A Space Force: Some Points to Ponder
An intrinsic link between dominance in outer space and the enforcement of security therein is the promotion of peace. Any interference with a space program of a nation, which would be inextricably linked to peaceful uses of outer space, would tantamount to an act of terrorism performed against international peace.
After one look at this planet any visitor from outer space would say: “I want to see the manager” ~ William S. Burroughs
( June 27, 2018, Montreal, Sri Lanka Guardian) President Donald Trump recently announced that a new sixth arm of the United States Military called the Space Force be established, seemingly based on his idea, as reported by CNBC: “when it comes to defending America, it is not enough to merely have an American presence in space…we must have American dominance in space”. Presently, affairs of outer space are under the purview of the United States Air Force which carries out and oversees outer space affairs for the country. Through the Global Navigation Satellite System (GNSS) which provides the Global Positioning system (GPS) the United States contributes to satellite communications which is a key driver of global economic activity as well as global communications worth billons of dollars.
The United States extended the capability and application of GPS to further develop the role of military space systems, by integrating them into virtually all aspects of military operations which ranged from the provision of providing indirect strategic support to military forces to enabling the application of military force in near-real-time tactical operations through precision weapons guidance. A notable development in this regard was the introduction of radar satellites offered the potential to detect opposition forces on the ground in all-weather at all times
World renowned astrophysicist Neil deGrasse Tyson – author of Astrophysics for People in a Hurry – when interviewed by Fareed Zakaria on CNN’s Global Public Square (GPS) last Sunday said that the idea of a Space Force as a separate military force in the United States is not in itself a weird idea, provided the Air Force which currently handles outer space affairs for the United States says that it cannot continue to handle outer space affairs for the country. Zakaria seemingly hinted that this measure by the U.S. President could be a counter measure and response to emerging threats of dominance in outer space by China and Russia.
The United states has invested tremendously in outer space and has assets worth billions there. There is no question that the United States must have a visible presence in outer space. It is in this context that one should read into the word “dominance” used by President Trump the link to defence of the country. The operative question is whether The United States can enforce dominance in outer space which, as the President said, would be calculated to defend the United States. One does not dispute that the United States has the capability to do so. However, there are some fundamental principles that might bring to bear the relevance of principles at international law and in particular, space law.
An intrinsic link between dominance in outer space and the enforcement of security therein is the promotion of peace. Any interference with a space program of a nation, which would be inextricably linked to peaceful uses of outer space, would tantamount to an act of terrorism performed against international peace. The maintenance of international peace and security is an important objective of the United Nations, which recognizes one of its purposes as being inter alia :to maintain international peace and security, and to that end: take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.It is clear that the United Nations has recognized the application of the principles of international law as an integral part of maintaining international peace and security and avoiding situations which may lead to a breach of the peace.
Any kind of dominance in outer space would have to be exercised in accordance with the principles of international law. United Nations General Assembly Resolution 41/65 provides that remote sensing activities must be conducted in accordance with international law, including the Charter of the United Nations, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and the relevant instruments of the International Telecommunication Union. The Resolution draws a link with the principles contained in article 1 of the Outer Space Treaty, including the Moon and Other Celestial Bodies – which was opened for signature in the United States, the United Kingdom, and the Soviet Union on 27 January 1967, and entered into force on 10 October 1967- and which, in particular provides that the exploration and use of outer space must be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and stipulates the principle of freedom of exploration and use of outer space on the basis of equality.
These activities must be conducted based on respect for the principle of full and permanent sovereignty of all States and peoples over their own wealth and natural resources, with due regard to the rights and interests, in accordance with international law, of other States and entities under their jurisdiction. Such activities must l not be conducted in a manner detrimental to the legitimate rights and interests of the sensed State.
From a global perspective, the United Nations and the relevant agencies within the United Nations system are required to promote international cooperation, including technical assistance and coordination in the area of remote sensing. A State carrying out a program of remote sensing must inform the Secretary General of the United Nations. It must, moreover, make available any other relevant information to the greatest extent feasible and practicable to any other State, particularly any developing country that is affected by the program, at its request.
Article IV of the Outer Space Treaty stipulates that States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner. The Moon and other celestial bodies are to be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies are forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies are not prohibited.
Article V of the treaty is important as it speaks of mutual assistance and resonates the compelling nature of peace and cooperation in outer space. According to this provision, States Parties to the Treaty must regard astronauts as envoys of mankind in outer space and render to them all possible assistance in the event of accident, distress, or emergency landing on the territory of another State Party or on the high seas. When astronauts make such a landing, they must be safely and promptly returned to the State of registry of their space vehicle.
The Moon Treaty which entered into force in 1984 provides that the establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on the moon are forbidden. However, the use of military personnel for scientific research or for any other peaceful purposes are not prohibited. The use of any equipment or facility necessary for peaceful exploration and use of the moon are also not prohibited.
The most fundamental distinction that must be remembered is the principle enunciated by The Space Security Index of 2010 which distinguished between militarization and weaponization of space: “An important distinction must be made between militarization and weaponization of space: while the former is a reality, thus far there is no documented evidence of the latter. Although the use of space assets for military applications such as reconnaissance, intelligence, and troop support has been ubiquitous for several years, space apparently has remained weapons-free. To maintain this state, the prevention of an arms race in outer space remains a priority for policymakers at various international forums, since it is assumed that once a state places weapons in space, others will follow suit”.
This distinction is key to dominance in outer space.
The author is former Senior Legal Officer of the International Civil Aviation Organization and the author of numerous books on aerospace law including Frontiers of Aerospace Law andSpace Security Law. He is currently Senior Associate, Air Law and Policy at Aviation Strategies International.