National and International Security in Space: International Law Implications of Space Force and Planetary Defense

• Jurisdiction: United States,Federal
• Citation: Vol. 48 No. 3
• Publication year: 2020
• topic: Aeronautics

National and International Security in Space: International Law Implications of Space Force and Planetary Defense

Dr. Andrea Harrington^*

Introduction

First, I want to thank the Dean Rusk Center and the organizers, who have done an absolutely wonderful job organizing this conference today. I need to start off by also saying that the views that I'm expressing here today are my personal views as an academic. They do not reflect the views of the Air Force or the Department of Defense or the U.S. Government. So, that being said, there are two things that I want to talk about. First, I want to jump into this "peaceful purposes" conversation and tie in Space Force. Then, I want to talk a little bit about a very different topic, which is referred to as planetary defense, which is how we organize defense against an asteroid threat, a natural threat occurring in the space environment that could pose direct threat to life on Earth.

U.S. Space Force and International Law

When Space Force was announced, there was a very interesting public reaction. There was this concern of whether Space Force violates international law and is this a problem? There was an outcry from many folks, and there were articles saying, "Oh, Space Force is arguably a violation of international law."¹ As you have heard, it's not a violation of international law, and, in fact,

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I believe that Space Force could enhance cooperation, transparency and confidence building in the outer space domain on the basis that there is not necessarily a strong understanding, particularly among the general public, of what the Air Force is doing in space, even though a lot of information is publicly available. You can see many of the different systems, a lot of different missions in space that are ongoing.² The public, however, doesn't think about the Air Force as a military organization operating in outer space. So, with Space Force, with defined missions that contribute to global peace and security,³ you could in fact have a greater degree of cooperation and transparency. Of course, the counterargument to that is "Well, sure, that's true, but look at the rhetoric that's coming out of this administration." You hear Vice President Pence at the International Astronautical Congress, as one panelist discussed earlier, referring to cooperation with "freedom loving countries," and using some strong rhetoric in that regard.⁴ One of the Space Force announcements that Vice President Pence made in 2018 addressed the need for American dominance in space,⁵ and that rhetoric does not necessarily contribute to enhanced transparency and confidence building in space or additional cooperation.

When you actually look at the text of Space Policy Directive-4, however, which directs the legislation that would create the Space Force and which directs the creation of U.S. Space Command, the first mission that's articulated for the U.S. Space Force is "[p]rotecting the Nation's interests in space and the peaceful use of space for all responsible actors, consistent with applicable

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law, including international law."⁶ So, when you look at the mission of U.S. Space Force, as articulated in Space Policy Directive-4,⁷ you can actually see there is a respect for international law that is very clear, and that the peaceful use of space is highly prioritized. The language "responsible actors" here mirrors what we tend to see when we're talking about sustainable uses of space: mitigating debris creation, registration of space objects in accordance with the Registration Convention, and other UN requirements.⁸ So, the language that we're seeing in the text is very different than the rhetoric, and with that language we could see an increased level of cooperation and an increase in security, both domestically and internationally from the Space Force. I think that's something that's not talked about or thought about very often.

In terms of peaceful purposes language in the Outer Space Treaty, I like to ask the question of whether or not we really need to be having a conversation about what "peaceful purposes" means when we're talking about the void of outer space, orbits, or deep space trajectories.⁹ I carry my UN treaties on outer space—my Outer Space Treaty—around so that when people say the Outer Space Treaty says something I can open up the text and say, "Show me where in the treaty it says that." When you look at Article IV of the Outer Space Treaty, in the second paragraph it calls for celestial bodies to be used for exclusively peaceful purposes.¹⁰ But, when you look at paragraph one of Article IV, it has specific limitations in the void of outer space.¹¹ You can't have nuclear weapons or weapons of mass destruction in Earth's orbit or stationed on a celestial body.¹² There is not a limitation to exclusively peaceful purposes in the void of outer space beyond those limited restrictions established for nuclear weapons and weapons of mass destruction.¹³

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Of course, the preamble and other articles of the Outer Space Treaty encourage peaceful uses of outer space and seek to develop further cooperation in the exploration of outer space, utilizing peaceful purposes.¹⁴ But, as long as we are in compliance with the UN Charter and in compliance with that prohibition on the threat or use of force against political independence or territorial integrity of a State,¹⁵ it's my position that we don't need to have an exclusively peaceful purposes discussion about the void of outer space, though we would need to have that conversation with regard to celestial bodies if we start seeing lunar...