf of national defense industries, there will inevitably be activities of a military nature or of military value taking place onboard the Space Station in the near future.

   The prospect of military use of the ISS undoubtedly raises questions about the permissibility of military activities within the confines of the 1998 Intergovernmental Agreement (1998 IGA) that established the ISS partnership; (20) moreover, it rekindles an old debate about the lawfulness of military activities in outer space under international law generally. This latter dispute centers on the scope and applicability of the 1967 Outer Space Treaty, and, specifically, the meaning of the language in Article IV relating to the use of space for "peaceful purposes," (21) with some arguing that peaceful purposes should be understood to be "nonmilitary," and others, including the United States, interpreting it as meaning "nonaggressive." (22) Thus, the extent to which military-related activities may be lawfully carried out onboard the ISS has significant implications for the fifteen Partner States that are party to the 1998 IGA (the United States, Russia, Canada, Japan, and the eleven member states of the ESA (23)), as well as for other spacefaring States and international community as a whole.

   The purpose of this article is to examine the permissibility of military activity (including commercial activities with military ends) onboard the ISS. The article is divided into four parts: Part I looks at the 1998 IGA framework and discusses significant provisions of the Agreement and implementing documents; Part II provides a brief overview of the body of public international law governing outer space, the "corpus juris spatialis"; Part III analyzes the issue of the military use of the ISS, focusing primarily on the meaning of the term "peaceful purposes" as it applies to outer space and its relevance to ISS activities, while also considering other legal and contextual issues, such as the significance of the characterization of the ISS as a "civil" facility; and, finally, Part IV provides some concluding comments. In the end, the piece makes clear that, although "peaceful purposes" as generally applied to outer space has taken on a meaning which allows for some extraterrestrial military activities, the IS S Partners are divided on what the phrase means with respect to utilization of Alpha. Moreover, the piece shows that because of the ambiguity of the 1998 IGA with respect to the ability of any given Partner to restrict military use of the ISS by its counterparts, the meaning of "peaceful purposes" is a potential source of future discord, especially as commercialization opens up the facility for uses by private industry that could have military significance.

2. THE INTERGOVERNMENTAL AGREEMENT OF 1998

   The development and construction of an International Space Station (ISS) began in the mid-1980s, with the U.S. plan to place a permanently inhabited civil space station (known as "Space Station Freedom") into low-earth orbit through a partnership with Canada, Japan, and a number of European countries. (24) This "Space Station Freedom" initiative eventually culminated in the establishment of the 1988 Intergovernmental Agreement (1988 IGA) (25) among the United States, the state partners of the European Space Agency (ESA), (26) Japan and Canada. Under the 1988 IGA, the United States (NASA) would produce a "core U.S. Space Station," which would then be enhanced with elements produced by the ESA, the Government of Japan (GoJ), and Canada Space Agency (GSA), to create an "international Space Station complex." (27) In addition to emphasizing the "civil" character of the space station, the 1988 IGA also specified that the station be used 'for peaceful purposes, in accordance with international law," in order to "en hance the scientific, technological, and commercial use of space." (28)

   The demise of the Soviet Union brought about a dramatic warming of the world political climate in the early 1990s and ushered in a new era of unprecedented cooperation among nations in outer space matters. In this new spirit of cooperation, the Russian Federation was extended an invitation to join the ISS project in December 1993. (29) In addition to possible "political" considerations, (30) Russian...