Do as I say, not as I do - is Star Wars inevitable? Exploring the future of international space regime in the context of the 2006 U.S. National Space Policy.

• Author: Zhang, Cynthia B.

INTRODUCTION--Are We on the Brink of an Arms Race in Space? U.S. Says "No" to Restrictions on Weaponizing Space China Joins the ASAT Club 2006 National Space Policy--National Interest v. International Order Space Arms Race? What Space Arms Race? BACKGROUND--The Origins and Evolution of Space Law Existing International Regime Traditional U.S. Postures Weaponization v. Militarization "RODS OF GOD"--The Weaponization of Space Current Space Technology Dual-Use Technology Current Space Technology Painting a Picture of Weaponized Space SPACE ARMS RACE--Is Proliferation Inevitable? Hegemony and Arms Race International Responses--A Race, or a Race of One? An International Moratorium--Racing its own Shadow ABSTRACT

Space law presents unique challenges to the international legal system. Wars have been fought on land, on sea, and in the air. Outer space, however, like Antarctica, was intended as a sanctuary from modern warfare. Unlike Antarctica, which has been kept free of military activities, "peaceful purposes" in outer space saw intertwined military and civilian uses from the outset. (1)

Space has been called "the ultimate high ground." (2) States that control outer space win military advantages as well as political capital. Since the end of the Cold War, the United States has enjoyed unchallenged space supremacy. (3) This scenario raises the question: how can the United States assure its dominance in space while preventing (or at least slowing down) challenges by other countries?

The 2006 National Space Policy caused an international uproar. The Policy announced that the United States has free action in space, and that any international cooperation must be "consistent with U.S. security interests." (4) The new U.S. space policy threatens to weaken the bedrock of the international space regime by directly challenging the concept of international cooperation and restraint on the militarization of space.

This Note analyzes the implications of recent developments in international space law as it relates to the 2006 National Space Policy. First, the Note examines current events responsible for the renewed interest in the (dis)armament of outer space. Then, it analyzes the legal framework that shaped both U.S. space policies and key international agreements. Third, it makes a foray into the world of weapons and technologies that are either currently in use or capable of being deployed in the near future. Lastly, the Note proposes three ways for the international community to tackle the trend of weaponizing space.

In the end, the root of man's security does not lie in his weaponry. It lies in his mind. (5)

INTRODUCTION--ARE WE ON THE BRINK OF AN ARMS RACE IN SPACE?

U.S. Says "No" to Restrictions on Weaponizing Space

The vote was 160 to 1. (6) In October 2005, the United States became the first country to oppose the annual nonbinding resolution on Preventing an Arms Race in Outer Space. (7) Surprisingly, this decision came despite a verbal commitment of non-opposition if the resolution's text remains unchanged. (8) In what would become a familiar refrain, the U.S. delegate explained that there is no need for further restrictions because the existing legal framework is sufficient. (9) In other words, there is no threat of a space arms race.

China Joins the ASAT Club

On January 11, 2007, China shot down one of its aging satellites using a ground-based ballistic missile known as an anti-satellite weapon (ASAT). (l0) The news caused widespread panic. Headlines blared of China's challenge to the U.S.'s space dominance (11) and of a space invasion. (12) Some even warned of an apocalypse. (13) Many commentators openly contemplated whether this ASAT test signals the beginning of a new space arms race. (14)

The hysteria was hardly surprising. "Red China" became only the third country to conduct a weapons test in space, after the United States and former U.S.S.R. (15) What was surprising, however, was the world's evident shock at the proliferation of ASAT capabilities.

Since the end of the Cold War, the U.S. military has enjoyed unchallenged supremacy of space. As a rising economic and regional power, China was naturally identified as the emerging threat to U.S. space hegemony. (16) For its part, China has shown no inclination to duplicate the U.S.'s arsenal, instead seeking to develop "killer" technologies that would undermine the U.S.'s space supremacy. (17)

The January ASAT test used an unarmed intermediate range ballistic missile (IRBM) to shoot down a retiring weather satellite 537 miles above the earth. (18) The missile operated as a "kinetic kill vehicle" that destroyed the target by slamming into it. (19)

Kinetic kill technology is not new. (20) Neither is weapon-testing in space. The United States' own 1962 High Altitude Nuclear Detonation caused the eventual destruction of seven satellites. (21) Between the 1960s and the 1980s, both the United States and the former U.S.S.R. conducted ground-based ASAT testing. (22) The most recent test occurred in 1985, when the United States shot down one of its own satellites. (23)

Why did the world react to China's ASAT test with such alarm? For years, Russia and China were vocal proponents of strengthening the international legal regime on banning weapons in space. (24) As recently as February, 2008, the two countries had circulated a draft to ban the weaponization of outer space. (25) United States promptly rejected the proposal, reiterating its opposition to any agreement that would "prohibit or limit access to or [the] use of [outer] space." (26) Although there is no consensus among key definitions such as "weapon" and "space", there is nonetheless broad international support for keeping space free from an arms race. (27) The United States' hostility to any concrete discussions on preventing a space arms race marks a troubling turn of tide. (28)

2006 National Space Policy--No Space Weapon Negotiation

The United States' vote against talks of an international moratorium on space weapons makes sense in the context of the administration's larger space policy. The U.S. military has traditionally adopted a hawkish stance on space power. Taking a cue from Alfred Thayer Mahan, the U.S. Air Force sees space dominance as essential to maintaining America's dominance and protecting America's interests. (29) As early as 2001, some in Washington had raised concerns of a "Space Pearl Harbor." (30) Donald Rumsfeld, who headed the Commission on U.S. National Security Space Organization and Management, warned that the United States was ill-prepared for an attack on valuable space assets. (31) He advocated that the United States must use both offensive and defensive space weapons to safeguard its satellites. (32)

The 2006 National Space Policy was published without fanfare and caused international concerns. The new policy was notable in its unilateralist tone. (33) In contrast to its 1996 predecessor, the new Policy declared, among other principles, that the United States "rejects any limitations on the fundamental right of the United States to operate in and acquire data from space." (34) The 1996 policy also acknowledged the importance of applicable international commitments. (35) The new Policy mentions nothing about such commitments. (36)

The new space policy incorporated many of the Rumsfeld Commission's recommendations. For the first time, scientific exploration was no longer a key goal. Instead, the language suggests that the United States will not hesitate to take active steps to preserve the status quo of space--U.S. supremacy. (37) The language in the new Policy makes the United States the adjudicator and enforcer in determining who, or which entity, may possess the inclination to narrow the United States' space supremacy.

Contrary to previous administrations' policies, the 2006 National Space Policy formally renounces any new efforts aimed at curbing proliferation of space weapons. (38) Although the administration reaffirms its support for the traditional notion of "peaceful use," it includes "defense-related activities." (39) The administration assured that there was no policy shift, distinguishing between "defense [in] space" and the "weaponization of space." (40)

The world reacted with alarm and anger at the 2006 National Space Policy. (41) The U.S. military had been advocating a more assertive stance in space. The new policy reflects that influence:

[T]he United States will: preserve its rights, capabilities, and freedom of action in space; dissuade or deter others from either impeding those rights or developing capabilities intended to do so; ... take those actions necessary to protect is space capabilities ... and deny, if necessary, adversaries the use of space capabilities hostile to U.S. national interests. (42) Implicit in the new Policy is the assumption that outer space "belongs" to the United States. This has effectively made the United States the gatekeeper of outer space, determining both who gets to play and under what rules. (43) In safeguarding this possession, U.S. national interests must be (and indeed, the Policy indicates they are) of supreme importance, trumping any international agreement. The inherent danger in the new policy is that it undermines existing efforts at arms control and prevention of the weaponization of space. Although the administration firmly denies that weaponization is a policy goal, the foreclosure of dialogue fosters suspicion and weakens the administration's credibility on the subject. (44)

The current administration has consistently moved away from international efforts to curtail the spread of space weapons. If the 2001 Commission's recommendations and United States' 2005 U.N. vote foreshadowed the 2006 National Space Policy, then the January 11, 2007 ASAT test could be seen as a direct response to that policy.

Commentators have speculated on the motive and timing of this recent ASAT test. Whether the test was aimed at nudging...