War and Peace in Outer Space

War and Peace in Outer Space
The Oxford Series in Ethics, National Security,

and the Rule of Law
Series Editors
Claire Finkelstein and Jens David Ohlin
Oxford University Press
About the Series

The Oxford Series in Ethics, National Security, and the Rule of Law is an interdisciplinary
book series designed to address abiding questions at the intersection of national security,
moral and political philosophy, and practical ethics. It seeks to illuminate both ethical
and legal dilemmas that arise in democratic nations as they grapple with national security
imperatives. The synergy the series creates between academic researchers and policy
practitioners seeks to protect and augment the rule of law in the context of contemporary
armed conflict and national security.
The book series grew out of the work of the Center for Ethics and the Rule of Law
(CERL) at the University of Pennsylvania. CERL is a nonpartisan interdisciplinary
institute dedicated to the preservation and promotion of the rule of law in twenty-first
century warfare and national security. The only Center of its kind housed within a law
school, CERL draws from the study of law, philosophy, and ethics to answer the difficult
questions that arise in times of war and contemporary transnational conflicts.
War and Peace
in Outer Space
Law, Policy and Ethics
Edited by
CASSANDRA STEER AND MATTHEW HERSCH
Assistant Editor
K I E R NA N M C C L E L L A N D
With a foreword from Lieutenant General David D. Thompson,

United States Space Force
1
3
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Library of Congress Cataloging-in-Publication Data

Names: Steer, Cassandra, editor. | Hersch, Matthew H., editor.
Title: War and peace in outer space : law, policy, and ethics /
edited by Cassandra Steer and Matthew Hersch.
Description: First edition. | New York : Oxford University Press, [2021] |
Series: Ethics, National Security, and the Rule of Law | Includes index.
Identifiers: LCCN 2020025855 | ISBN 9780197548684 (hardcover) |
ISBN 9780197548707 (epub) | ISBN 9780197548691 (updf) |
ISBN 9780197548714 (digital-online)
Subjects: LCSH: Space law. | Space law—United States. | Space security. | Anti-satellite weapons.
Classification: LCC KZD1145 .W37 2020 | DDC 341.4/7—dc23
LC record available at https://lccn.loc.gov/2020025855
DOI: 10.1093/oso/9780197548684.001.0001
1 3 5 7 9 8 6 4 2
Printed by Integrated Books International, United States of America
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Contents
Foreword by Lt. Gen D. Thompson, U.S. Space Force  vii

Editors and Contributors  ix
Introduction: Why Space Law Matters in War and Peace  1
Matthew Hersch and Cassandra Steer
PA RT I . T H E L AW O F WA R A N D P E AC E I N SPAC E
1. International Humanitarian Law and Its Application in

Outer Space  23
Cassandra Steer and Dale Stephens
2. Norm Setting and Transparency and Confidence-Building in Space
Governance  55
Theresa Hitchens
3. The Rule of Law in Outer Space: A Call for an International Outer
Space Authority  91
Icho Kealotswe-Matlou
PA RT I I . T H E E T H IC S O F SPAC E SE C U R I T Y
4. Peaceful Purposes for the Benefit of All Mankind: The Ethical

Foundations of Space Security  109
P.J. Blount
5. U.S. Space Dominance: An Ethics Lens  123
Joan Johnson-Freese and Kenneth Smith
PA RT I I I . C U R R E N T A N D F U T U R E T H R E AT S
T O SPAC E SE C U R I T Y
6. What Should the Space Force Do? Insights from Spacepower

Analogies, Doctrine, and Culture  153
Peter L. Hays
7. The Legal Challenge of Arms Control in Space  181
Jinyuan Su
vi CONTENTS
8. The Legality of Keep-Out, Operational, and Safety Zones

in Outer Space  201
Matthew Stubbs
9. Prominent Security Risks Stemming from Space
Hybrid Operations  229
Jana Robinson
PA RT I V. T OWA R D S TA B I L I T Y
10. A Proposed Transparency Measure as a Step Toward Space

Arms Control  247
Gilles Doucet
11. Outer Space and Crisis Risk  265
Laura Grego
12. Diplomacy: The Missing Ingredient in Space Security  287
Paul Meyer
Conclusion: Cooperation, Collaboration, and Communication

in Space  301
Cassandra Steer and Matthew Hersch
Index  309
Foreword
In April 2018, I had the opportunity to participate in a conference on the use of

military force and cooperation in space, hosted by University of Pennsylvania’s
Center for Ethics and the Rule of Law (CERL), and led by Dr. Cassandra Steer,
co-editor of this volume. It was an important event in many respects.
First of all, the conference dealt with a matter of great consequence. The
space domain has been an area of human competition and potential conflict
since the dawn of the Space Age more than 60 years ago. Early forays into
space were conducted for the purposes of science, discovery and explora-
tion; and nations and their leaders have understood what operating in space
meant to national pride, prestige and standing on the world stage. Over the
years, the use of space for commercial purposes and for the benefit of civil
society has emerged as well, so much so that the free and open access to the
domain has become important to economic vitality and public safety of many
nations and the global community in general. Increasingly, the space sector
provides technologies and capabilities that we have come to depend on in our
daily lives.
The importance of space capabilities to the defense and security of nations
drove early space activity as well –surveillance and reconnaissance, early
warning, and communications among them. With time, space-based systems
have created such a tremendous advantage for military operations, those systems
and their supporting infrastructure have become prospective targets among po-
tential antagonists. The spectrum of threats has evolved over the years ranging
from reversible to irreversible, and non-kinetic to kinetic --jammers, dazzlers,
cyber-attack, direct ascent missiles and co-orbital interceptors. As with land, sea
and air in the past, perhaps it was inevitable that as more actors became involved
and the stakes grew, nations would take steps to protect their interests in space
and seek to deny advantage to others.
The second reason this was an important event, was because it brought to-
gether participants from different communities and specialties who held a va-
riety of positions and views on the subject matter. Public and private institutions,
academia, government and think tanks were all represented. Policy experts and
thought leaders from many perspectives came together to examine and debate
the topic from all sides. While the underlying objective for the large majority
was the same –secure, stable and peaceful use of the space domain –ideas on the
viii Foreword
methods and approaches to achieving that objective varied greatly. The forum
was therefore an opportunity to inform, educate, analyze and test the many ideas
and methods to that end. It was an opportunity to challenge and shape one’s own
views, and the views of others on this vitally important subject.
Finally, while debate was vigorous and forceful, it was also reasoned and meas-
ured, lacking in histrionics, scorn, derision and other pejorative techniques that
seem to pass for debate in so many areas today. No question the discourse was
rough and tumble, but rather than retreating to opposing camps, digging in and
hurling invectives from one side to the other, participants focused on the con-
tent, subjecting all positions and supporting rationale to equal levels of scrutiny.
The group questioned for understanding, challenged assumptions, and most im-
portantly, allowed responses to those with different ideas and perspectives that
were not innately naïve, reflexive or malevolent.
The essays in this volume are drawn largely from that 2018 conference and
provide a wide range of perspectives on the topic of interest. The reader should
find plenty of content to stimulate inquiry, gain understanding, challenge per-
sonal preconceptions, test the ideas of others, and sharpen their own thinking
on the subject matter. Providing for the safe, stable and peaceful use of space
benefits all and preserves the opportunity for current and future generations to
advance scientifically and intellectually, as well as satisfying the need to explore
and discover that which lies deep in the psyche of humanity. This begins with
the acknowledgement that like land, sea and air before it, space has become an
arena of human competition, a domain that provides potential advantage in con-
flict and one where the inherent right to self-defense must be recognized as well.
With that understanding, it is imperative we seek to build broad consensus on
norms of behavior and responsible operations in space in order to secure safe,
stable and peaceful use, and preserve that use for future generations. It is my be-
lief that this volume is intended for that purpose, and my hope that it will be used
to that end.
The opinions expressed are those of the author and should not be construed as
carrying the official sanction of the Department of Defense, Department of the Air
Force, U.S. Space Force, or other agencies or departments of the U.S. government or
their international equivalents.
David D. Thompson,
Lieutenant General United States Space Force
Editors and Contributors
Editors
Cassandra Steer is Lecturer in Space Law at the Australian National University (ANU), a
Mission Specialist with the ANU Institute for Space, and a consultant specializing in space
security and space law. Formerly she was Acting Executive Director at the University
of Pennsylvania’s Center for Ethics and Rule of Law, Executive Director of Women in
International Security-Canada, and Executive Director of the McGill Institute of Air and
Space Law. She has a degree in philosophy from the University of New South Wales, and
her law degrees and PhD from the University of Amsterdam, where she was also a lecturer
and Associate Professor. Currently she is Associate Expert on the Woomera Manual on
the International Law of Military Space Operations. She has also been a consultant to mil-
itary lawyers in the Canadian Judge Advocate General’s Office and to the U.S. Department
of Defense on these issues. She is author of the book Translating Guilt: Identifying
Leadership Liability for Mass Atrocity Crimes (Springer, 2017), and several articles on
international criminal law, the law of armed conflict, and space law (cassandra.steer@anu.
edu.au).
Matthew Hersch is an Associate Professor of the History of Science at Harvard University

specializing in the history of aerospace technology. He received his JD from New York
University and his PhD in the History and Sociology of Science from the University of
Pennsylvania, where he later taught in the School of Arts and Sciences and the School of
Engineering and Applied Science. He has held fellowships in history and space technology
with the Smithsonian Institution’s National Air and Space Museum, NASA, the University of
Southern California, and Columbia University, and is the author of Inventing the American
Astronaut (Palgrave Macmillan, 2012), and the co-author, with Ruth Schwartz Cowan, of
A Social History of American Technology (Oxford, 2017) (hersch@fas.harvard.edu).
Assistant Editor
Kiernan McClelland is a PhD student in Political Science at Carleton University working
under the supervision of Dr. Elinor C. Sloan. Kiernan’s research focuses on the strategic
application of space power by Canada in the 21st century, the impact of anti-satellite tech-
nologies on modern military strategy, and the politics of planetary defense and plane-
tary colonization. Kiernan has a Bachelor of Arts from Carleton University, and Master
of Strategic Studies from the Centre for Military, Security and Strategic Studies at the
University of Calgary (kiernanmcclelland@cmail.carleton.ca).
x Editors and Contributors
Contributors
P.J. Blount is a postdoctoral researcher in the Faculty of Law, Economics, and Finance at
the University of Luxembourg and an adjunct professor in the LLM in the Air and Space
Law at the University of Mississippi School of Law. He received his MS and PhD in Global
Affairs from Rutgers University, his LLM in Public International Law from King’s College
London, and his JD from the University of Mississippi School of Law. He served as a
Visiting Scholar at the Beijing Institute of Technology School of Law for the Fall of 2017.
He has published and presented widely on the topic of space security law and has given
expert testimony on space traffic management before the U.S. House of Representatives
Subcommittee on Space. Blount serves as the co-editor-in-chief of the Proceedings of the
IISL and was a formerly editor-in-chief of the Journal of Space Law. Additionally, he sits
on the Board of Directors of the International Institute of Space Law. He is a member of
the State Bar of Georgia (pjblount@gmail.com).
Gilles Doucet is the President of Spectrum Space Security Inc., with expertise in satel-
lite technologies, military space applications, space systems security assessments, inter-
national space security cooperation and governance (national and international). With
over 35 years’ experience working with the Canadian Department of National Defence,
he is a specialist in analytical methods and scientific analysis methodologies for mil-
itary space applications, space security policy, legal and regulatory concerns, He holds
a Graduate Certificate of Air and Space Law, from McGill University, and a BASc and
MASc (Mechanical Engineering), from the Université d’Ottawa. Gilles is part of the
Technical Experts Group for the Manual of International Law Applicable to Military Use
of Outer Space. He is on the Legal Advisory Council of the non-profit foundation For
All Moonkind, which advocates for the preservation of human cultural heritage in outer
space (gillespdoucet@gmail.com).
Laura Grego is a senior scientist in the Union of Concerned Scientists’ Global Security
Program, focuses her analysis and advocacy on the technology and security dimensions
of ballistic missile defense and of outer space security. She has authored or co-authored
numerous papers on a range of topics, including cosmology, space security, and missile
defense, and is a technical advisor for the Woomera Manual on the International Law of
Military Space Operations. She has testified before Congress and addressed the United
Nations General Assembly and the United Nations Conference on Disarmament on
space security issues and serves as an expert for print, radio, and television news. Before
joining UCS, Grego was a postdoctoral researcher at the Harvard-Smithsonian Center
for Astrophysics. She earned a doctorate degree in experimental physics at the California
Institute of Technology and a BS in physics and astronomy at the University of Michigan
(LGrego@ucsusa.org).
Peter L. Hays retired from the Air Force, supports the Secretary of the Air Force in the
Pentagon, and is directly involved in developing and implementing major national se-
curity space policy and strategy initiatives. Professor Hays currently teaches graduate
seminars at George Washington University, serves as the Space Chair at Marine Corps
Editors and Contributors xi
University (MCU), and teaches seminars at the MCU School of Advanced Warfighting.
He previously taught at the Air Force Academy, Air Force School of Advanced Airpower
Studies, and National Defense University. Hays holds a Ph.D. from the Fletcher School and
was an Honor Graduate of the Air Force Academy. Major publications include: Handbook
of Space Security, Space and Security, and Toward a Theory of Spacepower (hayspl@gwu.
edu).
Theresa Hitchens is a Senior Research Associate at the Center for International and
Security Studies at the University of Maryland (CISSM), where she focuses on space
security, cyber security, and governance issues surrounding disruptive technologies.
Prior to joining CISSM, Hitchens was the director of the United Nations Institute for
Disarmament Research (UNIDIR) in Geneva, and before that she was the Director at the
Center for Defense Information, where she headed the center’s Space Security Project. She
was also previously Research Director of the Washington affiliate of the British American
Security Information Council (BASIC), where she managed the organization’s program of
research and advocacy in nuclear and conventional arms control, European security and
North Atlantic Treaty Organization (NATO) affairs. She has several publications on space
security and holds a Bachelor of Science in journalism from Ohio University in Athens,
Ohio (theresa.hitchens0@gmail.com).
Joan Johnson-Freese is a Professor and former Chair in the National Security Affairs
Department at the Naval War College (NWC), where she also holds the Charles
F. Bolden, Jr. Chair of Science, Space & Technology. In the capacity of a faculty member
she teaches Security Studies and Regional Security to US military officers and secu-
rity practitioners from the United States and over 50 other countries. Her research
focuses on space security, Professional Military Education (PME) and Women, Peace
& Security. She is the author of seven books on space security, the most recent (2016)
Space Warfare in the 21st Century: Arming the Heavens, and over 100 published arti-
cles, many with a particular focus on the Chinese space program. She was a member
of the Space Studies Board of the National Academies of Science from 2005–2013,
has testified before Congress on space topics on multiple occasions, and regularly
works with the media on space issues, including: The New York Times, Time, Popular
Science, Popular Mechanics, ABC, CBS, NBC, CNN, and The Discovery Channel
(joanjohnsonfreese@gmail.com).
Icho Kealotswe-Matlou is an independent legal and policy expert in space law. An

admitted Advocate of the High Courts of South Africa and Botswana. She is a member
of the Johannesburg Bar Council and the Botswana Law Society. Icho researches, writes
and speaks frequently at academic and professional conferences. She is currently a nomi-
nated member of the Policy and Legal Committee of the South African Council for Space
Affairs (SACSA). She recently served as co-drafter and reviewer of the book Global Space
Governance: An International Study, released in 2018 by Springer. Icho is also a member
of the International Institute of Space Law (IISL) and presides yearly over the Manfred
Lachs Space Law Moot Court Competitions (African Region) since 2015 (ichomatlou@
gmail.com).
xii Editors and Contributors
Paul Meyer is a Senior Fellow in Space Security at The Simons Foundation Canada as well
as Adjunct Professor of International Studies at Simon Fraser University in Vancouver.
A former career diplomat with Canada’s Foreign Service he served as Ambassador and
Permanent Representative to the United Nations and Conference on Disarmament
in Geneva (2003-07) and as Director-General of the Security and Intelligence Bureau
of the Canadian Department of Foreign Affairs until his retirement in 2010. He serves
on the Governance Group for “Space Security Index” an annual publication covering
developments in outer space relevant to space security (pmeyer@sfu.ca).
Jana Robinson is currently Space Security Program Director at the Prague Security
Studies Institute (PSSI). She previously served as a Space Policy Officer at the European
External Action Service (EEAS) in Brussels, as well as Space Security Advisor to Czech
Foreign Ministry. From 2009 to 2013, she worked at the European Space Policy Institute
(ESPI), seconded from the European Space Agency (ESA). Dr. Robinson is a member
of the International Academy of Astronautics (IAA), the International Institute of Space
Law (IISL), and the Advisory Board of CSIS Missile Defense Project. Author of over
30 publications, including co-editor of 2015 Handbook of Space Security published by
Springer (çjrobinson@pssi.cz).
Kenneth Smith is a Lieutenant Colonel in the United States Air Force, and the Materiel
Leader and Program Manager for the Enhanced Polar System satellite acquisition program
at the Space and Missile Systems Center, Los Angeles Air Force Base, California. Prior
to his current assignment, Lt. Col. Smith attended the College of Naval Command and
Staff, Naval War College, Newport, Rhode Island where he earned a Master of Arts degree
in Defense and Strategic Studies as well as a graduate certificate in Ethics and Emerging
Military Technology. He earned an MBA from UCLA Anderson School of Management
prior to serving as an Assistant Professor for Marketing Analysis in the Department of
Management at the U.S. Air Force Academy, Colorado Springs, Colorado. Lt. Col. Smith
has satellite operations experience with the 4th Space Operations Squadron, Schriever
AFB, Colorado, and has satellite acquisition experience with the Space Based Infrared
System, Overhead Persistent Infrared programs, and military satellite communications
special projects at the Space and Missile Systems Center, Los Angeles Air Force Base,
California (kenny.smith45@gmail.com).
Dale Stephens is a Professor of Law at the University of Adelaide Law School. He is a

former Naval Legal Officer. His operational deployments include East Timor and Iraq. He
has been awarded the Conspicuous Service Medal (CSM), the (US) Bronze Star and the
(US) Meritorious Service Medal. He attained the rank of Captain in the Royal Australian
Navy before transferring to the Reserve in 2013. Professor Stephens holds both a Masters
degree (LL.M) and Doctorate (SJD) from Harvard Law School. He is currently Director
of the Adelaide Research Unit on Military Law and Ethics and Head of the SA/NT Navy
Legal Panel. He is a fellow of the Australian Academy of Law (dale.stephens@adelaide.
edu.au)
Editors and Contributors xiii
Matthew Stubbs is Associate Professor and Deputy Dean of the University of Adelaide
Law School and Editor in Chief of the Adelaide Law Review. Matthew is a member of the
International Institute of Space Law, and serves as a Core Expert of the Woomera Manual
on the International Law of Military Space Operations. His professional activities include
being Chair of the Space Law and Human Rights Committees of the Law Society of South
Australia and member of the National Human Rights Committee of the Law Council of
Australia. Matthew is privileged to serve as a Legal Officer in the Royal Australian Naval
Reserve (matthew.stubbs@adelaide.edu.au).
Jinyuan Su is Professor and Assistant Dean at Xi’an Jiaotong University School of Law,
China. His research interests lie in outer space law, the law of the sea, and international
aviation law. Dr. Su holds a PhD in International Law from Xi’an Jiaotong University. He
was an Erin J.C. Arsenault Fellow (2014–2015) at the McGill Institute of Air and Space
Law, a visiting research fellow (2009–2010) at the Lauterpacht Centre for International
Law, University of Cambridge, and a visiting scholar (2008–2009) at School of Law, King’s
College London. Dr. Su is a member of Governance Group of the Space Security Index
(SSI), a lead drafter for the McGill project of Global Space Governance (GSG), a core ex-
pert in the project of Manual of International Law Applicable to Military Uses of Outer
Space (MILAMOS), and a member (2016–2018) of the Global Future Council on Space
Technologies of the World Economic Forum (WEF).
Introduction
Why Space Law Matters in War and Peace
Matthew Hersch and Cassandra Steer
For the last three-quarters of a century, humanity has been a spacefaring civiliza-
tion, capable of building machines and sending them on voyages beyond Earth’s
atmosphere for good or ill. The individuals who built the first vehicles that could
travel into space—liquid-fuel bipropellant rockets—were motivated both by a
desire to explore and by an equally urgent desire to use the environment of space
to wage war. Efforts to use space technology and the space environment to attack
and to defend against attack have been present from the earliest experiments in
spaceflight, yet spacefaring nations have traditionally approached the subject of
warfare in space with judicious concern. A theater of battle unlike any other, the
space environment, especially in Earth orbit, imposes demands on combatants
and risks to combatants and noncombatants alike, that challenge diplomats,
policymakers, and military leaders in profound ways.
This volume examines the legal, policy, and ethical issues animating current
concerns regarding the growing weaponization of outer space and the poten-
tial for a space-based conflict in the very near future. A collection of diverse
voices rather than the product of a single scholarly mind, it builds upon a con-
ference that was held in Philadelphia in April 2018, hosted by the Center for
Ethics and the Rule of Law, at the University of Pennsylvania Law School, and
designed by co-editor Cassandra Steer. The conference was an exceptionally
high-level invitation-only roundtable for the duration of two days, attended
by approximately thirty experts on space warfare from Canada, Europe, and
the United States. The majority of the contributing authors in this volume
attended the conference, among them academics, military lawyers, military
space operators, aerospace industry representatives, diplomats, and national
security and policy experts. This was a unique gathering of international and
interdisciplinary expertise on a topic that is often only discussed in the con-
text of specific government departments, or within the limits of specific discip-
lines. Participants were unanimous that they benefited from the exchange of
perspectives and knowledge, and we hope to have captured this in the volume
before you. Authors who attended the conference have made direct use of
Matthew Hersch and Cassandra Steer, Introduction In: War and Peace in Outer Space. Edited
by: Cassandra Steer and Matthew Hersch, Oxford University Press (2021). © Oxford University Press.
DOI: 10.1093/oso/9780197548684.003.0001
2 War and Peace in Outer Space
the outcomes from discussions during the conference for the content of their
chapters. Those authors who were not in attendance were briefed on the inten-
tion and outcome of the conference and were invited to contribute because of
their unique perspectives and expertise.
The History of War in Space
Like the history of space exploration itself, the history of space warfare is one
in which decades of theorizing as to the possibilities and challenges it would
present preceded the development of the machines necessary to undertake
it. Long before space vehicles flew, science fiction authors conjured scenes
of violent space battles, but it was the geopolitical competition during and
after World War II that spurred the development of the first rockets and space
vehicles.
Despite the promises made by inventors, early rocket weapons seldom lived up
to the most optimistic projections of their utility. Rocket bombardment weapons
were already commonplace in Asia by 1000 ce and became part of the arsenal of
many Western powers by the nineteenth century, but remained difficult to use,
due primarily to the lack of any means of guiding them to their targets during
their flight and the meager power of their solid propellants (the same combina-
tion of charcoal, sulfur, and potassium nitrate that powered early firearms). Such
vehicles could not generate the thrust to enable humans to successfully navigate
space or wage war through it, but their insufficiency did not prevent scientists
and popular writers from hypothesizing about the role they still might play in fu-
ture conflicts. At the turn of the twentieth century, theoretical and experimental
work on liquid-fuel rocketry presented researchers with an even more powerful
technology: one that might produce rockets with the thrust to send weapons and
people into space.
One of the central ironies of the development of space technology is that many
of the researchers most enthusiastic about peaceful exploration of the cosmos
labored throughout their lives to enlist military organizations in their efforts to
create it. Enthused by the science fiction novels of Jules Verne and other writers,
rocket theorists during the first half of the twentieth century planned the con-
struction of spacefaring vehicles based upon rocket technology while offering
rocket weapons to national military organizations, virtually the only entities
wealthy enough to support such research. During the late 1930s and early 1940s,
Robert Goddard and Frank Malina in the United States, Herman Oberth and
Wernher von Braun in Germany, and Sergei Korolev in the Soviet Union the-
orized about the civilian space exploration while attempting to raise funds for
these expeditions by offering their nations weapons systems employing the
Introduction 3
same components: rockets, guidance systems, and radio control.1 In most cases,
they were unsuccessful: as weapons of war, rockets were fanciful technologies
that had only limited use through World War II, modestly useful in particular
circumstances but never the war-winning technologies their designers had
hoped them to be.
The most influential peddler of rocket weapons, von Braun, succeeded in
fielding several liquid-fueled military devices employing rocket motors, the
most famous of which, the Aggregate-4 (A4, later Vengeance Weapon Two, or
V2), could lob a ton of high-explosive two hundred miles with poor accuracy.2
A ballistic missile, it accelerated briefly at launch, coasting in an arc to the edge of
space before striking its target, and relying upon gravity alone to guide it during
its descent. Built by slave labor and launched by the thousands, the missiles likely
hastened Nazi Germany’s defeat, soaking up resources and fuel badly needed
to sustain Germany’s war machine and causing little damage to Allied forces or
targets of strategic importance.3 The advent of nuclear weapons at the time of the
V2’s development, though, offered a glimmer of a new weapon that would com-
bine the V2’s range with the city-destroying power of the atomic bomb, making
long-distance rocket bombardment and flight into space a potentially central el-
ement in future defense planning, though building a nuclear-armed rocket ca-
pable of long-range flight would take another ten years.
Ballistic rocket weapons like the V2 could fly high enough to briefly exit
Earth’s atmosphere4 but could never achieve the speed necessary to fly across a
continent or an ocean. So great was the velocity needed that a rocket achieving
it could not only strike other countries halfway around the world but could, if it
climbed high enough, accelerate its payload with sufficient speed to place it into
orbit, perpetually falling around the curvature of the Earth’s surface without the
need for further propulsion. As early as 1946, American defense planners rec-
ognized that the race to build nuclear missiles and the race to orbit a spacecraft
were essentially the same, although it was not clear, at first, which application of
rocket technology held more military promise. Nuclear weapons appeared, at
first, too heavy to lift by rocket, while, in the absence of reliable long-range radio
communications, orbiting platforms seemed to offer limited military utility.5
1 See generally Michael J. Neufeld, Spaceflight: A Concise History (2018); Roger D.
Launius, NASA: A History of the U.S. Civil Space Program (1994).

2 See generally Michael J. Neufeld, Von Braun: Dreamer of Space, Engineer of War (2007).
3 Id.
4 The Fédération Aéronautique Internationale recognizes the altitude of 100 km (62 miles) as the
effective outer boundary of Earth’s atmosphere, though other calculations have placed this line closer
to 50 miles, and significant atmospheric traces remain beyond the 62-mile limit.
5 J.E. Lipp, R.M. Salter Jr., & R.S. Wehner, Utility of a Satellite Vehicle for
Reconnaissance 1 (1951).
Fueled by postwar superpower competition in the early years of the Cold

War, research in the United States and the Soviet Union (soon followed by an
array of other nations) set to work on solving these problems and building
missiles suitable for both lobbing nuclear warheads across oceans and launching
instrumented platforms into orbit around the Earth. Researchers increased the
speed and range of rockets, in part, by stacking them atop or alongside each
other and firing them in series. Some rocket pioneers, like Goddard, did not live
long enough to see spacefaring rockets emerge; others, like Malina, abandoned
military rocket research after World War II for moral reasons. (“I just hated the
idea of, say, planning to use all this for bombarding people. So there’s no doubt
that that played a heavy role,” Malina noted of his rocket research in a 1980 in-
terview.)6 Korolev, in the Soviet Union, found himself the subject of political de-
nunciation imprisonment during the war, only to be rehabilitated when his skills
became valuable in the postwar quest to field large rocket weapons. Immediately
preceding the Soviet Union’s successful launch of the first artificial Earth satellite,
Sputnik 1, on October 4, 1957, the Soviets undertook a partially successful test of
Sputnik’s launch vehicle, Korolev’s R.7, configured as an intercontinental ballistic
missile (ICBM).7 American Atlas ICBM launches followed in 1958.8
With the subsequent successful launching of orbiting satellites of ever-
increasing sophistication, attention in both the United States and the Soviet
Union shifted from conceptualizing rockets principally as a bombardment tech-
nology, to recognizing their ability to launch valuable instrumented platforms
into orbit. With the advent, by the 1960s, of both nuclear-armed missiles with
intercontinental reach, and an array of orbiting, remotely controlled satellites
eventually able to observe enemy territory, predict weather, and facilitate com-
munications among terrestrial military forces, the space environment had be-
come a potential battleground itself, filled with expensive military assets whose
loss could cripple a nation’s offensive and defense capabilities. In the United
States, politicians and the media seized upon the notion of the “high ground” of
space, likening it as Senator (and future President) Lyndon Johnson did, in 1958,
to a highway overpass, from which nations might observe their enemies, coor-
dinate their forces, and, supposedly, lob nuclear weapons upon adversaries as
easily as children might hurl stones onto passing cars:
6 Frank J. Malina, Interview with Frank J. Malina (1980), 14, <http://resolver.caltech.edu/
CaltechOH:OH_Malina_F> (accessed Oct. 23, 2017).

7 Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945–
1974 (National Aeronautics and Space Administration, NASA History Division, Office of Policy and
Plans, 2000).
8 E.g., United States Aeronautics and Space Activities Annual Report to Congress (NASA Original
Version), published as House Document Number 71, 86th Congress, 1st Session, Feb. 2, 1959, 13.
Introduction 5
There is something more important than any ultimate weapon. That is the ul-
timate position—the position of total control over Earth that lies somewhere
out in space. That is . . . the distant future, though not so distant as we may have
thought. Whoever gains that ultimate position gains control, total control, over
the Earth, for the purposes of tyranny or for the service of freedom.9
Comparisons between the space environment and other battle environ-

ments were, however, always strained, none more so than the “highway over-
pass” analogy. Space vehicles required inordinate amounts of rocket propellant
to achieve a stable orbit, and once they did, virtually the same amount of fuel to
change it, making such concepts as space fighter plane or space bomber almost
nonsensical with current propulsion technology. Nor was space an optimal bom-
bardment platform. Warheads released from orbit would not descend to Earth
but continue in their orbital path. To return to the surface, a warhead would need
to be decelerated by a rocket and descend low enough to pass through Earth’s
atmosphere at high speed, a process that would not occur quickly and could
not be performed with sufficient accuracy to ensure the warhead struck when
and where it was supposed to. As will be discussed in full detail in c hapter 2
[Hitchens] and chapter 7 [Su], the 1967 UN Outer Peace Treaty banned the
placement of space-based weapons of mass destruction in Earth’s orbit and on
the moon, a relatively easy concession to make for technology of limited military
utility. The use of Earth orbit (or in an even more odd contemporaneous plan,
the moon) as a platform to launch nuclear weapons never materialized for prac-
tical reasons, but over time, the value of military satellites to peacetime and war-
time military operations has led to concerns for a potential space warfare, since it
was already apparent that these satellites would be likely targets for future attack
from the ground, air, or space environment.
The capacity to destroy both ICBMs and satellites in orbit arrived early in the
first Space Age but found no operational use for reasons both technical and polit-
ical. Ballistic missiles and orbiting satellites follow predictable paths easily iden-
tified by radar and already plotted by early computers. In space, nuclear weapons
would produce neutron and X-ray radiation that would destroy electronics and
shatter the fragile structure of early warheads. Launched quickly enough and
pointed in the right direction, one missile could easily destroy another, by det-
onating a nuclear weapon close enough to it to damage or detonate the warhead
of the target missile. Satellites, too, could be disabled in this way: the intercepting
vehicle would not need to match the satellite’s speed, only place itself close
9 “Speech to Democratic Congressional Conference, January 7, 1958,” reproduced in Lloyd C.
Gardner, From the Colorado to the Mekong, in Vietnam: The Early Decisions 37–57, 50 (Lloyd C.
Gardner & Ted Gittinger eds., 1997).
enough to it for the instant required to detonate its warhead. If the interceptor
were able to approach the target close enough, a conventional fragmentation
warhead would easily disable it.10
By 1963, both the United States and the Soviet Union had developed (but did
not deploy) weapons capable of disabling objects in space, either by matching
the orbit of the target and then disabling it with a conventional explosive or frag-
mentary warhead (in the case of the earliest Soviet interceptor, the V-1000),11
or ascending to an intercept trajectory and disabling with a nuclear warhead
(the Nike-Zeus, tested successfully with a dummy warhead). The effect of such
weapons in space is impossible to contain, as the 1962 Starfish Prime test proved,
in which the United States exploded a 1.4-megaton hydrogen bomb at an altitude
of 248 miles and disabled at least six satellites, including British, American, and
Soviet TV broadcast and telecommunications satellites.12 Thus, wary of an arms
race to develop weapons that would destroy a vital and increasingly useful tech-
nology, impacting both sides as well as allies, neither superpower rushed to field
these devices.
During the 1960s, there was a controversy surrounding antimissile
weapons: such systems would require the detonation of large numbers of
nuclear weapons over U.S. soil in order to work, could be easily fooled by
countermeasures, and might destabilize the balance of power between the
United States and the Soviet Union sufficiently to encourage preemptive war.
American arms negotiators concluded that a defensive system that allowed any
nation to defend itself fully against attack would likely undermine confidence in
the concept of mutually assured destruction that had been the basis for postwar
peace between East and West since 1949.13 As further discussed in chapter 10
[Doucet], in 1972, the Strategic Arms Limitation Talks led to a treaty between
the United States and the Soviet Union (since abrogated), which all but banned
antiballistic missile weapons, which were fielded in limited numbers in the 1970s
before being withdrawn.14
While work on missile defense ebbed and flowed, research continued on
techniques for defending militarily valuable space assets from attack and denying
the use of the assets of other nations. Development in the United States of the
10 Bell Labs, ABM Research and Development at Bell Laboratories, Project History
(Oct. 1975).
11 ABM and Space Defense (Mar. 3, 2016), <https://web.archive.org/web/20160303165344/http://
fas.org/spp/starwars/program/soviet/990600-bmd-rus.htm> (accessed Mar. 1, 2020).

12 James Moltz, Crowded Orbits: Conflict and Cooperation in Space 119 (2014).
13 Bell Labs, supra note 10, at I–26. See generally Lawrence Friedman, The Evolution of
Nuclear Strategy (1987).

14 Interim Agreement Between the United States of America and the Union of Soviet Socialist
Republics on Certain Measures with Respect to the Limitation of Strategic Offensive Arms, signed at
Moscow, May 26, 1972 (SALT I).
Introduction 7
space shuttle, an orbital space plane designed to rendezvous with and service sat-
ellites in orbit, alarmed Soviet planners concerned about the inspection and cap-
ture of its most valuable satellites.15 The Soviet Union experimented briefly with
military space stations armed with defensive canons repurposed from Soviet
military aircraft, although few were fielded.16 This is because while firearm am-
munition contains the fuel and oxidizer to combust in a vacuum, traditional
firearms operate poorly in space without air or water to cool them, quickly
overheating. Self-destruction mechanisms for satellites also seemed of limited
use; in the worst-case scenario, a nation might be tricked into destroying its own
satellites to prevent their inspection or capture. In the United States, meanwhile,
research increasingly turned away from nuclear warheads as weapons for de-
stroying satellites to small, highly maneuverable vehicles capable of destroying
satellites through high-speed impact. The experiments produced a small, multi-
stage interceptor rocket, dropped at high altitude from a fighter plane, that was
successfully tested in the United States in 1985,17 and a sea-launched missile
tested on a low-orbiting satellite in 2008.18 These tests and their impact upon
space policy and law are further detailed by Doucet in c hapter 10 [Doucet].
The ability to disrupt the satellite of another nation is available to virtually
any nuclear-capable spacefaring power, but tests of antisatellite vehicles have not
yet produced a widely deployed weapon of real value. Tests in which the United
States and the Soviet Union destroyed their own satellites in orbit did not elim-
inate them so much as fragment them, replacing a single controllable craft with
a cloud of fast-moving debris so large that it was likely to disable other satellites,
both friendly and hostile. In 2007, the People’s Republic of China conducted a
test of its antisatellite (ASAT) missile, destroying a Chinese satellite orbiting five
hundred miles above the Earth and producing approximately a million pieces of
debris.19 In the lowest stable Earth orbits, between one hundred and three hun-
dred miles in altitude (where piloted spacecraft and most reconnaissance sat-
ellites operate), residual nitrogen and oxygen molecules would cause enough
15 Asif A. Siddiqi, Challenge to Apollo: The Soviet Union and the Space Race, 1945–
1974 (National Aeronautics and Space Administration, NASA History Division, Office of Policy and
Plans, 2000), 835–6.
16 Id. 594, 597; Anatoly Zak, Here Is the Soviet Union’s Secret Space Cannon, Popular Mechanics
(Nov. 16, 2015), <https://www.popularmechanics.com/military/weapons/a18187/here-is-the-

soviet-unions-secret-space-cannon/> (accessed Mar. 1, 2020).
17 B. Keller, Air Force Missile Strikes Satellite in First U.S. Test, New York Times (Sept. 14, 1985),
<https://www.nytimes.com/1985/09/14/us/air-force-missile-strikes-satellite-in-first-us-test.html>
(accessed Apr. 20, 2020).
18 Navy Hits Satellite with Heat-Seeking Missile, Space.Com (Feb. 21, 2008), <https://www.space.
com/5006-navy-hits-satellite-heat-seeking-missile.html> (accessed Apr. 20, 2020).

19 NASA, Fengyun-1C Debris: One Year Later, Orbital Debris Quarterly News, 3 (Jan. 2008),
<https://orbitaldebris.jsc.nasa.gov/quarterly-news/pdfs/odqnv12i1.pdf> (accessed Apr. 20, 2020), in

P.J. Blount, Targeting in Outer Space: Legal Aspects of Operational Military Actions in Space, Harvard
National Security Journal Features 1, 18 (2012).
friction to slow debris particles enough to eventually re-enter the atmosphere.

Above this altitude though, screws, nuts, and even flecks of paint, traveling at
18,000 miles per hour, would become bullets capable of puncturing anything
in their path. At higher altitudes, debris from a satellite’s destruction might re-
main in orbit for hundreds or even thousands of years. Were this debris to strike
other satellites, or even other pieces of existing debris, a cascading series of
explosions (described first by NASA scientist Donald Kessler in 1978)20 would
produce a cloud of debris sufficient to deny use of Earth orbit to all spacecraft vir-
tually forever. Much like poison gas in World War I, use of antisatellite weapons
might harm one’s own forces and one’s own interests as much as those of the
enemy. The impact of the Chinese test, and more recently India’s ASAT test, are
discussed from various perspectives by Steer and Stephens in chapter 1 [Steer
and Stephens], Su in chapter 7 [Su], Doucet in chapter 10 [Doucet], and Grego
in chapter 11 [Grego]. In light of these concerns, recent attention has turned to
various means of approaching, inspecting, and disabling satellites without de-
stroying them, through the use of maneuverable orbital vehicles and directed
energy weapons capable of blinding or stunning the craft and rendering them in
operative temporarily or permanently. And the technology to do so continues
to proliferate and will soon be within reach of all spacefaring powers—nations
that have developed Earth orbit launch capability—a group that has expanded
to include over a dozen countries around world.21 The legality of various forms
of antisatellite technologies is discussed in c hapter 7 [Su] by Su, while Doucet in
chapter 10 [Doucet] offers a possible solution to the challenge of drafting inter-
national agreements which limit the undesirable consequences of such technol-
ogies for all users of space.
A Critical Moment
Historically, strategic restraint has been the dominant approach among nations
active in space, all of whom understood that continued access to and use of space
20 Donald J. Kessler & Burton G. Cour- Palais, Collision Frequency of Artificial Satellites: The
Creation of a Debris Belt, 83 Journal of Geophysical Research 63 (1978).
21 The first nations to develop indigenous satellite launch capability were the USSR (1957), the
United States (1958), France (1965), Japan (1970), China (1970), Great Britain (1971), the European
Space Agency (representing Western European powers) (1979), India (1980), Israel (1988), Iran
(2009), and North Korea (2012). See, e.g., Spacefaring Japan—First Nations to Launch Satellites,
<http://www.spacetoday.org/Japan/Japan/FirstSat.html> (accessed May 17, 2020). In addition, sev-
eral nations achieved orbital launch capability through importation of foreign launch vehicles or in
joint development programs with spacefaring powers, including Canada (1962), Italy (1964), France
(1965), Australia (1967), and New Zealand (2018), while the dissolution of the USSR created addi-
tional spacefaring powers in Russia and Ukraine. Additional States possess suborbital space launch
capability or are acquiring orbital capabilities.
Introduction 9
required holding back on threats or activities which might jeopardize the status
quo of peace in space. However, recently there has been a discernible shift in in-
ternational rhetoric toward a more offensive approach to defense in space, and
a number of recent developments render this issue both timely and important.
First, as mentioned, China, India, Russia, and the United States have deployed
various tests in space, leading to speculation that they all possess sufficient ASAT
capabilities such as jamming devices, malware, kinetic antisatellite weapons, and
laser weapons, each of which could have devastating consequences. These tests
suggest that there is an increasing tendency toward weaponization of space, de-
spite the core principle of the 1967 Outer Space Treaty that space shall be used
exclusively for peaceful purposes. In response, a discernable active stance to-
ward space defense has entered the policy rhetoric of India, Israel, Japan, and the
United States in recent years.
Second, the announcement in 2018 of plans to create a dedicated U.S. Space
Force sparked instant responses from allied and competing nations alike. China
and Russia in particular condemned the move as threatening peace and secu-
rity in space. In 2019, President Emmanuel Macron announced that France will
create a Space Force Command within its Air Force to “reinforce our knowledge
of the situation in space, [and] better protect our satellites, including in an active
manner.”22 Japan has also joined the ranks of those nations pouring more of their
defense budget and resources into space.23 And since the official creation of the
U.S. Space Force in 2019, and the attention given in the media to the creation of
its logo, public awareness of the importance of space for security and the tensions
surrounding military dominance in space has increased. These issues are all
elaborated in chapter 6 [Hays] by Hays, who provides an exceptional in-depth
discussion of questions facing the new Space Force, both doctrinal and practical,
and in Johnson-Freese and Smith’s contribution in chapter 5 [Johnson-Freese
and Smith], where the authors tackle the ethical issues of seeking space domi-
nance. For some years now, various departments of the U.S. armed forces and the
Department of Defense have undertaken assessments to determine the current
and prospective role of the United States in space security, including whether
and how the United States can gain dominance in the space domain, a position
that raises concerns internationally. Perhaps as a counterweight to the U.S. ap-
proach of military dominance, in c hapter 9 [Robinson] Robinson analyzes alter-
native international attempts to dominate the space sector by various competing
powers and what should be done to limit these attempts.
22 Macron Announces Creation of French Space Force, France24 (July 13, 2019), <https://www.
france24.com/en/20190713-macron-france-space-force> (accessed Apr. 20, 2020).

23 Japan Eyes New Defense Unit to Monitor Space in Fiscal 2020, Japan Today (Aug. 24, 2019),
<https://japantoday.com/category/national/japan-eyes-new-defense-unit-to-monitor-space-in-
fiscal-2020> (accessed Aug. 29, 2019).
Third, there is a geopolitical standoff on negotiating new international

instruments regarding space security, the weaponization of space, or the use of
force in space, as detailed in chapters by Kealotswe-Matlou, Hitchens, Su, and
Doucet. The joint proposal by Russia and China, for a Treaty on the Prevention
of the Placement of Weapons in Outer Space, the Threat or Use of Force against
Outer Space Objects (PPWT),24 has not received any support from Western
States, including the United States. The 2019 meeting of the UN Group of
Government Experts to discuss a possible treaty to prevent space weaponiza-
tion did not amount to any concrete outcomes and was impacted in particular
by the refusal of the United States to support such an initiative, as Hitchens,
Kealotswe-Matlou, and Su explain from various international perspectives in
their contributions to this volume. The UN General Assembly has adopted a
resolution on “No First Placement of Weapons in Outer Space,” urging States
to make binding, unilateral declarations that they will not be the first to place a
weapon in outer space,25 however, as Su analyzes in his chapter, States are slow to
respond. Moreover, negotiations surrounding a nonbinding International Code
of Conduct for Outer Space Activities (ICoC) also reached an apparent stale-
mate following unsuccessful meetings in New York in 2016, despite hopes that
this would become a key instrument in international space governance. Doucet,
Meyers, and Kealotswe-Matlou urge the international community not to give up
on such initiatives in their chapters, though their proposed solutions differ.
These factors, combined with a lack of transparency about actual capabilities
and intentions on the part of all major players in space, creates a cyclical esca-
lation which has led some commentators to describe this as a return to a Cold
War–type arms race and to the foreseeability of a space-based conflict. This is
the quandary that Grego tackles in her excellent analysis of crisis management
in space. Due to many unique characteristics of the space domain, an armed
conflict in space would be catastrophic for all players, including neutral States,
commercial actors, and international civil society. Yet it is the most technolog-
ically advanced States that stand the most to lose from a space-based conflict
due to their high dependence on space. The questions then arise, how can the
United States and its allies protect their space assets from being targeted, without
contributing to further escalation of an arms race, to increased aggressive policy
threats, or to the potential of a space-based conflict? What would ethical lead-
ership require of the United States? Meyers argues for the need for more mul-
tilateral space diplomacy, and Kealotswe-Matlou is convinced that a dedicated
24 Draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use
of Force against Outer Space Objects, Conference on Disarmament, CD/1895, June 12, 2014,
GE.14-05066.
25 No First Placement of Weapons in Outer Space, GA Res. 69/32 (Dec. 2, 2014).
Introduction 11
international body is needed to play this role. Where Blount provides an original
analysis of the ethical components of the Outer Space Treaty and the ways in
which we must adhere to these principles moving forward, Johnson-Freese and
Smith argue that dominance in space is not achievable and should be the policy
of any single nation.
There is a critical need for clear representations from States as to their po-
sition on national and international law applicable to space and well-informed
policy positions on the emerging weaponization of space. Due to the specificity
of the space domain, specialized expertise must be provided to decision makers,
and interdisciplinary opinions must be sought from a multitude of stakeholders.
Finding answers to these questions requires interdisciplinary engagement and
collaboration, not only among substantive experts in different fields but also
between public agencies and private commercial entities. To that end, authors
included in this volume represent a wide spectrum of participants in the space
sector, including academics, legal practitioners, military lawyers and operators,
diplomats, and policy advisers.
Unique to this collection is the emphasis on questions of ethical conduct and
legal standards applicable to military uses of outer space. No other existing pub-
lication takes this perspective, nor includes such a range of interdisciplinary
expertise. In addition, the exceptional experience and expertise of the authors
provide a collection unmatched in any academic publication broaching even
some of these issues. We believe that the volume is therefore unique, valuable,
and timely.
Scope of the Study
The chapters included in this volume explore the moral and legal issues discussed
earlier in four major categories, as outlined in the four parts of the volume. The
parts build upon each other in two ways: from general to specific, and from
theory to practice. The first part provides a more general legal framework; the
second tackles ethical issues; the third looks at specific threats to space security;
and the fourth proposes possible legal and diplomatic solutions. In the following
descriptions of each part, the specific expertise of each contributing author is
highlighted.
The Law of War and Peace in Space
To date, the core principles of the 1967 Outer Space Treaty, that space must
be used exclusively for peaceful purposes and that all space activities must be
undertaken in accordance with international law, have served to keep space a

peaceful domain. However, as terrestrial warfighting becomes increasingly de-
pendent on space-based technologies, those technologies themselves become
vulnerable targets, and the risk of space-based conflict escalates. The chapters
in this part clarify the applicability of existing international humanitarian law to
outer space and discuss the role of both legally binding and nonbinding norms in
clarifying standards of behavior and potentially in limiting warfighting in space.
The chapters address questions such as whether the prevention of a space-
based conflict requires policies or strategies to prepare for a conflict in outer
space, or whether such policies strategies suggest to outsiders that there is a prep-
aration for space warfare underway, further contributing to the escalatory cycle.
Authors in this part include professors with expertise in space law and interna-
tional law, who bring a detailed analysis of the key questions of the law of armed
conflict applied to space (Steer and Stephens) and practitioners who bring a prag-
matic critique (Hitchens, former director of the UN Institute for Disarmament
Research, and Kealotswe-Matlou, advocate of the High Court of South Africa).
In their chapter “International Humanitarian Law and Its Application in
Outer Space,” Cassandra Steer and Dale Stephens write that, as a matter of treaty,
custom, and general principles, jus ad bellum and jus in bello are applicable in
space. However, even if the applicability is undeniable, the application of exact
rules may be uncertain. The ways in which space is already implicated in warfare
is quite different from other domains, and the potential for a space-based con-
flict includes technologies and situations we cannot yet envisage. Some specific
questions, such as the status of dual-use satellites and the status of astronauts
under space law and under international humanitarian law (IHL), are discussed
in detail in this chapter. Furthermore, the application of the key principles of IHL
are discussed in their application to space, namely, distinction, proportionality,
and precaution in attack, with the conclusion that the last two must weigh partic-
ularly heavily in any targeting decision involving objects in space.
In “Norm Setting and Transparency and Confidence- Building in Space
Governance,” Theresa Hitchens finds that governance of the use of space, both
at the national and international levels, is complicated because space is a global
resource and because the legal status of space forbids sovereignty. There are a
number of factors contributing to increased risks to safe and secure space activi-
ties: increased geopolitical tensions among major spacefaring powers; technical
advancements lowering barriers to entry and enabling new dual-use capabil-
ities; increased numbers of commercial players with different priorities and less
reliance on national government support; the entrance of many new, and less
skilled, government actors; continued proliferation of debris; and new types of
space activities that fall between current legal and regulatory regimes. Because
most countries in the world have exhibited an allergy over the last thirty years
Introduction 13
to legally binding commitments in space (as in many other arenas affecting

national security), ongoing multilateral work on space governance has con-
centrated primarily on voluntary measures. This is not necessarily a bad thing.
Voluntary measures— whether created by “top- down” negotiations among
governments; “bottom-up” initiatives focusing on best practices; or industry-
led standards setting—can usually be agreed on and implemented more quickly
than international legally binding measures. This chapter reviews the two most
salient of these initiatives—the 2013 normative recommendations of the UN
Group of Governmental Experts and the guidelines for best practices agreed
by the Committee on the Peaceful Uses of Outer Space Working Group on the
Long-Term Sustainability of Outer Space Activities in 2019. The chapter also
elucidates ways to forward the progress made in these multilateral negotiations
and identifies additional steps for establishing a foundational space governance
framework.
Preventing outer space from becoming an arena of conflict is essential for
strengthening strategic stability. Consistent with this notion, Icho Kealotswe-
Matlou writes in “The Rule of Law in Outer Space: A Call for an International
Outer Space Authority,” that in recent decades, States have been working to-
gether through a network of multilateral treaties, conventions, resolutions, and
declarations to face the challenges presented by the exploration and use of outer
space and to adopt approaches for responsible space activity. These multilateral
treaties and conventions underscore the importance of international coopera-
tion in developing the rule of law and creating the foundation for the outer space
legal framework we have today. Nevertheless, the existing platforms for such
cooperation face impossible political hurdles and impasses on preventing the
weaponization of outer space. This chapter discusses some of these hurdles in
light of the prospects of the development toward a global rule of law. Kealotswe-
Matlou argues that this is the opportune time to heed the decades-long call for
the establishment of a World Outer Space Authority, which could galvanize and
coordinate all the efforts made to date to develop the rule of law. It may be that an
independent authority with lawmaking power is required in this period of weap-
onization of outer space, to ensure its peaceful use and long-term sustainability.
The Ethics of Space Security
Following the discussion of legal limits in the first section, this second part deals
with ethical challenges as military dependence on space increases. The question
whether the United States can or should try to exercise domain control is key
here, as is the question how best to ensure the right incentives are in place to min-
imize or mitigate the risk of an armed conflict in space. The tension that arises is,
on the one hand, the desire of the United States and its allies to remain leaders in
space and, on the other hand, the ethical requirement to avoid taking part in an
escalatory cycle of weaponization and competition. The notion that self-interest
is the main driver of State actions might be useful in considering the best way to
incentivize States toward ethical behavior in space. Applying an explicitly ethical
lens to legal and policy issues in space is absent in all the existing literature. The
chapters in this part add a unique perspective to existing discussions on the rule
of law, with a focus on the ethics of international space law (Blount, who brings
an academic analysis), military space policy (Johnson-Freese and Smith, who
apply their military training to ethical questions), and the biggest issues facing
the new U.S. Space Force (Hays, who has decades of experience advising the
White House and the U.S. Air Force on space security issues).
The Outer Space Treaty serves a critical document in establishing a regime
that promotes international peace and security. This treaty, P.J. Blount writes
in “Peaceful Purpose for the Benefit of All Mankind: The Ethical Foundations
of Space Security,” employs a variety of mechanisms that are meant to promote
trust and transparency among space actors to secure the space environment.
Much of the research into space security focuses on hard obligations, such as
the nonweaponization provisions found in Article IV, but ignores the more as-
pirational and soft obligations of the treaty, such as those found in Article I. For
instance, while the Article I provision that the use and exploration of outer
space shall be the “the province of all mankind” is ambiguous in meaning, it
serves to link space activities to the goals and aspirations of humanity rather
than of a single state. Such linking was intended not to create a specific legal
obligation, but rather to color the hard obligations of the Outer Space Treaty
with humanism. The drafters intended that States, in their space activities,
should consider ideas of global security rather than just national security as a
way to ensure that space benefited all countries and people. It is through these
types of provisions that space law imbues not just legal obligations but also eth-
ical and moral values that States are meant to consider as they engage in space
activities.
It is exactly this application of ethical and moral values to the military use of
outer space that Joan Johnson-Freese and Kenneth Smith tackle in “U.S. Space
Dominance: An Ethics Lens.” On one end of the spectrum are those who believe
space is an inevitable warfighting domain. On the other end are those who be-
lieve space should be treated as a sanctuary and should only be used for peaceful
purposes. However, the dual-use nature of most space technology, whereby it
can be used for both peaceful and military purposes, makes the latter viewpoint
inherently untenable, especially since “peaceful” has been interpreted in multiple
ways by different countries and venues. The United States has largely taken the
position that space warfare is unavoidable and has, thus, championed the mantra
Introduction 15
of achieving U.S. space dominance in an effort to prevent potential adversaries

from altering the balance of power in the world. A thoughtful ethics analysis is re-
quired, since this approach could be a driving factor to a major conflict between
the United States, China, Russia, and/or others that could render space unus-
able for future generations. This chapter provides an ethics analysis that explores
U.S. space dominance through the following traditional ethics perspectives: util-
itarian, rights, fairness, common good, and virtues. It also considers technology
ethics, ethics as a function of time, and contractarianism. Finally, this chapter
yields recommendations the United States can pursue to ensure it is not, through
unintended consequences, creating rather than solving problems.
This dilemma between seeking to remain powerful in space and yet not
asserting dominance at the risk of sparking escalation of conflict is brought to
bear in the creation of the U.S. Space Force in 2019. Peter L. Hays’ chapter “What
Should the Space Force Do? Insights from Spacepower Analogies, Doctrine,
and Culture” provides an expert analysis of the main issues faced by this new
military force, using insights from several analogies to assess opportunities
and challenges, including developing space doctrine and incubating a space-
minded culture, blunting counterspace threats, improving space acquisition, and
securing space to accelerate creation of wealth in and from space. It also outlines
some cautions and concerns about the Space Force stemming from current po-
litical dynamics, as well as impacts from operation of analogous military organ-
izations. Simple, clear, and strongly held doctrine orients a military and is a sine
qua non for creating a strong and distinct military culture. Creation of the Space
Force as an independent organization should accelerate the development of
space doctrine and help move it beyond what are, arguably, some of the most ten-
uous but often invoked analogies from maritime and air doctrine. Hays argues
that over time, as the space doctrine development process matures, it should pro-
vide a foundation for the generation-long informal processes that create a space-
minded culture for the Space Force.
Current and Future Threats to Space Security
This part includes chapters which outline the greatest immediate threats to space
security, as well as those issues we need to consider in forward-looking legal and
policy developments. The majority of those working in the space sector seek to
prevent a space-based conflict from taking place, because of the catastrophic long-
term effects of any kinetic conflict in space on the accessibility to and freedom of
use of space, and in the case of nonkinetic warfare, the inability to contain the im-
pact upon our terrestrial dependence on space-based technologies. The challenge
is how to translate the importance of this position to policymakers who may not
have the requisite understanding of the uniqueness of the space domain, or of the
universal costs of escalation of any tensions in space.
Authors in this part each have highly specific expertise with respect to the sub-
ject matter of their chapter, and each of them is able to provide an essential inter-
national perspective to the exceptionally difficult issues they tackle. An academic
analysis is provided on specific legal issues by law professors (Su and Stubbs),
and a research-based international diplomatic perspective is applied to analyze
unconventional threats to space security by an international space advocacy ex-
pert (Robinson).
The resurgence of aggressive rhetoric in national space programs in the new
millennium has intensified concerns over the potential for conflicts to take place
in outer space, prompting various initiatives aimed at curbing an arms race in
space. The greater challenge, however, as Professor Jinyuan Su writes in “The
Legal Challenge of Arms Control in Space,” is how to define a weapon in outer
space. Many benign technologies, such as those developed for active space de-
bris removal, can be easily repurposed to capture or disable an adversary’s sat-
ellite. Others may be lawful under existing international law, such as employing
cyber tactics to interfere with or disable a target satellite. The question is there-
fore raised whether it is indeed possible to commit to an arms control treaty for
outer space, as proposed by China and Russia. If so, the problem remains as to
what extent space weapons are prohibited on the chain of “research, develop-
ment, testing, placement and use,” and the verification of compliance with these
obligations.
Verification is also one of the greater stumbling blocks in identifying when
a keep-out zone or safety zone may be lawful and when it may be in breach of
the general principle of the freedom of exploration and use of outer space by all
States. In his chapter, “The Legality of Keep-Out, Operational, and Safety Zones
in Outer Space,” Associate Professor Matthew Stubbs argues that there are excep-
tional situations in which a State might legally be permitted to declare a keep-out
zone in outer space. In any case, there are two zones that are likely to be legally
recognized: those declared by the UN Security Council acting under Chapter
VII of the UN Charter, and those declared by belligerents in the immediate area
of operations in an armed conflict. There are also potential applications to outer
space of exclusion zones similar to those recognized in naval and air warfare.
Finally, Stubbs asserts that there are two zones applicable in peacetime which
may develop in space law in the future: a possible space object identification zone
based on the air defense identification zone, and possible safety zones for space
resource activities on celestial bodies.
Finally, Jana Robinson, in “Prominent Security Risks Stemming from Space
Hybrid Operations,” writes that to date, discussions concerning hybrid threats
have been almost exclusively focused on terrestrial and maritime domains.
Introduction 17
Space has been largely excluded from such international exchanges despite the
fact that the same actors, mindsets, and techniques are presently in play in this
domain as well. All these activities show a troubling trend, because these opera-
tions have the potential to negate critical space systems. Space hybrid threats are
intentional, mostly reversible, and often harmful. They include actions or activ-
ities conducted just below the threshold of requiring a meaningful military or
political retaliatory response. The United States and allied militaries have been
exposed to such operations, and civil and commercial systems are not excluded
from being targeted, complicating national security considerations. Hybrid
techniques are deployed to project power, control, and influence for the pur-
pose of consolidating their strategic objectives (both industrial and military).
This chapter seeks to provide a better understanding of this complex issue and
help define a more informed security policy framework concerning how we
protect our space assets and the critical capabilities and benefits derived from
them through strengthened resilience, deterrence, and cross-domain response
options.
Toward Stability
In this concluding part, the contributions aim to steer attention toward pos-
sible solutions to the tensions and complications raised in the previous parts.
Attention is given to the role of international and multidisciplinary cooperation
and collaboration, in terms of diplomacy, technical information sharing, and
possible legal regimes to support transparency. While it may appear counter-
intuitive to support increased cooperation and collaboration, there is an inter-
national consensus among experts that it is prudent to consider policies which
support increased international scientific collaboration, and other transparency
and confidence-building measures (TCBMs), in order to avoid a space-based
conflict in which there are no winners.
As mentioned earlier, there is often a lack of understanding as to the intentions
behind any given actor’s activities in outer space, which is a key factor in the cy-
clical escalation we are currently witnessing in terms of competing policies and
technologies seeking to dominate space. This is a unique factor in space secu-
rity when compared to other domains. There are certain understandings about
specific maritime, air, or land-based maneuvers, depending in large part upon
whether there is a state of peace, tensions, or armed conflict between the parties
concerned. However, in space there is the opposite scenario: an activity may be
read by one State as aggressive, when it may in fact be intended as a benign ac-
tivity, or may even be unintentional. The shift in relations, trust, and communi-
cation that comes paired with a shift from peacetime to times of hostility or to
armed conflict, compound this problem. If there are terrestrial-based tensions

between parties, it may become even more difficult to interpret certain behaviors
in outer space. Space is a unique domain and requires a unique way of thinking
about policy and strategy. Authors in this part have expertise in advising
governments at very high levels (Doucet and Meyer) and in peace advocacy
(Grego and Meyer). All three of them have published extensively in academic
journals as well as in other academic and policy fora.
In “A Proposed Transparency Measure as a Step Toward Space Arms Control,”
technical and legal space consultant Gilles Doucet notes that recent efforts at
negotiating new space arms control treaties have not been successful. The only
publicly announced proposal has been the PPWT, sponsored by Russia and
China. The United States has consistently rejected the PPWT, citing three major
deficiencies: verifiability, exclusion of ground-based systems, and no definition
of the term “weapon.” This chapter therefore proposes a multilateral convention
on transparency measures that will address the identified stumbling blocks and
offer the potential of easing tensions, increasing trust, and achieving significant
arms control objectives among the participating States. The proposed convention
relies on a key transparency measure, namely, the requirement to notify and re-
port any activity that results in the transfer of energy to any object in Earth orbit.
This would make it more difficult for States to develop antisatellite weapons, and
also reduce their perceived need for such capability. The specifics of the notifica-
tion and reporting procedures would be detailed in a technical annex to the con-
vention. Doucet draws on the evidence of successful arms control agreements
in the past and argues that such a TCBM is not an insurmountable challenge in
today’s context.
For the foreseeable future, military tensions between the United States,
China, and Russia are likely to remain high, as are those between China and
India. Senior Scientist with the Union of Concerned Scientists Laura Grego
writes, in “Outer Space and Crisis Risk,” that even absent intentional confron-
tation, regional problems, such as those in the Baltics and East and South Asia,
have the potential to draw these actors into conflict. Moreover, India, China,
Russia, and the United States have, or are pursuing, missile defense technolo-
gies that are important both in the nuclear realm and in space issues, since mis-
sile defenses present demonstrated or inherent antisatellite capabilities. Space
activities pose a particular risk of sparking or exacerbating terrestrial crises
in ways that may be difficult to predict or manage. This is due to the phys-
ical nature of space operations; space’s deep and historic connection to mili-
tary posture; the absence of a shared understanding of appropriate behaviors
and consequences; and a dearth of stabilizing personal and institutional
relationships. Thus, it is critical to ensure that in times of tension, no actor
Introduction 19
escalates the crisis inadvertently or against their better judgment, and that mis-
perception does not play an important role in the initiation or progress of the
crisis. It is also critical that hostilities, if initiated, resolve as quickly as possible.
This chapter explores space security through the lens of crisis stability to see
if it can help to identify which space activities and strategies are particularly
dangerous and to prioritize unilateral and collective approaches to mitigating
these problems.
Finally, in “Diplomacy: The Missing Ingredient in Space Security,” former
international diplomat Paul Meyer notes that a disturbing trend in the con-
temporary approaches of States to space security has been the decline in di-
plomacy and the consideration of diplomatic options to achieve national
security goals. The official characterization of outer space as “congested, com-
petitive and contested” has ignored the legacy and potential for “cooperation”
in this unique if vulnerable realm. The authority of the foundational Outer
Space Treaty of 1967, with its stipulation that space is to be used for “peaceful
purposes,” is potentially being eroded. However, the fact that some military
circles seem eager to depict outer space as a “warfighting domain,” and thereby
justify acquiring the systems for waging such a war, does not mean that the in-
ternational community is obliged to accept this posture. The champions of
space peace will have to become as active as the exponents of space war if a
benign environment for space operations is to be preserved for future genera-
tions. Taking advantage of existing and envisaged measures of cooperative se-
curity for outer space can provide an effective bulwark against the forces bent
on transforming this environment into a battleground. Meyer highlights ex-
isting achievements of space diplomacy, such as the Outer Space Treaty itself,
and the consensus report “Transparency and Confidence-Building Measures
in Outer Space” produced by the UN Group of Governmental Experts in 2013
and outlines future paths and forums to yield further benefits for interna-
tional cooperation in outer space.
Concluding Thoughts
As we argue in our concluding chapter to this volume, there is some measure of

consensus to be found among the wide range of expertise and perspectives pro-
vided by our contributors. In addition to calling attention to likely current and
future threats to national and global security stemming from the use and misuse
of the space environment, there are many suggested measures for ameliorating
the risk of conflict in space, including international negotiation, transparency,
and reporting on the use of space-based assets, and the establishment of clear
rules, backed up by sanction regimes, against hostile actions that threaten the
peaceful use of space by all nations. A central theme in all of the chapters is that
the best way to avoid capricious use of the space environment in wartime is to
create an explicit set of norms in peacetime, recognizing that shared use, rather
than dominance, is the preferred outcome for all spacefaring nations.
PART I
THE L AW OF WA R A ND PE ACE
IN SPACE
1
International Humanitarian Law and
Its Application in Outer Space
Cassandra Steer and Dale Stephens*
Introduction
The notion of space warfare may seem like the stuff of science fiction, however,
since the 1990s there has been a common understanding among the armed
forces of many nations that modern conflict involves key space technologies. The
first Gulf War is commonly regarded as being the first true “space war”; while
that war was not physically fought in outer space, it did rely heavily upon space-
based assets to facilitate coalition fighting within the terrestrial environment.1
Since that time, military doctrines internationally accept fully that future wars
will be fought from, through, or even in space. Recent events have fueled spec-
ulation that it may not be long before space becomes a theater of conflict, such
as the 2014 Russian launch of an unidentified space object that was capable of
making directed maneuvers;2 the tests of a space plane known as X-37B by the
United States, which some believe to be a space weapon;3 China’s expanding
space and counterspace programmes;4 and India’s recent public launch of an
antisatellite weapon.5 The move of the United States in 2019 to create a Space
* This chapter is an updated version of a previous publication: Dale Stephens & Cassandra Steer,
Conflicts in Space: International Humanitarian Law and Its Application to Space Warfare, XL Annals
of Air and Space Law 71 (2015), with permission from the original publishers.
1 Major Robert A. Ramey, Armed Conflict on the Final Frontier: The Law of War in Space, 48 The
Air Force Law Review 1, 4 (n.4) (2000).

2 Michael Listner & Joan Johnson-Freese, Object 2014-28E: Benign or Malignant?, Space News
(Dec. 8, 2014), <https://spacenews.com/42895object-2014-28e-benign-or-malignant/> (accessed

Dec. 5, 2019).
3 Subrata Ghoshroy, The X- 37B: Backdoor Weaponization of Space?, 71:3 Bulletin of the
Atomic Scientists 19 (2015), <https://thebulletin.org/2015/may/x-37b-backdoor-weaponization-
space8292> (accessed Dec. 5, 2019).
4 See U.S. China Economic and Security Review Commission, 2015 Annual Report, ch. 2, sect. 2,
<https://www.uscc.gov/Annual_Reports/2015-annual-report-congress> (accessed Dec. 5, 2019).

5 Associated Press, India Flexes Its “Space Power” Muscles with Anti- s atellite Missile
Launch, Defense News (Mar. 27, 2019), <https://w ww.defensenews.com/space/2 019/
03/ 2 7/ i ndia- f lexes- i ts- s pace- p ower- m uscles- w ith- a nti- s atellite- m issile- l aunch/ >
(accessed Dec. 3, 2019); Indian PM Modi Boasts Success of Anti-satellite Missile Launch
Ahead of Election, NBC News (Mar. 27, 2019), <https://w ww.nbcnews.com/news/world/
Cassandra Steer and Dale Stephens, International Humanitarian Law and Its Application in Outer Space In: War and
Peace in Outer Space. Edited by: Cassandra Steer and Matthew Hersch, Oxford University Press (2021). © Oxford
University Press. DOI: 10.1093/oso/9780197548684.003.0002
24 Part I: The Law of War and Peace in Space
Force and to declare outer space a “warfighting domain” have also raised the
stakes internationally.6 NATO has recently declared space to be a military “op-
erational domain,” choosing a nomenclature perhaps more descriptive and less
controversial than the U.S. terminology, stating that it is purely defensive, and
perhaps highlighting differences in approaches among NATO members.7 Given
these factors, it is critical to understand what law would apply to regulate such
warfare and in what manner it would apply.
While some literature on the matter exists,8 an up-to-date assessment of
specific issues and the applicable law is in order. This chapter will therefore
briefly examine the development of weapons systems in space in the next sec-
tion, “The Weaponization of Space”; followed by a discussion in the section,
“International Humanitarian Law in Space,” on the application of interna-
tional humanitarian law (IHL) to outer space. The section, “IHL Principles and
Warfare in Outer Space,” will then canvass key IHL principles of distinction,
proportionality, and precautions in attack as they may apply to the particular
circumstances of space warfare. The intention of this chapter is to give an over-
view of the current technical and legal status quo of IHL and its application to
potential space warfare. Such inquiry is critical given the unique nature of the
space environment and the challenges posed within this environment, which
require deft navigation of the legal framework by decision makers as well as the
exercise of careful discretion.
indian-p m-m odi-b oasts-s uccess-a nti-s atellite-m issile-l aunch-a head-n 987786> (accessed
Dec. 3, 2019).
6 This has been stated publicly by various representatives of the U.S. government, including Vice
President Mike Pence, see Hanneke Weitering, New U.S. Space Command Will Launch Next Week,
VP Pence Says, Space.com (Aug. 20, 2019), <https://www.space.com/space-command-launches-
august-2019.html> (accessed Nov. 13, 2019); and Gen. John W. Raymond, commander of Air
Force Space Command, see Steve Hirsch, There Is No “War in Space”. There Is Just War, Air Force
Magazine (July 2018), <http://www.airforcemag.com/MagazineArchive/Pages/2018/July%202018/
There-is-no-War-in-Space.aspx> (accessed Nov. 13, 2019).
7 Berthiaume Lee, Canada’s U.S., NATO Allies Developing Divergent Views on Weaponizing Space,
National Post (Nov. 24, 2019), <https://nationalpost.com/news/canada/canadas-u-s-nato-allies-

developing-divergent-views-on-weaponizing-space> (accessed Feb. 26, 2020).
8 Cassandra Steer, Avoiding Legal Black Holes, 58 International Institute of Space Law 193
(2015); Cassandra Steer, Global Commons, Cosmic Commons: Implications of Military and Security
Uses of Outer Space, 18 Georgetown Journal of International Affairs 9 (2017); Steven
Freeland, In Heaven as on Earth—The International Legal Regulation of the Military Use of Outer
Space, 8 US-China Law Review 272 (2011); Jackson N. Maogoto & Steven Freeland, From Star Wars
to Space Wars—The Next Strategic Frontier: Paradigms to Anchor Space Security, 33 Journal of Air
& Space Law 10 (2008); Jackson N. Maogoto & Steven Freeland, The Final Frontier: The Laws of
Armed Conflict and Space Warfare, 23 Connecticut Journal of International Law 165 (2007);
Michel Bourbonniere, Law of Armed Conflict (LOAC) and the Neutralisation of Satellites or Ius in
Bello Satellitis, 9 Journal of Conflict and Security Law 43 (2004); Ramey, supra note 1.
International Humanitarian Law and Its Application 25
The Weaponization of Space
The 1967 Treaty on Principles Governing the Activities of States in the

Exploration and Use of Outer Space, including the Moon and Other Celestial
Bodies (Outer Space Treaty)9 prohibits the placement in orbit around the Earth
of any nuclear weapons or any other kinds of weapons of mass destruction.10
Additionally, it prohibits the placement of such weapons on celestial bodies or
the stationing of such weapons in outer space.11 Outside of this express proscrip-
tion, States are not bound by any treaty or customary international law regarding
the weaponization of space. Significantly, as further discussed in chapter 7 [Su],
the Outer Space Treaty also does not prohibit the partial orbit of a weapon of
mass destruction, such as the flight of an intercontinental ballistic cruise missile,
for it only prohibits the full orbit of such a weapon.12
Article IV of the Outer Space Treaty declares that the moon and other celestial
bodies shall be used exclusively for peaceful purposes. Despite some initial con-
jecture as to what was meant by “exclusively” peaceful purposes, it is now gener-
ally accepted that “peaceful purposes” should be interpreted as nonaggressive,
meaning that there are many military activities which are considered acceptable
under the terms of the treaty.13
It is clear that modern military doctrine accepts that space-based systems
will factor significantly in maintaining national security priorities.14 Western
nations such as the United States and the United Kingdom have developed sig-
nificant network-centric warfare concepts that rely heavily on space-borne as-
sets for success,15 such as intelligence gathering by remote sensing, GPS-guided
weapons, satellite telecommunications, and unpiloted aerial vehicle (UAV) tech-
nologies. Indeed, it has been recognized by senior U.S. military leaders that the
ultimate high ground is space and that correlatively, “[s]‌pace superiority is the
future of warfare.”16 It is equally evident that other nations are quickly improving
their capabilities in space. To that end, recent decades have seen the develop-
ment of numerous space weapons systems. These technologies include kinetic
9 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space,
Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 610 UNTS 205, 18 UST 2410, TIAS No.
6347, 6 ILM 386 (entered into force on Oct. 10, 1967) [Outer Space Treaty].
10 Id., art. IV.
11 Id.
12 U.S. Department of Defense, Law of War Manual 925–926 (Office of General Counsel,
Department of Defense, June 2015), para. 14.10.3.1.

13 Carl Christol, The Modern International Law of Outer Space 22 (1982).
14 US Joint Chiefs of Staff, Space Operations—Joint Publication 3-14 (2013), Defense Technical
Information Center, <https://www.dtic.mil/doctrine/new_pubs/jp3_14.pdf>.

15 Jan Kallberg, Designer Satellite Collisions from Covert Cyber War, 6:1 Strategic Studies
Quarterly 124, 125 (2012).

16 General Lance Lord, Space Superiority, 1:3 High Frontier 4, 5 (2015).
antisatellite weapons (ASATs), co-orbital ASATs, electromagnetic pulse (EMP)

and radiation weapons and “soft-kill” weapons, relating to cyber and laser cap-
abilities. Each of these will be briefly canvassed in the following to provide a
context for understanding the need to effectively articulate which rules of law
apply to regulate conflict in outer space. The challenges of determining what is
a weapon in outer space, and the legal regime applicable, are not discussed here,
but rather receive full attention in c hapter 7 [Su].
Kinetic Antisatellite Weapons
ASAT weapons are primarily surface-to-space and air-to-space missiles. The

United States, India, the People’s Republic of China, and Russia have all demon-
strated military ASAT capabilities.17 Such capability is well within the grasp of
many other nations given the accessible nature of technology underpinning the
modified standard missiles used.
In 2007, China launched a direct ascent ASAT missile to destroy an aging
Chinese weather satellite. The event signaled a public display of Chinese ca-
pability. It also revealed the consequences of this type of weapon system.
The targeting created a debris field of more than two million pieces up to ten
centimeters in size.18 By 2009, the United States was still tracking almost 2,400
fragments that could be detected with Earth-based sensors.19 Such objects
pose a significant safety danger because, depending on their altitude, they
can travel in orbit at speeds of between 3,000 and 7,600 meters per second
(approximately 27,000 kilometers per hour). In contrast, the speed of a 5.56-
millimeter bullet fired from a standard issue military rifle is 940 meters per
second.20
In 2008, the United States used an ASAT to destroy a malfunctioning U.S. sat-
ellite that was de-orbiting.21 It was done under the justification of avoiding envi-
ronmental damage by the burning of on-board toxic fuel; however, the Pentagon
17 Brian Weedon & Victoria Samson eds., Global Counterspace Capabilities: An Open
Source Assessment, Secure World Foundation (2019), <https://swfound.org/counterspace/>

(accessed Dec. 6, 2019); Michael Haas, Vulnerable Frontier: Militarized Competition in Outer Space,
in Strategic Trends 2015: Key Developments in Global Affairs 63–64 (Thränert Oliver &
Martin Zapfe eds., 2015).
18 Haas, supra note 17.
19 NASA, Fengyun-1C Debris: One Year Later, Orbital Debris Quarterly News (Jan. 2008),
3, <https://orbitaldebris.jsc.nasa.gov/newsletter/pdfs/ODQNv12i1.pdf>, in P.J. Blount, Targeting in

Outer Space: Legal Aspects of Operational Military Actions in Space, Harvard National Security
Journal Features 1, 18 (2012).
20 Kallberg, supra note 15, at 126–127.
21 Thom Shanker, Missile Strikes a Spy Satellite Falling from Its Orbit, New York Times (Feb. 21,
2008), <https://www.nytimes.com/2008/02/21/us/21satellite.html?_r=0> (accessed Mar. 30, 2020).

had made earlier statements that if the satellite were to re-enter Earth’s atmos-
phere, it would pose no threat, leading to some conjecture that this, too, was
an ASAT test.22 Either way, the action of the United States made the geostra-
tegic point that ASATs are already in the arsenals of more than one State and are
known to be effective.
In 2019, India successfully destroyed one of its own satellites, which had
been launched just months before, and publicly declared that it had under-
taken an ASAT test and thereby joined the “elite” club including China,
Russia, and the United States.23 India incorrectly asserted that the altitude
at which the targeted satellite was impacted was sufficiently low that all de-
bris would de-orbit and burn up on re-entry into Earth’s atmosphere within
weeks.24 The problem is that even during a few weeks, an increase in small,
untrackable pieces of debris increases the risk of collision and raises tensions
of all parties operating critical services in Low Earth Orbit (LEO). Moreover,
because of the unique physics of space, it is impossible to control where debris
is sent after an impact, and since the test in March 2019, it has been verified
that some pieces have been sent into higher trajectories, meaning they will
remain in orbit longer, as an immediate test of the U.S. Space Fence tracking
technology indicated.25
Haas identifies a military confrontation involving the use of kinetic ASATs
as “the most serious threat to the continued accessibility of the space environ-
ment,”26 not least due to the increasing number of States that possess the required
technology to build ASATs. Given the potential for extensive fragmentation
damage resulting from the space debris caused by an ASAT attack, the use of
kinetic ASATs can severely impair orbital planes—conceivably rendering them
effectively unusable for extended periods of time, causing severe implications for
commercial and military users.
22 James Moltz, The Politics of Space Security: Strategic Restraint and the Pursuit of
National Interests 301 (2011).

23 Surendra Singh, India Joins Super Space Club with Launch of Anti-Satellite Missile, The Times of
India (Mar. 27, 2019), <https://timesofindia.indiatimes.com/india/india-joins-super-space-club-

with-launch-of-anti-satellite-missile/articleshow/68600840.cms> (accessed Dec. 6, 2019).
24 The Indian Ministry of External Affairs published a series of statements online immediately fol-
lowing the test, but subsequently removed those statements. They are, however, repeated in news arti-
cles to sound like objective reporting. See All You Need to Know about Mission Shakti, @businessline,
<https://w ww.thehindubusinessline.com/news/a ll-you-need-to-k now-about-mission-shakti/
article26652887.ece> (accessed July 14, 2019).
25 Oscar Gonzalez, Air Force Space Fence Passes Debris Test, CNET (May 22, 2019), <https://www.
cnet.com/news/air-forces-space-fence-passes-debris-test/> (accessed Dec. 6, 2019); Caleb Henry,

India ASAT Debris Spotted above 2,200 Kilometers, Will Remain a Year or More in Orbit, SpaceNews.
com (Apr. 9, 2019), <https://spacenews.com/india-asat-debris-spotted-above-2200-kilometers-
will-last-a-year-or-more/> (accessed Dec. 6, 2019).
26 Haas, supra note 17, at 64.
Co-Orbital ASATs
Co-orbital ASATs are rocket-launched objects that achieve a similar orbital

plane as the intended target. Once within orbit, an ASAT can be steered until
it is in close proximity of the target—close enough to physically collide with it.
Given the hyper velocity at which objects can travel in space orbit, such collisions
create significant destructive impact. While reported as an “unfortunate but in-
evitable” accident, the 2009 collision of the Soviet-era Cosmos 2251 satellite and
an Iridium communications satellite demonstrates the enormous destructive
potential of co-orbital ASATs.27
In addition to being used as direct collision weapons, co-orbital ASATs may
also take the form of explosive proximity weapons. Once in orbit alongside a
target, an explosive charge aboard an ASAT may be detonated, dispersing a
“cloud of shrapnel at high speed” to destroy it.28
Electromagnetic Pulse and Radiation Weapons
An electromagnetic pulse (EMP) is created when a high-altitude nuclear explo-

sion in space sends a cascade of gamma rays to collide with the upper atmos-
phere of Earth.29 Resultant charge imbalances from these rays create an electrical
current that has the potential for the destruction of sensitive circuitry, despite
lasting a mere millionth of a second. Any unshielded electronic devices within a
several-hundred-mile radius of the epicenter may be affected, or even disabled,
by such a pulse.30
Gamma rays, a form of electromagnetic radiation, also have the potential
to cause extensive alterations in the ionosphere—weakening radio and radar
waves.31 This can cause high-frequency blackouts and periods of impaired radio
and radar performance across broad areas, providing clear military advantages
for the use of electromagnetic pulses and radiation in space.32 However, as
tests undertaken during the Cold War period by both the United States and the
Soviet Union proved, while EMP weapons could be effective at interfering with
27 Paul Marks, Satellite Collision “More Powerful than China’s ASAT Test, New Scientist (Feb.
13, 2009), <https://www.newscientist.com/article/dn16604-satellite-collision-more-powerful-than-

chinas-asat-test/> (accessed Mar. 30, 2020).
28 Paul B. Stares, Space and National Security 99 (1987), cited in Ramey, supra note 1, at 27.
29 John M. Collins, Military Space Forces: The Next 50 Years (1989), cited in Ramey, supra
note 1, at 20.
30 Id.
31 Id. The ionosphere is a region of Earth’s atmosphere, lying 60–1,000 kilometers above the Earth’s
surface.
32 Id.
a belligerent’s satellite communications, they are indiscriminate and affect all

satellite operations within their proximity.33 A State’s own satellites and those
owned or operated by their allies will also be affected.
“Soft-Kill” Weapons: Cyberattacks, Jamming, Altering,

Monitoring of Data Communications, and “Dazzling” by Lasers
The “soft-kill” category of weapons includes those designed to disable the func-
tionality of a satellite rather than destroy it. Such disabling missions may be
undertaken covertly, often mimicking routine failures and making them diffi-
cult to detect or attribute to a source.34 Directed energy weapons systems are
beginning to mature in their development. Airborne laser testing has proven to
be extremely effective and accurate. The concentration of energy can target com-
plex circuitry without causing the fragmentation effect of a kinetic attack. The
weapons system can literally engage at the speed of light and does not require
the intensive supply and maintenance logistical “tail” of most deployed kinetic
weapons systems. Such lasers may be deployed in orbit or be ground-based.
One of the reasons such “soft-kill” weapons pose a particular threat is that
while ASAT technology may be beyond the grasp of non-State actors, access to
cyber capacity is not. Indeed, analyst Peter Singer has noted that when it comes
to malevolent activity in space:
It’s not just the big boys who can play at it . . . Anti-satellite missiles—that’s been
within the realm of great powers, like a Russia, a China, a U.S. It’s not something
that a Hezbollah or an al-Qaeda or an ISIS could pull off. With cyber warfare,
the barrier to entry is a lot lower.35
It is evident that any warfare in space will undoubtedly include cyber opera-
tions as part of the arsenal of weapons deployed. One example is China’s People’s
Liberation Army, which has reportedly been engaged in “blinding” U.S. imaging
satellites using terrestrial laser systems.36
All the weapon systems described here are not prohibited by the Outer Space
Treaty and do not fall foul of any other specific weapons-based treaty or IHL
33 Moltz, supra note 22, at 131.

34 Ivan Beyek, Force Projection from Space, in (unnumbered Space Applications Volume) New
World Vistas: Air and Space Power for the 21st Century 87 (1995), cited in Ramey, supra
note 1, at 27.
35 See Chris Bowlby, Could a War in Space Really Happen, BBC News (Dec. 19, 2015), <https://
www.bbc.co.uk/news/magazine-35130478> (accessed Dec. 5, 2019).

36 Haas, supra note 17, at 73.
treaty of general application. They represent current and very advanced devel-
oping technology and would undoubtedly factor in any future armed conflict
in space. This short survey provides a useful context for assessing the manner
in which IHL would apply to regulate the deployment and application of these
weapons systems. Such analysis will be undertaken in the following section.
International Humanitarian Law in Space
IHL is a vast body of law covering the general limits of warfare including per-
missible methods and means, and the protection of civilians and civilian objects.
This body of law is voluminous and may be characterized by its denseness of
regulation. It also comes with its own interpretative commitments and architec-
ture. The style of modern IHL is one of resolute categorization. IHL is comprised
of a series of definable categories, placement within which triggers packets of
legal rights and obligations. Hence, numerous discretionary moments occur in
practice when military commanders, lawyers, and operators are constructing the
legal artifice that underpins the waging of war. Each determination carries with it
a cascade of legal responses and consequences.
In assessing how IHL would apply to regulate warfare from, through, and
within space, it is first critical to assess whether existing IHL does indeed even
apply to that environment. This question may seem paradoxical, since the den-
sity of regulation in this field would intuitively lead to the conclusion that it
would apply, yet this is not so self-evident.
The conduct of warfare and its legal regulation has been largely compartmen-
talized into theaters on land, at sea, and in the air. While there is obvious overlap,
since many conflicts are fought over geographical boundaries and across land,
sea, and air, and while general legal principles apply across all environments, it
is still possible to conceive of a legal differentiation between each. There is no
stand-alone regulation of warfare in space; in fact, the space environment finds
very limited expression in the existing corpus of IHL.
While there are over sixty treaties dealing with weapons, methods, and
means of warfare, the foundational treaties of modern IHL are the four Geneva
Conventions, signed in 1949 shortly after the Second World War.37 In 1977,
37 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed
Forces in the Field, Aug. 12, 1949, 75 UNTS 31, [1958] ATS No. 21 (entered into force Oct. 21,
1950) [Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of Wounded,
Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 75 UNTS 85, [1958] ATS No.
21 (entered into force Oct. 21, 1950) [Geneva Convention II]; Geneva Convention relative to the
Treatment of Prisoners of War, Aug. 12, 1949, 75 UNTS 135, [1958] ATS No. 21 (entered into force
Oct. 21, 1950) [Geneva Convention III]; Geneva Convention relative to the Protection of Civilian
two Additional Protocols were negotiated in order to update IHL with respect
to international armed conflict and non-international (or internal) armed con-
flict, respectively. While not all States have signed and/or ratified the Additional
Protocols, many provisions in these documents are considered to be reflective of
customary international law.38
One way in which these Protocols may apply to space is that under Articles
35(3) and 55 of Additional Protocol I, obligations are imposed in relation to the
environment. In the first article, these obligations are owed to the environment
generally, and in the second they are owed to the environment where there is a
correlative risk to “the health or survival of the population.” In both instances,
the level of damage required to trigger the provisions is predicated upon causing
“widespread, long-term and severe damage.” While neither provision explicitly
makes reference to outer space, it would be a logical deductive conclusion, since
space is part of our natural environment. More expressly, the 1976 Convention
on the Prohibition of Military or Any Other Hostile Use of the Environmental
Modification Techniques prohibits the military use or modification of the envi-
ronment that causes “widespread, long-lasting or severe effects.”39 Critically, “en-
vironmental modification techniques” are defined in Article II as “any technique
for changing . . . the dynamics, composition or structure of the Earth including
its biota, lithosphere, hydrosphere, or of outer space.”40 Hence there is, somewhat
uniquely, express recognition of the space environment.
Outside of these references to the space environment, direct or implied, there
is very little specific treaty law that regulates armed conflict in space. Some would
argue that space is therefore a lawless frontier, and the lack of direct regulation
allows for a Lotus-like interpretative posture that “restrictions upon the inde-
pendence of States cannot therefore be presumed.”41 However, such a conclu-
sion runs not only counter to the express statement by the International Court
of Justice (ICJ) itself that this interpretative trope is now outdated,42 it also goes
Persons in Time of War, Aug. 12, 1949, 75 UNTS 287, [1958] ATS No. 21 (entered into force Oct. 21,
1950) [Geneva Convention IV] (collectively known as the Geneva Conventions).
38 See, e.g., Jean-

Marie Henckaerts, Study on Customary International Humanitarian Law: A
Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict, 87:857
International Review of the Red Cross 175 (2005); and International Committee of the
Red Cross (ICRC), Customary International Humanitarian Law, Volume I: Rules (2005)
[ICRC Rules], <https://www.icrc.org/customary-ihl/eng/docs/v1> (accessed Dec. 5, 2019).
39 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification
Techniques (Dec. 10, 1976), 1108 UNTS 151, [1984] ATS 22, UN Doc. A/RES/31/72 (entered into
force on Oct. 5, 1978), art. I(1).
40 Id.
41 The Case of the S.S. Lotus (France v. Turkey), (1927) PCIJ Ser. A, No. 10.
42 Judges Higgins, Kooijmans, and Buergenthal have opined that the Lotus principle “represents
the high water mark of laissez-faire in international relations, and an era that has been signifi-
cantly overtaken by other tendencies.” See Joint separate opinion of Judges Higgins, Kooijmans and
against the progressive thrust and reasoning underpinning the historic trajec-
tory of IHL.
IHL seeks to ameliorate violence in armed conflict to the greatest extent, with
particular focus on the victims of warfare.43 The 1949 Geneva Conventions
still rate as the only treaty series to receive universal ratification by all States.
While not explicitly addressed to warfare occurring in outer space, all the 1949
Geneva Conventions provide in Article 1 that “The High Contracting Parties
undertake to respect and to ensure respect for the present Convention in all
circumstances.”44 Such phraseology speaks to the broadest ambit of anticipated
and unanticipated armed conflict.
In assessing whether IHL would apply to an environment where it is not ex-
pressly referenced in the existing “black letter rules,” it is notable that the tradi-
tion of the ICJ is to assimilate legal principles to fill apparent voids whenever
encountered, especially in the context of armed force. The Court determined in
Corfu Channel, the first case ever considered by the Court, that an obligation
by Albania to warn of naval mines placed in a territorial sea arose not from a
“black letter” rule, but rather from “certain general and well-recognized prin-
ciples, namely: elementary considerations of humanity, even more exacting in
peace than in war.”45 Similarly, in the Nicaragua decision, the Court relied upon
“underlying” principles of IHL to provide a threshold of prohibition regarding
the laying of naval mines, even in the absence of a specific treaty rule applicable
in peacetime.46
Most profoundly, though, has been the ICJ’s deliberation on IHL in the Nuclear
Weapons Advisory Opinion.47 In that instance, the Court determined that this
body of law was “permeated” with an “intrinsically humanitarian character”48
Buergenthal in Case Concerning the Arrest Warrant of 11 April 2000, (Democratic Republic of Congo
v. Belgium), [2002] ICJ Rep. 3, 78.
43 A former ICRC Director observed:

[t]‌he sole function of humanitarian law is to protect the individual as such, to the exclu-
sion of political, military, ideological, religious, racial, economic or any other consider-
ations. Humanitarian law establishes only one equality, namely that founded on the right
of all victims of war to be treated in accordance with the principle of humanity.
Francois Bugnion, Just Wars, Wars of Aggression and International Humanitarian Law, 84
International Review of the Red Cross 523 (original in French), 1, 13 (2002), <https://www.
icrc.org/eng/assets/files/other/irrc-847-2002-bugnion-ang.pdf> (accessed Dec. 5, 2019).
44 GC I –IV, supra note 37, art. 1 (emphasis added).
45 Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), [1949] ICJ
Rep. 4, 22.
46 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), [1986] ICJ Rep. 14 [Nicaragua] 112, para. 215.

47 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, [1996], ICJ Rep. 226
[Nuclear Weapons].
48 Id., 259, para. 86.
and ultimately that at the center of all the rules and principles applicable in
armed conflict “is the overriding consideration of humanity.”49 Importantly in
that instance, the Court also opined that IHL “applies to all forms of warfare and
to all kinds of weapons, those of the past, those of the present and those of the
future.”50
Such reasoning by the ICJ makes plain that there is not likely to be a legal
void in outer space when it comes to the law relating to armed conflict. Indeed,
the late Manfred Lachs, former judge of the ICJ and considered by many to be
the foremost expert in space law of his time, wrote that outer space has never
been a lawless area, but rather “has always been subject to international law,
though the matter could never have been put to the test before.”51 While treaty
law makes scant reference to warfare in outer space, undoubtedly customary in-
ternational law and relevant general principles of law would apply to regulate
such armed conflict. To this end, much customary international law in this field
follows extant treaty rules and standards.52 While the application of such rules
and standards have thankfully not yet been reflected in actual State practice in
engaging in armed conflict outer space, the specific principles underpinning
the rules and standards themselves must certainly apply. This is determined in
Article III of the Outer Space Treaty, which provides that all activities in outer
space shall be conducted “in accordance with international law,”53 of which IHL
is part.
Similarly, in the absence of treaty and/or customary international law, then ge-
neral principles of law must apply to fill any gaps. Article 38 (1)(c) of the Statute
of the ICJ54 lists general principles as a source of law, following treaties and in-
ternational customary law. While general principles are open-ended and often
lack specificity, they do carry legal weight.55 Unlike treaty rules or standards, ge-
neral principles exist within an unbounded realm of decision-making and may
be relied upon at any time to justify or augment a particular decision. Principles
often travel in pairs, such as humanity and military necessity, or coastal State sov-
ereignty and the freedom of navigation, or non-intervention and self-defense.
This requires, therefore, an exercise of a dichotomous discretion to prioritize one
principle over another in pursuit of a legal outcome.
49 Id., 262, para. 95.

50 Id., 259, para. 86.
51 Manfred Lachs, The Law of Outer Space: An Experience in Contemporary Law-
Making, Reissued on the Occasion of the 50th Anniversary of the International

Institute of Space Law 125 (2010).
52 Nuclear Weapons, supra note 47, at 257, para. 79.
53 Outer Space Treaty, supra note 9, art. III.
54 Statute of the International Court of Justice, June 26, 1945, 3 Bevans 1179, 59 Stat. 1031, TS 993,
39 AJIL Supp. 215 (entered into force Oct. 24, 1945).

55 Joseph Raz, Legal Principles and the Limits of Law, 81 Yale Law Journal 823 (1972).
The general principles of humanity and military necessity are well-known

features of IHL, and they form the basis for making operational decisions during
a conflict; decisions as to who or what may be targeted, what weapons or means
may be acceptable, and what limits and precautions must be taken. Since such
decisions are circumstantial, and will be dependent on many variable factors,
there is no simple formula to determine the correct course of action. Rather, the
core principles must be weighed up against each other, as two opposite sides of
a coin. These general principles apply, due to their general nature, to all forms
of conflict; on land, on the sea, in the air, and also in space. Given the prepon-
derance of judicial determination, as well the momentum of legal reasoning
in this field, there is ample basis to support the articulation of a reasoned IHL
framework applicable to the conduct of armed hostilities in outer space. The
more immediate challenge then is to develop a durable taxonomy of application.
The following section will canvass three core features of IHL, namely, the princi-
ples of distinction, proportionality, and precautions in attack, as these concepts
would inevitably apply to warfare in outer space. However, while the concepts
are reasonably well established in law, their application to the space environment
throws up numerous potential anomalies. The next section will grapple with
these and propose a number of possible solutions.
IHL Principles and Warfare in Outer Space
The two core principles mentioned previously, of military necessity and hu-
manity, form the basis of IHL, or as the ICJ has put it, “the fabric of humanitarian
law.”56 Military necessity requires that the use of force during a conflict can be
justified only when it is indispensable or imperative to the direct aims of the con-
flict, such as the submission of the adversary; that such force must be propor-
tionate to these aims; and that no unnecessary suffering is caused by such force.
These terms and definitions are reflected in the Hague Regulations of 1907,57
the Geneva Conventions, the Cultural Property Convention of 1954,58 and
Additional Protocol I. They can also be found in a number of domestic military
manuals.59 Military necessity, therefore, limits what actions can be undertaken
in a conflict, since everything must be justified as necessary to the attainment of a
56 Nuclear Weapons, supra note 47, at 257, para. 78.

57 E.g., The Hague Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 205
CTS 305 (entered into force Jan. 26, 1910).
58 Convention for the Protection of Cultural Property in the Event of Armed Conflict, May 14, 1954,
249 UNTS 240, [1984] ATS 21 (entered into force Aug. 7, 1956).
59 Anthony Peter Vernon Rogers, Law on the Battlefield 5 (2004).
discernible military advantage.60 The flip side of this is the principle of humanity,
which requires that any actions undertaken during a conflict are done so with a
minimum loss of life, at least a minimum standard of humanity toward wounded
or captured soldiers in all circumstances, and a maximum possible protection of
civilians who are not engaged in the conflict. Humanity puts a break on actions
which might otherwise be justified as militarily necessary.61
Since these two general principles represent two potentially opposing norms,
and due to their inherently general nature, resolving their application in a spe-
cific situation can be difficult. In order to aid in this, three “subprinciples” or op-
erational principles can be derived from the two core general principles; namely,
distinction, proportionality, and precaution in attack. These three sub-principles
offer some more guidance; however, they are still formulated as principles and
remain fairly general in nature; their application in each situation requires a
casuistic appraisal. With respect to the domain of outer space, when conflict
involves or takes place in this new environment, there are still many variables
and uncertainties which may play out differently than in the more traditional
domains of land, sea, and air.
Distinction
The rule of distinction is most clearly derived from the principle of humanity.
Customary law has always made a distinction between combatants and civilians,
or at least those civilians such as women and children and “unarmed priests,”
who should be protected from the ravages of war.62 The rule can be said to have
found codification in the American civil wartime Lieber Code,63 and in the pre-
amble of the St. Petersburg Declaration of 1868, where it is stated that “the only
legitimate object which States should endeavour to accomplish during war is to
weaken the military forces of the enemy”64—that therefore the civilian popula-
tion and civilian objects should not be deliberately targeted.
Today, the rule of distinction is clarified in Article 48 of Additional Protocol I,
which is denoted as the “basic rule,” and which provides:
60 Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed
Conflict 4 (2004).
61 Rogers, supra note 59, at 7.
62 Id., 8.
63 Instructions for the Government of Armies of the United States in the Field, prepared by Francis
Lieber, LL.D., Originally Issued as General Orders No. 100, Adjutant General’s Office, 1863, art. 22,
<https://avalon.law.yale.edu/19th_century/lieber.asp> (accessed Dec. 5, 2019).
64 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes
Weight, Nov. 29–Dec. 11, 1868 (entered into force Dec. 11, 1868), <https://www.icrc.org/ihl/INTRO/
130?OpenDocument> (accessed Dec. 5, 2019).
In order to ensure respect for and protection of the civilian population and ci-
vilian objects, the Parties to the conflict shall at all times distinguish between
the civilian population and combatants and between civilian objects and mili-
tary objectives and accordingly shall direct their operations only against mili-
tary objectives.65
This basic rule applies to all parties to a conflict, whether or not they have
signed the Additional Protocol, due to its status as a customary rule.66 In fact, the
International Committee of the Red Cross (ICRC) recognizes it as the cardinal
rule of IHL.67
Distinction between Civilians and Combatants

This basic rule has two aspects. In the traditional theaters of conflict, the first as-
pect, the protected status of civilian noncombatants, has an extremely important
role to play. However, in the domain of space, where there are not many humans
at any given time, this aspect will not likely come into play very often in the near
future. Nonetheless there is one notion of contention, which is the status of mili-
tary astronauts in a time of conflict.
Article 50 of Additional Protocol I gives a negative definition of civilians
and civilian populations as those individuals and populations which do not fall
under the categories of “armed forces.” Armed forces are defined as “all organ-
ized armed forces, groups and units which are under a command responsible to”
a party to the conflict,68 and all members of the armed forces other than medics
and chaplains are considered to be combatants.69 In case of doubt, a person shall
be presumed to be a civilian and protected under IHL.70
There is a question as to what the status of military astronauts would be if their
State of nationality were to enter a conflict. Under IHL they would be consid-
ered combatants, but in international space law, astronauts are also considered
to be “envoys” of humankind, guaranteed of protection, aid, and assistance at all
times.71 Which of the two bodies of law should be considered to be lex specialis?
65 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 (Additional Protocol
I), art. 48.
66 Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions
of 12 August 1949, at 598 (Yves Sandoz, Christophe Swinarki, & Bruno Zimmerman eds., 1987)
[Commentary on Additional Protocol I]; see also Eritrea-Ethiopia Claims Commission, Partial
Award, Western Front, Aerial Bombardment and Related Claims, (2007) 45 ILM 396, 417, 425.
67 ICRC Rules, supra note 38, Rule 1.
68 Additional Protocol I, supra note 65, art. 43(1).
69 Id., art. 43(2).
70 Id., art. 50(1).
71 Outer Space Treaty, supra note 9, art. V. See also the Declaration of Legal Principles Governing the
Activities of States in the Exploration and Use of Outer Space, GA Res. 1962(XVIII), UNGAOR, 18th
Session, UN Doc. A/RES/18/1962(XVIII) (1963), para. 9; and generally, the Agreement on the Rescue
While in generalist terms, IHL should prevail, since it is the body of law estab-
lished to deal with conflicts, and from which derogation is almost never per-
mitted, on the other hand, there are strong arguments to be made that space
law should prevail as the lex specialis. Astronauts undergo a highly specialized
training and risk their lives with every mission by virtue of the uniqueness of
the domain of space. Today much human space flight requires international co-
operation, even between States which might otherwise harbor some tensions,
meaning that the survival and well-being of these astronauts depends upon the
good will of all States. The very existence of the Rescue and Return Agreement,
for example, demonstrates that even during the Cold War period there was will-
ingness between adversary States to offer protections to individual astronauts re-
gardless of their nationality.
The special protection afforded to astronauts under the Outer Space Treaty
and the Rescue and Return Agreement must be given particular attention where
military personal who are astronauts during a time of armed conflict are not
engaged in belligerent actions; for instance, if they are engaged in scientific or
other truly neutral activities. It thus may be fairly asked, does the legal status of
military astronauts and the nature of their activity in space afford special pro-
tection under IHL? Historically, there are examples of such forbearance, such
as the encounter between Captain Matthew Flinders (UK—HMS Investigator)
and Captain Nicolas Baudin (France—Le Géographe), who met at a bay in South
Australia in 1802 when their respective ships crossed paths during a time when
their respective countries were at war. Despite exercising extreme caution, nei-
ther captain resorted to force when approaching the other. Factors such as the
scientific nature of their voyages, the great distance from their homelands, the
sense of shared peril in a new environment, and the uniqueness and coincidence
of the meeting no doubt contributed to the restraint. Indeed, as both were en-
gaged in exploration and scientific missions, they saw their status as being sui ge-
neris. In fact, Flinders boarded the French ship, and the two captains exchanged
information about their voyages before proceeding in their respective directions
to complete their respective missions.72
Distinction between Military and Civilian Objects

Aside from this question of astronaut status, in the domain of space it is the
second aspect of the principle of distinction that will come into play more often,
namely, the requirement to distinguish between civilian and military objects.
of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Apr. 22,
1968, 672 UNTS 119, 19 UST 7570, TIAS No. 6599, 7 ILM 151 (entered into force Dec. 3, 1968).
72 Encounter 1802, <https://www.slsa.sa.gov.au/encounter/1802.htm> (accessed Dec. 5, 2019).

The term “military objective” was first coined in the 1923 Hague Rules of Air
Warfare,73 a set of nonbinding rules that emerged after the First World War.
Article XXIV(1) provides that:
Aerial bombardment is legitimate only when directed at a military objective,

that is to say, an object of which the destruction or injury would constitute a
distinct military advantage to the belligerent.74
Today, this definition has been refined somewhat, as reformulated in Article

52(2) of Additional Protocol I, which provides:
Attacks shall be limited strictly to military objectives. In so far as objects are

concerned, military objectives are limited to those objects which by their na-
ture, location, purpose or use make an effective contribution to military ac-
tion and whose total or partial destruction, capture or neutralization, in the
circumstances ruling at the time, offers a definite military advantage.75
This article is recognized as reflecting customary law,76 even by a State such

as the United States which is not a party to Additional Protocol I.77 Even though
this definition is refined, it still leaves much open to interpretation.
There are two cumulative aspects, namely, (a) that the object must make an
effective contribution to military action, and this must be by virtue of its nature,
location, purpose, or use; and (b) the total or partial destruction, capture, or
neutralization must offer a definite military advantage under the circumstances
ruling at the time.
Under (a), the “nature” of an object means that the object must be used by
the armed forces;78 this could apply to any satellite used by the military, be it for
73 The Hague Rules of Air Warfare, Dec. 1922–Feb. 1923, <https://lawofwar.org/hague_rules_of_
air_warfare.htm> (accessed Dec. 5, 2019).

74 Id., art. XXIV.
75 Additional Protocol I, supra note 65, art. 52(2).
76 The article is repeated verbatim in Additional Protocols II and III; in the Annex of the 1981
Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May
Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (Convention on Conventional
Weapons); and in the 1999 Second Protocol to the 1954 Convention for the Protection of Cultural
Property in the Event of Armed Conflict, 2253 UNTS 212. The Eritrea-Ethiopia Claims Commission
recognized it as customary law, Western Front, Aerial Bombardment and Related Claims, supra note
66, at 418. It has also been reiterated in Article 40 of the San Remo Manual on International Law
Applicable to Armed Conflicts at Sea. See further William H. Boothby, The Law of Targeting 101
(2012).
77 As recognized in U.S. Navy, The Commander’s Handbook on the Law of Naval Operations,
NWP 1-14M (2007) [Navy Commander’s Handbook], art. 8.1.1, <https://www.lawofwar.org/naval_

warfare_publication_N-114M.htm> (accessed Dec. 5, 2019).
78 API Commentary, para. 2020. See also Boothby, supra note 76, at 103.
military purposes or for other purposes, which leaves open the question whether
a satellite sending broadband TV signals to a military base for entertainment
purposes could also fall under this definition. “Location” means that an object
which does not have a military function may, by virtue of its location, still offer
an effective contribution to military action, such as a bridge, a building, or a
site or area of land of tactical importance.79 Thus a satellite which is not used by
military, but which may be in close proximity to a military satellite, and whose
total or partial destruction, capture, or neutralization may affect a military
need due to its proximity to any other military object, may become a legitimate
target. “Purpose” has to do with intended future use, while “use” means the pre-
sent function of an object.80 In this respect, the present use of a satellite may be
relatively easy to determine, and thus it would be unproblematic to determine
whether or not it could be a military objective; however, the future intended use
of a satellite may be near impossible to determine. It is not permissible to target
an object based on its potential use by an adversary; there must be sufficient in-
telligence and information upon which an attacker can base the belief that an ad-
versary in fact intends to use the object in a particular military way.81 This poses
problems again in the space domain, where intended uses of space objects are
often not communicated, or only partially, or even falsely.
Under (b) the circumstances ruling at the time must govern the final determi-
nation of whether an object may lawfully be targeted as a military objective. All
of the preceding factors mean that an object might be a military objective at one
moment in time, and may no longer be so at another moment in time. For ex-
ample, if the space object’s location were to shift, not only due to extremely high
velocity in an orbital paths, but perhaps due to a necessary station movement to
avoid unintended collision; or if the use or ownership or circumstances of con-
trol of a satellite were to shift; or if the circumstances were to change such that it
no longer offered a definite military advantage.
The vast number of “dual-use” satellites poses a particular problem with re-
spect to the categories of “use” and “purpose.” It would seem that today the
number of satellites which provide services both for military and civilian
purposes is significant and is only on the rise.82 Furthermore, there are satellites
which may be dedicated to the military, but which provide nonmilitary services,
such as TV and internet broadband for the private use of military personnel.
In such a case, it may not be easy to justify that the total or partial destruction,
79 API Commentary, para. 2021. See also id.

80 API Commentary, para. 2022. See also id. See also Boothby, supra note 76, at 103.
81 Id., 104.
82 See, e.g., Joseph Pelton, Satellite Security and Performance in an Era of Dual Use, Online
Journal of Space Communication (2004), <http://spacejournal.ohio.edu/issue6/perspectives1.

html#top> (accessed Aug. 30, 2019).
capture, or neutralization of such a satellite would provide a definite military

advantage.
Dual-use technologies and objects also exist on land, at sea, and in the air, and
may provide some useful analogies. Civilian infrastructure such as energy plants,
telecommunication centers, railroads, petrol, or oil refineries, and even forms
of transport, can all have dual uses, serving military as well as civilian needs.83
For the purposes of identifying a military objective according to Article 52(2) of
Additional Protocol I, these objects can all be lawfully targeted, and their civilian
purposes can essentially be ignored. Factories and industry may produce goods
used by the armed forces, which are also used by civilians and thus also fall under
the definition of a military objective; however, the extent to which industry can
be targeted is questionable.84 This is where the second part of the cumulative test
must be carefully applied, since targeting these objects must, in the words of the
St. Petersburg Declaration, contribute to “weakening the military forces of the
enemy” and thereby represent a clear military advantage.85
Additionally, the principle of proportionality, discussed later, must also come
into play when assessing whether dual-use objects can be targeted. Where some
collateral damage is expected by targeting a dual-use object, it may still be per-
missible to go ahead with the attack if the “definite military advantage” to be
gained outweighs the effects on civilians. However, the “reverberating collateral
effects” may be catastrophic in some cases, meaning that even if an object can
be considered a military objective, it should not be targeted.86 The challenge is
making the calculation ahead of time, and there are debates as to whether only
immediate, direct effects such as civilian loss of life or damage to property need
to be taken into account, or whether other indirect, long-term affects should also
be part of the calculus.87 Although it may be difficult to anticipate what such
indirect or long-term effects might be, in the case of targeting dual-use satel-
lites, it would seem that there are many potential significant indirect effects, for
instance, disrupting GPS used for civilian aviation; financial transactions; tele-
communications which are highly dependent on satellite signals; dams and other
major waterworks which are automated; and similar dependent civilian facilities.
Another factor which makes space so different as a theater of conflict is that
the operators are physically very distant from their weapons and from the impact
of their weapons—between 100 and 22,500 miles away.88 While it is true also of
83 Henry Shue & David Wippman, Limiting Attacks on Dual-Use Facilities Performing Indispensable
Civilian Functions, 35 Cornell International Law Journal 559, 562 (2001).

85 Id., 62.
86 Shue & Wippman, supra note 83, at 566; Boothby, supra note 76, at 103.
87 Shue & Wippman, supra note 83, at 566.
88 Ramey, supra note 1, at 2.
UAV pilots that they are removed from their weapons and their targets, these
pilots usually have very good visual coverage of their targets by way of cameras
attached to the UAVs, whereas once an object is launched into space, tracking
and recognition is dependent on nonvisual data. Kinetic weapons used to de-
stroy a space asset or nonkinetic weapons used to interfere with or temporarily
disable space asset communications, do not rely on direct visual identification by
an operator. Many objects launched into space are not visibly marked in order to
identify them as military or civilian, and most of the information gathered re-
garding the nature, purpose, or use of a space object depends upon correct regis-
tration according to the 1974 Registration Convention,89 which does not always
take place. This means that identifying a space object as a legitimate military ob-
jective can be very difficult. In the case of dual-use satellites, which comprise
several transponders, each of which may handle the communications or other
needs of more than one user, an attack targeting the military use will potentially
interrupt or destroy the civilian use, or use by neutral countries. Any such an at-
tack would need to be assessed carefully for proportionality, as will be discussed
later.90
Special Categories
Some satellites may also come under special protection if they could be con-
sidered to be “objects indispensable to the survival of the civilian population.”
Following from Article 54(1), which prohibits starvation as a method of war-
fare, Article 54(2) determines that to “attack, destroy, remove or render useless”
objects indispensable to the survival of the civilian population for the purpose
of denying them for their sustenance value to the civilian population or the
adverse party, is prohibited altogether. A nonexhaustive list follows, to include
objects “such as foodstuffs, crops, livestock, drinking water installations and
supplies and irrigation works.”91 It is therefore possible that objects not listed
here could fall under the same category of special protection, such as a space
object, if the technology or services provided by a specific satellite or space
application would amount to something indispensable to the survival of the ci-
vilian population. Examples could include disaster management applications,
or the remote monitoring of dams and drinking water installations.92 In re-
spect of planned human habitation of the moon and other celestial bodies,
89 Convention on Registration of Objects Launched into Outer Space, June 6, 1975, 28 UST 695, 1023
UNTS 15 (entered into force Sept. 15, 1976).

90 Boothby, supra note 76, at 370.
91 Additional Protocol I, (n 37), art. 54(2). See also ICRC Rules, supra note 38, Rule 54.
92 See, e.g., Canadian Space Agency, Space Utilization, Earth Observation: Space Applications
Linked to Government Priorities/Departments (2012), <https://www.asc-csa.gc.ca/pdf/solintermed-

manuel-eng.pdf> (accessed Dec. 5, 2019).
items such as oxygen-and water-generating facilities, as well as return rockets

and spacecraft, may fall within this category of civilian objects deserving spe-
cial protection.
The fact that the principle of distinction must be assessed on a case-by-
case basis means that there is always some margin of discretion on the part
of a commander or targeting operator. There may also be cause for con-
cern where States unilaterally expand upon the customary law definitions
given here. For example, with respect to the first cumulative requirement
in the definition of a military objective under Article 52(2) of Additional
Protocol I, which requires that the object identified must make “an effec-
tive contribution to military action,” the U.S. interpretation of this rule goes
further than the customary law definition and includes any object which
contributes to the adversary’s “war-f ighting or war-sustaining capability.”93
This dates back to the American Civil War, when U.S. courts recognized
the justification for destroying Confederate cotton fields, since cotton sales
provided the necessary funding for importing arms and ammunition.94
This has been interpreted in modern commander’s handbooks on the law
of armed conflict to mean that “economic targets of the enemy that indi-
rectly but effectively support and sustain the enemy’s war-f ighting capacity
may also be targeted.”95 If such an expansive reasoning were to be applied
when identifying which satellites could be targeted, it would seem that al-
most any satellite providing commercial profits to an adversary State, or to
suppliers in an adversary State, could fall under this category. Clearly this
would go too far, and significantly, the attempt to include this wording in
the San Remo Manual on International Law Applicable to Sea Warfare was
not accepted,96 further underlining that this is not the customary law defini-
tion accepted universally.
With all of these difficulties in the identification of a military objective in the
space domain, it should be noted that in case of doubt, Article 53(3) of Additional
Protocol I provides that an object shall be presumed to be civilian and therefore
protected from legitimate targeting. This acts as a limit on the discretion given to
military commanders. How this rule will apply to satellites where identification
is so problematic given the preponderance of nonvisual data raises many prac-
tical issues.
93 Navy Commander’s Handbook, supra note 77, art. 8.1.1. See also US Department of the Air Force,
Commander’s Handbook on the Law of Armed Conflict (AFP 110-34) (1980) [Air Force Commander’s
Handbook], 2.
95 Navy Commander’s Handbook, supra note 77, art. 8.1.1. See also Air Force Commander’s
Handbook, supra note 93, at 2.

96 San Remo Manual, supra note 76, at 150.
Proportionality
The principle of proportionality has been codified in Additional Protocol I, which

provides a relevant recitation of the principle under the heading “Protection of
the civilian population.” Specifically, Article 51(5)(b) prohibits indiscriminate
attacks, defined as:
An attack which may be expected to cause incidental loss of civilian life, in-
jury to civilians, damage to civilian objects, or a combination thereof, which
would be excessive in relation to the concrete and direct military advantage
anticipated.97
The principle is also contained in Article 57(2)(b), which is listed under the
chapeau of “Precautions in attack.” As with distinction, the principle of propor-
tionality occupies a distinctive and central place within the IHL framework.
The principle of proportionality is contained within the terms of Additional
Protocol I and is regarded as constituting customary international law by
nonparties, including the U.S.98 The principle of proportionality reflects a legal
standard which stipulates that collateral damage to property and incidental in-
jury to civilians need to be balanced and weighed against “concrete and direct
military advantage.” The principle is one that has not easily been reconciled.
Dinstein notes, for example, that there has always been a fundamental discon-
nect between balancing military considerations against civilian losses, as they
are “dissimilar considerations.”99
Numerous States parties to the Additional Protocol have made declarations
seeking to assure a more expansive (and militarily advantageous) formalist ar-
chitecture, including, for example, declarations that the security of the attacking
force is a factor that may be taken into account when balancing against “exces-
sive” civilian loss. Similarly, declarations have been made that proportionality
assessments should be undertaken with respect to the “attack as a whole and
not individualized aspects of the attack.”100 Dinstein acknowledges the criticism
97 Additional Protocol I, supra note 65, art. 51(5)(b).

98 See Navy Commander’s Handbook, supra note 77, art. 5.3.3, that restates the principle of pro-
portionality, for the United States as a nonparty to API, in identical terms to the formula expressed
in API:
The principle of proportionality requires the commander to conduct a balancing test to
determine if the incidental injury, including death to civilians and damage to civilian
objects, is excessive in relation to the concrete and direct military advantage expected to
be gained.
99 Dinstein, supra note 60, at 122.
100 Several States made declarations with regards to Additional Protocol I. For example, Australia
declared:
leveled at the principle as elaborated within Additional Protocol I as permitting

possibly too great a subjective assessment by military commanders when un-
dertaking the balancing requirement.101 As with the principle of distinction, a
somewhat linear formulation of assessment is undertaken. Hence civilians and
civilian objects are accorded a “value,” and an exchange is processed along con-
sequentialist lines, whereby an attack may proceed on the basis that “anticipated
concrete and direct military advantage” is not “excessive” in relation to civilian
loss. Some texts also remind audiences that the term is “excessive” and not “ex-
tensive.”102 The type of judgment to be exercised is an evaluative one, where
broader policy type considerations may be given effect in determining whether
an “anticipated military advantage” is or is not proportionate to the incidental
civilian loss or damage to civilian objects (or a combination thereof) expected.
Not unlike distinction calculations, an assessment is to be made as to the military
significance of an attack in terms that invite a wide, but nonetheless bounded,
level of discretion.
In the context of warfare in outer space, the principle of proportionality has
both an obvious but also elusive quality. As noted previously, there are no ci-
vilian populations presently living in space that would attract a more traditional
application of the principle. In this respect, it could be said that a conflict which
focuses on targeting unpopulated space objects would already fulfill the aim of
minimizing human suffering and would therefore in principle fulfill the notion
of proportionality.103 There are, however, civilian objects that do require a direct
assessment of potential damage. Moreover, just as the destruction of electricity-
generating stations or water purification facilities that supply both military and
civilian purposes require an assessment of the consequential impact of destruc-
tion of a lawful military object on Earth, the same requirement exists when
In relation to paragraph 5(b) of Article 51 and to paragraph 2(a)(iii) of Article 57, it is the
understanding of Australia that references to the “military advantage” are intended to
mean the advantage anticipated from the military attack considered as a whole and not
only from isolated or particular parts of that attack.
See Declaration of Australia on June 24, 1991, <https://www.icrc.org/applic/ihl/ihl.nsf/Notif/470-
AU?OpenDocument&> (accessed Dec. 5, 2019). The United Kingdom declared:
In relation to paragraph 5(b) of Article 51 and paragraph (2)(a)(iii) of Article 57, that the
military advantage anticipated from an attack is intended to refer to the advantage antici-
pated from the attack considered as a whole and not only from isolated or particular parts
of the attack.
Declaration of the United Kingdom of Great Britain and Northern Ireland on July 2, 2002, <https://
www.icrc.org/ i hl.nsf/ N ORM/ 0 A9E03F0F2EE757CC1256402003FB6D2?OpenDocument>
(accessed Dec. 5, 2019).
101 Dinstein, supra note 60, at 122.

102 Id., 120.
103 Ramey, supra note 1, at 4.
assessing a target in space and the potential impact on a civilian population as a

result of that object’s destruction.
Global Navigation Satellite Systems

One obvious area of potential contestation relates to the use of Global Navigation
Satellite System (GNSS). Numerous nations have developed their own sys-
tems: Russia has the GLONASS, the European Union is developing the Galileo
system, China the BeiDou system,104 and much of the Western world already
makes use of the U.S. Global Positioning System (GPS). These systems all require
the placement of at least thirty-one satellites in geosynchronous orbit. The im-
portance of GNSS cannot be underestimated in the contemporary world.
The U.S. GPS is presently the most utilized GNSS in the world. It began as a
military asset to ensure greater navigational and targeting precision but, over the
decades, has fulfilled numerous civilian roles. Much of modern civilian life is
dependent upon civilian GPS frequencies for navigation purposes, but also for
precision timing synchronization used in most modern technology. The internet
relies heavily upon GNSS to provide the relevant signature timestamp to provide
for the synchronization of “packets” of data.105 Modern aviation, maritime, and
land systems rely upon GPS for safe and efficient transport, and the modern eco-
nomic order in areas as diverse as mining and agriculture are all guided by GPS.
GNSS directly impacts the efficacy and capability of global financial systems,
water supply and associated infrastructure, information and communication
systems, health services, energy production, and military and security functions.
It has been estimated that 6 to 7 percent of the GDP of Western countries is de-
pendent upon GPS.106
GPS also has an encrypted military function, and hence as a dual-use object
may be lawfully targeted under the principle of distinction, as discussed pre-
viously. The question, then, is whether the targeting of the system in a specific
situation also satisfies the test of proportionality. The elements at play require a
balancing of military advantage against anticipated civilian loss. This formula-
tion is necessarily speculative in one sense as there will almost certainly be no
direct loss of civilian lives in any actual kinetic attack in outer space. The law
104 GPS, Joint Statement U.S.–China Civil Global Navigation Satellite Systems (GNSS) Cooperation
(May 19, 2014), <https://www.gps.gov/policy/cooperation/china/2014-joint-statement/> (accessed

Dec. 5, 2019).
105 Dr. James Carroll & Kirk Montgomery, “Global Positioning System Timing Criticality
Assessment—Preliminary Performance Results” (Paper presented at the 40th Annual Precise Time
and Time Interval (PTTI) Meeting), Virginia, USA, Dec. 1–4, 2008, 485, 490, <https://rntfnd.org/
wp-content/uploads/2013/09/GPS-Timing-Criticality-Volpe-Paper-2008.pdf> (accessed Dec.
5, 2019).
106 Global Navigational Space Systems: Reliance and Vulnerabilities, The Royal Academy of
Engineering (Mar. 2011), 1, 3, <https://www.raeng.org.uk/publications/reports/global-navigation-

space-systems> (accessed Dec. 5, 2019).
does require, however, that foreseeable and proximate losses are factored into
any calculation. In this instance, there is a level of quantitative data relating to
civilian reliance on the GPS (and equivalent systems), as outlined previously,
that informs any assessment. Critically, it is also clear that there have been no
actual attacks on any GNSS, hence no judicial determination or other formally
authoritative review of the proportionality equation on this target set has been
undertaken. However, it would seem clear that a high level of precaution would
be required.
Discretion in Application
In starting any assessment it needs to be recognized that IHL does allow a large
degree of military discretion. This is revealed in a number of situations. Hence, as
mentioned previously, when determining whether an attack potentially causing
“widespread, long-term and severe damage” may be undertaken, the relevant
test requires an assessment of whether the “long-term” component of this for-
mulation can be measured in “decades.”107 Accordingly, any attack resulting
in significant environmental damage that is measured in years not amounting
to “decades” would seem to be outside the prohibition. Similarly, in the area
of protecting cultural heritage, the prevailing law allows for wide military dis-
cretion. Even under the Second Protocol to the 1954 Hague Convention on
Cultural Property, those cultural artifacts of the greatest importance to humanity
acquiring “enhanced protection” may nonetheless be attacked under IHL where
“imperative military necessity” demands.108 The point of this brief survey is not
to critique the extent of military discretion, but rather to signal the manner in
which it is accommodated under key IHL provisions.
Even under international criminal law, the International Tribunal for the
Former Yugoslavia (ICTY) has determined that the test for the mental element of
whether a commander has violated the proportionality principle is one of “rea-
sonableness.” That is, in determining criminal liability for breaching the prin-
ciple of proportionality, the ICTY must ask what the reasonable commander in
the situation of the defendant would have decided.109 While providing a level
107 Commentary on Additional Protocol I, supra note 66, para. 1455.

108 Second Protocol to the 1954 Convention for the Protection of Cultural Property in the Event of
Armed Conflict, supra note 76, art. 6. For more on “Enhanced Protection,” see generally Chapter 3 of
the Second Protocol.
109 As the ICTY held in Prosecutor v. Stanislav Galic:
[i]‌n determining whether an attack was proportionate it is necessary to examine whether

a reasonably well-informed person in the circumstances of the actual perpetrator, making
reasonable use of the information available to him or her, could have expected excessive
civilian casualties to result from the attack.
Case No. IT-98-29-T of Dec. 5, 2003, para. 58, <https://www.icty.org/case/galic/4> (accessed Dec.
5, 2019).
of external confidence, the difficulty with this legal test is its relativism. As legal
theorist Koskenniemi has generally observed, while the legal test of “reasona-
bleness” is not problematic per se, it provides little definitive guidance and con-
ceptually operates to elevate the subjective to the objective, so as to appear a
“natural” outcome with relative ease.110
While destruction of the GPS would undoubtedly cause civilian loss, directly
and indirectly, the level of discretion afforded to military planners when deter-
mining correlative “military advantage” remains extremely broad. The question
is whether the anticipated civilian loss would be “excessive,” and this itself allows
for a broad range of factors to be incorporated into the decision-making cal-
culus. Even when it comes to nuclear weapons, which the ICJ determined were
scarcely reconcilable with the tenets of IHL, the Court could not itself determine
definitively “in all cases” whether nuclear weapons would be unlawful where
State survival was at stake.111 Hence, the likelihood of being able to satisfy the
proportionality test when determining to attack a GNSS would, prima facie, be
defensible if the “direct military advantage anticipated” can be properly justified.
Against this conclusion, however, is the fact the GNSS allows for the accurate
targeting of military objectives in the first place. Numerous tactical and strategic
weapons systems have come to rely upon GNSS to target precisely, thus acting to
minimize civilian loss in an actual attack.112 As will be discussed in the following
section, principles relating to precautions in attack would mitigate against a con-
clusion that the GNSS is a legitimate target given the obligation imposed upon
belligerent States to minimize civilian causalities. However, counter to this prop-
osition is the specific conclusion reached by the experts drafting the Harvard
Manual on International Law Applicable to Air and Missile Warfare,113 which
provides that when defending against an attacking aircraft or UAVs, defenders
are not obliged to undertake a proportionality evaluation with respect to deter-
mining losses to their own nationals when downing such aircraft.114 Presumably
this would by analogy apply to disruption of satellite links for GNSS-linked
UAVs and munitions.
110 Martii Koskenniemi, Hierarchy in International Law, 8 European Journal of International
Law 566, 597 (1997).

111 Nuclear Weapons, supra note 47, at 263 para. 97.
112 In 2013, Boeing had produced over 250,000 Joint Direct Attack Munition (JDAM) kits that
rely upon GPS for accurate targeting, see JDAM Weapon Program Reaches 250,000-kit Milestone,
Deagle.com (Aug. 20, 2013), <https://www.deagel.com/news/JDAM-Weapon-Program-Reaches-
250000-Kit-Milestone_n000011820.aspx> (accessed Dec. 5, 2019).
113 Harvard Manual of International Law Applicable to Air and Missile Warfare, Program on
Humanitarian Policy and Conflict Research at Harvard University, <https://ihlresearch.org/amw/

HPCR%20Manual.pdf> (accessed Dec. 5, 2019).
114 Commentary HPCR Manual on International Law Applicable to Air and Missile Warfare (The
Program on Humanitarian Policy and Conflict Research at Harvard University, 2013), para. 39(4).
Ultimately, the vagaries of legal expression and the impossible nature of the
existing formula to provide any kind of mathematical solution to the propor-
tionality analysis means that it remains arguable whether an attack on a GNSS
would violate the proportionality requirement. It would seem that despite this
legal uncertainty, modern military forces operate within a realm of considerable
constraint dominated by both legal and policy factors. Questions of legitimacy—
whether source, procedural, and/or substantive (outcome-driven)—are assimi-
lated into questions of legal construction and articulation under IHL, and they
combine to shape military decision-making. Especially for professional military
forces from liberal democratic societies, there is significant influence by relevant
domestic populations as well as key external constituencies.115 Such influence
overlays any legal analysis and provides an extra layer of restraint. Hence, any
decision to attack a GNSS under the tenets of the law relating to proportionality
will be carefully parsed, but it is likely that broader social and policy consider-
ations as to perceived legitimacy will act as a further constraint to any decision
made. Given this likelihood, it would seem inevitable that all GNSSs would re-
tain a level of “protection” based upon both legal and policy factors, at least those
systems that are made available and employed by significant civilian users.
Precautions in Attack
Article 57(2)(ii) of Additional Protocol I (and its customary international law

equivalent)116 requires that when undertaking attacks on land, belligerents shall:
Take all feasible precautions in the choice of means and methods of attack with
a view to avoiding, and in any event to minimizing, incidental loss of civilian
life, injury to civilians and damage to civilian objects.
Article 57(4) provides a slightly modified test in relation to military operations at

sea or in the air as mandating “reasonable precautions.” According to the ICRC,
the test contained under Article 57(4) is “a little less far-reaching” than “all fea-
sible precautions.”117 It is difficult to know which context would apply to the con-
duct of warfare in outer space, though operationally it may be a nuance that has
no practical effect.
The general requirement to take precautions in planning and executing an at-
tack is a requirement that has particular resonance within the space domain. As
115 David Kennedy, Of War and Law 96–97 (2006).

116 Navy Commander’s Handbook, supra note 77, para. 8.1.
117 Commentary on Additional Protocol I, supra note 66, para. 2230.
was outlined previously in the earlier section “The Weaponization of Space,” the
use of weapons systems within outer space consists of many effects not present
within the terrestrial environment. Such effects must be taken into account when
planning or executing any attack. Unlike the terrestrial environment, any kinetic
attack upon a military objective within space will, at the right altitude, result in
considerable debris circling the Earth, as such debris maintains its own orbit. As
was discussed previously in the section “The Weaponization of Space,” China’s
targeting of its own weather satellite caused the creation of an enormous orbiting
debris field. Indeed, it has been noted that China is responsible “for nearly half of
all known and tracked satellite breakup debris currently in Earth orbit.”118
Accordingly, planners must account for the fact that in any given kinetic at-
tack, thousands of pieces of debris will likely rotate the Earth at speeds of up to
27,000 kilometers per hour and hence are capable of the destruction of all objects
in their path. The projected trajectories of the debris and planned orbits, and
possible resulting collisions, must be taken into account. These are very diffi-
cult predictions to make, as the recent ASAT test by India demonstrates. India
asserted that due to the low altitude in which they had destroyed their satellite, all
of the debris would burn up upon re-entry into Earth’s atmosphere within a few
weeks;119 however, several months after the incident, data gathered showed sig-
nificant amounts of debris that had been forced into higher trajectories as a result
of the collision, causing concern for potential damage to other space objects.120
Additionally, commanders must take into account the Kessler syndrome when
analyzing a consequence of resulting debris. Donald Kessler et al. stressed in the
1970s that when debris is traveling at hypervelocity in an area of dense satellite
or other space object concentration, there is significant potential for space debris
to multiply as a result of subsequent collisions. Such potential has exponential
effect and is theoretically mappable to an infinite scale.121
In armed conflict, the potential for such an impact needs to be lawfully mit-
igated through the employment of feasible precautions. This necessarily invites
consideration of the types of weapon systems that might be employed to engage
118 Fengyun-1C Debris: One Year Later, supra note 19.

119 The Indian Ministry of External Affairs published a series of statements online immediately
following the test, but subsequently removed those statements. They are, however, repeated in
news articles. See, e.g., All You Need to Know about Mission Shakti, @businessline, <https://www.
thehindubusinessline.com/news/all-you-need-to-know-about-mission-shakti/article26652887.
ece> (accessed July 15, 2019).
120 Oscar Gonzalez, Air Force Space Fence Passes Debris Test, CNET (May 22, 2019), <https://www.
cnet.com/news/air-forces-space-fence-passes-debris-test/> (accessed July 15, 2019); Caleb Henry,

India ASAT Debris Spotted above 2,200 Kilometers, Will Remain a Year or More in Orbit, SpaceNews.
com (Apr. 9, 2019), <https://spacenews.com/india-asat-debris-spotted-above-2200-kilometers-
will-last-a-year-or-more/> (accessed July 15, 2019).
121 Donald J. Kessler & Burton G. Cour- Palais, Collision Frequency of Artificial Satellites: The
Creation of a Debris Belt, 83 Journal of Geophysical Research 63 (1978).
in an attack. One logical choice would be the use of laser weapons that might be
used to destroy particular circuitry on a military or dual-use satellite without
destroying the satellite itself. At present, such weapons systems are only now
reaching initial deployable status on Earth-based platforms, and so far are
proving successful in their intended design task.122 However, there is still some
way to go before the operational capability to deploy such laser weapons in space
or from Earth to space.
Another solution may be the use of cyber operations to disable or disrupt
functionality of a satellite that is assessed as constituting a military objective.
The development of cyber means of conducting warfare is a current operational
reality. The Stuxnet computer virus and computer attacks that occurred during
the Georgia/Russia conflict of 2008 are a testament to this contemporary phe-
nomenon. The 2013 Tallinn Manual on the International Law Applicable to Cyber
Warfare123 represents a recent attempt by a group of legal experts at an articula-
tion of the law applicable in this cyber realm. While not stated within the Rules
or Commentary itself, it would appear a logical deduction from the obligations
enumerated in Article 57 (and supporting customary international law) that,
where feasible, cyber means of attack are lawfully obliged over kinetic means,
due to the fact that a cyberattack will cause less damage than a kinetic one. The
Tallinn Manual highlights that feasibility is to be interpreted in accordance with
what is “practicable or practically possible, taking into account all circumstances
ruling at the time, including humanitarian and military considerations.”124
Hence, where a choice can be made between deploying kinetic means to destroy
a satellite or cyber means, then there is likely to be a legal obligation to utilize the
latter to ensure that any collateral damage is kept to a minimum.
In determining whether there is such an obligation, much turns on what is
“feasible.” Unlike kinetic means, which may be used repeatedly to achieve mili-
tary effect, cyber operations may only have a life span of one use before the oppo-
sition is able to devise an adequate cyber defense. In such circumstances, whether
it is “practicable” to use this means of warfare, having regard to possible future
uses of a potentially unique cyber capability, is a question of both qualitative and
quantitative significance. However, where a satellite is part of a broader dual-use
civilian network, it may be preferable (indeed lawfully required) to temporarily
disrupt the functionality of that network (where the civilian loss is not excessive
122 Jon Skillings, U.S. Navy Sees Shipboard Laser Weapon Coming Soon, CNET (Apr. 8, 2013),
<https://www.cnet.com/news/u-s-navy-sees-shipboard-laser-weapon-coming-soon/> (accessed
Dec. 5, 2019).
123 Michael N. Schmitt & NATO Cooperative Cyber Defence Centre of Excellence,
Tallinn Manual on the International Law Applicable to Cyber Warfare: Prepared by

the International Group of Experts at The Invitation of the NATO Cooperative Cyber
Defence Centre of Excellence (2013).
124 Id., 168.
to military advantage anticipated) through a cyberattack, rather than to destroy

it. Such a choice achieves the same military effect but avoids the resulting debris
that comes from physical destruction as well as the need to redeploy satellites to
resume significant civilian functions. Similar choices were in fact made during
operations against Iraq in 1991 and Serbia in 1999, where electricity power grids
were disrupted or short-circuited through the use of “carbon graphite bombs”
rather than physically destroyed.125
In sum, the obligation to employ precautions when planning an attack does
impose obligations beyond those mandated through the principle of proportion-
ality. While this body of law does not require that civilian casualties or property
loss be reduced to zero, it does require that choices be made to reduce, to the
maximum extent feasible, such loss. The dynamics of the space environment give
particular weight to this principle, given the unique consequences of physical
kinetic attack and the serious problems associated with dual-use satellites and
vast debris fields in space. There is a compelling case for finding innovative and
durable solutions under existing tenets of IHL, particularly due to the obligation
to observe precautionary measures that will inform military decision-making in
the future.
Conclusion
The discussion here demonstrates that the principles and laws of IHL apply in
space, despite the fact that no hard, binding treaty rules have yet been written for
specific application in this particular domain. However, due to the heritage and
trajectory of IHL, a clear judicial preference for IHL to apply to “fill gaps,” and
the all-encompassing definition under Article III of the Outer Space Treaty, there
can be little doubt that IHL applies, at least as a matter of customary international
law, and that certain general principles must also apply.
It is also true that there are certain specificities in the space domain which
make it difficult to translate all rules of IHL in a classically understood manner.
What emerges from the preceding analysis of the application of certain fun-
damental principles of IHL to a hypothetical conflict in space is that there are
many unique factors that must be taken into account. It can be concluded that
the physical environment of space and the risk of causing space debris by use of
kinetic weapons mean that the principles of proportionality and precaution in
attack must weigh particularly heavily.
125 CBS-
94 Blackout Bomb, BLU- 114/B “Soft Bomb,” GlobalSecurity.org, <https://www.
globalsecurity.org/military/systems/munitions/blu-114.htm> (accessed Aug 31, 2020).
The difficulty of identifying an object as a legitimate military target given the in-
crease in dual-use space applications, and the potential for catastrophic reverber-
ating collateral effects when destroying or disabling a dual-use satellite, also mean
that the principle of distinction may not be enough on its own to determine whether
there is sufficient “definite military advantage” to targeting such an object.
Thus, a curious result can be said to materialize. On the one hand the choice to
target a space object would already appear to fulfill the principle of humanity, be-
cause the risk of casualties is extremely low. In this sense, a parallel could be drawn
with cyberwarfare; some would argue that the principle of proportionality dictates
that cyber should be the preferred course over targeting physical objects where pos-
sible, since the risk of human casualty is extremely low. The same could be said of
targeting a space object over targeting an object on Earth. On the other hand, it is
difficult to distinguish a legitimate military target in space due to the paucity of in-
formation regarding specific civilian and military satellite functions. The impact
upon civilian lives and objects may be difficult to predict when targeting a dual-
use satellite. As well, the risk of space debris means that kinetic weapons should not
be preferred, and yet even with nonkinetic means of interruption, disablement, or
capture, the difficulty of calculating collateral effects, and the likelihood that these
effects would be immense, all mean that proportionality dictates in the opposite di-
rection, away from targeting such space objects.
It would seem that the principle of precaution in attack has a particular role
to play in space. Both the principle of distinction and the principle of propor-
tionality point toward elevated precaution in all potential attacks in the space
domain.
Thus, while it is imperative that States recognize that IHL is applicable to all
their activities in space that involve conflicts on Earth and in space, care must
be taken in weighing up the traditional principles and their application to this
new domain. As the technology that increases warfighting capability advances,
so does the imperative to understand the applicable legal framework for the use
of such technology. There is much work that needs to be done, and it needs to be
done before, not after, any conflict in space should occur.
On that note, two stand-alone projects developed by independent interna-
tional experts aim to provide guidance on many of these questions. Following
in the footsteps of the San Remo Manual, the Tallinn Manual, and other sim-
ilar domain-specific manuals, the Woomera Manual on the International Law
Applicable to Military Space Operations intends to provide an objective statement
of existing international law (lex lata) applicable to the full spectrum of mili-
tary space operations, particularly on the most difficult questions of IHL and the
use of force.126 Complementarily, the Manual on International Law Applicable
126 The Woomera Manual, <https://law.adelaide.edu.au/woomera/home> (accessed July 17, 2019).

to Military Activities in Outer Space aims to provide clarity on the law applicable
in space during peacetime.127 The impact of these manuals remains to be seen,
but the intention is that operators and decision makers alike can turn to these
documents when faced with scenarios such as those described in this chapter
and that with time, having greater clarity and international agreement as to the
laws and principled applicable will assist in decreasing tensions and mitigating
the impact of potential conflict in space.
127 Manual on International Law Applicable to Military Uses of Outer Space—McGill University,
<https://www.mcgill.ca/milamos/> (accessed Dec. 27, 2019).

2
Norm Setting and Transparency and
Confidence-Building in Space Governance
Theresa Hitchens
Introduction
Governance of the use of space, both at the national and international level, is
complicated because of the physical realities of the space environment; the fact
that space is a global resource; and the legal status of outer space under Article II
of the framework 1967 Outer Space Treaty (OST) that forbids the claim of sover-
eignty “by means of use or occupation or any other means.”
There are a number of factors piquing increased risks to safe and secure space
activities. The emergence of these risks has, in turn, complicated the already diffi-
cult task of space governance. These risks include: increased geopolitical tensions
among major spacefaring powers; technical advancements lowering barriers to
entry and enabling new dual-use capabilities; increased numbers of commercial
players with different priorities and less reliance on national government sup-
port; the entrance of many new, and less skilled, government actors; continued
proliferation of debris; and new types of space activities that fall between current
legal and regulatory regimes. At the same time, for all of these reasons, govern-
ance and risk-reduction for outer space activities have come into a sharper focus
of concern for the international community over the past five years.
As discussed in other chapters in this volume, many countries in the world have
exhibited resistance over the last thirty years to legally binding commitments
in space (as in many other arenas affecting national security). As a result, on-
going multilateral work on space governance has been concentrated primarily
on voluntary measures. This is not necessarily a bad thing: voluntary measures—
whether created by “top-down” negotiations among governments; “bottom-up”
initiatives focusing on best practices; or industry-led standards setting—can
usually be agreed upon and implemented more quickly than international le-
gally binding measures. Despite the fact that there is no method of enforcing vol-
untary agreements, those agreements represent political commitments by States
that cannot be ignored without political consequence.
Theresa Hitchens, Norm Setting and Transparency and Confidence-Building in Space Governance In: War and Peace
in Outer Space. Edited by: Cassandra Steer and Matthew Hersch, Oxford University Press (2021). © Oxford University
Press. DOI: 10.1093/oso/9780197548684.003.0003
Indeed, norms and transparency and confidence-building measures (TCBMs)

often serve as essential foundations to allow States to avoid misunderstandings,
miscalculations, and conflict escalation by laying out “rules of the road” for
interactions and activities in the international sphere. Further, such voluntary
agreements in the past have led to lawmaking at the both the national and the
international level. For example, the 1967 OST was preceded by a UN resolution
establishing agreed legal principles for space exploration.1 Most of the principles
articulated in that nonbinding resolution found their way directly into the treaty
text of the OST.
This chapter reviews the two most salient of recent initiatives to create interna-
tional nonbinding instruments to govern activities in outer space: the 2013 nor-
mative recommendations of the UN Group of Governmental Experts (GGE) and
the guidelines for best practices agreed by the Committee on the Peaceful Uses
of Outer Space (COPUOS) Working Group on the Long-Term Sustainability of
Outer Space Activities (LTS Working Group). These two initiatives represent
slightly different approaches, in that the GGE was a “top-down” method, focused
on TCBMs to avoid conflict among States, whereas the LTS Working Group
was tasked with recommending “bottom-up” approaches for safe and sustain-
able practices with regard to the use of space. It also looks to identify additional
steps for establishing a foundational space governance framework, including
institutionalizing the UN Space Debris Mitigation Guidelines; establishing an
international space situational awareness database; developing national and in-
ternational approaches to space traffic management, including active debris re-
moval; and rethinking national obligations regarding military activities.
International Lawmaking under the United Nations
Space security has remained an important area of concern of the United Nations
since the onset of the Space Age. Questions related to preventing an arms race
in space, and the possibility of warfare in space, are in the purview of the UN
General Assembly First Committee, which deals with disarmament, peace, and
security, and the Fourth Committee, which deals with peacekeeping and special
political operations in general and has been given responsibility for international
cooperation in peaceful uses of outer space. At the same time, issues related to
the “peaceful” uses of outer space are handled by COPUOS in Vienna. The First
1 “Resolution Adopted By The General Assembly: 1962 (XVIII) Declaration of Legal Principles
Governing the Activities of States in the Exploration and Use of Outer Space,” UN Office for Outer
Space Affairs, <http://www.unoosa.org/oosa/en/ourwork/spacelaw/principles/legal-principles.
html> (accessed Mar. 30, 2020).
Norm Setting and Transparency and Confidence-Building 57
Committee’s work has been centered on Prevention of an Arms Race in Outer

Space (PAROS), working in tandem with the Conference on Disarmament,
which is designed to negotiate arms control treaties, in Geneva. COPUOS, on
the other hand, is the UN body charged with negotiating treaties on the peaceful
uses of outer space. This split between “military” or space security issues and
“peaceful” space issues is highly political and has always been illusionary, in that
almost all space technologies are dual-use and can be used for military or non-
military purposes. This organizational and jurisdictional split between bodies of
the United Nations is also part of what has led to a stalemate in recent decades
with respect to the development of any new binding instruments on space gov-
ernance and space arms control.
International Space Lawmaking During the Cold War
In a rapid but short burst of activity, COPUOS produced five treaties on outer
space in the late 1960s.2
First and foremost, the Treaty on Principles Governing the Activities of States
in the Exploration and Use of Outer Space, including the Moon and Other
Celestial Bodies (Outer Space Treaty) operates as a framework treaty.3 The key
provisions in this treaty include the “peaceful purposes” principle in Article I,
which stipulates that space is to be used only for peaceful purposes—but without
defining what that phrase means. It also includes the nonappropriation principle,
which provides in Article II that no country can claim sovereignty “by means of
use or occupation or any other means.” Furthermore, Article IV prohibits the
placement of nuclear weapons or other weapons of mass destruction in orbit
around the Earth or on the moon and prohibits the establishment of military
bases on the moon or other celestial bodies. This is quite limited as an arms
control regime, however, as it says nothing about more conventional weapons.
Importantly, Article III determines that all activities in outer space must be in
accordance with international law, and highlights that this includes the Charter
of the United Nations. As described in chapter 1 [Steer and Stephens] of this
volume, this is crucial when assessing what activities are lawful or not and is par-
ticularly relevant to space security.
One year later in 1968, the next treaty to be negotiated was the Agreement on
the Rescue of Astronauts, the Return of Astronauts and the Return of Objects
2 “Space Law Treaties and Principles,” UN Office of Outer Space Affairs, <http://www.unoosa.org/
oosa/en/ourwork/spacelaw/treaties.html> (accessed Apr. 14, 2018).

3 Adopted by the General Assembly in its Resolution 2222 (XXI), opened for signature on Jan. 27,
1967, entered into force on Oct. 10, 1967.

Launched into Outer Space (Return and Rescue Agreement).4 This treaty
determines that nations “take all possible steps to rescue and assist astronauts”
and return them to the launching State; and help each other recover space objects
that make landfall outside the territory of the launching State.
Following this, the Convention on International Liability for Damage Caused
by Space Objects (Liability Convention) entered into force in 19725 and was
negotiated to fill some gaps in the general provisions on liability in the Outer
Space Treaty. It established that a launching State is “absolutely liable” for terres-
trial damage from space debris, and liable if at “fault” for its space object harming
another object on orbit. It further sets out procedures for claims; however, this
convention has never been invoked formally.
In 1976, the Convention on Registration of Objects Launched into Outer
Space (Registration Convention) entered into force.6 This treaty requires all
objects launched into space to be registered both in a national registry by the
launching State and with the UN Office of Outer Space Affairs in an interna-
tional registry. These requirements help to maintain awareness of all launches
and objects in space, in support of space traffic management and space security
in general.
Finally, the Agreement Governing the Activities of States on the Moon and
Other Celestial Bodies (Moon Agreement)7 is considered to be one of the five
core space treaties, however it has very little impact on space governance. Only
thirteen States ratified this agreement when it was adopted in 1979 and entered
force in 1984. Today there are only eighteen State Parties, none of which includes
the major spacefaring powers. Among other clauses, two of the provisions
proved most controversial. First, Article 3’s provision that the moon shall be
used for exclusively peaceful purposes is a stronger proscription than the Outer
Space Treaty, which lacks the adjective “exclusively.” Thus, the Moon Treaty
would further limit military activities on the moon. Second, Article 2 states that
“the Moon and its natural resources are the common heritage of mankind and
that an international regime should be established to govern the exploitation of
such resources.” With some foresight as to the future potential for competition
for natural resources on the moon, the major spacefaring nations have preferred
to keep the legal regime governing such activities as ambiguous as possible and
have therefore refused to sign the Moon Agreement.
4 Adopted by the General Assembly in its Resolution 2345 (XXII), opened for signature on Apr.
22, 1968, entered into force on Dec. 3, 1968.

5 Adopted by the General Assembly in its Resolution 2777 (XXVI), opened for signature on Mar.
29, 1972, entered into force on Sept. 1, 1972.

6 Adopted by the General Assembly in its Resolution 3235 (XXIX), opened for signature on Jan.
14, 1975, entered into force on Sept. 15, 1976.

7 Adopted by the General Assembly in its Resolution 34/68, opened for signature on Dec. 18,
1979, entered into force on July 11, 1984.

Furthermore, the General Assembly, via the First Committee, has passed five
sets of principles. General Assembly resolutions are not binding, and so these
principles have no legal effect; however, they provide important indications of
political will and of best desired practices.8 The five principles are:
• The 1963 Declaration of Legal Principles Governing the Activities of States

in the Exploration and Uses of Outer Space.9
• The 1982 Principles Governing the Use by States of Artificial Earth Satellites
for International Direct Television Broadcasting.10
• The 1986 Principles Relating to Remote Sensing of the Earth from Outer
Space.11
• The 1992 Principles Relevant to the Use of Nuclear Power Sources in Outer
Space.12
• The Declaration on International Cooperation in the Exploration and
Use of Outer Space for the Benefit and in the Interest of All States, Taking
into Particular Account the Needs of Developing Countries (Benefits
Declaration).13
In addition, the General Assembly has passed a raft of resolutions on outer

space since the early days of the Cold War. In particular, the resolution on the
Prevention of an Arms Race in Outer Space (PAROS), which was first intro-
duced by the Soviet Union and China in 1981 in response to U.S. President
Ronald Reagan’s “Star Wars” program to develop space-based missile defenses,
has become an annual exercise.14 The content and effect of these resolutions is
discussed in detail in c hapter 7 [Su].
Multilateral treatymaking, especially on issues related to international secu-
rity, has fallen by the wayside over the past several decades, with States more
interested in maintaining national defense priorities than seeking to cooperate
to ensure international security. In addition, the collapse of the Soviet Union,
and the subsequent dissolution of the superpower competition, has meant that
former “client States” (that is, countries that were beholden to one side or an-
other for protection and financial assistance) have been able to go their own
way in recent decades, thus complicating any negotiating activities. COPUOS
8 Id.
9 General Assembly Resolution 1962 (XVIII) of Dec. 13, 1963.
10 General Assembly Resolution 37/92 of Dec. 10, 1982.
14 United Nations Office for Outer Space Affairs, Documents and Resolutions Database, <http://
www.unoosa.org/oosa/documents-and-resolutions/search.jspx?&view=resolutions> (accessed Apr.

11, 2018).
has not passed a space-related treaty since the late 1970s; the Conference on
Disarmament has been deadlocked for some twenty years; a Russian-Chinese
proposal for a Treaty on the Prevention of the Placement of Weapons in Outer
Space (PPWT), introduced into the Conference on Disarmament in 2008, was
rejected immediately by the United States and many of its Western allies—and
despite attempts by Moscow and Beijing to update the draft in 2014 and again in
2017, nothing has come of the effort.15 The PPWT and the U.S. objections to its
content are given a deeper analysis in chapters 7 [Su] and 10 [Doucet].
It should be noted that Western rejection of the PPWT treaty proposal—
indeed of any treatymaking at all regarding space—was further made evident
during the 2018 and 2019 discussions at the GGE, which has been mandated to
study “substantial elements of an international legally binding instrument on the
prevention of an arms race in outer space.” The United States voted against the
GGE’s establishment and initially had threatened to boycott the effort. In the end,
Washington participated but with the primary purpose of blocking consensus—
a goal that was achieved.16
As concerns about the future sustainability and security of the space environ-
ment have grown, multilateral efforts have increasingly focused on the devel-
opment of voluntary agreements to build transparency and confidence among
actors, and of norms of behavior in space.
Transparency and Confidence-Building Measures
Norm-building through nonbinding activities including TCBMs has long been

a part of multilateral statecraft, enshrined in UN resolutions as potentially useful
for improving mutual understanding, reducing misunderstandings and tensions,
and promoting a more favorable climate for arms control and nonproliferation.
In the case of space, TCBMs can be seen as a foundation stone for future multilat-
eral approaches to governance of space as a global resource.
The two most recent of these initiatives regarding outer space are the 2013
normative recommendations of the GGE and the guidelines for best practices
agreed by COPUOS, based on the drafts provided by the LTS Working Group. As
noted previously, these two initiatives represent slightly different approaches. The
GGE was “top-down” focused on transparency and confidence-building to avoid
conflict among States and on security. As such, it can be seen as a framework
15 “Proposed Prevention of an Arms Race in Outer Space (PAROS) Treaty” (Nuclear Threat
Initiative, Sept. 29, 2017), <http://www.nti.org/learn/treaties-and-regimes/proposed-prevention-

arms-race-space-paros-treaty/> (accessed Apr. 11, 2018).
16 “Group of governmental experts on further practical measures for the prevention of an arms
race in outer space,” UN General Assembly, A/74/77, Apr. 2019 (accessed Sept. 14, 2019).
agreement largely concerned with establishing overarching nonbinding norms

or principles for State behavior. Its language is less prescriptive than cajoling,
and its focus is on State-to-State actions rather than on the actual conduct of
space activities. On the other hand, the LTS Working Group was tasked with
recommending “bottom-up” approaches for safe and sustainable practices with
regards to the use of space, looking at specific policy and technical actions that
States can take to ensure the beneficial use of space by future generations. Thus,
its language, while careful not to overstep the group’s mandate to develop volun-
tary guidelines, is rather prescriptive and technical. Further, the LTS Working
Group—following the tradition of COPUOS’s overarching mandate—tried to
avoid dealing with issues related specifically to security or military space uses.
Instead, the approach taken to the development of TCBMs (and space security
writ large) is a somewhat sideways one, through the lens of safety of operations
and sustainability of the space environment.
This section provides an overview of both of these initiatives and details the
most important normative content of each one. The section concludes with a
look at the compatibility between the outcome of both initiatives, in an attempt
to clarify where there is overlap and where the two diverge.
2012–2013 GGE on Outer Space Activities
The 2013 report of the GGE17 was a landmark agreement, in that it was the first
agreement in many years focused directly on improving space security. While
voluntary, the report recommended steps that States could undertake multilat-
erally, bilaterally, or unilaterally. The group’s establishment was mandated by the
UN First Committee in 2011.18 GGEs, which usually comprise representatives
from fifteen nations chosen on the basis of interest and geographical diversity,19
report their consensus-based findings to the UN Secretary General for approval.
If approved, the report is forwarded to the UN General Assembly for adoption.
17 “Report of the Group of Governmental Experts on Transparency and Confidence- Building

Measures in Outer-Space Activities,” UN General Assembly, Sixty-eighth Session, A/68/189*, July
29, 2013 [hereinafter GGE Report], <http://www.unidir.org/files/medias/pdfs/outer-space-2013-
doc-2-a-68-189-eng-0-580.pdf> (accessed Apr. 11, 2018).
18 The First Committee, Disarmament and International Security, oversees the Geneva- based
Conference on Disarmament responsible for international arms control treaty negotiations; whereas
the Fourth Committee, The Special Political and Decolonization Committee, oversees COPUOS.
19 GGEs almost always include representatives of the five permanent members of the UN
Security Council: China, France, Russia, the United Kingdom, and the United States. The GGE on
space TCBMs was made up of representatives from Brazil, Chile, China, France, Italy, Kazakhstan,
Nigeria, the Republic of Korea, Romania, the Russian Federation, South Africa, Sri Lanka, Ukraine,
the United Kingdom of Great Britain and Northern Ireland, and the United States. This group was
chaired by Victor L. Vasiliev of the Russian Federation.
The GGE on Outer Space Activities began deliberations in 2012. It met in

three sessions: July 23–27, 2012, in New York; April 1–5, 2013, in Geneva; and
July 8–12, 2013, in New York. It issued its report in July 2013, which was adopted
by the General Assembly at its 68th session in October 2013. The group made
recommendations in five broad categories: enhancing the transparency of outer
space activities; international cooperation; consultative measures; outreach; and
coordination.
First, among the transparency measures recommended were information
exchanges on space policies, military space spending, and national security
space activities. Also recommended were improved information exchange re-
garding technical issues such as the orbital parameters of satellites, potentials for
close conjunctions of on-orbit objects, and forecasts of natural hazards in space,
such as solar flares.20
Second, regarding improved international cooperation, the GGE report
emphasized the importance of capacity-building because most UN Member
States are not equipped—in terms of human resources, budgets, and technolog-
ical know-how—to fully participate in multilateral efforts. The dearth of capacity
is a major factor contributing to a “lack of confidence” among developing States
that activities in space are peaceful and for the benefit of all, rather than aimed
at either military control of space or market protections by current spacefaring
nations.21
Third, as to consultations, the GGE report endorsed more timely and rou-
tine consultations among States through bilateral and multilateral exchanges,
as well as between States and international organizations such as the UN Office
for Outer Space Affairs (UNOOSA) in Vienna, which serves as the Secretariat
for COPUOS. In particular, the report urged the establishment of national focal
points (to serve as both points of contact and policy coordinators) by States, in-
ternational organizations, and private sector actors.22
Finally, with respect to outreach and coordination, the GGE report fur-
ther called upon States to improve compliance with space-related treaties and
agreements, and in some cases to go beyond legal requirements in meeting those
commitments. For example, the GGE report highlighted the need for better com-
pliance with the 1975 Registration Convention23 and recommended that States
expand their reporting to include notification of planned launches, scheduled
20 GGE Report, supra note 17, para. 27.

22 GGE Report, supra note 17, paras. 63–67.
23 Fifty-six UN Member States have ratified the Registration Convention, and another four have
signed it. See “Convention on the Registration of Objects Launched into Outer Space,” UN Office for
Outer Space Affairs, <http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introregistration-
convention.html> (accessed Apr. 11, 2018).
maneuvers that might result in risks to other operators, and on-orbit breakups of
space objects.24
COPUOS LTS Working Group
COPUOS now comprises ninety-two member States, and a large number of

nongovernmental and intergovernmental organizations are official obser-
vers. COPUOS activities are divided between two subcommittees: the Legal
Subcommittee and the Scientific and Technical Subcommittee. While the Legal
Subcommittee has passed no new space treaties since the late 1970s, COPUOS
has made progress within the Scientific and Technical Subcommittee. In 2007,
for example, COPUOS adopted a set of voluntary guidelines for space debris
mitigation based on technical guidelines developed by the Inter-Agency Debris
Coordination Committee (IADC), which were subsequently endorsed by the
General Assembly in January 2008.25 Building on that success, in February 2010
COPUOS initiated a new Scientific and Technical Subcommittee working group
on the “long-term sustainability of outer space.” The group was empowered to:
examine the long-term sustainability of outer space activities in all its aspects,
consistent with the peaceful uses of outer space, and avail itself of the prog-
ress made within existing entities, including but not limited to the other
working groups of the Subcommittee, the Conference on Disarmament, the
International Telecommunication Union, the Inter- Agency Space Debris
Coordination Committee, the International Organization for Standardization,
the World Meteorological Organization and the International Space
Environment Service.26
According to the group’s terms of reference, the objective of the LTS Working
Group is the production of:
a set of guidelines that could be applied on a voluntary basis by international

organizations, non-governmental entities, individual States, and States acting
jointly to reduce collectively the risk to space activities for all space actors and

25 “Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space,”
UN Office of Outer Space Affairs, found at <http://orbitaldebris.jsc.nasa.gov/library/Space%20
Debris%20Mitigation%20Guidelines_COPUOS.pdf> (accessed Apr. 11, 2018).
26 “Report of the Scientific and Technical Subcommittee on its forty- seventh session, held in
Vienna 8–19 February 2010,” Committee on the Peaceful Uses of Outer Space, Fifty-third Session,
Mar. 11, 2010, A/ AC.105/958, <http://www.unoosa.org/pdf/reports/ac105/AC105_958E.pdf>
to ensure that all countries are able to have equitable access to the limited nat-
ural resources of outer space.27
As previously stated, this focus on best practices is a “bottom-up” approach,

aimed at practical activities to be integrated into State practice via regulations,
organizational and policy development, and legislation. Thus, numerous outside
experts from nongovernmental organizations (NGOs) (including this author)
and the space industry (including representatives of the Aerospace Industries
Association based in Washington, DC) have been intimately involved in the
negotiations.
The working group’s deliberations were divided among four expert
groups: Sustainable space utilization supporting sustainable development on
Earth; Space debris, space operations and tools to support space situational
awareness sharing; Space weather; and Regulatory regimes and guidance for new
actors in the space arena.
Based on the terms of reference and the subgroups, States put forward a
number of proposed guidelines and texts during LTS Working Group meetings
through 2016. The proposed draft guidelines essentially break down into four
overarching categories: Policy and regulatory framework for space activities;
Safety of space operations; International cooperation, capacity-building, and
awareness; and Scientific and technical research and development.28
In June 2016, COPUOS endorsed twelve guidelines agreed by the LTS Working
Group29 and agreed to continue the mandate of the LTS Working Group until
June 2018 to finalize a fully agreed set. In February 2018, the COPUOS Scientific
and Technical Subcommittee approved a second set of nine guidelines agreed by
the LTS Working Group.30 In June 2019, COPUOS was finally able to adopt the
complete set of twenty-one guidelines, which include:
27 “Terms of reference and the methods of work of the Working Group on the Long- Term
Sustainability of Outer Space Activities of the Scientific and Technical Subcommittee, Working Paper
submitted by the Chair,” Committee on the Peaceful Uses of Outer Space, Feb. 28, 2011, A/AC.105/
C.1/L.307/Rev.1, <http://www.unoosa.org/pdf/limited/c1/AC105_C1_L307Rev01E.pdf> (accessed
Apr. 11, 2018).
28 “The UN COPUOS Guidelines on the Long- Term Sustainability of Outer Space Activities”
(Secure World Foundation, July 2017), <https://swfound.org/media/205929/swf_un_copuos_lts_
guidelines_fact_sheet_july_2017.pdf> (accessed Apr. 11, 2018).
29 “Guidelines for the Long- Term Sustainability of Outer Space Activities: Conference Room
Paper by the Chair of the Working Group on the Long-Term Sustainability of Outer Space Activities,”
A/AC.105/2016/CRP.17, June 16, 2016, Committee on the Peaceful Uses of Outer Space, Fifty-ninth
Session, Vienna, June 8–17, 2016, <http://www.unoosa.org/res/oosadoc/data/documents/2016/aac_
1052016crp/aac_1052016crp_17_0_html/AC105_2016_CRP17E.pdf> (accessed Apr. 11, 2018).
30 “Working Group on the Long-Term Sustainability of Outer Space Activities: Conference Room
Paper by the Chair of the Working Group on the Long-Term Sustainability of Outer Space Activities,”
A/AC.105/C.1/2018/CRP.18/Rev.1, Feb. 8, 2018, Committee on the Peaceful Uses of Outer Space
Scientific and Technical Subcommittee, Fifty-fifth Session, Vienna, Jan. 29–Feb. 9, 2018, <http://
www.unoosa.org/res/oosadoc/data/documents/2018/aac_105c_12018crp/aac_105c_12018crp_
18rev_1_0_html/AC105_C1_2018_CRP18Rev01E.pdf> (accessed Apr. 11, 2019).
• enhancing the registration of space objects;

• sharing contact information and space situational awareness data on space
objects and events;
• performing conjunction assessment during launch and on-orbit operations
to find potential collisions;
• designing satellites to increase their trackability;
• addressing the risks of uncontrolled atmospheric re-entries;
• strengthening national regulatory and oversight frameworks to implement
international treaties;
• sharing space weather data and forecasts; and
• promoting awareness of space sustainability.31
The lengthy process was hampered by political blocks typical of international

efforts regarding space security, and a detailed look at how the Working Group
was nearly prevented from reaching consensus can teach us a lot about the
problems of creating behavioral norms for space.
In 2018, after eight years of work, the LTS Working Group appeared to be close
to reaching consensus, but was unable to do so in time for the Sixty-first session
of COPUOS.32 The impasse was caused by the objection of Russia, backed by
Iran. Russia’s veto was based on insistence that the LTS group accept, in their
entirety, the seven proposed guidelines submitted in 2017 by Russia, at which
time Moscow signaled that it would not be satisfied unless all of its proposals
were accepted in some form.33 However, Russia’s delegation at the time had been
informed that this “all-or-nothing” approach was unlikely to result in consensus
both due to time constraints and myriad concerns voiced largely by the United
States.
Delegates had been hopeful that Russia would be willing to allow the twenty-
one agreed guidelines to go forward if work could be continued on the remaining
proposals within a different COPUOS mechanism.34 Indeed, the Working Group
31 Draft Report, A/AC.105/L.318/Add.6, Committee on the Peaceful Uses of Outer Space, Sixty-
second Session, Vienna, June 12–21, 2019, <http://www.unoosa.org/res/oosadoc/data/documents/

2019/aac_105l/aac_105l_318add_6_0_html/AC105_L318Add06E.pdf> (accessed Nov. 18, 2019).
The twenty-one guidelines are themselves found in a separate document: “Guidelines for the Long-
Term Sustainability of Outer Space Activities: Working Paper by the Chair of the Working Group
on the Long-Term Sustainability of Outer Space Activities,” A/AC.105/C.1/L.366, Feb. 11–22, 2019,
<https://undocs.org/A/AC.105/C.1/L.366> (accessed Nov. 18, 2019).
32 “Draft Report, Chapter III,” Committee on the Peaceful Uses of Outer Space, Sixty-first Session,
Vienna, June 20–29, 2018, A/AC.105/L.134/Add.7, June 28, 2018, <http://www.unoosa.org/res/

oosadoc/data/documents/2018/aac_105l/aac_105l_314add_7_0_html/AC105_L314Add07E.pdf>
(accessed July 23, 2018).
33 Private conversations between the author and representatives of several nations and NGOs in-
volved in the discussions.

34 Private conversations between the author and representatives involved.
chair, Peter Martinez of South Africa, had drafted a report that recommended
further work on these seven proposals in a subsequent forum under the
COPUOS Scientific and Technical Subcommittee (STS).35
In line with the chair’s efforts, at the June 2018 meeting, Switzerland pro-
posed the creation of a new working group on Safety and Transparency in Space
Activities, which would have a mandate to consider the remaining Russian
guideline proposals as well as other issues raised in the LTS Working Group as
ripe for future consideration such as active debris removal.36 Russia rejected the
proposal after the other LTS Working Group members refused to commit such
a new working group to acceptance of the seven remaining draft LTS guidelines.
Canada’s efforts to find compromise language on at least two of the Russian
proposals was similarly rebuffed.37
In the wake of the Russian veto of an LTS Working Group consensus report,
the COPUOS report issued in June 2018 urged States and international govern-
ment organizations to nonetheless “consider implementing guidelines for the
long-term sustainability of outer space activities on a voluntary basis, and to
share their experiences with implementation under the Subcommittee’s agenda
item on the long-term sustainability of outer space activities.”38 Further, a coali-
tion of member States—including Australia, Canada, France, Germany, Israel,
Italy, Japan, the Netherlands, New Zealand, the United Kingdom, and the United
States—put forward a proposal that the compendium of agreed guidelines crafted
by the LTS chair be adopted by COPUOS and put forward to the UN General
Assembly despite the lack of consensus on a formal COPUOS document.39
However, in a move that surprised many,40 at the June 12–21, 2019, COPUOS
meeting, Moscow dropped its veto in exchange for the establishment of a
35 “Report of the Working Group on the Long- term Sustainability of Outer Space
Activities: Working paper by the Chair of the Working Group,” Committee on the Peaceful Uses
of Outer Space, June 27, 2018, A/ AC.105/ 2018/
CRP.22, <http://www.unoosa.org/res/oosadoc/
data/documents/2018/aac_1052018crp/aac_1052018crp_22_0_html/AC105_2018_CRP22E.pdf>
36 “Non-Paper by Switzerland: Proposal for the establishment of a new working group on Safety
and Transparency of Space Activities,” LTSSA informal meeting, June 26, 2018, <http://www.unoosa.
org/ d ocuments/ p df/ c opuos/ stsc/ LTS/ Switzerland_ Non- p aper_ C OPUOS61_ 2 0180626.pdf>
37 Private conversations between the author and participants.
38 “Report of the Committee on the Peaceful Uses of Outer Space, Sixty-first Session, A/73/20,”
June 20– 29, 2018, <http://www.unoosa.org/oosa/en/oosadoc/data/documents/2018/a/a7320_

0.html> (accessed Sept. 14, 2019).
39 “Long-term sustainability of outer space activities: Proposal to adopt and refer to the General
Assembly for endorsement the Compendium of Guidelines for the Long-term Sustainability of
Outer Space Activities,” Committee on the Peaceful Uses of Outer Space, June 29, 2018, A/AC.105/
2018/CRP.26/Rev.2, <http://www.unoosa.org/res/oosadoc/data/documents/2018/aac_1052018crp/
aac_1052018crp_26rev_2_0_html/AC105_2018_CRP22Rev02E.pdf> (accessed July 23, 2018).
40 Theresa Hitchens, Fearing Isolation, Russia Caves on UN Space Guidelines, Breaking Defense
(June 25, 2019), <https://breakingdefense.com/2019/06/fearing-isolation-russia-caves-on-un-

satellite-guidelines/> (accessed Apr. 20, 2020).
five-year working group under the Scientific and Technical Subcommittee with a
three-pronged mandate:
• Identifying and studying challenges and considering possible new

guidelines for the long-term sustainability of outer space activities;
• Sharing experiences, practices and lessons learned from voluntary national
implementation of the adopted guidelines;
• Raising awareness and building capacity, in particular among emerging
space nations and developing countries.41
Compatibility between the GGE and the LTS Working Group
Despite the difficulties in the processes outlined in the preceding section, the
GGE and COPUOS initiatives highlight the international concurrence that mul-
tilateral solutions are necessary to confront the challenges in maintaining sta-
bility, sustainability, and security in space. The overlap between their agendas,
and the compatibility of a number of their recommendations, emphasizes
this point and provides a modicum of hope for future progress. The following
sections detail areas of compatibility between the recommendations emanating
from the two processes.
Contacts and Focal Points

Both the GGE report and the COPUOS guidelines, in various sections, stress
the need for central points of contact for various space actors to create known
channels for discussion, dialogue, information exchange, and cooperation. The
GGE report recommends that States, international organizations, and private
sector actors “establish focal points for coordination” of space activities.42 Doing
so, the report explains, can help ease coordination of national space policies and
programs in order to enhance “safety and predictability” of space activities.43
Similarly, the agreed LTS Guideline A.3, titled “Supervise national space ac-
tivities,” states in Point 4.e: “Designating a contact point within the entity re-
sponsible for communication with relevant authorities to facilitate efficient and
timely sharing of information and coordination of potentially urgent measures
to promote the safety and sustainability of outer space activities.”
41 “Draft Report, A/AC.105/L.318/Add.6,” Committee on the Peaceful Uses of Outer Space, June
19, 2019, para. 9, <http://www.unoosa.org/res/oosadoc/data/documents/2019/aac_105l/aac_105l_

318add_6_0_html/AC105_L318Add06E.pdf> (accessed Apr. 20, 2020).
42 GGE Report, supra note 17, sect. VIII, para. 65.
43 GGE Report, supra note 17, sect. VIII Coordination, para. 20,63 id.
Guideline A.3.5 further recommends: “States should ensure that appropriate

communication and consultation mechanisms are in place within and among
the competent bodies that oversee or conduct space activities. Communication
within and among relevant regulatory bodies can promote regulations that are
consistent, predictable and transparent so as to ensure that regulatory outcomes
are as intended.”
Furthermore, LTS Guideline B.1, titled “Safety of space operations,” is specific
to the need for points of contact for exchanging orbital data, and recommends
that States “[p]‌rovide updated contact information and share information on
space objects and orbital events.” Guideline B.1.1 explains:
States and international intergovernmental organizations should exchange,

on a voluntary basis, and/or make readily available regularly updated contact
information on their designated entities authorized to engage in exchanges
of appropriate information on on-orbit spacecraft operations, conjunction
assessments and the monitoring of objects and events in outer space, in partic-
ular those entities that are responsible for processing incoming incident reports
and forecasts and adopting precautionary and response measures. This may be
achieved either by providing such information to the Office for Outer Space
Affairs so that the Office can make it available, within its standing mandate and
existing resources, to other States and international intergovernmental organ-
izations and/or by providing it directly to other States and international inter-
governmental organizations, with the understanding that contact information
for national focal points, at a minimum, will likewise be communicated to the
Office.
The need for focal points, data sharing, and coordinated communications be-
tween States is thus fully highlighted by both initiatives.
Debris and Collision Avoidance

The international space community has been concerned about the growth in or-
bital debris for the past thirty years. In the past few years, concerns about con-
gestion on orbit and debris growth have spiked as the number of spacecraft has
grown with no end in sight. Current predictions are that the number of operating
spacecraft will mushroom from some 1,800 to more than 10,000 in the next five
years.44 With the growth of space launches, growth in debris also becomes inevi-
table. Moreover, India’s antisatellite weapon test in March 2019 is known to have
44 J.C. Liou et al., NASA ODPO’s Large Constellation Study, 22:3 Orbital Debris Quarterly
News (Sept. 2018), <https://www.orbitaldebris.jsc.nasa.gov/quarterly-news/pdfs/odqnv22i3.pdf>

(accessed Sept. 14, 2019).
created debris which is currently still in orbit, and events such as this have taken
place in the past, most notably China’s test in 2007. These events will be discussed
in more detail in c hapter 7 [Su] of this volume.
In 2007, COPUOS adopted a set of Space Debris Mitigation Guidelines,
which were subsequently approved in December 2007 by the General
Assembly.45 Many States, though not all, have incorporated the guidelines
into their regulatory systems, and the International Standards Organization in
Geneva has an ongoing effort to update technical standards for implementing
those guidelines.
Obviously, with the increase in congestion and debris, the possibility for
collisions between space objects also increases. In particular, space operators
and scientists are worried about the impact of the advent of multi-satellite
constellations in low Earth orbit (LEO), where many satellites will be passing
closely as they orbit around the Earth’s poles. This has led to calls at COPUOS
for international discussion of potential space traffic management rules, as well
as efforts by some States—in particular the United States—to develop national
space traffic management practices to reduce risks. Both the agreed COPUOS
guidelines and the GGE report reflect these concerns.
The GGE report recommends that States exchange information on “orbital
parameters of outer space objects and potential orbital conjunctions,”46 in
part to increase the accuracy of space tracking, as well as to help in avoiding
on-orbit collisions. Section IV.B.39(a) urges States to implement “[e]‌xchange
of information on the orbital elements of space objects and the provision,
to the extent practicable, of notifications of potential orbital conjunctions
involving spacecraft to affected government and private sector spacecraft
operators.”
In the same section, the report further calls on States to provide “public access
to national registries of space objects”47—something that a few nations, such as
the United States, do already, but many do not.
Similarly, most of LTS Guideline B.1, under the title “Provide updated contact
information and share information on space objects and orbital events,” focuses
on practices and information sharing designed to avoid on-orbit collisions. The
guidelines state the following:
2. States and international intergovernmental organizations should establish

appropriate means to enable timely coordination to reduce the probability
45 “Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space,”
UN Office of Outer Space Affairs, Vienna 2010, <http://www.unoosa.org/pdf/publications/st_space_

49E.pdf> (accessed July 23, 2018).
46 GGE Report, supra note 17, sect. IV.B.
47 Id., sect. IV.B.39(c).
of and/or to facilitate effective responses to orbital collisions, orbital break-

ups and other events that might increase the probability of accidental
collisions or may pose a risk to human lives, property and/or the environ-
ment, in the case of uncontrolled re-entries of space objects.
3. States and international intergovernmental organizations should ex-
change . . . relevant information on space objects and information related to
actual or potential situations in near-Earth space that may affect the safety
of outer space operations.
4. States and international intergovernmental organizations should, through a
dedicated consultative process, preferably under the auspices of the Committee
on the Peaceful Uses of Outer Space . . . [consider how to go about] exchange of
relevant information on space objects and events in near-Earth space obtained
from different authorized sources, in order to achieve harmonized and stan-
dardized record-keeping on space objects and events in outer space.
5. States and international intergovernmental organizations should consider the
options for effectively accumulating and providing access to information on
objects and events in outer space on a timely basis and for achieving consist-
ency in the understanding and use of such information as one of the means to
support their activities aimed at maintaining the safety of space operations. . . .”
Guidelines B.2 through B. 5 also address orbital information sharing, debris mon-
itoring, and conjunction assessment and warning.48 It is clear from both initiatives
that there is a drive toward increased information and data sharing. It remains to
be seen how swiftly and to what extent States will be willing to implement these
changes and increase transparency for the benefit of space traffic management.
Registration Improvement
The 1975, the Registration Convention instructed States to register all objects
put into orbit with the UN Registry, maintained by UNOOSA in Vienna.
Compliance with the Registration Convention is the responsibility of the indi-
vidual State, and unfortunately has been somewhat spotty. This is partially due
to State practices (particularly with regard to national security space activi-
ties), as well as legal wrangling among States over the rules for establishing the
48 Guideline B.2., “Improve accuracy of orbital data on space objects and enhance the practice
and utility of sharing orbital information on space objects.”; B.3., “Promote the collection, sharing
and dissemination of space debris monitoring information.”; B.4., “Perform conjunction assessment
during all orbital phases of controlled flight.”; B.5., “Develop practical approaches for pre-launch
conjunction assessment.”
“responsible launching State.” Being able to define which State is the launching
State is especially important to being able to implement both the Registration
and Liability Conventions. It is complicated by the practice of States hiring other
States to provide launch, and by joint State ownership of some launch companies.
The GGE report calls upon States to comply with the Registration Convention,
and goes further, calling on States to provide “pre-launch notification of space
vehicle launches and the mission of launch vehicles,” noting that the 2002 Hague
Code of Conduct against Ballistic Missile Proliferation could be a model for how
to do so.49 A total of seventy-one UN Member States have ratified the Convention
and another three have signed it.50 The GGE report section on Risk Reduction
Notifications also recommends that States provide:
• “Notifications on scheduled manoeuvres that may result in risk to the flight

safety of other space objects.”
• “Notifications and monitoring of uncontrolled high-risk re-entry events.”
• “Notifications in the case of emergency situations.”
• “Notification of intentional orbital break-ups.”51
Similarly, LTS Guideline A.5, titled “Enhance the practice of registering space
objects,” exhorts States to comply with the Registration Convention and to:
ensure the development and/or implementation of effective and comprehen-

sive registration practices, as proper registration of space objects is a key factor
in the safety and the long-term sustainability of space activities. Inadequate reg-
istration practices may have negative implications for ensuring the safety of space
operations.52
Guideline A.5 is long, containing a total of nine separate recommended

actions by States, including: adopting practices to harmonize registrations in-
ternationally; ensuring timely registry; adopting the 2007 UN Resolution 62/
101, “Recommendations on enhancing the practice of States and interna-
tional intergovernmental organizations in registering space objects”;53 and

50 “Status of International Agreements relating to Activities in Outer Space,” UN Office of Outer
Space Affairs, <http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/status/index.html>
51 GGE Report, supra note 17, sect. IV.C.
52 Guideline A.5, LTS Guidelines, supra note 39.
53 “Resolution adopted by the General Assembly on 17 December 2007: 62/101. Recommendations
on enhancing the practice of States and international intergovernmental organizations in registering

space objects,” A/RES/62/101, UN General Assembly, Sixty-second Session, Agenda Item 31, Jan. 10,
2008, <http://undocs.org/A/RES/62/101> (accessed July 23, 2018).
coordinating when more than one State or organization could be considered the
launching State.
In particular, Guideline A.5.7 urges States to consider the recommendation of
UN Resolution 62/101 on providing information about “any change of status” (such
as malfunction) and changes in an object’s orbital position. It should be noted that
the UN Registration Convention does not require a notification when a satellite
moves, for example, from its initial insertion orbit to its operating orbit. This is in-
creasingly a problem with the increase of small satellites launched in groups from the
same launch vehicle, then maneuvering to their planned orbital position. Because
these so-called “shotgun” launches make it hard to track each individual satellite, it
complicates the ability of operators to detect and mitigate possible collisions. It also
makes it difficult to accurately track the origin and purpose of small satellites, which
raises concerns in terms of national and international security.
The “top-down” nature of the GGE recommendations may explain the greater
focus on notifications with the intention to reduce risk of collisions, since they
require only a minimum effort on the part of States, and they lead to almost no
limits on the kinds of activities and launches taking place. On the other hand,
the “bottom-up” nature of the LTS guidelines means that a broader and more
detailed set of best possible practices have been outlined, which go much further
in addressing a range of concerns of space traffic management through improved
and more thorough registration.
Capacity-building
Differing levels of capacity among both government and private sector
owner/operators is increasingly posing difficulties for international cooper-
ation and governance in space. This problem applies equally to the technical
capacity to operate in space and to use space-based information, and the un-
derstanding of obligations and responsibilities under international treaties
and agreements related to space activities. When the decision makers lack
sufficient understanding of the space sector and of the issues of space secu-
rity, it remains a challenge to change State behavior and improve the stability
of space.
The GGE report, in Section V “International cooperation,” notes:
the disparity in the space capabilities of States, the inability of most States to
participate in space activities without the assistance of others, uncertainty con-
cerning sufficient transfer of space technologies between States and the ina-
bility of many States to acquire significant space-based information are factors
contributing to lack of confidence among States.
Section V, Paragraph 55 states:
Bilateral, regional and multilateral capacity-building programmes on space

science and technologies can contribute to developing the space skills and
knowledge of educators and scientists in developing countries throughout
the world. Such programmes should build capacity through a focus on
theory, research, applications, field exercises and pilot projects in order to
advance social and economic development in their target States and regions.
The Group noted that there are many regional and multilateral capacity-
building programmes already in place. In particular, the United Nations
Programme on Space Applications is a well-established capacity-building
programme that would benefit from wider support from spacefaring
countries. Other international organizations such as the United Nations
Educational, Scientific and Cultural Organization, WMO and ITU con-
tribute specific capacity-building programmes in their respective areas of
competence. Capacity-building programmes are also available, in various
formats, at the bilateral level. Such programmes are often associated with a
specific cooperation agreement.
Along very similar lines, LTS Guideline C.3, “Promote and support capacity
building,” includes four separate types of capacity-building that States should
undertake, namely:
• Technical capacity-building in developing countries with emerging space

programs. (C.3.1)
• Support current capacity-building efforts and promote “new forms of
regional and international cooperation and capacity-building . . . to
assist countries in gathering human and financial resources and
achieving efficient technical capabilities, standards, regulatory
frameworks and governance methods that support the long-term sus-
tainability of outer space activities and sustainable development on
Earth.” (C.3.2)
• Coordinate space-related capacity building and data accessibility to avoid
duplication, with a particular emphasis on capacity-building activities such
as “education, training and sharing of appropriate experience, information,
data, tools and management methodologies and techniques, as well as the
transfer of technology.” (C.3.3)
• Make space-based information and data freely available to countries af-
fected by natural disasters or other catastrophes. (C.3.4)
Comparing the Processes, Concerns, and Challenges
As the preceding section details, there are many overlaps and similarities be-
tween the two bodies of work agreed via the GGE and COPUOS LTS processes.
Both processes sought to establish fundamental methods of improving trans-
parency among States, easing tensions and building common viewpoints about
State conduct in space.
That said, they differed in three critical ways. First, the GGE process was a
top-down, primarily political process seeking to set macro principles that all
nations can adhere to, whereas the COPUOS LTS process was aimed at devel-
oping consensus around bottom-up, practical activities that States could enact
to improve safety and sustainability. Second, the GGEs were set up under the
UN General Assembly’s First Committee dedicated to peace and security issues,
and thus were primarily aimed at dealing with the increasing geopolitical and
military tensions in space—albeit sometimes coming at that bottom-line con-
cern at a bit of a slant. The COPUOS process was aimed at space safety, and the
Committee’s mandate around “peaceful uses” inhibits hard security discussions.
Finally, the GGEs are political processes, involving States. The COPUOS LTS
process, by contrast, involved numerous stakeholders including NGOs, industry
groups, academics, and scientists.
As highlighted in the following, these differing approaches have met with dif-
ferent barriers to progress—and the likelihood of different outcomes regarding
actual State practice in future.
Breaking Barriers to Progress
The very establishment of the 2012–2013 GGE and the LTS Working Group
under COPUOS highlights the consensus that multilateral solutions are neces-
sary to manage the challenges to the safety, sustainability, and security of space.
The overlap between the two efforts emphasizes this point and the fact that the
challenges themselves are widely recognized.
However, forward progress in addressing these challenges remains glacially
slow. No State, regional group, or international organization has moved since
2013 to implement the GGE recommendations significantly beyond what al-
ready was instituted in national practices. The LTS Working Group process was
extremely slow to find consensus—despite actual technical agreement on most
of the best-practice guidelines under discussion. In particular, the near failure
of the process via the veto of one nation with strong national viewpoints and
intentions highlights the difficulties of multilateral negotiations in general.
The roots of these problems, unfortunately, lie at the political level beyond the
international space community, where geopolitical tensions and military com-
petition reign supreme. The current chill between Russia and the West—that
deepened with the Ukraine crisis in 2013 and has intensified in the past several
years due to Western concerns over Russian meddling in national elections—is
at the heart of today’s geopolitical instability, not just in space, but in all political
and economic spheres.
In space-related issues, Russia has assiduously courted the developing world
to its stance of skepticism about Western intentions for military uses of space and
dominance of the environment to the detriment of emerging space users. The
space arena is not immune from long-standing North-South political and eco-
nomic tensions. Indeed, issues such as access to orbital slots and radio frequency
for communications satellites have long been an area of North-South dispute.
China has positioned itself with Russia on most space-related issues, but some-
times has aligned itself with the West, despite deep-seated mutual suspicions be-
tween Chinese and U.S. military space leadership. For example, China continues
to promote the PPWT together with Russia, first proposed in 2008, and most
recently updated in 2014,54 as will be discussed in more detail in chapters 7 [Su]
and 10 [Doucet]. China was also the key cosponsor with Russia of GGE on the
Prevention of an Arms Race in Outer Space that met in Geneva in 2018—a GGE
whose establishment the United States and several other Western countries op-
posed. On the other hand, according to numerous officials involved, China was
actively and constructively involved in the LTS Working Group, sometimes even
taking Moscow to task for its intransigence, and was supportive of reaching a
compromise for a consensus document on the twenty-one agreed guidelines.
China’s reluctance to support Russia’s veto of the LTS guidelines certainly was a
key factor in Russia’s change of position in 2019.
Indeed, during the course of the Obama administration, Beijing and
Washington actually held a series of bilateral meetings to discuss both civil/com-
mercial space and military space issues. Current and former State Department
and Department of Defense officials have confirmed to this author that in
December 2016 the United States and China were extremely close to agreeing to
a voluntary pact to eschew debris-creating antisatellite weapons testing and use.
This would have been a major breakthrough in space diplomacy. Unfortunately,
since that time, relations between the two major powers has deteriorated
54 “Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of
Force against Outer Space Objects (Draft),” Ministry of Foreign Affairs of the People’s Republic of
China, June 16, 2014, <http://www.fmprc.gov.cn/mfa_eng/wjb_663304/zzjg_663340/jks_665232/
kjfywj_665252/t1165762.shtml> (accessed July 26, 2018).
significantly—and it is difficult to see how the United States and China can work
together on space issues at this time, either bilaterally or multilaterally.
That said, China, like every other State, is primarily concerned about
protecting its own interests in space, and over recent years has been promoting
its own commercial space industry in an attempt to woo customers and co-
operation in Europe and elsewhere in emerging space nations.55 To the extent
that Beijing sees taking a cooperative stance in multilateral fora as a vector for
achieving those goals, it is to be expected that China will continue to play a quiet
but often constructive role.
Moreover, the increase in the number of space actors, including private sector
actors, has created a growing diversity in priorities, rationales, and perspectives
on the use of space. This “splintering” of the international space community in
and of itself complicates today’s efforts to establish a body of agreed international
governance guiding space activities. For example, many emerging space States,
such as India, are annoyed by the international efforts to impose strict debris
mitigation guidelines for very small satellites that raise the costs of entry into
the space arena. There are also deep differences between the developed space
world and the developing world on what constitutes legitimate military or self-
defense action in space. This was perhaps most evident in the failed effort of the
European Union to push an international Code of Conduct for space activities
that explicitly included a right to self-defense in space, based on the Article 51 of
the UN Charter.56
So, how does the international community move forward from what seems
to be an impasse in crafting a framework for international governance that
promotes safety, sustainability, and security in space? The answer, at this mo-
ment, seems to be in shifting focus from large international venues such as the
United Nations, and focusing on steps individual States can take, in concert
with other like-minded States. Both the GGE report, and the 2019 COPUOS re-
port enable and encourage individual States and regional bodies to implement
the recommendations made. Such actions could range from institutionalizing
recommendations into national policy and law, to voluntary reporting of certain
orbital object information, to undertaking regional initiatives to codify norms,
to capacity-building on a bilateral or regional basis.
55 As an example, see the advertisement article in the New York Times paid for by China Daily,
a government run English- language newspaper, earlier this year: <https://www.nytimes.com/

paidpost/china-daily/chinas-satellite-industry-opens-door-wider-to-private-companies.html>
(accessed [link disabled]).
56 Michael Krepon, Space Code of Conduct Mugged in New York, Armscontrolwonk.com (Aug.
4, 2015), <https://www.armscontrolwonk.com/archive/404712/space-code-of-conduct-mugged-in-
new-york/> (accessed Apr. 20, 2020).
First Steps: Implementing Agreed Recommendations
Establishing government focal points and points of contact for industry, inter-
national organizations, and even academia is an obvious first step for improving
transparency and easing cooperation. The value of establishing routine
channels of communications is highlighted in both the GGE report and the LTS
guidelines. This is particularly important for exchange of data on outer space
objects including debris and for improving the flow of information about poten-
tial close approaches and collisions. Knowing “who to call, when, about what”
would help ensure timely response in situations that might otherwise lead to
misunderstandings and miscalculations.
In addition, States themselves can benefit from the creation of internal
points of contact for national government bodies deemed responsible for
spacecraft management, who are given authority and a mandate to com-
municate with other government organizations, the private sector, and for-
eign governments. Doing so would force national governments to clarify
internal responsibilities, identify and create linkages to other government
agencies with space responsibilities, and allow information exchange with
nongovernmental space stakeholders. It also would help to create owner-
ship and accountability within government organizations, departments,
and agencies.
To this end, the creation of a sort of “international space phonebook” could set
up informal channels for dispute resolution—whether those disputes are among
governments, between government and industry, or between industry actors.
The development of focal points and points of contact can be done on a
unilateral basis by individual States. It could also be done as part of bilateral
political and military dialogues, including between States that have less than
friendly relations. For example, in 2015 the United States and China agreed
for the first time to direct military-to-military contact regarding potential
satellite collisions.57 Regional groups as well could develop regional contact
networks and use established regional secretariats as depositaries of such in-
formation responsible for collecting and disseminating contact lists. Finally,
information about points of contact could be reported to the UNOOSA,
COPUOS, the International Telecommunication Union (which manages
access to radio frequency spectrum), and other UN bodies as a means of
dissemination.
57 “U.S.-
China Strategic and Economic Dialogue Outcomes of the Strategic Track,” U.S.
Department of State press release (June 24, 2015), <https://2009-2017.state.gov/r/pa/prs/ps/2015/
06/244205.htm> (accessed Apr. 20, 2020).
Improving Debris Monitoring, Collision Avoidance, and

Accessibility to Orbital Data
While both the GGE report and the LTS guidelines contain recommendations
on improving information exchange of data about on-orbit objects and debris,
as well as potential collisions, the latter is most specific about all aspects of what
is known as “space situational awareness” (SSA). SSA is a term of art meaning
knowledge of what objects are in space, where they are located at any one time,
and predicting when objects might come close enough to collide.
While many countries have some capacity to monitor satellites and space de-
bris using optical telescopes and terrestrial-based radar, few have comprehen-
sive systems. The U.S. military, via U.S. Strategic Command, has the largest space
surveillance network and the most sophisticated system for predicting potential
on-orbit collisions. However, even the U.S. network has gaps, particularly in cov-
erage of the skies in the southern hemisphere.58 Further, the computer systems
and algorithms used to predict close approaches between on-orbit objects are
somewhat outdated, and thus prone to errors.59
There are enormous technical challenges to improving SSA, particularly re-
lated to debris, because even tiny pieces of space junk can cause damage to ac-
tive spacecraft due to the speeds at which objects orbit. Unfortunately, detecting
and tracking small pieces of debris is not a simple task—requiring high-powered
optical telescopes, widespread and fine-tuned radar networks, and diligent data
compilation. Accuracy and timeliness of observations of space objects need to
be increased; this includes a need to obtain more data from more observational
sources. Mathematical models, algorithms, and computer programs for both
ingesting observational data and predicting close approaches also need refined
and improved. None of these technical challenges require further international
agreement to allow States to begin work. Individual States, or groups of States,
could immediately launch programs to work with the private sector, scientists,
and academia on various technical aspects of SSA—dedicating funding and
establishing research plans and goals. LTS Guidelines B.2 through B.5 detail a
practical outline of the work that needs to be done.
That said, no one country has both the capacity and the resources to be able
to produce an accurate, round-the-clock SSA picture. As such, both the GGE
58 “Space Situational Awareness Fact Sheet,” Secure World Foundation (May 2017),<https://
swfound.org/media/205874/swf_ssa_fact_sheet.pdf> (accessed Apr. 20, 2020); Note bene: This pub-

lication references a U.S. Strategic Command Fact Sheet, “Space Control and Space Surveillance,”
which for many years was available on the Strategic Command website, including a map of the Space
Surveillance network sensors. In a recent revamp of the website, that fact sheet has disappeared.
59 Private conversations with scientists and industry representatives who work in SSA fields, in-
cluding tracking debris.

report and the LTS guidelines stress the need for improved and enhanced in-
formation exchange about orbital objects and movements. The United States is
the only country that routinely shares such data—on a limited basis—with other
satellite operators. Russia has a similar network and China and the European
Union are developing their capabilities, but up to now none of them routinely
shares data with others. Further, even though the United States does provide
warnings to operators about potential conjunctions, the accuracy and timeliness
of the data provided is not enough to supply actionable evidence—operators are
left to decide whether to take action, such as moving their satellite if possible, or
to try to get more accurate data and analysis. This may be via their own systems,
or through private sector providers such as Analytical Graphics, Inc., which has
started its own SSA network and analysis center called the Commercial Space
Operations Center, or ComSpOC.60 Indeed, the vagueness of the information
provided by the U.S. military to private sector operators led a group of compa-
nies to create the Space Data Association (SDA) in 2009 to share orbital data
among themselves.61 The nonprofit SDA collects telemetry data from members
and provides conjunction analysis in return. There are currently more than
twenty-five members, including from the Arab States, although no Chinese or
Russian operators.
As noted previously, LTS Guideline B.1 is dedicated to information sharing
and cooperation designed to avoid on-orbit collisions and provides actionable
suggestions for further action by groups of States or by multilateral organiza-
tions. Guideline B.1.3 stresses the need for exchange of “reliable, accurate and
complete” data in a timely manner. Guideline B.1.4 recommends further work
by COPUOS on how States can share SSA data and potential conjunctions—
something that would be covered if the Swiss proposal for a new working group
on space objects and events is taken up. In particular, Guideline B.1.4 focuses
on developing methodologies for combining data from various State-authorized
sources into a “harmonized and standardized record-keeping” system.
LTS Guideline B.1.5 is perhaps the most interesting, as it lays out a series of
options for the collection and dissemination of SSA data into a coherent picture
for the use of all space operators in order to maintain safety. These options eluci-
dated could, the guideline notes, “serve as a basis for a distributed international
information system for multilateral cooperation in sharing and disseminating
multi-source information on objects and events in near-Earth space.” These
options include:
60 <https://agi.com/comspoc> (accessed Apr. 20, 2020); see also Sarah Chow, ComSpOC™: A Space
Situational Awareness Facility that Tracks Satellite from a Global Network of Commercial Sensors, The
Cesium Blog (Mar. 29, 2018), <https://cesium.com/blog/2018/03/29/comspoc/> (accessed Nov.
21, 2019).
61 <https://www.space-data.org/sda/space-data-center-3/> (accessed Apr. 20, 2020).
• standards and formats for representing information to enable the interoper-

ability of information shared on a voluntary basis;
• bilateral, regional, or multilateral arrangements to exchange information;
• bilateral, regional, or multilateral coordination among providers of infor-
mation to enable cooperation and interoperability; and
• the establishment of a UN information platform.
The latter suggestion has already been the subject of considerable debate
within the LTS Working Group, and the international space community writ
large, about whether it is necessary to establish an international space object da-
tabase accessible to all. Indeed, in 2015 Russia proposed that the LTS Working
Group study a UN-managed space object database, managed by UNOOSA and
initially serving simply as a clearinghouse for data provided by individual States,
leaving open the possibility that at a later stage UNOOSA might also provide
conjunction analysis to operators worldwide.62
While the proposal met with opposition by the United States and a number of
Western States traditionally disinclined to launch new UN bodies for both po-
litical and monetary reasons, there has been widespread recognition that better
access to SSA data for all space operators is necessary to ensure the safety and
sustainability of all space activities. An alternate pathway might be to develop a
new informal intergovernmental group similar to the International Committee
on Global Navigation Satellite Systems (ICG), which was created in 2005 under
UN auspices to promote voluntary cooperation on commercial satellite naviga-
tion issues.63 Current ICG members include China, the European Union, India,
Japan, Russia, and the United States, among others. Such a new intergovern-
mental body could begin by discussing how to overcome the technical challenges
to data sharing, as well as how to improve and enhance space object data accu-
racy and timeliness. The group could also work to develop standard practices
and standardized reporting of data to allow ease of data sharing. Finally, it could
work to build capacity among States to both generate space object data and use
it in planning on-orbit activities. Such a group easily could be launched by those
States with current capacity to cooperate and coordinate among themselves, and
later be open to other interested States.
62 “Proposal on the review and consideration of the concept of a United Nations information
platform serving common needs in collecting and sharing information on Near-Earth space mon-
itoring in the interests of safety of space operations, and its architectural and programmatic aspects,”
Working paper submitted by the Russian Federation, Committee on the Peaceful Uses of Outer Space
Scientific and Technical Subcommittee, Feb. 9, 2015, A/AC.105/C.1/2015/CRP.32, <http:/www.
unoosa.org/pdf/limited/c1/AC105_C1_2015_CRP32E.pdf> (accessed July 26, 2018).
63 “International Committee on Global Satellite Navigation Systems (ICG),” UN Office of Outer
Space Affairs, <http://www.unoosa.org/oosa/SAP/gnss/icg.html> (accessed July 26, 2018).

Another possible solution could be the creation of a “crowdsourced” space

object database by scientific and academic institutions, utilizing space obser-
vational data from universities and even the network of some 500,000 amateur
space observers around the world. There are myriad groups and organizations
that gather space data for various purposes, such as the Union of Concerned
Scientists, a U.S.-based nongovernmental organization, that keeps track of active
satellites. CelesTrak, maintained by the research arm of Analytical Graphics Inc.
(AGI, is a website thatalso monitors active and decayed satellites for potential
collisions as a database for space scientists and astronomers. The International
Scientific Optical Network (ISON), based at the Russian Academy of Sciences’
Keldysh Institute of Applied Mathematics, specializes in optical observations
of satellites and debris in geosynchronous and highly elliptical orbits. Further,
the IADC, comprising thirteen space agencies, shares debris observations and
research, promotes collaboration, and works on coordinating debris mitigation
standards. Each of these efforts (as well as others less well known) uses its own
methodology for collecting, reporting, and analyzing orbital data. An initiative
that would bring all of these groups together to provide a “master” catalog of data
would provide a public service and could augment governmental and interna-
tional efforts. Such an initiative would not have to aim for provision of extremely
high-quality data required by militaries or national security agencies; rather it
could focus on providing free (or inexpensive) data to those States, private space
operators, and researchers who have little current SSA access. This would no
doubt require funding, but perhaps individual States could pool funds to kick-
start such an activity under the auspices of a university or scientific institution.
Improving and Enhancing Registration of Space Objects

Obviously, as both the GGE report and the LTS guidelines stress, compliance
with the current stipulations of the Registration Convention would be a first step
to better understanding of the on-orbit picture and would aid in safety planning
for operators. As far back as 2014, a draft report of the chairman of the LTW
Working Group explained:
The lack of comprehensive information on objects launched into orbit results

in a patchy and incomplete picture of what is in orbit and where. This affects
space situational awareness, and ultimately safety too, if a potentially hazardous
situation arises and inadequate information is available to identify a space ob-
ject and/or its operators, or it is unclear under whose control of jurisdiction the
object falls.64
64 “Draft Report of the Working Group on the Long-Term Sustainability of Outer Space Activities,”
Working paper by the Chair of the Working Group, Committee on the Peaceful Uses of Outer Space
Scientific and Technical Subcommittee, Fifty-second Session, Dec. 10, 2014, A/AC.105.C.1/L.343,
Currently, only sixty-seven countries are signatories to the Registration

Convention, thus individual States could lobby nonmembers (unilaterally or
via regional or multilateral bodies) to accede. Governments could also engage
NGOs to assist in such efforts via Track 1 (nongovernment representation) or
Track 1.5 (government nonofficial representation plus nongovernment) confer-
ences and meetings.
Further, as compliance is the responsibility of individual States, States could
and should put a priority on ensuring their own compliance with the Convention.
In particular, major space actors such as the United States, China, Russia, and the
European Union should lead by example—working to both improve their own
practices (many major space actors are less than timely in their registrations) and
provide advice to other States on how to ensure compliance.
Individual States also could decide to simply move to include additional or
more detailed information in their submissions to the UN Register of Space
Objects. This information could include: the final orbital parameters of a satellite
(rather than just its insertion orbit); loss of functionality; maneuvers; expected
re-entry; and any change of ownership or operational authority. As noted above,
the GGE Report calls upon States to provide “pre-launch notification of space ve-
hicle launches and the mission of launch vehicles,”65 and also recommends that
States provide notification of uncontrolled re-entry, emergency situations, and
intentional orbital breakups, which could result in debris.66
The LTS Guideline A.5 further details additional measures for registration,
such as how States should register multiple objects launched from the same
space vehicle, that individual States could simply enact via their own regulatory
systems. In particular, LTS Guideline A.5.2 urges States to work to harmonize
data reporting into the Register: “States and international intergovernmental
organizations should adopt appropriate national or other relevant policies
and regulations to harmonize and sustain over the long term such registration
practices on the widest possible international basis.” UNOOSA makes available
a model registration form, but individual nations use differing sets of data to re-
port objects launched, thus creating difficulties in comparative analysis.
Space Traffic Management

The question of how to manage the increased amount of activity in space has
been debated by academics, space scientists, space operators, policymakers,
paras. 50–53, <http://www.unoosa.org/pdf/limited/c1/AC105_C1_L343E.pdf> (accessed July

26, 2018).

66 Id., sect. IV.C.
and international organizations for more than a decade. Only recently has there
been a general consensus in the international space community that some type
of framework will be required for space traffic management (STM) both at the
national and the international level—a consensus driven by the recent boom in
commercial activities in space. Indeed, the space industry writ large has become
increasingly concerned about the proliferation of small and very small satellites
in recent years, and the potential effects on safety of operations.
Nonetheless, there is no universally agreed definition of what STM actu-
ally should entail. A first attempt was made by the 2006 study conducted by the
International Academy of Astronautics (IAA), “Cosmic Study on Space Traffic
Management.” That study defined STM as follow: “Space traffic management
means the set of technical and regulatory provisions for promoting safe access
into outer space, operation in outer space and return from outer space to Earth
free from physical or radio-frequency interference.”67 The devil, of course, is
in the details of what exact technical and regulatory standards and provisions
should be made, and by whom.
The 2006 Cosmic Study proposed a framework that would cover all phases
of space operations: from launch to end-of-life disposal. Specifically, the frame-
work would include a new process for provision of SSA data to operators; no-
tification of prelaunch, launch, and on-orbit maneuvers; so-called “zoning”
or “right of way” rules for satellites; safety provisions for launch/re-entry and
human spaceflight; debris mitigation and environmental pollution measures;
and liability laws.
Some of these processes and rules already exist at national and international
levels, such as debris mitigation guidelines and regulatory requirements. Others,
as elaborated previously, have been incorporated into the recommendations of
the 2013 GGE and the agreed LTS Guidelines. Still others are being debated, such
as tracking devices for very small satellites and removal of unpowered debris
from orbit.
In 2015, the COPUOS Legal Subcommittee agreed to two new agenda items
for discussion regarding space governance, namely, a “General exchange of views
on the legal aspects of space traffic management” and “General exchange of views
on the application of international law to small satellite activities.”68
The agenda item on STM has been debated by the Legal Subcommittee every
year since, with no consensus on how to proceed. The nub of the problem is
that some States (including Russia) believe an international body needs to be
67 “Cosmic Study on Space Traffic Management,” International Academy of Astronautics (2006),
<http://iaaweb.org/iaa/Studies/spacetraffic.pdf> (accessed Aug. 1, 2018).

68 “Draft Report (Addendum 4),” Legal Subcommittee, Committee of the Peaceful Uses of Outer
Space, Apr. 23, 2015, A/AC.105/C.2/L.296/Add.4, <http://www.unoosa.org/pdf/limited/c2/AC105_

C2_L296Add04E.pdf> (accessed Aug. 1, 2018).
developed immediately to work out STM rules at the global level, while other
States (including the United States) believe that national rules should be
developed first.
Indeed, the Trump administration on June 18, 2018, issued a new policy direc-
tive, which tasks various agencies of the U.S. government, with the Commerce
Department in the lead, to develop new policies and regulatory rules for SSA
data sharing, managing on-orbit activities that currently fall between U.S. regula-
tory cracks, and streamlining of current regulations to better enable commercial
industry.69 Implementing the new policy would require new statutory author-
ities be given to the Commerce Department and other agencies—something
only Congress can do. Congress, however, is embroiled in a political battle
about which agency should have to lead for U.S. STM policy and regulatory con-
trol: either Commerce or the Federal Aviation Authority, which falls under the
Transportation Department. Japan also is conducting an internal study about
how to address STM in its own national regulatory and governance frameworks,
with a particular emphasis on SSA.
Meanwhile, there is ongoing work about how to approach STM from an inter-
national perspective, with a number of NGOs, academics, and multilateral fora
undertaking studies and holding meetings. Of particular note, in 2017 the IAA
finished a three-year follow-up study to the 2006 Cosmic Study, that focuses on
how to implement both technical rules and develop an international regulatory
framework, and argues for a “comprehensive, top-down approach” to ensure co-
herence at the global level.70 That study, published in June 2018, is not yet avail-
able on the IAA website. However, a copy obtained by the author argues that
the current “incremental, bottom-up” approach to STM, while a more flexible
process that can allow a more timely approach to key issues, comes at the cost of
“fragmentation” leading to “possible incoherence” at the international level. The
study recommends that a comprehensive approach be sought, with three layers,
as follows:
Level 1. An Outer Space Convention (OSC): This would constitute the

highest level of regulation, incorporating current international treaty law
pertaining to space activities. The OSC would gather the principles of the
corpus iuris spatialis, tackle the current difficulties in the interpretation
69 “Space Policy Directive-3, National Space Traffic Management Policy,” The White House (June
18, 2018), <https://www.whitehouse.gov/presidential-actions/space-policy-directive-3-national-

space-traffic-management-policy/> (accessed Aug. 1, 2018).
70 “The IAA Cosmic Study on Space Traffic Management,” IAA Study Management Team, pre-
sentation to COPUOS Apr. 6, 2017, <http://www.unoosa.org/documents/pdf/copuos/lsc/2017/tech-

10.pdf> (accessed Aug. 1, 2018).
and application of space law, and provide for an adequate decision-making

mechanism.
Level 2. Outer Space Traffic Rules (OSTR): The OSTR would be comparable
to the ITU Administrative Regulations, i.e., rules of technical nature and
treaty status at the same time, complementing and completing the OSC,
binding on States parties to the OSC and governing STM at a global
level. The OSTR would be adopted by the States Parties to the OSC and
be reviewed and updated in the context of international conference that
would take place every three to four years, again similar to the ITU system.
Level 3. Outer Space Traffic Technical Standards (OSTTS): This part of the
comprehensive STM regime would be dedicated to the development and
continuous review of technical standards for all elements of the Outer
Space Traffic Rules. The function of OSTTS would be to enable the inter-
operability of space systems, to facilitate the international commerciali-
zation of space technologies, and to ensure a sustainable development
of space traffic. OSTTS would be widely accepted standards that would
support the certification and licensing activities of national and regional
licensing authorities. The proposal, development, and review of the OSTSS
would be coordinated and supervised by an OSTSS Conference, which
would take place every three to four years.71
In reality, there is no reason that work both at the “bottom-up” level by in-
dividual and groups of States, as well as by industry and academia, could not
progress in tandem with work to flesh out a road map for a comprehensive inter-
national framework. Given that there is an enormous amount of technical work
to be done before reasonable policies can be set, a first step could be to parcel
out different pieces of the technical problem to different subgroups, such as the
IADC, the COPUOS Scientific and Technical Subcommittee, academic and in-
dustry organizations, the International Standards Organization (ISO), and a new
intergovernmental group on orbital objects and activities as mentioned previ-
ously, among others.
For example, in the United States there is an ongoing public-private part-
nership, sponsored by the Defense Advanced Research Projects Agency, to de-
velop technical standards for on-orbit satellite servicing missions including
remote proximity operations (RPO) that involve two space objects operating in
close proximity (such as inspection of a faulty satellite) and those that involve
physical contact (such as refueling of a large satellite or active debris removal.)
Called the Consortium for Execution of Rendezvous and Servicing Operations
71 Kai-Uwe Schrogel et al. eds., Space Traffic Management: Towards a Roadmap for Implementation,
International Academy of Astronautics 17 (June 2018).

(CONFERS), the initiative began in October 2017. The group is first reviewing
existing standards for such space activities, then will recommend an initial set of
new standards that the consortium hopes to be taken up by national and interna-
tional industry standards organizations such as the ISO. These standards would
be voluntary, rather than regulatory, and the aim is to grow CONFERS into a
self-regulation body for RPO operators.72 If the organization is successful, there
is no reason that States could not move to incorporate these standards into their
regulatory regimes as part of an STM framework.
Meanwhile, policy development could continue at both the national and
the multinational level. Policies and regulations on very small satellite opera-
tions and the use of large multi-satellite constellations seem ripe, given the vast
amount of attention given to the problem over the past several years by States
and space operators. In 2015, UNOOSA and the ITU developed a set of volun-
tary guidelines for small satellite operators to follow in registering their satellites
and frequencies.73 In the United States, as part of the ongoing debate within the
administration and Congress about STM, the concept of equipping small and
very small satellites with active tracking devices to improve on-orbit detection
and tracking is gaining support. The Federal Communications Commission
(FCC), which regulates access to radio frequency spectrum in the United States,
proposed new legislation in April 2018 that would require very small satellites
to carry a “unique telemetry marker” to allow them to be distinguished from
each other and debris in space. Further, the FCC has proposed that very small
satellites in LEO be required to de-orbit within five years.74 Starting with debris-
mitigation regulations for small satellites thus seems to be low-hanging fruit for
national actions, followed by international coordination. The rulemaking re-
mains in process, in part due to some controversy within the U.S. government
about which agency should be in charge of creating and coordinating such
guidelines.75
At the multilateral level, COPUOS members should be encouraged to follow
through the creation of an expert working group under the Scientific and
72 CONFERS Fact Sheet, found at <https://swfound.org/media/206094/confers_onepager_
jan2018.pdf> (accessed Aug. 7, 2018).

73 “Guidance on Small and Very Small Satellite Registration and Frequency Management,” UN
Office of Outer Space Affairs and the International Telecommunication Union (2015), <http://www.
unoosa.org/documents/pdf/psa/bsti/2015_Handout-on-Small-SatellitesE.pdf> (accessed Aug.
7, 2018).
74 Chip Yorkgitis, Tailor-Made: FCC Recognizes Need for Bespoke Rules for Smallsats, CommLaw
Monitor (Apr. 22, 2018), <https://www.commlawmonitor.com/2018/04/articles/federal-state-

regulatory/tailor-made-fcc-recognizes-need-for-bespoke-rules-for-smallsats/> (accessed Aug.
7, 2018.
75 Theresa Hitchens, Satellite Firms Debate New Commerce Space Safety Rules, Breaking Defense
(Apr. 26, 2019), <https://breakingdefense.com/2019/04/satellite-firms-debate-new-commerce-

space-safety-rules/> (accessed Apr. 20, 2020).
Technical Subcommittee on issues related to new types of space operations,

such as: very small satellites, mega-constellations, RPO, and active debris re-
moval. Legal Subcommittee discussions could take up discussions of the legal
requirements to implement the road map put forward by the new IAA study.
Military Obligations and Military-to-Military Dialogue

As noted previously, military activities and rights and responsibilities in space
are among the most controversial issues facing the international commu-
nity. Both the GGE and the LTS working group, as well as the COPUOS writ
large, have foundered upon differences regarding the application of the Law of
Armed Conflict (LoAC) in space and the right of self-defense under UN Article
51. These issues are discussed in depth in chapter 1 [Steer and Stephens] of this
volume. Nonetheless, reaching international understandings regarding what is
and is not acceptable behavior by military forces regarding the use of space, and
developing TCBMs around military activities, will be critical to ensuring inter-
national peace and security not just in space but on Earth. It is for this reason that
chapter 10 [Doucet] proposes a specific TCBM to increase transparency and re-
duce the perceived need for developing arms for space.
As further discussed in chapter 1 [Steer and Stephens], two groups of inde-
pendent legal scholars have been working to develop a common understanding
of the legal framework that applies to military space activities, in hopes of elu-
cidating these issues. Each of the two projects will result in an international
manual aimed at users such as military, government, and commercial operators
who need to know the limits and laws applicable to military and security activi-
ties in space.
The first is the production of a manual, led by McGill University in Montreal,
which aims to clarify “the fundamental rules applicable to the military uses of
outer space, in times of peace [and] in periods of rising tension.”76 The Manual
on International Law Applicable to Military Uses of Outer Space (MILAMOS)
Project was launched in May 2016 and involves thirty-five independent legal
scholars from around the world (including China, Russia, and the United States)
The second is the Woomera Manual on the International Law of Military Space
Operations, which “objectively articulates and clarifies existing international law
applicable to military space operations,” with a focus on times of crisis and con-
flict. The effort, which is sponsored by the University of Adelaide, the University
of Exeter, the University of Nebraska College of Law, and the University of New
South Wales in Canberra, is expected to be completed in 2020, and involves
76 See The MILMOS Project” McGill University website, at <https://www.mcgill.ca/milamos/>
(accessed Aug. 7, 2018).

experts from around the world. The project will engage States through a peer
review process.77
Meanwhile, the new GGE on PAROS will be an opportunity for States to dis-
cuss their deep differences on military-related issues, even if at this moment it
is hard to imagine a consensus document emanating from the exercise. Still,
GGE could, for example, review the progress made by the two independent
manual projects with regard to what consensus is emerging about current legal
constraints on certain types of action. Further, discussions could be productive
on how different nations interpret the right of self-defense under international
law. Before any agreements can be reached, it will be necessary for nations to un-
derstand each other’s viewpoint on what is considered acceptable and unaccept-
able for military activities in space.
Conclusions
There are numerous challenges today to multilateral approaches to space govern-

ance, particularly with respect to building a new legal regime for space activities.
The increased number and diversity of space actors has prompted increased di-
vision in priorities among nations and private operators. Military space powers
have conflicting goals and differing interpretations of their legal constraints re-
garding military space activities. New entrants to space have issues with capacity
to uphold their legal and political obligations.
While there is a growing body of consensus on the problems facing space gov-
ernance, and the need for international cooperation, there is little agreement
about how to fix those problems and in what order they should be addressed.
Finally, many States have lost confidence in international law as being able to
provide solutions to global problems. Thus, at the multilateral level—and even in
some nations such as the United States—there is a movement to turn toward vol-
untary measures, such as industry-led standards setting, norms of behavior, and
transparency and confidence-building measures, to provide some semblance of
space governance.
This situation, however, should not be a cause for despair or lack of inertia.
Agreements made over the last decade at the multilateral level, such as the 2007
COPUOS Debris Mitigation Guidelines, the 2013 GGE recommendations, and
the twenty-one LTS guidelines, provide numerous paths forward for laying
the foundations for a coherent approach to space safety, sustainability, and
77 The Woomera Manual on the International Law of Military Space Operations, University of
Adelaide website, at <https://law.adelaide.edu.au/woomera/sites/default/files/docs/Womera_

Manual_CLIENT-MAY.pdf> (accessed Aug. 7, 2018).
security. There is nothing stopping individual States, or groups of States, from

implementing recommendations already agreed.
There is also vast room for NGO and private sector efforts to assist in develop-
ment concepts for space governance that encourage the expansion of beneficial
space activities while protecting against risks to a safe and stable environment.
Of course, such efforts take funding—but again, individual States and even pri-
vate companies would benefit from pumping funds into such support efforts in
order to keep up momentum toward finding solutions to current problems.
The crucial requirement, if progress so far is not to be rolled back, is commit-
ment and political will by States and space operators to cooperate in continuing
to address the technical, policy, and legal challenges at hand. What any one actor
does in space has the potential to affect—for better or for worse—all others. Thus
cooperation, commitment, and continued dialogue are vital if we are to ensure
the peaceful and beneficial use of space for our children.
3
The Rule of Law in Outer Space
A Call for an International Outer Space Authority
Icho Kealotswe-Matlou
Introduction
Over the years outer space law has been transformed into a relatively comprehensive
system of international law, anchored in a network of treaties, at the core of which
lies a series of lawmaking international conventions, resolutions, and declarations.
This system underscores the role of multilateral treaty processes in promoting and
advancing the rule of law.1
The rule of law is an important foundation for universal respect for the principles
of justice in accordance with the UN Charter.2 It is relevant to all three pillars of the
United Nations: peace and security, development, and human rights.3 It is, how-
ever, important to maintain a complete approach to the concept of the rule of law,
as multilateral treaty processes are constantly evolving and every treaty is deemed
a sign of trust and international cooperation. The rule of law cannot, therefore, be
described simply as a legal doctrine or set of principles, for it is only our actions that
give meaning to our principles.4
It follows, therefore, that if the rule of law is to have effect, it must be reflected
in the form and content of the treaties, as well as in their ability to be respected
and enforced. The Outer Space Treaty5 (OST) and the refining and expansion of
the OST’s core principles in the four subsequent general multilateral treaties,6
1 A discussion on the role of multilateral treaty processes in promoting and advancing the rule
of law was held at the UN Sixth Committee seventieth session designated as “the role of multilateral
treaty processes in promoting and advancing the rule of law,” Oct. 14, 2015.
2 Charter of the United Nations (entered into force Aug. 31, 1965) UNTS XVI (UN Charter).
3 Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National
and International Levels (Nov. 30, 2012) A/RES/67/1 (preamble).

4 Id., as per Rasmus Bøgh Johansen, also speaking for the Nordic Countries.
including the Moon and Other Celestial Bodies (entered into force on Oct. 10, 1967) UN 2222 (XXI),
annex) [hereinafter OST].
6 The four include:
1. Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects
Launched into Outer Space (entered into force on Dec. 3, 1968);
Icho Kealotswe-Matlou, The Rule of Law in Outer Space In: War and Peace in Outer Space. Edited
DOI: 10.1093/oso/9780197548684.003.0004
together with the five sets of principles adopted by the General Assembly,7 are the
actual sources of law in outer space. To provide a rule-based order in space, these
instruments should not be read in isolation. They are a part of international law
and therefore augmented by international custom, general principles of law, ju-
dicial decisions, and the teachings of the most highly qualified publicists,8 to set
out the rules by which the world society is regulated in outer space. This body of
international law, both in form and content, reflects the values of the rule of law
in outer space and requires observation of it. However, over time, as our activi-
ties in outer space have increased in number and in complexity, developments
have shown that the five legally binding instruments of outer space are too ge-
neral in application, creating doubt as to whether there is in fact a rule of law for
outer space. The respect for such instruments has been brought into question,
particularly in relation to legal regulation of the militarization of outer space.
The creation of soft law has only helped marginally, as nonbinding decisions and
resolutions are not capable of enforcing the rule of law.
Since the beginning of the space age, States have been undertaking in outer
space what might be termed “passive” military activities. But outer space is now
increasingly being used as part of the “active” conduct of terrestrial armed con-
flict.9 For instance, currently, the information gathered from outer space through
the use of remote satellite technology and communications satellites is used to
2. Convention on international Liability for Damage Caused by Space Objects (entered into force
on Sept. 1, 1972);
3. Convention on Registration of Objects Launched into Outer Space (entered into force on Sept.
15, 1976); and
4. Agreement Government the Activities of States on the Moon and Other Celestial Bodies (entered
into force on July 11, 1984) [Moon Agreement].
7 Principles adopted by the General Assembly:

1. Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of
Outer Space (adopted on Dec. 13, 1963) (Resolution 1962 (XVIII));
2. Principles Governing the Use by States of Artificial Earth Satellites for International Direct
Television Broadcasting (adopted Dec. 10, 1982) (Resolution 37/92);
3. Principles Relating to Remote Sensing of the Earth from Outer Space (adopted on Dec. 3,
1986) (Resolution 41/65);
4. Principles Relevant to the Use of Nuclear Power Sources in Outer Space (adopted on Dec. 14,
1992) (Resolution 4768); and
5. Declaration on International Cooperation in the Exploration and Use of Outer Space for the
Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing
Countries (adopted on Dec. 13, 1996) (Resolution 51/122) [Declaration on Space Benefits].
8 See art. 38(1) of the International Court of Justice. This article, describing the law to be applied by
the ICJ when deciding cases within its jurisdiction, is generally considered to be the most authorita-
tive enumeration of the sources of international law.
9 Steven Freeland, Legal Regulation of the Military Use of Outer Space. Technological Challenges for
the Humanitarian Legal Framework, Proceedings of the College of Europe 11th Bruges Colloquium,
Vol. 41 (Autumn 2011), 87–97, <http://www.coleurope.eu/sites/default/files/uploads/page/colle-
gium_41_0.pdf> (accessed Aug. 17, 2019).
The Rule of Law in Outer Space 93
plan military engagement on Earth, and space assets now also direct military
activity and thus represent an integral part of the military hardware of the major
powers.10 The purpose of this chapter is to lay the groundwork for an inquiry
into the rule of law in outer space and the requirement for an independent in-
ternational authority to govern outer space. The existing regime on outer space
is not sufficient to prevent an arms race in outer space. There is consensus on the
need to fill this important gap in the legal disarmament and arms-control regime
at the strategic level. It is proposed that perhaps this may be the critical time to
consider the establishment of an independent international authority to govern
space. It may be in the best interests of the international community to start
negotiations on establishing an organization or unified structure equipped with
decision-making powers where decisions are made on a two-thirds majority
rule as compared to consensus: an authority that would oversee the negotiations
of new treaties and conventions to prevent placement of any kind of weapon in
space and to regulate military activities and the potential use of force in outer
space. This chapter makes the argument that we have reached a critical point in
history when the establishment of an Outer Space Authority is necessary and
timely.
Self-Defense in Outer Space under International Law
One of the reasons that weaponization in outer space and the potential for con-
flict to take place in outer space are becoming issues of greater concern is that the
interpretation of what amounts to a use of force in outer space remains contested.
The applicability of the law on the use of force and self-defense in outer space can
be answered by the UN Charter and the OST. Firstly, the use of force by States
in any domain is prohibited under Article 2(4) of the UN Charter.11 This prohi-
bition has been held to be an obligation erga omnes, as the principle is consid-
ered to be jus cogens and thus binding on all States as a customary norm.12 The
only generally accepted exceptions to this prohibition are the authorization by
UN Security Council under its so-called Chapter VII powers given in the UN
Charter, and forcible measures taken in the lawful exercise of the right of self-
defense according to Article 51 of the UN Charter. Since Article III of the OST
10 Id.
11 Article 2(4) of the Charter provides that States are to refrain “from the threat or use of force
against the territorial integrity or political independence of any state, or use such threat or force in
any other manner inconsistent with the purposes of the United Nations.”
12 Military and Paramilitary Activities in and against Nicaragua (Merits) [1986] ICJ Rep. 14. For
the effect of jus cogens on the treaty obligations of States, see also the Vienna Convention on the Law
of Treaties (entered into force on Jan. 27, 1980), 1155 UNTS 331, art. 53.
declares that “all activities in outer space must be in accordance with interna-
tional law, including the UN Charter . . . ,” it is clear that although the drafters of
the Charter may not have been concerned with the inclusion of outer space, its
application to outer space cannot be denied.13
The right to use force when authorized by the UN Security Council is pro-
vided for under Chapter VII of the Charter. Specifically, Article 42 authorizes the
UN Security Council to “take action by air, sea and land forces,” or to authorize
member States to do the same where necessary to maintain or restore interna-
tional peace and security.14
Article 51 of the Charter, on the other hand, recognizes the inherent right
of individual or collective self-defense if a State is the victim of an armed at-
tack, and prescribes a temporary response until the Security Council steps in.
Undoubtedly, the right of self-defense is activated once an armed attack takes
place against a military space asset wherever they may be located.15 The question
remains regarding what exactly amounts to an armed attack in space, which is
discussed at length in c hapter 1 [Steer and Stephens].
Article IV of the OST bans nuclear weapons in outer space and provides for
the nonweaponization of the moon and its celestial bodies. There are, however,
some authors16 who would suggest that the deployment of nuclear weapons and
weapons of mass destruction, and the construction of military installations on
the moon and other celestial bodies, would form part of the lawful use of force
in terms of Articles 42 and 51 of the Charter. That is, if there were a situation of
lawful collective or individual self-defense in space, some argue that this would
override the prohibitions in the OST.
Indeed, the question whether the threat or use of nuclear weapons was pro-
hibited in all circumstances in outer space has not been answered conclusively.
In its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons,17
the International Court of Justice (ICJ) inter alia decided unanimously that:
the threat or use of nuclear weapons should be compatible with the requirements
of the international law applicable in armed conflict, particularly those of the
13 Arjen Vermeer, The Laws of War in Outer Space: Some Legal Implications for the Jus ad Bellum
and the Jus in Bello of the Militarization and Weaponization of Outer Space in Bob Brecher ed.,
The New Order of War (Brill Publishing, 2010), 74 <https://brill.com/view/book/edcoll/
9789042029422/B9789042029422-s006.xml> (accessed August 31, 2020).
14 In Certain Expenses of the United Nations [1962] ICJ Rep. 151, at 167, the ICJ noted that use of
military force may also be lawfully conducted with the consent of the subject State or based on the
right of self-defense as provided under Article 51 of the Charter.
15 Vermeer, supra note 13, at 6.
16 Michel Bourbonnière & Ricky J. Lee, Legality of the Deployment of Conventional Weapons
in Earth Orbit: Balancing Space Law and the Law of Armed Conflict, European Journal of
International Law 873–901 (2007).
17 Legality of the Threat or Use of Nuclear Weapons 1996 ICJ Rep. 226.
principles and rules of international humanitarian law, as well as with the spe-
cific obligations under treaties and other undertakings which expressly deal with
nuclear weapons . . .18
This statement by the Court implies that a threat or use of nuclear weapons in
outer space (even in the instance of self-defense) would not be compatible with
Article IV of the OST, which expressly prohibits the use of nuclear weapons in
outer space.19
On the other hand, the ICJ also opined that there is no “universal and compre-
hensive” ban on the use of nuclear weapons,20 and that in an “extreme case of self
defense” it may be permissible for a State to use nuclear weapons, as long as their
use also fulfilled the requirements of necessity and proportionality.21
This relationship between international humanitarian law and the inherent
right to self-defense must also be considered with respect to other weapons
deployed in space or against objects in space. It is accepted that the use of force
is not only judged by the regime governing the legality of the resort to armed
force, the jus ad bellum, but also by the law applicable in armed conflict, the jus in
bello.22 The following principles are applicable to any type of armed conflict: mil-
itary necessity, humanity, proportionality, and discrimination. Furthermore,
customary international law places two additional constraints upon the lawful
exercise of the right to self-defense, namely, necessity and proportionality.23
These principles are discussed further in chapter 1 [Steer and Stephens].
What is clear is that the use of force in self-defense must be proportionate to
the attack.24 The use of space weapons that have the capability to render massive
destruction and injury (either directly or indirectly) may well violate the princi-
ples of proportionality.25
The view by some States26 is that insisting upon the right of self-defense in
outer space encourages an arms race in outer space. For instance, some States
could (if they have not already) develop ballistic missile defense shields. The fear
18 Id., emphasis added.

19 A. Ferreira-Snyman, Selected Legal Challenges Relating to the Military Use of Outer Space, with
Specific Reference to Article IV of the Outer Space Treaty, 18:3 PER: Potchefstroomse Elektroniese
Regsblad 508 (2015), <https://dx.doi.org/10.4314/pelj.v18i3.02> (accessed Dec. 5, 2019).
20 Legality of the Threat or Use of Nuclear Weapons, supra note 17, paras. 24–34.
21 Id., para. 96.
22 Michael Walzer, Just and Unjust Wars 129 (3rd ed. 2000). The jus in bello is also called in-
ternational humanitarian law, the law of war, or the law of armed conflict.
24 Ferreira-Snyman, supra note 19, particularly at n.130.
25 Id.
26 Views by Brazil, Mexico, China, Chile, and Pakistan at the Draft Code of Conduct open-ended
consultations, Luxembourg 2014. China and Russia also consistently advocated for all references in
the draft that deal with security, weapons, or military-related aspects and self-defense be removed.
is that missile defense allows countries to develop offensive technologies under

the pretense of defense. For example, Kinetic Energy Interceptors (missiles)
could be launched into space to take out enemy missiles by smashing into them.
They also have potential applications as offensive antisatellite weapons, because
the same maneuvering abilities and set of controls can be used to destroy satel-
lites, as has recently been demonstrated by India with its self-declared antisatel-
lite weapons test.27
Indeed, there are legitimate reasons to be concerned about the development
of missile defense and space weapon technology, including the increased con-
ventional military dominance by some States, the vast waste of resources that
accompanies arms buildup, whether it’s a race or an asymmetrical surge, and the
physical results of deploying kinetic weapons in outer space—especially space
debris, which will impact civil and commercial space infrastructure as a collat-
eral effect.
It would be perhaps more desirable to suggest that “peaceful uses of outer
space” should be interpreted to mean a prohibition on all military activities in
outer space, similar to the prohibition in the Antarctic Treaty.28 However, the
reality is that the OST has been interpreted by the majority of States to allow mil-
itary activities in space and only to prohibit aggressive uses. There continues to
exist mistrust among States, and as a result, considerable investment is made in
militarization by some spacefaring nations. Most importantly, there is a lack of
any consolidated structure to develop competent mechanisms to prevent further
militarization or weaponization.
One may argue that the introduction of any kinds of weapons into outer
space, even those which are lawful given that only weapons of mass destruction
are prohibited, would undermine the basis for and the very logic of developing
nonproliferation mechanisms and of the whole system of international security.
However, caution dictates that a balancing exercise be conducted if international
cooperation is to be achieved at all. Indeed, an outright prohibition will most
probably result in a majority of the major spacefaring States refraining from ac-
tively contributing to any legal instrument or mechanism aimed at preventing
weaponization of outer space. This is exactly what we have witnessed with
the rejection by the United States of the proposed Treaty on the Prevention of
27 This event is discussed in detail in chapter 7 [Su].

28 Antarctic Treaty (entered into force June 23, 1961) 402 UNTS 71. Article I reads: “1. Antarctica
shall be used for peaceful purposes only. There shall be prohibited, inter alia, any measures of a mili-
tary nature, such as the establishment of military bases and fortifications, the carrying out of military
manoeuvres, as well as the testing of any type of weapon. 2. The present Treaty shall not prevent the
use of military personnel or equipment for scientific research or for any other peaceful purpose.”
Weaponization in Outer Space (PPWT), put forward by China and Russia,29 as

discussed further in c hapters 2 [Hitchens], 7 [Su], and 10 [Doucet].
Another example of this result is the Moon Agreement, which calls for greater
control of weapons in outer space.30 This agreement has managed to garner only
as little as eighteen ratifications to date. Needless to say that none of the space-
faring States with major space capabilities and weapons programs are party to
it. Consequently, perhaps a wiser position would be one that incorporates the
interests of all parties involved, that is, taking into consideration the legitimate
fears and security needs of others.
To answer these many contentions, rather than stalling agreement due to
the politicized nature of including or excluding a statement on the right to self-
defense in any international regulatory instrument, it may rather be prudent
to work toward a shared understanding in the framework of an Outer Space
Authority concerning the legal basis and modalities for exercising such right as
applied to outer space. The proposal for such a body will be laid out in the fol-
lowing. However, first it is useful to consider previous and existing efforts to pre-
vent an outer space arms race, and why they may have failed.
International Cooperation to Prevent an Arms Race

in Outer Space
The importance of international cooperation in developing the rule of law is

evidenced by the promulgation of the OST and the refining and expansion of
the OST’s core principles in the four subsequent general multilateral treaties to-
gether with principles adopted by the General Assembly.
Greater efforts to prevent the militarization of outer space have been made by
the First Committee on Disarmament and International Security, which holds
a yearly Conference of Disarmament (CD), and the Committee on the Peaceful
Uses of Outer Space (COPUOS).
The COPUOS, in its endeavor to maintain outer space for peaceful purposes,
has expressed a view that it was imperative to address the issue of weaponiza-
tion, since military activities in outer space were seriously affecting international
cooperation in the exploration and peaceful uses of outer space.31 However, as
GE.14-05066.
30 United Nations Convention on the Law of the Sea (entered into force Nov. 16, 1994) 1833 UNTS 3
(UNCLOS).
31 Report of the Committee of the Peaceful Uses of Outer Space, UN General Assembly, Fifty-eighth
Session, Supplement No. 20 (A/58/20), June 11–20, 2003, para. 40, <https://www.unoosa.org/pdf/
gadocs/A_58_20E.pdf> (accessed Nov. 27, 2019).
discussed in chapter 2 [Hitchins], the deadlock in both committees reflects a flaw

in the general weight that States place on resolutions and in the consensus system
of decision-making, respectively. One must point to the lack of the COPUOS’s
ability in recent years to convert draft legal instruments into treaties.
Thus, owing to the difficulty in formulating a new legally binding treaty at the
multilateral consultations related to outer space, States have resorted to creating
so-called “soft law” to structure space governance. Since 2004, the UN General
Assembly has voted annually on a resolution from the CD called the Prevention
of an Arms Race in Outer Space (PAROS). The first iteration was adopted by
a recorded vote of 174 votes in favor, 4 against (i.e., the Federated States of
Micronesia, Israel, Marshall Islands, and the United States), and no abstention.32
A similar voting pattern continues each year when the resolution is adopted by
the General Assembly
The PAROS resolution is seen as building on the efforts of the OST to pre-
serve space for peaceful uses. However, the resolution also notes that the current
outer space legal regime “does not in and of itself guarantee the prevention of
an arms race in outer space.”33 The PAROS resolution calls for States, especially
those with space capabilities, to refrain from actions contrary to the objective of
PAROS and to “contribute actively” to that objective. It argues for consolidation
and reinforcement of the outer space legal regime and states that the CD is the
place for a new OST on PAROS to be negotiated.
In June 2003, the General Assembly reiterated concerns about the milita-
rization of space and the risk of space not being used for peaceful purposes.34
On January 14, 2013, the UN General Assembly adopted Resolution 67/
113 “International Cooperation in the Peaceful Uses of Outer Space.”35 The
32 UN General Assembly Resolution on “Prevention of an arms race in outer space,” No. A/RES/
58/36, adopted on Jan. 8, 2004, with 174 votes in favor, 4 against (i.e., Federated States of Micronesia,
Israel, Marshall Islands, United States), and no abstention.
33 Id.
34 Id. “The view was expressed that the Committee had not been fulfilling the mandate given to it
by the General Assembly in recommending ways and means of maintaining outer space for peaceful
purposes. That delegation expressed the view that the Committee should address itself to that issue,
since military activities in outer space were seriously affecting international cooperation in the explo-
ration and peaceful uses of outer space. 43. Some delegations expressed the view that a greater risk of
the introduction of weapons into outer space and the adoption of a concept of a use of force in outer
space would undermine the basis for and the very logic of developing nonproliferation mechanisms
and of the whole system of international security. 44. The view was expressed that, since an inter-
national legal mechanism capable of preventing the militarization of outer space had not yet been
developed, the Committee should make greater efforts to prevent the militarization of outer space, in
particular by drawing up an international agreement to prevent an arms race in outer space. 45. The
view was expressed that an international agreement should be concluded to prohibit the deployment
of weapons in outer space. That delegation recalled initiatives to that end that had been made in the
Conference on Disarmament.”
35 UN General Assembly, “International cooperation in the peaceful uses of outer space,” Sixty-
seventh Session, A/RES/67/113, Jan. 14, 2013, <https://www.unoosa.org/pdf/gares/A_RES_67_

113E.pdf> (accessed Nov. 27, 2019).
resolution reaffirmed the importance of international cooperation in developing

the rule of law for space, noted the concern regarding a possible arms race, and
advised that States with major space capabilities should actively contribute to the
goal of preventing an arms race.
On March 18–29, 2019, a UN Group of Government Experts (GGE) met to
further consider and make recommendations on substantial elements of an in-
ternational legally binding instrument on the PAROS, including, inter alia, on
the prevention of the placement of weapons in outer space.36 Although there is
no public documentation as of the date of writing, it appears the only outcome
was to keep on talking. Yet the establishment of this GGE is evidence of ongoing
consensus that the existing regime on outer space is not sufficient to prevent an
arms race in outer space, and on the need to fill this important gap in the legal
disarmament and arms-control regime at the strategic level.
Even if there are no clear legal bans on weapons in outer space, it could be
argued that such weaponization would go against the spirit of the OST and the
PAROS resolutions. However, this is insufficient to act as a deterrent for some
States with missile capabilities. A clear example is India’s unexpected launch of
an antisatellite missile test on March 27, 2019.37 The test’s success makes India
the fourth country capable of destroying an enemy satellite, after China, Russia
and the United States.
In this respect, the text of the 2006 U.S. National Space Policy begs attention:
The United States considers space capabilities—including the ground and space
segments and supporting links—vital to its national interests. Consistent with
this policy, the 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 pro-
tect its space capabilities; respond to interference; and deny, if necessary, adver-
saries the use of space capabilities hostile to U.S. national interests;
The United States will oppose the development of new legal regimes or
other restrictions that seek to prohibit or limit U.S. access to or use of space.
36 On November 24, 2017, by Resolution A/RES/72/250, the General Assembly decided to estab-
lish a Group of Governmental Experts, to meet in two two-week sessions, one in 2018 and in one
2019 in Geneva, to consider and make recommendations on substantial elements of an international
legally binding instrument on the prevention of an arms race in outer space, including, inter alia, on
the prevention of the placement of weapons in outer space. At the time of writing, no public record
has been released about the outcome of the March 2019 meeting.
37 Associated Press, India Flexes Its “Space Power” Muscles with Anti- Satellite Missile Launch,
Defense News (Mar. 27, 2019), <https://www.defensenews.com/space/2019/03/27/india-flexes-its-
space-power-muscles-with-anti-satellite-missile-launch/> (accessed Dec. 3, 2019); Indian PM Modi
Boasts Success of Anti-Satellite Missile Launch ahead of Election, NBC News (Mar. 27, 2019), <https://
www.nbcnews.com/news/world/indian-pm-modi-boasts-success-anti-satellite-missile-launch-
ahead-n987786> (accessed Dec. 3, 2019).
Proposed arms control agreements or restrictions must not impair the rights of
the United States to conduct research, development, testing, and operations or
other activities in space for U.S. national interests . . .38
Fast forward to 2018 when the United States unveiled an “America First”
National Space Strategy,39 which captures the foregoing sentiments and
demonstrates an increased trend toward space dominance. The foregoing courses
of action denote the main point of contention which relates to due consideration
for the legitimate security and defense needs of States. At the same time, national
security appears to be used to justify taking a stance which may be inflamma-
tory, and may contribute to a space arms race. The popular media reflects this
stance: “We will destroy every type of missile attack against any American target,
whether before or after launch . . . When it comes to defending America, we will
not take any chances. We will only take action.”40
The foregoing underscores that treaties and resolutions by themselves would
not be sufficient. There would always be fear of surreptitious weaponization of
space by the opponent. Furthermore, as the United States has pointed out in its
rejection of the China-Russia proposal for a PPWT, verification would be diffi-
cult as it is hard to determine whether what is inside another State’s satellite is a
weapon.41
It may be that proposals for traditional arms control measures to ensure the
stability and predictability of outer space are no longer useful. This seems to have
been the view of some members during the above-mentioned GGE meeting on
PAROS in March 2019.42 In its recommendation presented to the GGE, Secure
World Foundation suggested that a formal treatymaking process should not be
the only solution to preventing a conflict in outer space.43 In its view, the high
degree of technological change makes it difficult to settle on a specific legal an-
swer, and the growing number and diversity of States engaging in space makes
it difficult to find consensus. Instead, the focus should be on developing norms
of behavior that can begin to have a positive impact now, and might also lay the
38 Unclassified National Space Policy, Office of Science and Technology Policy, Executive Office
of the U.S. President (Oct. 6, 2006), <https://fas.org/irp/offdocs/nspd/space.html> (accessed Dec.

3, 2019).
39 The White House, President Donald J. Trump Is Unveiling an America First National Space
Strategy, <https://www.whitehouse.gov/briefings-statements/president-donald-j-trump-unveiling-
america-first-national-space-strategy/> (accessed Aug.23, 2019).
40 W.J. Hennigan, President Trump’s Plans to Boost Missile Defense Could Spark an Arms Race, Time
Magazine (Jan. 17, 2019), <https://time.com/5506284/donald-trump-nuclear-weapons-missile-

defense/> (accessed Aug. 23, 2019).
41 For a detailed discussion of the U.S. objections to the PPWT proposal, see chapter 10 [Doucet].
42 GGE-PAROS/2019/WP.5 Working Paper submitted by the Secure World Foundation, March
18–29, 2019.
43 Id.
foundation for future treaty regimes. These norms should be focused on actions
and behavior in space that will ensure that space is peaceful, predictable, and
continually accessible to all. According to the Secure World Foundation recom-
mendation, focusing solely on new treaty mechanisms, and in particular bans on
specific technology, are unlikely to yield the near-time benefits that are so des-
perately needed.44
There may be some logic to this recommendation because, evidently, States
prefer to implement measures on a voluntary basis and in a manner consistent
with their own national interests. In this regard, outer space transparency and
confidence-building measures (TCBMs) have been more successful. Some States,
such as the United States, have undertaken bilateral TCBMs with a number of
other spacefaring nations, which are open for implementation on a voluntary
basis. These measures include: information exchange on space policies; informa-
tion exchange and notifications related to outer space activities; risk reduction
notifications; contact and visits to space launch sites and facilities; international
cooperation; consultative mechanisms; outreach; and coordination.45 However,
it is important to note that while TCBMs could foster cooperation, they are no
substitute for legally binding norms. They effectively contribute to, but are not a
substitute for, measures to monitor the implementation of arms limitation and
disarmament agreements. Moreover, no voluntary measure could entirely reflect
the complexities of outer space security.
The above-mentioned efforts to prevent an arms race in space by creating soft
law, commendable as they may be, are not capable of enforcing the rule of law.
Moreover, they are weakened by the fact that they tend to be adopted by States
with no missile capabilities or space weapons programs, whereas those States
dominating the arms race refrain from their support. This current status quo
underlines the need to intensify international exchanges and cooperation in the
governance of outer space on the basis of security and stability and peaceful use.
What is frightening, perhaps, is that without international cooperation to
properly regulate and enforce the rule of law in outer space, there is little to pre-
vent States with space capabilities from engaging in an all-out war in outer space,
other than the impact of kinetic weapons on their own capabilities. However,
other forms of weaponization are already taking place, and the rhetoric previ-
ously described appears to be moving more and more toward a continued arms
race in space. In this context, it cannot be excluded that one day outer space will
be the fourth domain of warfare and, consequently, may attain its own corpus
44 Id.
45 For a detailed discussion on TCBMs, see Ram S. Jakhu, Transparency and Confidence-Building
Measures for Space Security, in Decoding the International Code of Conduct for Outer
Space Activities, Pentagon Security International 35–46 (Ajey Lele ed., 2012).
juris in bello spatiale: a law of armed conflict in space.46 However, even a specific
corpus juris will not necessarily be sufficient to prevent the impacts of a conflict
in space. Instead, it is argued here that an established authority that regulates
outer space activities would provide a reliable and solid foundation for verifica-
tion and enforcement of international obligations.
Time for an Independent Outer Space Authority
A proposal for the establishment of an Outer Space Authority is by no means

a new one, nor is it a dismissal of the vast efforts already made through
varying institutions and committees such as UN Office for Outer Space Affairs
(UNOOSA) and COPUOS to harness international cooperation and ensure that
outer space is used for peaceful purposes. It is true that international cooper-
ation does occur and is in fact occurring without an authority to govern outer
space. However, one cannot ignore the fact that most of the attempts to come to
agreements so far have stalled or fallen apart, often due, as illustrated previously,
to political hurdles and the impasse in the meetings of these bodies.
In fact, even some of the space treaties are not fully respected. The Biological
Weapons Convention may have been held to be a success substantively, but it
is deficient in providing an effective mechanism for verification of compliances
stipulated under the Convention.47 So too is the Hague Code of Conduct against
Ballistic Missiles Proliferation, which was established to improve transparency
in the missile domain.48 The success of the Code in motivating its members to
honor the information-sharing regime has been limited, especially given that
most of its signatories have no missile capabilities.
These agreements are important milestones in developing the rule of law in
outer space. However, their application and subsequent enforcement is debat-
able. What is required is a unified structure to coordinate all the processes of
space governance.
Mathieu Deflem writes that, “in the context of democratic societies, the rule of
law is guaranteed by the legitimacy legal norms enjoy from those to whom such
norms apply, on one hand, and by the threat of enforcement from specialized
agents of control, on the other.”49

47 Convention on the Prohibition of the Development, Production and Stockpiling of
Bacteriological (Biological) and Toxin Weapons and on their Destruction (entered into force Mar.
26, 1975) 1015 UNTS 163.
48 The Hague Code of Conduct against Ballistic Missiles Proliferation (entered into force Nov.
26, 2002).
49 Mathieu Deflem, Global Rule of Law or Global Rule of Law Enforcement? International Police
Cooperation and Counterterrorism, AAPSS Annals 603 (2006).

States consider multilateral treaties as vitally important tools for promoting

international relations in which justice and peace prevail. Treaties are an integral
aspect of a comprehensive and robust legal framework that ensures that the rule
of law governs relations between States. Consistent with this view, the enforce-
ability or at least some form of verification of a treaty is paramount to building
confidence between parties.50 Both reassurance and verification, when linked to
cooperative obligations, serve to demonstrate peaceful intent, good faith, and
ongoing compliance with the rules.51
Given the dual purpose of many space technologies, and the potential mili-
tary abuse of the same, verification is especially important in this area of inter-
national law. An established independent Outer Space Authority that regulates
outer space activities could provide a reliable and solid foundation for veri-
fication and enforcement of international obligations. This factor is further
anchored in the fact that Article IV of the OST, which simply bans nuclear
weapons in outer space, is clearly insufficient to build international confidence
and allay global security concerns relating to weaponization.52 The limitations
on Article IV discussed in the earlier paragraphs and the difficulty in verifica-
tion are cases in point.
It seems more likely that only a joint international control of the exploration of
space, and thus of any potentially dual use technology used to further it, will allay
the global security concerns relating to weaponization of outer space.53
Despite the fact that the Moon Agreement is generally considered to be
a failure due to none of the major spacefaring States having signed it, there
are some lessons to be learned both from the ambitions of the treaty and why
it failed. For instance, to achieve some degree of verifiability, Article VII of
the Moon Agreement stipulates that “all stations, installations, equipment
and space vehicles on the Moon and other celestial bodies shall be open to
representatives of other State Parties to the Treaty on a basis of reciprocity.”
Implementation of this article is said to be confounded with great difficulties,
most of which is the expense involved in conducting such visits.54 This presents
another major reason why international cooperation through an authority
would be important. N. Tannenwald states that a better way to implement such
an article would be for the installations, equipment, and space vehicles to be
under the control, or even the ownership, of an international body.55 Although
50Ian Crawford, A Space Programme for Planet Earth, Spaceflight 121 (Apr. 1992).
51N. Tannenwald, Law versus Power on the Higher Frontier: The Case for a Rule-Based Regime for
Outer Space, YIL 419 (2004).
52 Id.
53 Id.
54 Id.
55 Id.
a compelling argument, it is not a likely scenario that installations, equipment,

and vehicles would be under the control or ownership of a single international
body, given the competition between States and the rise of commercial entities.
However, it is true that an international Outer Space Authority would provide
independent cooperative framework for joint projects that could involve eve-
ryone interested.
Another lesson to be learned from the failed aspirations of the Moon
Agreement is that it provides for the establishment of an international regime
to govern the exploration of the natural resources of the moon.56 Now that such
exploration is about to become feasible, such an establishment would aid in sta-
bilizing commercial opportunity. Already, the exploration of extraterrestrial re-
sources is a reality considered by some States and private companies presently,57
hence an independent international authority is required to regulate this area
to oversee both asteroid mining licensing in the context of all relevant environ-
mental impacts, as well as planetary defense and the shared infrastructure and
systems to support them.
It may be of great benefit for the space environment to learn from a similar
institutional model such as the International Seabed Authority, which itself has
become a working institution with practical exploration, mining, science, and
educational successes. On this issue Lewis Pinault58 writes that the U.S. Navy is
one of the greatest champions of the Law of the Sea Convention and the Seabed
Authority, and as such appreciates that developing country concessions—
which allow key navigation rights for all—help to create equitable stability and
greater security. In exchange, the navy does not begrudge disadvantaged nation’s
interests in sharing common resources of the international seabed, and indeed
can be called upon to protect these rights. Similarly, the Declaration on Space
Benefits59 could assist an independent authority to create equitable stability and
greater security for all in outer space.
One ought to simply look at other successful specialized organizations
such as the International Civil Aviation Organization (ICAO), International
Telecommunications Union (ITU), World Trade Organization (WTO), World
Health Organization (WHO), etc., to know that having an authority focused on
56 Moon Agreement, supra note 6, art. 11, para. 5, provides that “State Parties to this Agreement
hereby undertake to establish an international regime, including appropriate procedures, to govern

the exploration of natural resources of the Moon as such exploitation is about to become feasible.”
57 Senjuti Mallick & Rajeswari Pillai Rajagopalan, If Space Is “The Province of Mankind,” Who Owns
Its Resources?, Observer Research Foundation Occasional Paper (2019), <https://www.orfonline.org/

wp-content/uploads/2019/01/ORF_Occasional_Paper_182_Space_Mining.pdf> (accessed Dec.
3, 2019).
58 Lewis Pinault, Towards a World Space Agency, in Human Governance Beyond
Earth: Implications for Freedom 190 (Charles S. Cockell ed., 2015).

59 Declaration on Space Benefits, supra note 7.
and specializing in governing outer space can succeed. It is clear that not only is
an established and operational authority a confidence-building measure on the
limitations of weaponization of outer space, but it would also further stabilize
commercial opportunity.
Remaining points of controversy involve the issue of funding for such
an authority, as well as its independence and mandate. The purpose of this
chapter is not to dwell on the “hows” of an authority’s administration and
management; suffice to say that as a basis, such an authority would need a
proper mandate based upon a universal treaty; a commensurate structure
including judicial jurisdiction to hear disputes, and an effective enforcement
mechanism; standard procedures, which could be developed by including
commercial entities along with States in ways similar to the ITU; and admin-
istrative funding provided by member States. The interest that States have
in continued access to space, and a greater stability in space, should provide
sufficient impetus for establishing and funding such an authority. It would
regulate mining on the celestial bodies, grant commercial licenses and leases,
and conduct inspections and verification, thus dealing with commercial and
government activities alike, where there are issues of security, stability, and
equity.
Conclusion
There is a saying that one cannot do the same thing time and time again and
expect a different result. Different methods from those we have seen repeated
to date must be adopted in the governance of outer space if the rule of law is to
be enforced. Undeniably, our actions must give meaning to our principles. As
international institutions and committees engage on a variety of international
space matters, efforts must be made to forge an international cooperative
structure or authority that aims to foster collaboration in the effort to develop
the rule of law in space. The existing work of international conferences and the
committees must feed into wider efforts to strengthen the authority’s capacity
to prevent outer space militarization. An independent authority is necessary
to coordinate efforts: to develop an international legal mechanism capable of
preventing the militarization of outer space; to understand the interrelation
between the different international laws that would apply to conflict in space;
and to develop the relevant applicable legal framework for continued human
activity in that domain.
Effectively, the call to govern outer space and enforce the rule of law through
concerted efforts of an Outer Space Authority has been echoing through the
years. It may be that the existing political climate and the urgent need for a
coherent global security strategy for exploration of space, for a global rule of
law, and for a legal framework for the exploration of extraterrestrial resources,
all mean that we are at an opportune moment in political history to once again
put forward proposals for the establishment of an independent Outer Space
Authority, fully clothed with binding decision-making powers. The rule of law in
outer space depends upon it.
PART II
T HE ETHIC S OF SPAC E SE C U R I T Y
4
Peaceful Purposes for the Benefit
of All Mankind
The Ethical Foundations of Space Security
P.J. Blount
Introduction
The 1967 Outer Space Treaty1 serves as a central document in establishing a

legal regime that promotes international peace and security in space. This treaty
employs a variety of mechanisms that are meant to promote trust and trans-
parency among space actors to secure the space environment. Much of the
research into space security focuses on hard obligations, such as the weaponi-
zation provisions found in Article IV, but ignores the more aspirational and soft
obligations of the treaty, such as those found in Article I. These softer norms
should not be ignored because they serve as indicators of the security context of
space as envisioned by the drafters of the treaty and of the role of the Outer Space
Treaty as a security treaty.
This chapter argues that throughout the Outer Space Treaty the drafters used
aspirational norms to add an ethical dimension to the law of outer space. For
instance, while the Article I provision that the use and exploration of outer
space shall be “the province of all mankind” is ambiguous in meaning, it serves
to link space activities to the goals and aspirations of humanity rather than a
single State. This chapter argues that such linking does not create specific legal
obligations, but rather colors hard obligations of the Outer Space Treaty with
humanist notions prevalent in the still emerging post-1945 international law re-
gime. This coloring of hard obligations means that States, in their space activities,
should consider ideas of global security rather than just national security as a
way to ensure that space benefits all countries and people. It is through these
types of provisions that space law imbues not just obligations but also ethical
values that States are meant to consider as they engage in space activities.
including the Moon and Other Celestial Bodies, 18 UST 2410, 610 UNTS 205, 6 ILM 386 (1967).
P.J. Blount, Peaceful Purposes for the Benefit of All Mankind In: War and Peace in Outer Space. Edited
DOI: 10.1093/oso/9780197548684.003.0005
110 Part II: The Ethics of Space Security
This chapter will proceed in three parts. First, the section, “Aspirational
Norms,” will discuss the use of aspirational provisions in the Outer Space Treaty,
and it will demonstrate that these provisions are directly linked to the idea of in-
ternational peace and security. Next, the section, “The Ethics of Space Security,”
will argue that the Outer Space Treaty used these aspirational provisions to frame
the ethics of space activities with humanism and multilateralism. This section
will discuss how these provisions were deployed to increase security in the space
domain by providing an ethical foundation for national space activities. The sec-
tion, “Eroding Ethics: Space Security at a Crossroads,” will address how these
provisions have fared and their standing in the contemporary context of space
security.
Aspirational Norms
One of the central problems of international space law is that many of the key
provisions of the Outer Space Treaty fail to convey “hard rules” or “black letter
law.” Instead the drafters opted for language that is ambiguous and aspirational.
Phrases such as “province of all mankind,” “benefit and interest of all countries,”
“envoys of all mankind,” and “principle of co-operation and mutual assistance”
often leave legal scholars scratching their heads as they attempt to define the
exact legal obligation contained within these mysterious phrases. These phrases
are often ignored in realist analyses that choose to focus solely on obligations that
have “teeth.”2 This is particularly so with those that view the Outer Space Treaty
as a security treaty, which the present author most certainly does. This viewpoint
draws legal discourse away from the “feel-good” moments of the treaty and pulls
it to clauses like those found in Article IV—which prohibits nuclear weapons
and weapons of mass destruction in space and all weapons from the moon and
other celestial bodies—that lay down specific obligations and duties intended to
maintain international peace and security. Such analysis, though, is dichotomist
and ignores a very big question: If the treaty is a security treaty, then why did the
drafters include these “feel-good” moments? Do these ambiguous obligations
have a bearing on the security regime being established by the treaty? The answer
is, of course, yes.
This is not to say that these phrases have normative meaning all their own.
This author argues that they do not. There is no way to operationalize “the prov-
ince of all mankind” without a great deal of further elaboration. Instead, these
2 For instance, see the discussion in Michel Bourbonnière & Ricky J. Lee, Legality of the Deployment
of Conventional Weapons in Earth Orbit: Balancing Space Law and the Law of Armed Conflict, 18:5
European Journal of International Law 881–886 (2007).
Peaceful Purpose for the Benefit of All Mankind 111
phrases help to characterize the type of security environment the drafters of the
treaty were attempting to create and lay an ethical foundation for State action
within that security environment. This ethical foundation is historically situated
within the contemporaneously emerging notion of modern international law
and is in part a reaction to the challenge that Sputnik I created for that system
of law.3
In short, Sputnik I changed the international geography of States contained
within hardened borders that was deployed by the UN Charter. The system of
international law that emerged in the aftermath of World War II was intended to
legitimate States contained within territorial borders as sovereign equals. This is
at its core an allocation of legitimacy to geography that is intended to be global in
coverage and to stand as a legal barrier to wars of an imperial nature, which at the
time were the most likely conflicts from a Western perspective.4 The UN Charter
seeks to eliminate the “scourge of war” by compartmentalizing geographic space
into territories of legitimate governments that have equal rights to exist and the
right to non-intervention by other States or by the United Nations itself.5 While
the system never fully achieved this goal, it is this notion of geographic order that
underpins the entire modern international law system. The launch of Sputnik I
directly challenged this notion by creating a new spatial reality, which opened
the door to possibilities of a nouveau imperialism colored by Cold War rivalries.
Indeed, with the United States and the Soviet Union already locked in a space
race, the conquering of outer space seemed imminent, as did the possibility
of conflict over claims to the new strategic domain. Both of the two Cold War
superpowers recognized the strategic utility that space would provide in their
attempts to win an arms race that was already raging terrestrially.6 Technological
access to space allowed the reduction of the temporal lag between initiation and
strike in an attack, at once making the State more secure in terms of offensive
attack time, but less secure in terms of defensive response time, which in turn
incentivizes first strike. One of the reasons that these powers were able to agree to
a ban on nuclear weapons and weapons of mass destruction in space was that the
temporal reduction in the time to strike was inherently untenable for strategic
stability.7 In order to avoid conflict in space, States almost immediately began
3 This idea has been developed by the present author elsewhere, including P.J. Blount & Christian
J. Robison, One Small Step: The Impact of the US Commercial Space Launch Competitiveness Act
of 2015 on the Exploitation of Resources in Outer Space, 18 North Carolina Journal of Law &
Technology 160–233 (2016), and P.J. Blount, Outer Space and International Geography: Article II
and the Shape of Global Legal Order, 52 New England Law Review 95 (2018).
4 Id.
5 See UN Charter, pmbl. and art. 2(7).
6 See generally James Clay Moltz, The Politics of Space Security (2008), ch. 4.
7 Karl P. Mueller, The Absolute Weapon and the Ultimate High Ground: Why Nuclear Deterrence
and Space Deterrence Are Strikingly Similar—Yet Profoundly Different, in Anti-Satellite Weapons,
the process of making the newly established international legal system appli-
cable in outer space. The first two UN General Assembly (UNGA) resolutions
on outer space, adopted in 1958 and 1959, note a desire “to avoid the extension
of present national rivalries into this new field” and task an ad hoc Committee
on the Peaceful Uses of Outer Space with studying “the nature of legal problems”
associated with space exploration and use.8 In 1961, the UNGA resolved that
“[i]‌nternational law, including the Charter of the United Nations, applies to
outer space and celestial bodies.”9
The extension of international law into space seemingly helps to clarify the
security environment since the UN Charter and the legal system that it estab-
lished was centered on the maintenance of “international peace and security” to
“save succeeding generations from the scourge of war.”10 The problem was that
the main thrust of the UN Charter was built around political independence teth-
ered to territorial sovereignty, thus the legal prohibition on the use of force in
Article 2(4) of the UN Charter is connected to “territorial integrity or political
independence of any state.”11 It is very difficult to articulate how this ban on the
use of force would apply in outer space without any sort of notion as to how space
fits within the geographical confines of international law. Indeed, at the time, the
territorial notions of Article 2(4) were already being challenged by the notion
of ideological war, as illustrated in the recently concluded Korean War and the
newly emerging Vietnam War, in which powerful States engaged in proxy wars
not based on traditional goals of territorial expansion but instead based on ex-
pansion and containment of competing political ideologies. International peace
and security proved to be ideologically malleable and legally connected to the
“body” of the State, that is, its territory. The ability of the UN Charter prohibition
on the use of force, without elaboration, to create a secure environment in space
was questionable.
The norms of free access and non-appropriation, first found in the 1961
UNGA resolution and later articulated in Articles I and II of the Outer Space
Treaty, would be the legal salves to categorize outer space within the spatial logic
of international law. The free access principle gives all States the right to use and
explore outer space, which is counter balanced by the non-appropriation prin-
ciple that prohibits States from claiming territory in space.12 Together these
Deterrence and Sino-American Space Relations 50–51 (Michael Krepon & Julia Thompson
eds., 2013).
8 Res. 1348 (XIII) (Dec. 13, 1958), and Res. 1472 (XIV) (Dec. 12 1959).
9 Res. 1721 (XVI) (Dec. 20, 1961).
10 UN Charter art. 1(1) and pmbl.
11 UN Charter art. 2(4).
12 See generally Blount & Robison, supra note 3, at 160–233.
provisions grant States free access to outer space and preclude acts of territorial
appropriation in outer space. These norms, though, only disincentivize conflict
resulting from imperial projects based on territory and resource acquisition.
They do not disincentivize pseudo-imperial ideological conflict, which was
more deeply rooted in superpower understandings of the content of the con-
cept of “international peace and security.” In other words, these provisions are
targeted at preventing conflict based on territorial expansion, but they fall short
of preventing conflict based on deep set ideological conflict in which States link
notions of international peace and security to the supremacy of their own do-
mestic political ideologies. These treaty norms are written to prevent conflict
resulting from territorial expansion, rather than to block conflict based on ide-
ological expansion related to showing the prowess of socialism or capitalism
respectively.13
This problem is made more complex by the ideological neutrality in-
herent in the international legal system. Implicit within “sovereign equality”
and the right of non-interference in domestic affairs is the fiction of “self-
determination,” which means that a State’s political identity and internal gov-
ernance is not the concern of the international legal system (effectively emptying
“self-determination” of any meaning in the human rights context). One of the
reasons the proxy wars of the Cold War were not prevented by the new prohi-
bition on the use of force is that they were internal battles for political domi-
nance rather than for raw territorial power, and therefore fell under the notion of
“self-determination.” In these conflicts over core social values, the international
system had no way of reconciling a need for peace among States with a grant of
self-determination to peoples.
The negotiators of the emerging law applicable to outer space were left in the
lurch. The bare extension of the UN Charter into space would not be enough to
adequately prevent the eruption of conflict within the realm. Necessity dictated
that the law, though liberal in structure, was neither overtly capitalist nor overtly
socialist in substance, in order to ensure that both of the budding space powers
consented to the law. Additionally, because of the ambiguous nature of and the
unknown futures in outer space, the negotiators could not adopt laws with great
specificity without the possibility compromising emerging, innovative technol-
ogies. In order to cope with these restraints, the negotiators elaborated broad
normative principles that are often ambiguous in meaning and imposed upon
these principles an underlying ethics of humanism and multilateralism. In so
13 See P.J. Blount & David Molina, Bringing Mankind to the Moon: The Human Rights Narrative
in the Space Age, in NASA and the Long Civil Rights Movement (Brian C. Odum & Stephan P.
Waring eds., University Press of Florida 2019) 28–43 .
doing, the intent was to restrain States in space by shaping their perception of the
regime through a framing of the law with a particular ethical context.
The Ethics of Space Security
It is widely accepted that space is to be used by States for “peaceful purposes.”

Indeed, one could go so far as to argue that peaceful purposes is the norma-
tive threshold for the legality of any space activity. Space activities that are not
peaceful are de facto illegal in outer space. Of course, this raises a whole set of
questions as to what exactly constitutes “peaceful.” Space law never gives a di-
rect answer to this question. Indeed, one of the problems of the application of
“peaceful purposes” to space is that the term only applies to “the Moon and other
celestial bodies” in Article IV of the Outer Space Treaty, but nowhere is it stated
that the term applies to space writ large, making it difficult to turn to the body of
the text of space law to determine what the notion of peaceful purposes means
in a legal sense.14 Nonetheless, peaceful purposes seems to be established as a
customary law term applicable to space law. There has been much work done
on “peaceful purposes” as a legal term, and the goal here is not to reproduce that
work.15 Instead, the purpose here is to draw attention to how peaceful purposes
became an underpinning norm of space exploration.
From the very inception of what came to be known as the “Space Race,” the
United States went to great lengths to characterize its nascent space missions as
“scientific” under the guise of the International Geophysical Year (IGY).16 The
Soviet Union, for its part, made its public statements from within its scientific
14 This exercise can be done in other areas of international law. See Blount, Outer Space and
International Geography, supra note 3.

15 The main thrust of this scholarship is whether the legal content of peaceful purposes is the
same as nonaggression found in international law or whether peaceful purposes has independent
meaning that goes beyond nonaggression. See generally P.J. Blount, Space Security Law, Oxford
Encyclopedia of Planetary Science (2018), <https://oxfordre.com/planetaryscience/view/
10.1093/acrefore/9780190647926.001.0001/acrefore-9780190647926-e-73> (accessed Mar. 30,
2020); Michel Bourbonnière & Ricky J. Lee, Legality of the Deployment of Conventional Weapons
in Earth Orbit: Balancing Space Law and the Law of Armed Conflict, 18:5 European Journal of
International Law 877 (2007); and Jackson Nyamuya Maogoto & Steven Freeland, Space
Weaponization and the United Nations Charter Regime on Force: A Thick Legal Fog or a Receding
Mist?, The International Lawyer 1100–1103 (2007).
16 Press Release, statement by White House Press Secretary, James C. Hagerty on earth-circling
satellites as part of IGY program, July 29, 1955 [DDE’s Records as President, Official File, Box 624,
OF 146-E International Geophysical Year (1); NAID #16646172], <https://www.eisenhowerlibrary.
gov/sites/default/files/research/online-documents/igy/1955-7-29-press-release.pdf> (accessed
Mar. 30, 2020); and Press Release by the National Science Foundation and the National Academy of
Science, “Plans for Construction of Earth Satellite Vehicle Announced,” July 29, 1955 [DDE’s Records
as President, Official File, Box 624, OF 146-E International Geophysical Year (1); NAID #16646897],
<https://www.eisenhowerlibrary.gov/sites/default/files/research/online-documents/igy/1955-7-29-
nsf-release.pdf> (accessed Mar. 30, 2020).
community, but was not so overt about its plans being linked to science.17 In the
summer of 1957, preceding Sputnik I, at the UN Subcommittee on Disarmament,
the United States and other Western States began to link space to the idea of
peaceful purposes, and the goal of the Eisenhower administration was ulti-
mately to ban the transit of international continental ballistic missiles (ICBMs)
through space using this norm. The administration backed proposals to establish
a committee to ensure that “the sending of objects through outer space should
be exclusively for peaceful and scientific purposes.”18 Significantly, these same
negotiations were attempting to establish a peaceful purposes framework to limit
nuclear activities by States.
After the Soviet success with Sputnik I, the United States began to very clearly
frame space exploration as a peaceful enterprise. For instance, Eisenhower made
a statement that congratulated the USSR on Sputnik I, and at the same time noted
that “[t]‌he rocketry employed by our Naval Research Laboratory for launching
our VANGUARD has been deliberately separated from our ballistic missile
efforts in order, first, to accent the scientific purposes of the satellite.”19 Though
he went on to note that the second reason for this separation was to not impede
the military’s ICBM program, he made the claim that the United States stood
to orbit the first satellite but refrained due to its desire to orbit a scientific satel-
lite first.20 In addition to the rhetoric being established by the executive branch
as part of its international relations, “peaceful purposes” became established in
U.S. law as part of the National Aeronautics and Space (NAS) Act of 1958. Section
101 of this act states that “it is the policy of the United States that activities in
space should be devoted to peaceful purposes for the benefit of all mankind.”21
What is notable about the NAS Act is that it became law in July of 1958,
meaning that it predates the first UNGA resolution on space by six months. This
is significant, because it shows that the United States had success in deploying
peaceful purposes as a supranational norm for space exploration. This first
UNGA resolution on space was titled “Question of the peaceful use of outer
space,” and begins: “Recognizing the common interest of mankind in outer space
17 Edward Clinton Ezell & Linda Neuman Ezell, The Partnership: A History of the Apollo-Soyuz
Test Project (NASA SP-4209, 1978), ch. 1, <https://www.hq.nasa.gov/pao/History/SP-4209/ch1-

1.htm> (accessed Mar. 30, 2020).
18 See 237. Department of State Position Paper: US Position on First Phase of Disarmament (June
11, 1957), <https://history.state.gov/historicaldocuments/frus1955-57v20/d237> (accessed Mar.

30, 2020); and 195. Policy Recommendation Prepared by the Chairman of the Delegation to the
Subcommittee of the United Nations Disarmament Commission (Stassen) (May 9, 1957), <https://
history.state.gov/historicaldocuments/frus1955-57v20/d195> (accessed Mar. 30, 2020).
19 Statement by the President Summarizing Facts in the Development of an Earth Satellite by the
United States (Oct. 9, 1957), <https://www.presidency.ucsb.edu/documents/the-presidents-news-

conference-308> (accessed Mar. 30, 2020).
20 Id.
21 NAS Act 1958, sec. 102.
and recognizing that it is the common aim that outer space should be used for
peaceful purposes only . . .”22
At the international level, the “peaceful purposes” of outer space as an un-
derlying norm was adopted almost immediately at the beginning of the Space
Age. The phrases “peaceful purposes” and “peaceful uses” occur seven times
in the first UNGA resolution and have been included in some form in every
UNGA resolution concerning space since. Peaceful purposes is a dominate
narrative that characterizes how space should be used in both ethical and legal
normative terms.
The framing of “peaceful purposes” gives us little indication, though, of what
it means to use space for peaceful purposes, either legally or ethically. The pre-
sent author has argued before that, as a phrase in customary international law,
peaceful purposes is elaborated on by the customary norms of outer space law,
specifically those found in the 1963 UNGA Resolution 1962 (XVIII) Declaration
of Legal Principles Governing the Activities of States in the Exploration and Uses
of Outer Space.23 These principles include free access, non-appropriation, and
the ban on weapons of mass destruction, among others. The ethical content of
peaceful purposes is elaborated within the more ambiguous and aspirational
norms that are eventually codified in the Outer Space Treaty.
As has already been noted, phrases such as “province of all mankind,”
“common benefit and interest,” “envoys of all mankind,” “principle of co-
operation and mutual assistance,” and “due regard to corresponding interests” all
seem to lack definition as operational legal norms. However, as an ethical frame-
work, they bring coherence to broad values of the Outer Space Treaty. They do
this by establishing two important underlying values that characterize peaceful
uses in outer space: humanism and multilateralism.
Humanism
The historical context of space law places its emergence very close in time to the
emergence of modern international human rights law as a substantive branch of
international law, and likely many of the diplomats and lawyers involved in the
drafting of the principles at the UNGA and the Committee on Peaceful Uses of
Outer Space had previous experience in this area. Thus, it should be no surprise
that space law included the theme of using space for the “benefit of all mankind.”
This theme emerged from the U.S. NAS Act and became part and parcel of the
22Res. 1348(XIII).
23UNGA, Res. (XVIII) Declaration of Legal Principles Governing the Activities of States in the
Exploration and Uses of Outer Space (1963).
discourse at the United Nations.24 While it was not codified directly in the Outer
Space Treaty (it is found in the preamble as “for the benefit of all peoples”), its
core notion was found reflected in the “province of all mankind,” “common ben-
efit and interest,” and “envoys of mankind.” Each of these phrases links the idea of
space exploration and use not back to the nation-state engaging in those activi-
ties, but to the global population as a whole. In other words, States are conceived
as the primary actors in space under the Outer Space Treaty, but their activities
are not to be executed solely for nationalistic reasons. Instead, these phrases link
space activities of any State to all humans.
This, of course, is extraordinarily aspirational, and it would be hard to see such
a norm be enforced by a judicial body. Indeed, similar problems plague inter-
national human rights law, which has been notoriously underenforced since its
inception. Regardless of its ambiguity, this idea is directly linked to the secu-
rity of outer space. The “benefit of all mankind” language has a direct lineage to
President Eisenhower’s “Atoms for Peace” speech, and the U.S. attempt to imbue
nuclear capabilities with a similar ethic.25 The goal behind this linking was to
characterize the security environment in which these activities took place and to
encourage States to take into account the safety and security of the entire globe
rather than simple national security.
A humanist ethic in outer space links directly back to the themes of the IGY,
which sought to gather scientific information and share it for the betterment of
the global society.26 It also links directly to the emergence of international human
rights law as an independent branch of international law. At the time the Outer
Space Treaty was negotiated, Eisenhower’s initial goal of banning ICBMs from
transiting through space was long dead. However, his administration’s push to
ensure that science and technology help the human population survived. While
the “benefit of humankind” language lacks any legal specificity as an obligation,
as an ethic it denotes the need to ensure that space is used to enhance life for
the human population. So, for instance, within the context of the debate on the
weaponization of space, much emphasis is placed on the strategic implications
of these technologies, but States should also be considering how such technolo-
gies might affect global goods such as GPS, weather satellites and other remote
sensing assets, and global communications. Space law requires space security
decisions to be analyzed in global terms that examine not just effects on adver-
sary systems, but that also the effects on the benefits that global society receives
24 P.J. Blount & David Molina, Bringing Mankind to the Moon: The Human Rights Narrative in the
Space Age, in NASA and the Long Civil Rights Movement (Brian C. Odum & Stephan P. Waring
eds., 2019).
25 Id.
26 The National Academies, “International Geophysical Year” (n.d.), <https://w ww.
nationalacademies.org/ history/igy> (accessed Mar. 30, 2020).

from space. This is a significantly different position for States when compared to
conventional security issues. For instance, under the law of self-defense, a State is
only required to determine the extent to which its own national security has been
compromised.
Multilateralism
A second theme that can be seen running through space law is that of interna-
tional cooperation. This theme also finds its roots in the values of the IGY,27 the
NAS Act of 1958,28 and the earliest UNGA resolutions.29 Indeed, international
cooperation, as an obligation, appears more times in the Outer Space Treaty than
any other single obligation.30 Exactly what is required by international coop-
eration is difficult to quantify, though. The UNGA’s 1996 Benefits Declaration
clearly states that “States are free to determine all aspects of their participation
in international cooperation in the exploration and use of outer space on an eq-
uitable and mutually acceptable basis.”31 As a legal obligation in space law, in-
ternational cooperation is fairly empty, but it is a key component to framing the
security environment in outer space as multilateral.
The idea of international cooperation is coupled with a number of informa-
tion sharing provisions in the Outer Space Treaty,32 as well as the duties to use
space for the “common benefit and interest” of all States (Art. I) and with “due
regard to corresponding interests” of other States (Art. IX). The ambiguity in
these provisions makes them soft obligations at best, but the repetition of such
notions throughout the treaty is a powerful statement of how the negotiators
hoped that States would cope with the gaps left by the broad principles estab-
lished by the Outer Space Treaty: that is, through multilateral action. The goal
27 Article, “News Report of the National Academy of Sciences and the National Research Council,
Volume IV, March-April 1954, Number 2—The United States Program for the International
Geophysical Year,” by Joseph Kaplan, Chairman, United States National Committee, International
Geophysical Year, March–April 1954 [DDE’s Records as President, Official File, Box 624, OF 146-E
International Geophysical Year (1); NAID #16645342], <https://www.eisenhowerlibrary.gov/sites/
default/files/research/online-documents/igy/1954-news-report.pdf> (accessed Mar. 30, 2020).
28 Secs. 102 and 205.
29 See UNGA Res. 1348 (XVIII).
30 It appears six times in the treaty: pmbl., arts. I, III, IX, X, and IX.
31 Res. 51/22 (Dec. 13, 1996).
32 Information-sharing provisions of the Outer Space Treaty can be found in Articles V (duty to
inform UN Secretary General of phenomena states discover), VIII (duty to keep a registry of space
objects), IX (duty to request consultations in cases of potential harmful interference), X (duty to
consider observations of spaceflights), XI (duty to inform the UN and the public about space ac-
tivities), and XII (duty to allow reciprocal inspections of installations on celestial bodies). See
P.J. Blount, Innovating the Law: Fifty Years of the Outer Space Treaty, in Innovation in Outer
Space: International and African Legal Perspectives 36–38 (Mahulena Hofmann & P.J.
Blount eds., 2018).
of this framing was to encourage States to work together through communi-

cation and cooperation to ensure that conflicts did not emerge in the space
domain. This was necessary in light of the sheer difficulty that the negotiators
would have had drafting specific provisions to which both the United States
and the USSR would have agreed in light of the significant unknowns of space
exploration and technology. As a result, States are given an ethical, rather than
normative, obligation to work together to avoid the potential outbreak of con-
flict, which is particularly important in a domain in which ambiguity is one of
the key attributes.
This means that States must take into account not just their own “national in-
terest” in space but also the national interests of other States when conducting
space activities. Indeed, security and safety in the space domain are maintained
less by recourse to legal precepts and more by a need for coordinated multilater-
alism, which is supported by an underlying supranational ethic.
Eroding Ethics: Space Security at a Crossroads
One of the most problematic tasks that lawyers often face is discerning the proper
place at which to separate the spirit of the law (i.e., its ethical content) from the
letter of the law (i.e., its legal content). This can be a particularly vexing problem
for lawyers in national and international security law. For example, the letter of
international space law allows for the deployment of conventional weapons in
Earth orbit in Article IV of the Outer Space Treaty, but the spirit of the law, in-
formed by humanist and multilateral ethics, counsels against such actions based
on the potential weakening of the overall stability in outer space. Such weakness
is induced by the paradoxical logic of arms races, which usually holds that if an
adversary has a weapon, then a State should have an equivalent weapon, a ca-
pability to counter that weapon, or both.33 The credible deployment of a single
space weapon in orbit can have the effect of destabilizing outer space without
ever being fired.
The legal regime established by the Outer Space Treaty is bespoke and was
intended to manage bipolar great power rivalry in the Cold War and establish re-
straint in space. It quite effectively accomplished this task. The United States and
the Soviet Union, despite being sworn ideological adversaries, often cooperated
in space and maintained open lines of communication with regard to their
33 James A. Lewis, Reconsidering Deterrence for Space and Cyberspace, in Anti-Satellite
Weapons, Deterrence and Sino-American Space Relations 78–79 (Michael Krepon & Julia
Thompson eds., 2013), and David C. Gompert & Phillip C. Saunders, Paradox of Power: Sino-
American Strategic Restraint in an Age of Vulnerability 103 (2012).
space activities.34 These States even managed to enter into a voluntary morato-
rium on antisatellite weapon (ASAT) testing without coming to an international
legal agreement imposing such a moratorium.35 In the wake of the Cold War,
though, power allocation in space has changed a great deal as plethora of com-
mercial actors have entered the domain, and a number of new State actors are
asserting themselves, such as China and India, the impact of which is considered
in c hapter 3 [Kealotswe-Matlou]. In addition, there are new actors that are using
space as a gateway to ICBMs, such as Iran and North Korea.36 Further, new tech-
nologies like cyberspace and proximity operations open up new, innovative ways
of attacking space assets, which challenge the underlying assumptions that may
have served to limit aggressive activities in the past. So, for instance, a cyberat-
tack that creates no debris would change the strategic math that has otherwise
restrained kinetic attacks that cause debris.
Amid all of this upheaval, the strategic restraint that space law once imposed
is being disrupted. Dominant actors like the United States and Russia have
reopened possibilities of pursuing weaponization of space to defend their
interests and assert their dominance.37 New actors, like China and India, have
openly tested ASATs that can be used against space capabilities.38 While all of
these actors give lip service to the need to keep space secure, none seems to be
willing to truly engage in substantive talks on maintaining multilateral space
security and, instead, opt to entrench themselves within their own national
interests.39 Interestingly, it is these actors that have the most to lose if there is an
escalation to conflict in the space environment.
It is this dynamic that reveals the difference between laws and ethics, and
which illustrates a fundamental weakness in the space law regime. Underpinning
broad, ambiguous legal norms with ethical obligations will only work so long
34 See generally Moltz, supra note 6, chs. 4–5.

35 Laura Grego, A History of Anti-satellite Programs (2012), <https://www.ucsusa.org/sites/de-
fault/files/legacy/assets/documents/nwgs/a-history-of-ASAT-programs_lo-res.pdf> (accessed Mar.
30, 2020).
36 Peter Crail, Iran Makes First Successful Space Launch, Arms Control Association (Mar. 2009),
<https://www.armscontrol.org/act/2009-03/iran-nuclear-briefs/iran-makes-first-successful-space-
launch> (accessed Mar. 30, 2020); and S. Chandrashekar et al., North Korea’s Successful Space Launch
(Bangalore: National Institute of Advanced Studies, 2013), <http://eprints.nias.res.in/765/1/2013-
R20-North%20Korea%20Successful%20Space%20Launch.pdf> (accessed Mar. 30, 2020).
37 E.g., Kyle Mizokam Is Russia’s Mysterious New Satellite a Space Weapon?, Popular Mechanics
(Aug. 15, 2018), <https://www.popularmechanics.com/military/weapons/a22739471/is-russias-

mysterious-new-satellite-a-space-weapon/> (accessed Mar. 30, 2020); and Mike Wall, Trump Signs
Directive to Create a Military Space Force, Space.com (Feb. 21, 2019), <https://www.space.com/
president-trump-space-force-directive.html> (accessed Mar. 30, 2020).
38 Carin Zissis, China’s Anti-Satellite Test, Council on Foreign Relations (Feb. 22, 2007), <https://
www.cfr.org/backgrounder/chinas-anti-satellite-test> (accessed Mar. 30, 2020); and Jeff Foust, India

Tests Anti-Satellite Weapon, Space News (Mar. 27, 2019), <https://spacenews.com/india-tests-anti-
satellite-weapon/> (accessed Mar. 30, 2020).
39 These issues are discussed at length in c hapter 2 [Hitchens].
as the dominant parties pursue those ethical goals. If and when those parties
abandon their ethical obligations, they are only left with the bare text of the law,
which is open to reinterpretation. While space law manages to affirmatively ban
nuclear weapons from the domain of outer space, it relies on ethical obligations
to structure the bulk of other space security issues. In order to be truly operative,
the text of the law depends on States to be committed to humanist and multi-
lateral ethics in outer space. Without these ethical notions, the text of the Outer
Space Treaty is extraordinarily permissive. If States are willing to abuse this per-
missiveness, then strategic stability in space may be dramatically rewritten or,
worse, lost.
Conclusion
The underlying ethics of humanism and multilateralism are currently losing

their hold globally, and this is not unique to space law. In recent years, popu-
list politics have become a clear force in numerous national arenas, and these
movements reject notions of international human rights and multilateral co-
operation. Instead, they adopt “nation first” perspectives. Populism’s appeal is
usually based on local perceptions of localized problems, but it fails as an ide-
ology in complex, multinational, and ambiguous domains like space wherein
stances based solely on national interest can effectively destabilize the entire
environment.
Of course, States need not abandon their own national agendas. National
agendas are part of the “political independence” guaranteed in the UN Charter.
However, the turn away from the ethical components of international govern-
ance could serve to strip the system of the values that have supported it since
1945. The ethical content of law is important to shaping and understanding the
legal content of law and the values that the law seeks to defend. The drafters of the
Outer Space Treaty placed ethical content into space law to ensure the security
of outer space in light of great power rivalry. What is now needed is for States
to recognize that those same ethical values can be used to support space secu-
rity in a world of multipolar rivalry. The same environmental concerns and the
same strategic concerns still dominate the use of space by States. While reaching
consensus outside of a bipolar geopolitical environment is more difficult, space
actors are faced with many of the same issues that were foundational to Cold War
restraint. Further, the expansion of commercial uses of space heighten the need
for States to reconnect with the peaceful ethic of outer space to help secure and
protect investment in innovation in space.
The stretching of national security between the letter of the law and the ethics
of maintaining international peace and security is an untenable dichotomy.
International peace and security is a norm with ethical and legal content that is
meant to prevent conflict, which affects the national and human security of all
States, whether terrestrially or in space. Discarding the spirit of the law to take
advantage of the permissiveness of the letter of the law can be a folly with grave
consequences.
5
U.S. Space Dominance
An Ethics Lens
Joan Johnson-Freese and Kenneth Smith
Introduction
“If the U.S. is to avoid a ‘Space Pearl Harbor’ it needs to take seriously the possi-
bility of an attack on U.S. space systems.”1 That was the warning from the 2001
Rumsfeld Commission Report, chaired by the Honorable Donald Rumsfeld just
prior to Rumsfeld becoming the twenty-first secretary of defense.2 There are various
schools of thought regarding the use of outer space. On one end of the spectrum, as
the Rumsfeld Commission quote indicates, are those who contend space warfare
is inevitable,3 thus, the rational and necessary response is to prepare for the worst.
This school of thought suggests the only way, or at least the best way, for the United
States to prevent a war in space is through sustained U.S. space superiority4 or even
dominance,5 the two terms often used interchangeably, referencing an unchallenge-
able ability to control access to and actions in space. This school has increasingly
prevailed as the U.S. approach to space security.
In a February 2018 speech in Orlando, Florida, Chief of Staff of the Air Force
General David Goldfein said that the United States will be waging war “from
space . . . in a matter of years,” and as a result, the air force must “embrace space
superiority with the same passion and sense of ownership as we apply to air
1 Donald H. Rumsfeld et al., Report of the Commission to Assess United States National Security
Space Management and Organization (Jan. 11, 2001), <https://fas.org/spp/military/commission/ex-

ecutive_summary.pdf> (accessed Mar. 30, 2020).
2 Historical Office: Office of the Secretary of Defense, Donald H. Rumsfeld: George W. Bush
Administration, <http://history.defense.gov/Multimedia/Biographies/Article-View/Article/571280/
donald-h-rumsfeld/> (accessed Mar. 30, 2020).
3 Joan Johnson-Freese, Space Warfare in the 21st Century: Arming the Heavens 57–63
(2017).
4 Colin Clark, CSAF Predicts War in Space “In a Matter of Years,” Breaking Defense (Feb. 26,
2018), <https://breakingdefense.com/2018/02/csaf-predicts-war-in-space-in-a-matter-of-years/>
(accessed Mar. 30, 2020).
5 General John Hyten, Secretary Heather Wilson, and Congressman Mike Rogers, National
Security Space Strategy, interview by David Martin, CBS News (Dec. 2, 2017), <https://www.c-span.
org/video/?438064-2/national-security-space-strategy> (accessed Mar. 30, 2020).
Joan Johnson-Freese and Kenneth Smith, U.S. Space Dominance In: War and Peace in Outer Space. Edited
DOI: 10.1093/oso/9780197548684.003.0006
superiority today.”6 Some U.S. decision makers are pushing the issue even further.
Upon learning China is now considered a “peer” to the United States in terms of
space capability, and Russia a “near peer,” Representative Mike Rogers, chairman
of the U.S. House Armed Services Committee, has stated, “That’s unacceptable
that we’ve allowed that to happen.”7 Moreover, Rogers was among the first to call
for the Space Force created in 2019 to manage the threats China and Russia pose
to U.S. space assets.8 On the other end of the spectrum are those who believe
space should be regarded as a sanctuary and should only be used for peaceful
purposes. However, the dual-use nature of most space technology (it is useful
for both peaceful and military purposes) and the fact that it is difficult to know
whether military technology is intended for offensive or defensive purposes
makes this perspective inherently untenable, especially since “peaceful” has been
interpreted in multiple ways by different countries and venues.
An argument can also be made that if one believes war is inevitable, then war
is inevitable,9 which would include space warfare. Declaration of space warfare’s
inevitability, coupled with continued U.S. space dominance, could be a driving
factor in a major conflict between the United States, China, Russia, and/or others,
including military conflict in space that could render space unusable for future
generations. Such rhetoric, thus, demands ethical analysis. In his 2004 article ti-
tled “Moral and Ethical Decisions Regarding Space Warfare,” then Colonel John
Hyten, now General Hyten and Commander of U.S. Strategic Command, pro-
vided another standpoint regarding the ethics of U.S. space policy. In the article
he writes, “The conflict between moral and ethical principles revolves around
whether, on the one hand, space should be held as a sanctuary from weapons or,
on the other, whether our nation has a moral duty to furnish those it asks to go
in harm’s way with the tools that will increase their effectiveness and reduce their
casualties.”10 General Hyten also contended that since the United States depends
on space more than anyone else, it would be unfair for the United States to sign
an updated agreement or treaty since it would have to surrender its substantial
advantage.11 Additionally, he argued the bulk of threats against the United States
are either irrational or non-State actors, and as such, diplomatic reasoning with
said threats is not an option.12
6 Clark, supra note 4.

7 Sandra Erwin, Chairman Rogers: Space Corps Needed More Than Ever, Air Force “in Denial,”
SpaceNews (Feb. 28, 2018), <http://spacenews.com/chairman-rogers-space-corps-needed-more-
than-ever-air-force-in-denial/> (accessed Mar. 30, 2020).
8 Id.
9 Marc Genest, “Thucydides Insights Into: Man, the State, and the Peloponnesian War” (lecture,
U.S. Naval War College, Newport, RI, Nov. 28, 2017).

10 John Hyten & Robert Uy, Moral and Ethical Decisions Regarding Space Warfare, 18:2 Air &
Space Power Journal 54 (2004).

11 Id. at 58.
12 Id. at 58.
US Space Dominance 125
The methodology developed by Santa Clara University’s Markkula Center for

Applied Ethics, utilizing utilitarian, rights, fairness, common good, virtue, and
technology considerations as ethical decision-making lenses, provides an an-
alytical framework for consideration of space dominance; this chapter will ex-
amine space warfare within this analytical context. The Markkula framework is
useful for this analysis since it is meant to help guide decision-making, whereas
many other ethical frameworks simply focus on the ethical nature of a given sit-
uation. In addition, this chapter will examine space dominance ethics as a func-
tion of time and contractarianism. Ethics, as defined by Manuel Velasquez et al.
at the Markkula Center, are “well-founded standards of right and wrong that pre-
scribe what humans ought to do, usually in terms of rights, obligations, benefits
to society, fairness, or specific virtues.”13 Morals, however, are often thought of as
an individual’s personal compass and his/her definition of right and wrong. In
practice, however, the terms “ethics” and “morals” are often used interchange-
ably, and the forthcoming analysis will follow this convention.
Ethics Analysis: The Utilitarian Approach
Velasquez et al. at the Markkula Center describe a utilitarian approach as one that
focuses on consequences and deems an action ethical if it “produces the greatest
balance of good over harm.”14 This approach is often the default in Western cul-
ture. For example, when fictional hero Jack Bauer, in the television series 24,15
must torture a suspected terrorist to obtain information that will save a city from
imminent nuclear disaster, he is taking a utilitarian approach. Violating the
suspect’s human right to not be tortured is morally justifiable because doing so
will save thousands of lives and, thus, maximizes good versus harm. Similarly,
the utilitarian approach was the lens through which the alleged torturing of
suspected terrorists at Guantanamo Bay was deemed justifiable.
A limitation of the utilitarian approach, however, is its focus on consequences
and time horizons. The underlying assumptions of utilitarianism are that: (1) the
person or entity making the decision knows what the consequences of an action
will be; and (2) the intended consequences will be achieved. However, the poten-
tial for unintended consequences is always present—what if, for example, a heroic
person saves five people who would have otherwise been killed by an oncoming
13 Manuel Velasquez et al., What Is Ethics?, Markkula Center for Applied Ethics (Jan. 1, 2010),
<https://www.scu.edu/ethics/ethics-resources/ethical-decision-making/what-is-ethics/>.
14 A Framework for Ethical Decision Making, Markkula Center for Applied Ethics (Aug. 1, 2015),
<https://www.scu.edu/ethics/ethics-resources/ethical-decision-making/a-framework-for-ethical-
decision-making/>.
15 24 (Imagine Entertainment, 2001–2010).
train, but later, one of these five people turns into a mass murderer as a result of
the emotional trauma experienced by the person’s near-death experience—and
intent is difficult to observe and measure. Further, the problem exists of deter-
mining the time horizon for which one is responsible for the consequences of
one’s actions (more on this is Space Dominance as a Function of Time).
As the preceding hypothetical example illustrates, it is often difficult, if not
impossible, to determine intent and consequences of actions. Yet, achieving
consequences that maximize benefit over harm is the underlying principle of
the utilitarian approach. Unlike hypothetical examples in which variables can
be held constant, real-world situations tend to be even more complicated. To
evaluate the ethics of the U.S. mindset that space warfare is unavoidable and,
thus, that space dominance is necessary through a utilitarian perspective, several
subquestions must be answered.
First, does space domination yield the most good and/or the least harm
for all those involved?16 As previously demonstrated, it is often impossible
to know for certain what the consequences of one’s actions will be, but some-
times history can provide an indication. For this case, consider the situation
known as the Thucydides Trap, which stems from Thucydides’ key lesson of the
Peloponnesian War, that is, “The growth of the power of Athens, and the alarm
(fear) which this inspired in Sparta, made war inevitable.”17 Harvard Professor
Graham Allison has taken Thucydides’ hypothesis and applied it to other
historical cases to test its accuracy and persistence. He has found, “The past
500 years have seen 16 cases in which a rising power threatened to displace a
ruling one. Twelve of these ended in war.”18 Most recently, Allison warned that
China’s rise on the world stage, which threatens the U.S. position as the world
hegemon, is the next case study for the Thucydides Trap.19 Combined, these
lessons postulate that as an emerging power such as China rises and inspires
fear in the reigning power, the United States, there is a 75 percent probability
war will take place between the two States.
China’s President Xi Jinping, however, says he disagrees with the concept of
the Thucydides Trap. In a September 2015 speech in Seattle, Xi said, “There is
no such thing as the so-called Thucydides Trap in the world. But should major
countries time and again make the mistakes of strategic miscalculation, they
16 Markkula Center for Applied Ethics at Santa Clara University, “Ethical Decision Making”
Apple App Store vers. 2.4 (2018), <https://itunes.apple.com/us/app/ethical-decision-making/

id799710217?mt=8> (accessed Feb. 15, 2018).
17 The Landmark Thucydides 16 (Robert Strassler ed., 1996).
18 Graham Allison, The Thucydides Trap: When One Great Power Threatens to Displace Another,
War Is Almost Always the Result—But It Doesn’t Have to Be, Foreign Policy (June 9, 2017), <http://
foreignpolicy.com/2017/06/09/the-thucydides-trap/> (accessed Mar. 30, 2020).
19 Id.
might create such traps for themselves.”20 The irony in Xi’s statement is that the
“mistakes of strategic miscalculation” he references are contributing factors, if
not driving forces, in a Thucydides Trap situation arising and resulting in war.
Additionally, Thucydides’ premise that nation-states base their decisions on
some combination of fear, honor, and self-interest21 lends to what international
relations experts call the security dilemma. Harvard scholar John Herz coined
this term in 1950 and described it as a situation in which a State is fearful of
attack from other States and, thus, in “striving to attain security from such an
attack, they are driven to acquire more and more power in order to escape the
impact of the power of others, [which] in turn, renders the others more insecure
and compels them to prepare for the worst.”22 States sometimes strategically mis-
step because they base their strategic calculus on apparent adversaries’ perceived
capabilities and assume the worst of their intentions. The logic behind this ap-
proach, common to the military, is simple: capabilities equal threats. However,
as discussed previously, dual-use space technology makes determining another’s
intent difficult, if not impossible, and at some point, a perpetual capabilities race
becomes unaffordable, unwinnable, and perilous.23
A determination of whether U.S. rhetoric of space dominance yields the most
good and/or the least harm for all those involved also requires identifying who
is included in “all those involved.” If defined as the nearly 7.5 billion24 people
on Earth, theoretically in danger in the event a space war escalated into a war
involving nuclear weapons, the utilitarian answer is likely no, U.S. space dom-
inance rhetoric, with the intent to preserve the status quo for the 327 million
Americans,25 is not morally justified. While space warfare leading to a nuclear
war could be considered an extreme, the strategic nature of many satellites, espe-
cially American, Chinese, and Russian satellites, renders the possibility that an
attack on a strategic space asset could be met with a terrestrial or celestial nuclear
response.26 Next, if “all those involved” are defined as the combined 1.7 billion
people between the United States and China who would potentially be in harm’s
way in the event of a war comprising only these two States, the utilitarian answer
20 Luo Bin, Full Text of Xi Jinping’s Speech on China-U.S. Relations in Seattle, CRI English News
(Sept. 24, 2015), <http://english.cri.cn/12394/2015/09/24/3746s897214.htm> (accessed Mar.

30, 2020).
21 The Landmark Thucydides, supra note 17, at 43.
22 John Herz, Idealist Internationalism and the Security Dilemma, 2 World Politics 157 (1950),
doi:10.2307/2009187.
23 Johnson-Freese, supra note 3, at 8.
24 U.S. and World Population Clock, U.S. Census Bureau (Feb. 17, 2018), https://www.census.gov/
popclock/.
25 Id.
26 Jonathan Broder, Why the Next Pearl Harbor Could Happen in Space, Newsweek (May 4,
2016), <http://www.newsweek.com/2016/05/13/china-us-space-wars-455284.html> (accessed Mar.

30, 2020).
is still likely no, U.S. space dominance rhetoric, with the intent to preserve the
status quo for the 327 million Americans, is not morally justified. If, however,
the outcome is assumed to be that U.S. space dominance rhetoric leads to an in-
crease in the standard of living, or even a perpetual status quo, for the majority
of Americans, while not harming anyone else, this approach would be morally
justified through a utilitarian perspective. Similarly, if assumed that without
U.S. space dominance, the result would be that of a less benevolent State dom-
inating the space environment, thus, not maximizing the balance of good over
harm for the 7.5 billion people on Earth, this approach would be morally justi-
fied from a utilitarian perspective.27
What good and/or harm may occur as a result of the action taken28 must also
be considered as part of a utilitarian assessment. On the one hand, U.S. space
dominance rhetoric could be a component of a larger successful deterrence
strategy that helps prevent major conflict between the United States and another
major State possessing the capability to deceive, disrupt, deny, degrade, or destroy
U.S. space assets. If this is the case, the outcome of a dominance posture is good
for the majority of Americans. However, it is more difficult to know the good or
harm done to people of the rest of the world who may no longer get to enjoy the
benefits of space should the United States decide to deny them these benefits.
To tip the utilitarian scale to “yes, a dominance posture is morally justified” in
this case assumes a net benefit for Americans and either a status quo or net ben-
efit for the rest of the world. This is because even if war does not result from this
posture, a net gain for 327 million Americans with a corresponding net loss for
the remaining 7.1 billion people in the world would not pass the utilitarian test.
If, however, as Allison warns, should China or other entities interpret U.S. space
dominance rhetoric as aggressive, which is plausible, the consequences could be
the so-called strategic mistakes of which Xi spoke. If these strategic mistakes lead
to conflict, the results could be catastrophic, either by destroying the space en-
vironment or escalating to nuclear war, and it would mean the U.S. space domi-
nance approach would likely fail the utilitarian test.
Finally, how the outcome is measured—for example, financial gain, suffering,
net lives lost, security, and so forth—also comes into play.29 Space dominance
advocates might contend that it leads to a sustained or improved standard of
living for the majority of Americans enjoying the daily benefits of U.S. space
technology. Indeed, it could be argued that the majority of the world’s population
benefits from this state of affairs. Perhaps the most obvious example of this is the
27 Tim Schultz (Associate Dean of Academics for Electives and Research, U.S. Naval War College),
email correspondence with the author, Feb. 26, 2018.

28 Markkula Center for Applied Ethics at Santa Clara University, “Ethical Decision Making” Apple
App, supra note 16.

29 Id.
GPS satellite constellation, paid for and operated by the United States, providing
Positioning, Navigation and Timing (PNT) data to people worldwide free of
charge, and thereby, an increased standard of living than might otherwise exist.
Additionally, there is an argument that U.S. space dominance ensures its mili-
tary can operate successfully anywhere in the world and, therefore, Americans,
and even the majority of the world’s population, enjoy a more secure world than
might otherwise exist. With the United States equipped to act as the world’s
peacekeeper, proponents could argue that fewer lives are lost due to unnecessary
conflicts arising that might result if the United States was not able to act as medi-
ator. This might well lead to less suffering and increased prosperity in the global-
ized economy. Given this outcome, space dominance easily passes the utilitarian
test and would be deemed morally justified.
Alternatively, U.S. space dominance rhetoric leading to war that includes
space could also mean the loss of the benefits Americans and the rest of the world
enjoy from space technology. For example, were the GPS satellite constellation
disrupted, denied, degraded, or destroyed, preventing not just the loss of posi-
tioning and navigation ability but also the loss of timing capability upon which
many global financial firms depend for transactions, it is not a far stretch to im-
agine global pandemonium. The United States, without its “eyes and ears”30 in
space would be much less capable of knowing and understanding the global en-
vironment, and would be much less capable of intervening, which could foster
more and/or continued conflicts across the globe. Certainly, if this were the out-
come, the space dominance approach fails the utilitarian test and would not be
morally justified.
Ethics Analysis: The Rights Approach
Velasquez et al. at the Markkula Center describe the “rights” approach to ethics
as the “action that best protects and respects the moral rights of those affected
[that] starts from the belief that humans have a dignity based on their human
nature.”31 Perhaps the most famous disciple of the rights approach is eighteenth-
century philosopher Immanuel Kant, who stated, “Act so that you treat hu-
manity, whether in your own person or in that of another, always as an end and
never as a means only.”32 The rights approach is thereby often in contrast with
the utilitarian approach that seeks to maximize good over harm that may include
30 General John Hyten et al., supra note 5.

31 A Framework for Ethical Decision Making, Markkula Center for Applied Ethics, supra note 14.
32 Louis Zukofsky, Sincerity and Objectification, 37 Poetry 269 (Feb. 1931), quoted in Bonnie
Costello & Marianne Moore, Imaginary Possessions 78 (1981).

treating people as means to an end. Some examples of rights include “the right
to life, the right to freedom from injury, and the right to privacy.”33 Indeed, the
U.S. Declaration of Independence declares that all people have “certain unalien-
able rights, that among these are Life, Liberty, and the Pursuit of Happiness.”34
Described another way, rights are warranted assertions on others. For instance,
if, as the Declaration of Independence ascribes, I have a right to life, this requires
that others not kill me, or said differently, others have an obligation, or duty, to
not interfere with my right to life.35
Consider a hypothetical situation in which a bystander is standing on a
bridge next to a stranger overlooking a track on which a train is approaching on
course to kill five workers.36 The stranger, if placed between the train and the five
workers, comprises enough mass to prevent the train from killing the workers,
but this would kill the stranger. The bystander can either let the train continue
on its course, allowing the five workers to be killed or push the stranger in front
of the train, killing the stranger, but saving the five workers. Whereas a strict
utilitarian might support this approach since it could be argued it achieves the
greatest balance of good over harm, a Kantian approach would declare this ac-
tion unethical since the stranger is being used as a means to achieve an end, that
is, sacrificing one to save five.
Given this hypothetical example as a backdrop, how ethical is the
U.S. mindset that space warfare is unavoidable and, thus, that space domi-
nance is necessary when viewed through a Kantian, or rights, perspective?
Answering this question again requires further considerations. First, does this
action best respect the rights and dignity of those who have a stake?37 Consider
which rights are at stake in this real-world scenario, specifically, as the 1967
Outer Space Treaty states:
Inspired by the great prospects opening up before mankind as a result of man’s

entry into outer space, recognizing the common interest of all mankind in the
progress of the exploration and use of outer space for peaceful purposes, believing
that the exploration and use of outer space should be carried on for the benefit
of all peoples irrespective of the degree of their economic or scientific develop-
ment, desiring to contribute to broad international co-operation in the scientific
33 Velasquez et al., supra note 13.

34 The Constitution of the United States of America with the Declaration of
Independence 81 (2012).
35 Manuel Velasquez et al., Rights, Markkula Center for Applied Ethics (Aug. 8, 2014),<https://
www.scu.edu/ethics/ethics-resources/ethical-decision-making/rights/>.
36 William Casebeer, “The Neurobiology of Free Will” (lecture, U.S. Naval War College, Newport,
RI, Sept. 27, 2017).

App, supra note 16.

as well as the legal aspects of the exploration and use of outer space for peaceful
purposes, believing that such co-operation will contribute to the development
of mutual understanding and to the strengthening of friendly relations between
States and peoples38 (emphasis added).
The treaty makes it clear that space is intended to be used by and benefit all
mankind and all peoples for peaceful purposes to contribute to international co-
operation that stimulates mutual understanding and strengthens friendly rela-
tions. It seems equally apparent that any State’s “dominance” in space such that
it impedes another’s right to use space for peaceful purposes would inherently
violate the Kantian ethical test.
Nevertheless, proponents of U.S. space dominance contend the United
States is only seeking the ability to deny States’ use of space for non-peaceful
purposes. Again, however, the dual-use nature of the vast majority of space
technology makes it highly unlikely that the United States, or any State, could
adequately and consistently differentiate between another State’s space tech-
nology being used for peaceful or non-peaceful purposes. Therefore, it seems
more likely that one State’s space dominance would infringe upon another
State’s right to use space for peaceful purposes as well as its inherent dignity,
or self-respect, in its pursuit of peaceful space exploration and use. Thus,
space dominance fails the Kantian test and would not be considered morally
justified.
Equally important to answer are the questions of whether the actions treat
others as a means to an end39 and whether the actions help or hinder others in
obtaining a minimum standard of well-being.40 In answering the former, an ar-
gument can be made that the United States may achieve space dominance only
insofar as it relates to the space capabilities, or lack thereof, of other entities. If
the United States focuses solely on developing its own capabilities to attain space
dominance, it is not using other entities as the means by which to achieve its
end. The latter question is difficult to answer since it requires the daunting task
of forecasting consequences and is based on a subjective standard of well-being
that varies from culture to culture and even within a given culture. Consequently,
the Kantian approach to analyzing the ethics of U.S. space dominance yields am-
biguous results at best.
38 “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, Including the Moon and Other Celestial Bodies” (General Assembly Resolution 2222 (XXI),
annex)—adopted on Dec. 19, 1966, opened for signature on Jan. 27, 1967, entered into force on Oct.
10, 1967.
App, supra note 16.

40 Id.
Ethics Analysis: The Fairness Approach
The fairness approach, as Velasquez et al. at the Markkula Center state, “ethical
actions treat all human beings equally—or if unequally, then fairly based on
some standard that is defensible.”41 This perspective is the foundation of a variety
of popularly held beliefs, for example, the belief that people deserve equal pay
for equal work and that people who work harder and/or contribute more to an
organization or society deserve to be compensated more than those who work
less hard and/or contribute less. That said, an ethical standard that would claim,
for example, that chief executive officers (CEOs) of major corporations should
be compensated more for the extraordinary value they bring to a company is
often called into question when CEO salaries are hundreds of times that of the
common company employee.42 Discerning, using the fairness approach, the mo-
rality of the statement that space warfare is unavoidable (and, thus, that U.S. space
dominance is necessary) requires that one address additional considerations.
First, does this action treat people impartially and equitably? The answer to
this question is no, the U.S. space dominance approach does not, inherently,
treat all people (or countries, as potential adversaries) impartially and equi-
tably as the fairness approach to ethics requires. This is not surprising, however,
since this type of rhetoric has been a staple of military commanders throughout
history. Like military commanders of the past, U.S. military commanders are
purposely and continuously seeking to gain an advantage over any potential ad-
versary. As General Hyten articulated in a December 2017 interview, “China and
Russia . . . for the last 20+ years have been . . . developing capabilities . . . to chal-
lenge the United States of America, to challenge our allies, and to change the
balance of power in the world, and we cannot allow that to happen.”43 Regardless,
from a fairness perspective, this approach would not be morally justified unless
there is a defensible standard allowing for the United States to seek an asym-
metric advantage in space.
If the action does not treat people impartially and equitably, the fairness ap-
proach considers whether or not a defensible standard exists to treat someone
differently.44 Space dominance proponents might contend that all sovereign
States have a right to self-defense and, correspondingly, the right to possess a
military capable of defending the State from aggressions of another State. The
logic goes that the United States, like all States, has the right to protect itself,
should the need arise, in all domains by which an adversary might attempt to
42 Id.
App, supra note 16.

attack. In the U.S. Department of Defense (DoD), these domains are defined as
land, air, sea, space, and cyberspace.
The problem with treating all of these domains of combat as “just another
warfighting domain” is that, contrary to popular U.S. rhetoric, they are not the
same, and space and cyberspace are very different. The land, air, and sea domains
can be physically claimed, and they can be intruded upon. Cyberspace is dif-
ferent in that an entity can attack another through it without physically intruding
into the other’s land, air, or sea domains. While the space environment is a phys-
ical location, the 1967 Outer Space Treaty specifically designates it as an open
commons for all humanity to use for peaceful purposes. Moreover, the physics of
space flight requires that satellites in most orbits “pass over” a number of sover-
eign States in order to maintain their orbits. Perhaps most importantly, though,
space is different in that a kinetic conflict in the land, air, sea, and cyberspace
domains that brings wreckage and destruction can usually, with the exception
of total nuclear war, be cleaned up and repaired relatively quickly, whereas a ki-
netic conflict in space could render the entire domain unusable for generations.
Therefore, determining whether or not a defensible standard exists justifying the
U.S. approach to space dominance as morally acceptable depends on whether or
not space is viewed as “another warfighting domain” or, as the 1967 Outer Space
Treaty stipulates, a “common interest for all mankind.” This analysis takes the
view of the latter and, thus, the U.S. space dominance approach would not be
morally justified via the fairness approach.
The third consideration to be addressed in the fairness approach is whether
there might exist some bias or self-interest causing the person taking the ac-
tion to prefer one person, group, or approach over others.45 Even proponents
of U.S. space dominance would agree “dominance” favors America and its allies
over all others. From an international relations standpoint, this approach is ex-
pected. From a fairness perspective, however, this approach would not be mor-
ally justified.
Additionally, the underlying bureaucratic structures that create incentives
for pursuing unrealistic technology solutions to real or perceived space threats,
rather than diplomatic solutions, must be addressed. In some specialized
commands, like space, the feeder system of senior military officers into lu-
crative defense jobs is such that generations of officers are hired into the same
firm. While there are rules regarding post-retirement employment for military
officers, the loopholes are such that the relationship between active-duty and
post-retirement employment for military officers at defense firms is not just a
revolving door, but a blender.46
45 Id.
46 Johnson-Freese, supra note 3, at 112–17.
It must then be considered that creating and developing technology is much

more financially lucrative for those involved than pursuing diplomatic avenues
to problem-solving. Cost-benefit analyses of various segments of the broad, in-
clusive, and very expensive U.S. missile defense program—first referred to as a
“moral imperative” during the Bill Clinton years and again referenced as such in
the Trump administration,47 have, for example, raised questions regarding mo-
tivation.48 The “answer” to making missile defense operationally viable above a
“better than zero”49 or at best “50–50”50 level always seems to be one lucrative
contract away.
On the other hand, these three-and four-star generals and admirals highlight
the added value they bring to the DoD by facilitating connections between in-
dustry and government in support of U.S. national security. For instance, retired
Air Force General Gregory “Speedy” Martin, who is an advisory board member
of the DoD consulting organization known as the Four Star Group,51 contends,
“Access sounds sleazy, but it brings a value. I am interested in doing things that
I think the Air Force or [Department of Defense] might benefit from.”52 This
DoD-industry revolving door situation creates somewhat of an ethical gray
zone, especially from a fairness perspective. By virtue of their rank and experi-
ence, these generals and admirals have access to key government leaders others
do not have. As a result, they receive lucrative offers and positions from the de-
fense industry following their retirement from active duty.53 The “defensible
standard” from a fairness approach in this case might articulate the added value
retired generals and admirals provide and the associated benefit to U.S. national
security. However, both on active duty and in retirement, these generals and
admirals must ensure they are not abusing the power with which they have been
entrusted, which includes properly advocating, when doing so is in the best in-
terest of the United States or even the world’s population, for options other than
47 Peter Huessey, A Moral Imperative: Trump Must Enhance U.S. Missile Defense, The Hill (Dec.
18, 2017), <https://thehill.com/opinion/national-security/365472-a-moral-imperative-trump-

must-enhance-us-missile-defense> (accessed Mar. 30, 2020).
48 Johnson-Freese, supra note 3, at 117–130.
49 Wade Boese & Miles A. Pomper, Defending Missile Defense: An Interview with MDA Director Lt.
General Henry Obering, Arms Control Association (Nov. 1, 2005), <https://www.armscontrol.org/

act/2005_11/NOV-OberingCVR> (accessed Apr. 20, 2020).
50 Joe Cirincione, No, We Cannot Shoot Down North Korea’s Missiles, Defense One (Sept. 17,
2017), <http://www.defenseone.com/ideas/2017/09/no-we-cannot-shoot-down-north-koreas-
missiles/141070/> (accessed Apr. 20, 2020).
51 The Four Star Group, About the Group (2008), <http://www.thefourstargroup.com/index.
html>.
52 Bender, Bryan, ‘From the Pentagon to the Private Sector,’ The Boston Globe, (Dec. 26, 2010),
< http://archive.boston.com/news/nation/washington/articles/2010/12/26/defense_firms_lure_re-
tired_generals/>.
53 Id.
the next big contract. To do anything less would be deemed unethical from a
fairness perspective.
Ethics Analysis: The Common Good Approach
The common good approach to ethics dates back to Plato and Aristotle54 and is
defined by Velasquez et al. at the Markkula Center as contributing to the “social
systems, institutions, and environments on which we all depend [such that they]
work in a manner that benefits all people.”55 In Western cultures, this approach
is perhaps the least intuitive since it may require acting against one’s self-interest
for the benefit of the common good. When a for-profit company, for example,
decides to spend money to develop packaging that reduces waste for the sake of a
more sustainable environment, it is acting in accordance with the common good
approach to ethics. Similarly, when an individual decides to limit his time in the
shower, even when he would prefer to shower longer, in order to do his part to
contribute to water conservation efforts, he is taking a common good ethics ap-
proach. The common good approach sometimes requires certain individuals or
groups to shoulder more of the burden or bear more of the costs than others
for the benefit of the common good. For example, ensuring that employment
and promotion opportunities are equal for all people regardless of gender or
race may require some groups to relinquish some of their own opportunities.56
Hence, assessing the morality of space dominance through a common good lens
is structurally complex.
First, one must consider whether the action best serves the community in
general, as opposed to simply benefiting some members.57 Again, space domi-
nance proponents might argue that since the United States is a noble nation, the
world is a better place with the United States as its peacekeeper, and space dom-
inance is critical to the ability of the United States to provide this global service.
If that is the case, U.S. space dominance is not only morally justified but may be
morally imperative through the common good lens. Opponents, however, might
contend that the United States, like most if not all nations, acts only in ways from
which it benefits. Opponents could, for example, question the congruence of the
supposed concern of the United States for human rights in areas it deems vital
or critical to its interests, for example, the Persian Gulf region, but lack thereof
54 Manuel Velasquez et al., The Common Good, Markkula Center for Applied Ethics (Aug. 4, 2014),
<https://www.scu.edu/ethics/ethics-resources/ethical-decision-making/rights/>.
55 Id.
56 Id.
App, supra note 16.

in other areas, for example, several countries with less than stellar human rights
track records in Africa. Thus, they could assert U.S. space dominance dispropor-
tionately benefits America, its allies, and its interests compared to the benefit the
rest of the world receives, which means U.S. space dominance would not be mor-
ally justified via the common good approach.
Whether or not the results of the action give everyone the prospect to flourish
must also be considered,58 as well as whether the action affects the resources
everyone must share, including the environment.59 Proponents and opponents
would likely offer the same respective responses that they offered to the first
question, and, therefore, proponents would say U.S. space dominance is mor-
ally justified, while opponents would say it is not. Regarding resources, such as
orbital slots, proponents of U.S. space dominance might argue space dominance
does not necessarily mean adding significantly more satellites to space, thereby
claiming orbital “slots” in desirable orbits. They might also say while the United
States owns 803 of the 1,738 operational satellites in space as of August 31, 2017,
compared to 204 satellites owned by China and 142 owned by Russia, 476 of
the United States’ 803 satellites are commercial in nature and therefore provide
services to people worldwide, not only Americans.60 This argument, however,
appears weak at best. As opponents would assert, U.S. space dominance, by def-
inition, affects the finite, albeit large, resource of highly desirable satellite or-
bital slots, and thus, this approach would not be morally justified based on the
common good approach.
Ethics Analysis: The Virtue Approach
The virtue approach (or virtue ethics as it is often called), as defined by Velasquez
et al. at the Markkula Center, means acting in accordance with the virtues that
facilitate the complete progression of one’s humanity.61 When performing an
action, a virtuous person must strive toward ideal virtues such as “honesty,
courage, compassion, generosity, tolerance, love, fidelity, integrity, fairness, self-
control, and prudence [and must ask], What kind of person will I become if I do
this?”62 Virtue ethics seek to move a person away from simply following ethical
rules and toward the building of a virtuous character through repetition of vir-
tuous actions that become habits. For example, when a person decides to forgo
58 Id.
59 Id.
60 UCS Satellite Database, Union of Concerned Scientists (Dec. 8, 2005), <https://www.ucsusa.
org/resources/satellite-database#.WooZDWbMxTY>.
62 Id.
a social event with friends in order to volunteer at the local homeless shelter,
virtue ethicists would prefer this decision not be made because it will provide the
greatest balance of good versus harm as a utilitarian would suggest, nor because
it provides the greatest benefit to the common good, but rather because doing so
is consistent with, and propels the individual closer to achieving, their desire to
become a generous person. Admittedly, it is difficult to adequately apply virtue
ethics across an entire nation-state writ large as opposed to an individual; never-
theless, this analysis will treat the United States as an individual for purposes of a
virtue ethics evaluation.
The first consideration of a virtue ethics analysis is whether the action is con-
sistent with, and moves one closer to, the ideal type of person one is striving to
become.63 While proponents of U.S. space dominance might contend the world
is a better place with the United States as its peacekeeper, they might find it dif-
ficult to identify a positive virtue that this approach exemplifies, unless serving
as “peacekeeper” or “policeman” is defined as a virtue. The United States has
claimed aspirations of being the world’s beacon for democracy, freedom, equality,
opportunity, fairness, and justice. It would appear difficult to argue space dom-
inance is consistent with, or moves the United States closer to, achieving what it
claims to aspire to be; thus, this approach would not be deemed morally justified
according to virtue ethics.
Also important to any virtue ethics analysis of this topic is the question of
what character traits space dominance demonstrates.64 Objectively, striving for
space dominance might be characterized as demonstrating overconfidence and
self-absorption. Overconfidence because the desire for space dominance stems
from the refusal of the United States to accept that it is no longer the unipolar
hegemon it was for a brief period after the collapse of the Soviet Union in 1991,
though intelligence reports consistently characterize the world as multipolar.65
Additionally, it demonstrates overconfidence because, pragmatically speaking,
space dominance is a technical fallacy unachievable by any nation. The prepon-
derance of satellites in space are made with lightweight and easily damageable
material so as to maximize payload capability and fuel load, that is, satellite life
expectancy. Moreover, satellites are expensive, and the kinetic energy of their
orbits makes them susceptible to destruction from much smaller, less expensive
means. Any nation with the launch capability to reach space could destroy the
space environment for everyone. So, while the United States spends billions of
dollars endeavoring to reach space dominance, a State or non-State entity could
App, supra note 16.

64 Id.
65 Linda Yueh, America’s Place in a Multi-Polar World, BBC News (Apr. 27, 2015), <https://www.
bbc.com/news/business-32427364> (accessed Mar. 30, 2020).

destroy the space environment for a fraction of the cost.66 Striving for space dom-
inance also demonstrates self-absorption because U.S. space dominance rhetoric
broadcasts to the world the United States cares primarily about itself. While it
can be argued this could likely be said of every State, self-absorption has not been
a virtue the United States has aspired to, although one could argue this mantra is
shifting under the Trump administration. Practical realism aside, it seems clear
the U.S. space dominance approach would fail the virtue ethics test since it does
not demonstrate the character traits it claims to aspire to portray.
Finally, what character habits would one be developing by taking this ac-
tion?67 Building upon the previous consideration, U.S. space dominance objec-
tively exemplifies the character traits of overconfidence and self-absorption, thus
the resultant habits being developed could be labeled respectively as arrogance
and narcissism. While self-interest is normal from an international relations
standpoint, applying a virtue ethics lens to U.S. space dominance uncovers traits
to which the United States has not claimed to aspire throughout its history, and
thus, U.S. space dominance would not be morally justified through virtue ethics.
When Technology Complicates Ethics
Velasquez et al. at the Markkula Center define technology ethics as “the applica-
tion of ethical thinking to the practical concerns of technology.”68 Technology
ethics requires pushing beyond the question of “Can it be done?” to the ques-
tion of “Should it be done?” The premise of technology ethics is essentially that
almost every technology is dual-use in that it can be used for good and/or evil
purposes as seen in the following examples.
At a simple level, a hammer can help a person build a house, or it can be used
to kill someone. The Romans built the largest and most complex road system
in the ancient world, which enabled the Roman Empire to expand to almost
1.7 million square miles,69 but this also led to the overexpansion that contributed
to its downfall.70 During the nineteenth century as the United States expanded
66 Lewis Duncan (Provost, U.S. Naval War College and founding member of the Board of Directors
of the Center for the Advancement of Science in Space), interview by the author, Feb. 13, 2018.
App, supra note 16.

68 Brian Green, What Is Technology Ethics, Markkula Center for Applied Ethics, Santa Clara
University <https://www.scu.edu/ethics/focus-areas/technology-ethics/>.
69 Evan Andrews, 10 Innovations That Built Ancient Rome, History Stories, History.com (last
modified Nov. 20, 2012), <http://www.history.com/news/history-lists/10-innovations-that-built-

ancient-rome> (accessed Mar. 30, 2020).
70 Evan Andrews, 8 Reasons Why Rome Fell, History Stories, History.com (last modified Jan.
14, 2014), <http://www.history.com/news/history-lists/8-reasons-why-rome-fell> (accessed March

20, 2020).
westward, the transcontinental railroad connected the East and West coasts,
which made travel and economic expansion much more attainable to the masses,
but in doing so it destroyed the Plains Indians’ way of life and forced them onto
reservations.71
More recently, social media has been examined under the technology ethics
microscope. While social media is touted as a technology to bring people to-
gether and help people maintain relationships that might otherwise be lost,
the 2016 U.S. presidential election highlighted how it can be used for nefar-
ious purposes. Specifically, Facebook admitted that approximately 470 Russian
Kremlin-linked accounts purchased “more than $100,000 worth of divisive ads
on hot-button issues”72 designed to influence the outcome of the election.73
Likewise, one can hardly browse the news today without stumbling across
artificial intelligence (AI), which promises copious advantages, such as helping
humans not only make sense of but also leverage large data sets. Regarding AI,
Russian President Vladimir Putin said, “Whoever becomes the leader in this
sphere will become the ruler of the world,”74 while entrepreneur and technology
guru Elon Musk warned in a September 2017 tweet, “Competition for AI supe-
riority at the national level most likely cause of WW3 imo (in my opinion).”75 As
these examples show, technology generally is neither inherently good nor evil,76
debates over technologies such as automatic weapons notwithstanding. In the
vast majority of cases, technology is dual-use, and whether its function is good or
evil is determined by how people use it.
Such is the case with space technology. In addition to the GPS examples pre-
viously provided, remote sensing satellites are used by militaries to detect the-
ater and intercontinental missile launches and to cue missile defense systems.77
Alternatively, civil and commercial agencies can use remote sensing satellites to
map forest fires, forecast weather, and track changes to forests and farmlands
71 Gilbert King, Where the Buffalo No Longer Roamed, Smithsonian.com (July 17, 2012),
<https://www.smithsonianmag.com/history/where-the-buffalo-no-longer-roamed-3067904/>.
72 Scott Shane & Vindu Goel, Fake Russian Facebook Accounts Bought $100,000 in Political Ads,
New York Times (Sept. 6, 2017), <https://www.nytimes.com/2017/09/06/technology/facebook-

russian-political-ads.html> (accessed Mar. 30, 2020).
73 Id.
74 The Associated Press, Putin: Leader in Artificial Intelligence Will Rule World, U.S. News &
World Report (Sept. 1, 2017), <https://www.usnews.com/news/business/articles/2017-09-01/

putin-leader-in-artificial-intelligence-will-rule-world> (accessed Mar. 2020).
75 Brett Molina, Elon Musk: Artificial Intelligence Battle “Most Likely Cause” of WWIII, USA
Today (Sept. 5, 2017), <https://www.usatoday.com/story/tech/talkingtech/2017/09/05/elon-musk-

artificial-intelligence-battle-most-likely-cause-wwiii/632362001/> (accessed Mar. 30, 2020).
76 Melvin Kranzberg, Kranzberg’s Laws, 27:3 Technology and Culture 544–560 (July 1986),
<http://www.jstor.org/stable/3105385> (accessed Mar. 30, 2020).

77 Space Based Infrared System (SBIRS), Lockheed Martin, <https://www.lockheedmartin.com/
en-us/products/sbirs.html> (accessed Mar. 2020).

over time.78 Similarly, rocket launching technology is, itself, dual-use in that the
technology capable of propelling a satellite into orbit is virtually the same as the
technology necessary to deliver a nuclear warhead across the globe. Moreover,
roughly the same technology is used for ballistic missile defense as is used in
antisatellite (ASAT) weapons designed to shoot down a satellite.79 Realistically,
the vast majority of space technology can be considered dual-use.
A particular ethical challenge of the dual-use nature of space technology is
using it to disguise intent. This creates a dilemma for an adversary who is trying
to ascertain the intent of the actions of State or non-State actors, which has been
the case since the beginning of the Cold War. Is the adversary developing a
missile defense system or an ASAT weapon, or both? Is the adversary building
rocket-launching capability to send a communications satellite into space or to
launch a missile across the planet, or both? The “safe” answer from a military per-
spective is to assume the worst and prepare. What this has meant for the U.S. mil-
itary regarding space in particular is to strive toward space dominance. As an
example, in February 201880 the U.S. National Space Defense Center (NSDC),
previously called the Joint Interagency Combined Space Operations Center,
began twenty-four-hour operations to consolidate the “Defense Department,
intelligence community and commercial sector to address threats in space, and
unify plans and efforts in orbit.”81
The NSDC began in 2015 as an experiment82 as a result of fears the United
States might be losing its space superiority to China and Russia. China’s January
2007 ASAT demonstration destroyed one of its own obsolete satellites, gener-
ating “the largest debris cloud ever . . . by a single event in orbit”83 and creating
more than three thousand pieces of space debris in the highly congested low
Earth orbit84 where many U.S. imaging satellites and the International Space
Station reside. This is believed to be the first kinetic ASAT action since the
78 What Is Remote Sensing and What Is It Used For?, USGS: Science for a Changing World (Aug.
18, 2016),<https://www.usgs.gov/faqs/what-remote-sensing-and-what-it-used?qt-news_science_
products=0#qt-news_science_products>.
79 Ashton Carter, The Relationship of ASAT and BMD Systems, 114:2 Daedalus 171–189
(1985), <https://www.belfercenter.org/sites/default/files/files/publication/20024984.pdf> (accessed

Mar. 2020).
80 Tom Roeder, Super Secretive Space Defense Center Near Colorado Springs Begins 24- Hour
Operations, The Colorado Springs Gazette (Feb. 18, 2018), <https://gazette.com/military/
secretive-space-defense-center-at-schriever-begins--hour-operations/article_c3577257-49e1-5583-
beb9-1398524da40e.html> (accessed Mar. 30, 2020).
81 Phillip Swarts, The JICSpOC Is Dead; Long Live the National Space Defense Center, SpaceNews
(Apr. 4, 2017), <https://spacenews.com/the-jicspoc-is-dead-long-live-the-national-space-defense-

center/>.
82 Roeder, supra note 80.
83 Brian Weeden, 2007 Chinese Anti-Satellite Test Fact Sheet (Nov. 23, 2010), <https://swfound.org/
media/9550/chinese_asat_fact_sheet_updated_2012.pdf>.
84 Id.
United States and the Soviet Union demonstrated this capability in the 1980s.85
China was subsequently internationally condemned for this 2007 test because of
the space debris it created.86 Then, in 2013, the alarm bells sounded in the United
States when China launched what it claimed to be a “high-altitude scientific ex-
periment”87 that reached higher than 10,000 kilometers in altitude. This led the
United States to believe China potentially possessed ASAT capability to reach
geosynchronous Earth orbit where the United States’ strategic, and very expen-
sive, military communications and missile warning/defense satellites dwell. In
addition, in May 2014, Russia launched a communications satellite, which was
no cause for concern until a few months later when an object from the launch,
previously considered useless space debris, maneuvered to a new orbit and ren-
dezvoused with the rocket stage that launched it.88 Finally, in December 2016,
China created a Strategic Support Force whereby it could consolidate space, cy-
berspace, and electronic warfare competencies.89
As these examples illustrate, China and Russia appear to be advancing their
space capabilities. The U.S. response thus far has been that it “cannot allow that to
happen”90 and that it must achieve space dominance in order to protect the status
quo way of life for America and its allies. From a technology ethics lens, however,
is this approach morally justified? Recall that technology ethicists stipulate one
should ask “Should it be done?” versus “Can it be done?” In this case, as previ-
ously discussed, it is unrealistic to believe any State could actually achieve space
dominance since a few nuclear warheads, or even large conventional warheads,
launched by any disgruntled entity could destroy the space environment for
everyone. Nonetheless, assuming for a moment that space dominance could be
attained, whether or not it should be is a different question.
Answering the question of whether or not space dominance should be pur-
sued requires examining its potential outcome. In his 2017 book Destined for
War, Allison hypothesizes, “China and the United States are currently on a col-
lision course for war—unless both parties take difficult and painful actions to
85 Shirley Kan, China’s Anti-Satellite Weapon Test 2 (2007).

86 Marc Kaufman & Dafna Linzer, China Criticized for Anti-Satellite Missile Test, Washington
Post (Jan. 19, 2007), <https://www.washingtonpost.com/wp-dyn/content/article/2007/01/18/
AR2007011801029.html> (accessed Mar. 30, 2020).
87 Brian Weeden, Anti-Satellite Tests in Space—The Case of China, Secure World Foundation (Aug.
16, 2013), <https://swfound.org/media/115643/china_asat_testing_fact_sheet_aug_2013.pdf>.

88 Jane Hu, The Battle for Space, Slate.com (Dec. 23, 2014), <http://www.slate.com/articles/
health_and_science/space_20/2014/12/space_weapon_law_u_s_china_and_russia_developing_
dangerous_dual_use_spacecraft.html> (accessed Mar. 30, 2020).
89 Nirmal Ghosh, U.S. Seeks to Stay Ahead of China, Russia in Space Race, The Straits Times
(Dec. 11, 2017), <http://www.straitstimes.com/world/united-states/us-seeks-to-stay-ahead-of-

china-russia-in-space-race> (accessed Mar. 30, 2020).
avert it.”91 Tempering bombastic and sometimes chest-thumping U.S. space

dominance rhetoric is the type of “difficult and painful action” Allison might be
referring to, to avoid a conflict. Since space dominance is not an achievable goal
unless all other States and entities were to acquiesce and make it so, the prob-
abilities of which approach zero according to the history of human nature and
international relations, then space dominance is not a proposition that decreases
the chances of armed conflict between the United States and another State or
entity, especially China. It would seem to be the case, then, that the United
States striving toward space dominance brings it closer to armed conflict and
risks, indeed provokes, a more rapid and malignant buildup of space weapons by
other nations (recall the strategic mistakes of which China’s President Xi spoke).
Perhaps a better option is to again heed the words of Thucydides:
That war is an evil is a proposition so familiar to everyone that it would be te-

dious to develop it. No one is forced to engage in it by ignorance, or kept out of
it by fear. If both should happen to have chosen the wrong moment for acting,
advice to make peace would not be unserviceable. This, if we did but see it, is just
what we stand most in need of at the present juncture92 (emphasis added).
This analysis arrives at the conclusion that U.S. space dominance, assessed
through technology ethics, would not be morally justified.
Space Dominance as a Function of Time
In his 1974 essay “Technology and Responsibility,” Hans Jonas, likely reflecting
on the advent of nuclear weapons, argued that ethics tools and frameworks de-
veloped up to that point were not sufficient to evaluate the morality of the use of
technologies of such magnitude and that people have the moral responsibility
to contemplate on and respect forthcoming generations and to guarantee that
the world remains suitable for human inhabitance.93 He explained that prior to
nuclear weapons, human actions were morally judged—appropriately—based
on a relatively short perspective of time in terms of consequences, but after the
development of nuclear weapons this approach no longer suffices. Specifically,
he stated, “It is the aggregate, not the individual doer or deed that matters here;
and the indefinite future, rather than the contemporary context of the action,
91 Graham Allison, Destined for War: Can America and China Escape Thucydides’s
Trap? (2017), Preface.

92 Thucydides, Hermocrates addresses the Sicilians, 424 bce, quoted in Allison, id. at 187.
93 Hans Jonas, Technology and Responsibility, in Readings in the Philosophy of Technology
173–184 (David Kaplan ed., 2nd ed. 2009).

constitutes the relevant time horizon of responsibility.”94 He went on to explain

the unknown consequences of the future are the responsibility of the people per-
forming the actions since “the future is not represented . . . the non-existent has
no lobby, and . . . are powerless, . . . and when they can make their complaint, then
we, the culprits, will no longer be there [to answer for our actions].”95 In short,
Jonas took the limitations of consequentialism and extrapolated them further
into time. As previously discussed, when judging the morality of an action based
on consequences, that is, asserting the ends justify the means, it is often difficult,
if not impossible to know what the consequences of one’s action will be and if
one’s action will yield the intended consequences.
The case of the space environment raises a similar ethical conundrum as does
the use of nuclear weapons in that the cataclysmic consequences are potentially
irreversible, at least for a very long time. In the space environment, this possibility
is known as the Kessler Syndrome, named after Donald Kessler, a NASA scientist
who published a paper in 1978 articulating the exponential rate at which space
debris could multiply following a satellite collision.96 As (over)dramatized in the
2013 movie Gravity,97 space debris traveling at speeds of up to 17,500 miles per
hour98 can quickly create more debris, which creates exponentially more debris
at an ever increasing rate, until the entire space environment is essentially ren-
dered useless pending such time that people develop a way to remove the debris,
or until it eventually experiences “orbital decay” and either burns up in Earth’s
atmosphere or falls to Earth, which could take generations. This escalating debris
process is also known as collisional cascading.99
Analysis of the morality that space warfare is inevitable and, thus, U.S. space
dominance is necessary through an “ethics-as-a-function-of-time” approach
requires consideration of the potential outcomes. One outcome is that all other
States and entities agree the United States should be the dominant space user,
prolonged peace ensues, and no accidental satellite collisions ignite a Kessler
Syndrome situation, destroying the space environment. While this outcome
appears exceedingly unlikely, ethics as a function of time might deem U.S. space
dominance as morally justified in this case since the consequences did not re-
sult in destruction of the space environment. Another, more likely outcome of
94 Id. at 178.
95 Id. at 183.
96 Donald J. Kessler & Burton Cour-Palais, Collision Frequency of Artificial Satellites: The Creation
of a Debris Belt, 83:A6 Journal of Geophysical Research 2,637 (1978), <http://webpages.charter.

net/dkessler/files/Collision%20Frequency.pdf> (accessed Mar. 30, 2020).
97 Gravity (Warner Bros. Pictures, 2013).
98 Space Debris and Human Spacecraft, NASA (Aug. 7, 2017), <https://www.nasa.gov/mission_
pages/station/news/orbital_debris.html>.
99 Chairman, U.S. Joint Chiefs of Staff, Space Operations, Joint Publication (JP) 3–14 (Washington,
DC: CJCS May 29, 2013), I- 9, <http://www.jcs.mil/Portals/36/Documents/Doctrine/pubs/jp3_

14.pdf> (accessed Mar. 30, 2020).
U.S. space dominance rhetoric is that it incites China, Russia, and others to build
up their offensive space capabilities at an increasing rate in an attempt to catch
up to the United States and to prevent the United States from achieving so-called
space dominance.
From here, one could say three broad eventualities are possible: (1) no acci-
dental collision in space occurs despite the rapid influx of space assets as mul-
tiple States strive to attain space dominance; (2) an accidental collision in space
occurs leading to a Kessler Syndrome situation; or, (3) a purposeful collision or
attack in space occurs either as the result of a terrestrial war, or as a first-strike
option to destroy another State’s “eyes and ears” in space prior to, or while simul-
taneously, attacking another State terrestrially. In this case, only the first eventu-
ality described could pass the ethics-as-a-function-of-time test. The latter two
have the potential to render space an unusable environment for generations to
come, and the human way of life would be dramatically affected. Thus, as the
ethics-as-a-function-of-time approach dictates, one must contemplate on and
respect forthcoming generations’ rights, which means, given the latter two even-
tualities described, U.S. space dominance would not be morally justified through
the ethics-as-a-function-of-time lens.
It is important to note, however, that General Hyten and virtually every
other U.S. national security space leader has championed the mantra that
creating space debris is not acceptable. In 2015, General Hyten, as the
Commander of U.S. Air Force Space Command, stated regarding offensive
and defensive space capabilities, “Whatever you do, don’t create debris . . . it’s
bad for the world.”100 Indeed, U.S. national security space leaders have been
very clear that the United States will only seek to utilize nonkinetic approaches
to disabling space vehicles, (i.e., not physically attacking satellites), including
deceiving, disrupting, denying, degrading, or destroying space platforms.
They have also set parameters that when deceiving, disrupting, denying, or
degrading an adversary’s space capability, these effects should be temporary,
not permanent. The problem with this seemingly well-meaning approach is
that simply because the United States is planning to use nonkinetic means
of interference does not necessarily mean other States or entities will do the
same. Furthermore, by broadcasting its planned progress toward space dom-
inance, the United States will most likely instigate other States to more rap-
idly build up their capabilities, the result of which could mean that space,
an environment on which the United States depends so heavily, could be
destroyed.
100 Lee Billings, War in Space, Scientific American (Aug. 10, 2015), <https://www.
scientificamerican.com/article/war-in-space-may-be-closer-than-ever/> (accessed Mar. 30, 2020).

Morality by Social Contract
The 1967 Outer Space Treaty can also be evaluated through a concept similar to
seventeenth-century English philosopher Thomas Hobbes’ idea of a social con-
tract that exists between the governing and the governed for the sake of collec-
tive security and benefit.101 This social contract, Hobbes said, defines the duties
of the governing and the rights of the governed.102 The underlying premises of
Hobbes’ social contract are that individuals are rational, are interested in maxi-
mizing the benefit for themselves, and will, therefore, find it morally rational to
enter into this social contract with the understanding that they stand to benefit
more from collective cooperation and order than from narcissism and chaos.103
More recently, twentieth-century Canadian American philosopher David
Gauthier has postulated what he calls the contractarian theory of morality, or
contractarianism, which he derives from Hobbes’ theory of social contract.104
This theory “holds that persons are primarily self-interested, and that a rational
assessment of the best strategy for attaining the maximization of their self-
interest will lead them to act morally (where the moral norms are determined by
the maximization of joint interest).”105 Contractarianism is based on the prem-
ises that people are driven to act morally within this construct because (1) they
are susceptible to others’ nefarious actions, and (2) they understand they stand
to benefit more via cooperation than they would if everyone acted in isolation.106
Some might argue the 1967 Outer Space Treaty has been a success from a
contractarianism perspective. As of this writing, ninety-one countries have
signed the treaty, including the United States, China, and Russia,107 no known
nuclear weapons or weapons of mass destruction reside in space, and there have
been no kinetic conflicts in space or claims of ownership of the moon or other
celestial bodies, as restricted by the treaty. On the other hand, there has been
considerable debate about whether spacefaring countries are following the in-
tent of the treaty regarding its use strictly for peaceful purposes. For example, in
101 Tom Sorell, Thomas Hobbes: English Philosopher, Encyclopedia Britannica (Mar. 29, 2018),
<https://www.britannica.com/biography/Thomas-Hobbes>.
102 The Editors of Encyclopedia Britannica, Social Contract: Political Philosophy, Encyclopedia
Britannica (Aug. 6, 2019), <https://www.britannica.com/topic/social-contract>.

103 Id.
104 “The Weaponization of Outer Space: Ethical and Legal Boundaries,” Center for Ethics and the
Rule of Law, University of Pennsylvania, conference attended by authors, Apr. 5–7, 2018.
105 Ann Cudd & Seena Eftekhari, Contractarianism, in The Stanford Encyclopedia of
Philosophy (Edward N. Zalta ed., Summer 2018 ed.) (Mar. 15, 2017), https://plato.stanford.edu/
archives/sum2018/entries/contractarianism/.
106 Id.
107 U.S. Department of State, Treaty on Principles Governing the Activities of States in the Exploration
and Use of Outer Space, Including the Moon and Other Celestial Bodies, <https://www.state.gov/t/isn/
5181.htm#signatory> (accessed Apr. 13, 2018).
2007, even Japan, one of the last spacefaring countries to prohibit the use of space
for military purposes, updated its definition of peaceful purposes from “non-
military” to “non-aggressive,” meaning it could now use space for defensive mil-
itary purposes.108
There are, however, at least three inherent limitations of contractarianism.
First, like most agreements, it is vulnerable to game theory dynamics, whereby
one party may find it advantageous to cheat the others. Second, contractarianism
tends to be exclusionary in nature in that it only includes and applies to those
who agree to the contract. This means that in addition to one party of the agree-
ment acting as a spoiler, an outside party could be a spoiler as well. Third and
finally, contractarianism relies on all parties to be rational thinkers who enter
into and adhere to the contract because doing so is in their individual morally
rational best interest. One of the difficulties caused by rationality underpinning
this theory is that different cultures often have different ideas about the meaning
of rational action. For example, in World War II, the United States considered
Japanese kamikaze pilots to be irrational, while Japan, with its samurai and bu-
shido culture placing honor above almost everything else, considered these ka-
mikaze pilots, or suicide dive-bombers, to be not only rational actors but also
heroes.
Despite these limitations, contractarianism could be a useful foundation for
developing more modern space norms of behavior. An agreement of this sort
would not likely immediately include all spacefaring countries, but if the major
spacefaring countries took the lead to establish space norms of behavior, or a
space code of conduct, smaller spacefaring countries might be inclined to join.
The result could be a more secure space environment, accessible to and in the
best interest of all spacefaring countries.
A Moral Duty to Maintain Asymmetric Advantage in Space?
General Hyten’s prior referenced 2004 article, “Moral and Ethical Decisions
Regarding Space Warfare,”109 is based on three assumptions, all of which are
readily challenged. The first assumption, that the United States has the “moral
duty to furnish those it asks to go in harm’s way with the tools that will increase
their effectiveness and reduce their casualties,”110 is contrary to Kantian tests for
108 Manuel Manriquez, Japan’s Space Law Revision: The Next Step Toward Re- Militarization?,
Center for Nonproliferation Studies (Jan. 1, 2008), <http://www.nti.org/analysis/articles/japans-
space-law-revision/> (accessed Mar. 30, 2020).
109 Hyten & Uy, supra note 10, at 51.
110 Id. at 54.
moral justification.111 This assumption can also be challenged from a utilitarian

perspective in that while the United States attempts to minimize the risk of those
it sends into harm’s way, it is potentially inadvertently increasing the threat that
its population will become subject to attack, which does not maximize the bal-
ance of good versus harm.112 The second assumption, that since no other State
depends on space as much as the United States does, it would be unfair for the
United States to sign an updated agreement or treaty since it “would have to give
up much more than the other signatories would have to surrender,”113 would
fail the fairness approach to ethics described previously. In fact, the fairness
approach often requires a person or group to shoulder more of the burden to
achieve an overall condition of fairness.114 Additionally, the United States has
the asymmetric reliance on space that it does because it was the first to have the
technology and economic power to do so. Unless this technology and economic
power were a direct result of moral underpinnings, simply being the first to dom-
inate a physical environment that has been internationally agreed upon to be a
commons for all humankind would provide no moral justification for the United
States maintaining this dominance.
The third assumption, that the “majority of threats to the United States come
from nonrational or nonstate actors,”115 contradicts former Chairman of the
Joint Chiefs of Staff General Martin Dempsey’s advice not to trivialize other enti-
ties’ rationality, but instead to seek to understand, through Thucydides’ truism
of fear, honor, and self-interest, why another entity is taking the approach it is.116
Since General Hyten’s article was written in 2004, it is not clear precisely what
countries he was describing as irrational actors, and undeniably, the geopolitical
landscape has changed since then. The countries and entities considered the pri-
mary threats to the United States today, known as the “four plus one,” are Russia,
China, North Korea, Iran, and violent extremist organizations (VEOs). Russia
seeks to regain its status as a major world power, feels threatened and betrayed
by NATO’s expansion in Eastern Europe, and is tired of being viewed interna-
tionally as an impotent military and economic State. China seeks to continue to
recover from its Century of Humiliation, views itself as the Middle Kingdom,
111 Robert Johnson & Adam Cureton, Kant’s Moral Philosophy, The Stanford Encyclopedia of
Philosophy (Edward N. Zalta ed., Spring 2018 ed.), <https://plato.stanford.edu/archives/spr2018/

entries/kant-moral/> (accessed Mar. 30, 2020).
112 Schultz email, supra note 27.
114 Duncan interview, supra note 66.
116 General Martin Dempsey, “Testimony,” House, The Department of Defense and the Fiscal Year
2013 Budget: Hearing on the Budget, 112th Congress, 2nd Session, 2012, 36, <https://www.gpo.gov/
fdsys/pkg/CHRG-112hhrg72697/pdf/CHRG-112hhrg72697.pdf> (accessed Mar. 30, 2020).
existing between Earth and heaven,117 and desires to be the dominant economic
player in the world. North Korea has witnessed through others the benefits of
becoming a nuclear State and desires to be seen as a powerful State capable of
developing formidable technology. Iran seeks to become the regional hegemony
in the Middle East and desires for the United States to leave the region. Lastly,
while it would be impossible to lump the interests of all VEOs into one, Islamist
terrorist groups predominantly seek to establish a caliphate to govern Muslims
under the law of Islam118 and desire that the United States leave the Middle East.
As broadly summarized here, a strong case can be made that all of the current
U.S. antagonists have rational reasons for their actions.
Conclusions and Recommendations
Determining the morality of complicated real-world situations is no easy task,

but it is a task that national security representatives are morally obligated to
relentlessly pursue. Oftentimes with ethics analyses, disagreements between
informed debaters can be distilled to differing definitions of justice, rights,
common good, and well-being. When there is a clear choice between right and
wrong, good and evil, the decision is less about ethics and more about having
the courage to do what is right, even when it may be difficult. A principled ethics
analysis, however, can act as a guidepost during situations that seem to have no
“good” options.119
The U.S. pursuit of space dominance appears to stem mostly from fear and self-
interest, mirroring Thucydides’ model of fear, honor, and self-interest. A better
approach would be to shift more closely to honor and self-interest. The United
States could do so by pursuing a more balanced approach—combining prudence
regarding military readiness with an equal amount of active, preventive diplo-
matic effort regarding protecting the space environment for U.S. use.120 The ab-
sence of such an effort currently is reflected in a lack of supporting bureaucracy.
Proactive policymaking requires commitment, personnel, and funding.
By way of comparison, as of fiscal year 2013, the same budget is allocated for
117 Luke Kwong, What’s in a Name: Zhongguo (or “Middle Kingdom”) Reconsidered, 58:3
The Historical Journal 793 (2015), <http://dx.doi.org.usnwc.idm.oclc.org/10.1017/

S0018246X14000570> (accessed Mar. 30, 2020).
118 Asma Afsaruddin, Caliphate: Islamic History, Encyclopedia Britannica (Mar. 30, 2018),
<https://www.britannica.com/place/Caliphate>.
119 Mike Riordan, “Ethics in the Military: A Multidisciplinary Approach” (class, U.S. Naval War
College Newport, RI, Feb. 14, 2018).

120 Theresa Hitchens & Joan Johnson- Freese, “Toward a New National Security Space
Strategy: Time for a Strategic Rebalancing,” Atlantic Council Strategy Paper no. 5 (Washington,
DC: The Atlantic Council of the United States, June 2016), <http://www.atlanticcouncil.org/images/
publications/AC_StrategyPapers_No5_Space_WEB1.pdf> (accessed Mar. 30, 2020).
all U.S. global space diplomacy efforts as for an in-house Pentagon think tank
tasked to devise new counterspace capabilities. In terms of staffing, even before
the Trump administration’s cuts in the State Department, the Arms Control,
Verification, and Compliance Bureau staff, who are responsible for all matters
regarding nuclear, biological, and chemical weapons arms control, nonprolifer-
ation, and disarmaments agreements—and the space portfolio—was fewer than
150 people.121 Space diplomacy receives lip service, while dominance receives
support and funding.
Many U.S. national security space experts have accurately stated there is no
such thing as a war in space, there is only war, and war could include space.122 As
General Hyten has correctly indicated, the United States has the most to lose123
if a war were to extend into space rendering space unusable. It then makes sense
that, if others were to become as dependent on space as is the United States, they
would likewise be as concerned about maintaining space as a shared commons
even if war were to occur.124 It is in the U.S. self-interest that space be available for
everyone to use, rather than denied to all.125 Cooperation with other countries
also “entangles” countries in ways that require them to move past disagreements.
Continued U.S. and Russian cooperation on management and operations of the
International Space Station serves as an example of this.
General Hyten has stated that he supports the development of space norms of
behavior.126 The United States should take an active leadership role in guiding
the international community to making this a reality. Much like the mutually
assured destruction of nuclear war, the effects of a major war in space would
be difficult, if not impossible, to reverse. Finally, another reason it is impor-
tant to establish spaces norms of behavior is because non-State entities, espe-
cially those known as “New Space” actors (such as SpaceX, Virgin Galactic, and
others financed with private funding), continue to play an increasing role in
space missions and space-related activities, and currently have very few norms
or rules to follow. This poses a problem for those who wish to maintain space as
a sustainable environment since; for example, at the current time, there are no
international norms regarding the disposition of upper-stage boosters that be-
come space debris.127 The International Civil Aviation Organization128 and the

124 Duncan interview, supra note 66.
125 Id.
127 Maj. Gen. Roger Teague, USAF (Ret.) (former Director of Space Programs, Office of the
Assistant Secretary of the Air Force for Acquisition), interview by the author, Sept. 13, 2017.
128 Schultz email, supra note 27.
UN Convention on the Law of the Sea129 are used in the air and sea domains,
respectively, and could serve as starting points for developing space norms of
behavior. As more non-State entities seek to explore and benefit from space, such
as through space tourism, it will become increasingly important for them to have
an international rulebook to follow.
Finally, the United States should focus on its strategic communication style
to ensure that it is not, through unintended consequences, creating rather than
solving problems. Certainly, part of any successful deterrence strategy involves
ensuring potential adversaries understand one’s capabilities, but “a constant
drum beat of pugilistic language from the United States that centers on ‘domi-
nation’ and ‘control’—likely intended to show strength and resolve—smacks of
the kind of hubris that the public opinion polls . . . have shown work against the
United States rather than in its favor.”130 In sum, it is time for the United States to
internalize the words of Roman Emperor Marcus Aurelius and “No longer talk at
all about the kind of man that a good man ought to be, but be such.”131
129 “United Nations Convention on the Law of the Sea” (General Assembly Resolution 2749
(XXV))—opened for signature on Dec. 10, 1982, entered into force on Nov. 16, 1994, <http://www.
un.org/depts/los/convention_agreements/convention_overview_convention.htm> (accessed Mar.
30, 2020).
131 Marcus Aurelius, The Meditations of the Emperor Marcus Aurelius Antoninus
A.D. 167, 254 (George Long trans.).

PART III
CUR R E N T A N D F U T U R E
THRE AT S TO SPAC E SE C U R I T Y
6
What Should the Space Force Do?
Insights from Spacepower Analogies,
Doctrine, and Culture
Peter L. Hays1
Introduction
Creation of the U.S. Space Force (USSF) in December 2019 marks a momentous
change in the structure of the United States military and a significant shift in
U.S. strategic thinking about the military utility of space. While this develop-
ment alone cannot resolve all space strategy issues and is only the beginning of
much implementation work, it may end an era of more than thirty years when
the United States was not satisfied with how it organized its national space se-
curity activities and churned through several different structures. Yet, because
organizational structure is only a second-order issue, deeper questions remain
related to the lack of consensus and direction on U.S. objectives and priorities in
using space for strategic and military purposes. The United States has yet to focus
enough or reach consensus even domestically, let alone internationally, on first-
order issues such as the long-term viability of the Outer Space Treaty (OST) re-
gime,2 space weaponization, options for exploiting space resources and creating
1 The views expressed in this chapter are solely those of the author and do not necessarily re-
flect those of Falcon Research, George Washington University, or the US government. This
chapter is an expanded and updated version of the author’s section, Is This the Space Force
You’re Looking For? Opportunities and Challenges for the Space Force, in Space Strategy at a
Crossroads: Opportunities and Challenges for 21st Century Competition, Center for
Global Security Research, Lawrence Livermore National Laboratory 16–25 (Benjamin Bahney ed.,
May 2020). The author thanks Dr. John “Patsy” Klein and Major Ryan Stephenson for their comments
and helpful reviews of drafts of this chapter.
2 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, including the Moon and Other Celestial Bodies. The current position of the US government
is that the OST is sufficient and viable. I believe, however, that its long-term viability is being
undermined by a range of factors, including its insufficiency in addressing many of the most diffi-
cult challenges that are of growing importance such as space debris, commercial spaceflight, and
mechanisms for harvesting space resources. Moreover, the OST is predicated on several vague terms
such as “peaceful purposes,” does not clearly delineate between airspace and outer space, and does
not provide a standing body to assist signatories in interpreting and meeting their obligations or
evolving governance principals to meet emerging challenges.
Peter L. Hays, What Should the Space Force Do? Insights from Spacepower Analogies, Doctrine, and Culture In: War
and Peace in Outer Space. Edited by: Cassandra Steer and Matthew Hersch, Oxford University Press (2021). © Oxford
University Press. DOI: 10.1093/oso/9780197548684.003.0007
154 Part III: Current and Future Threats to Space Security
wealth in and from space, or other overarching issues related to the objectives
it seeks from space, why these are important, and what the best strategies are to
pursue these objectives. Worse, far too much current attention has been diverted
toward third-order issues such as in which congressional districts Space Force
units should be located or even what the Space Force patch and uniforms should
look like. These are all issues and decisions that deserve some level of attention
and hold some importance, but, as it stands up its first new military branch in
more than seventy years, it is critical for the United States to concentrate initially
on the first-order issue of prioritizing what the Space Force should do. Focusing
on the organizational structure of the Space Force and first-order priorities for
space can help the United States ask the right questions and move toward doing
the right things, at the right times, and for the right reasons.
Assessing Analogies for the Space Force
Some of the discussions and disagreements about how the United States should
organize and manage its national security space activities go all the way back to
the opening of the Space Age. Debate around these issues intensified during the
past several years, but the United States was not able to reach consensus. Between
2017 and 2019, much of the debate was in Congress and swirled around the in-
ability of the House of Representatives and Senate Armed Services Committees
to reach a compromise on how to organize. In the context of overall budget
negotiations during the fall of 2019, the issue was elevated above the Armed
Services Committees, and this allowed broader compromises between the pa-
rental leave provisions some Democrats wanted and Space Force provisions
the president and some Republicans wanted. Unfortunately, expansion of the
scope for compromises on a new organization did not extend beyond consid-
ering only a very narrow slice of military structure options or even the name of
the new organization—the president insisted it be called the Space Force. The
Space Force established in December 2019 is the result of these uncertainties and
compromises; it holds significant potential but faces continuing disagreements
about its most important and appropriate near-term priorities and, as a military
organization, is limited in its ability to effectively address the full range of first-
order strategic space issues the United States currently faces.
This chapter uses insights from several analogies to assess opportunities and
challenges for the Space Force, including developing spacepower doctrine and
incubating a military space-focused strategic culture, blunting counterspace
threats, improving space acquisition, and securing space to accelerate the cre-
ation of wealth in and from space. The chapter also outlines some areas of
concerns for the Space Force stemming from current political dynamics,
What Should the Space Force Do? 155
discusses impacts from operation of analogous military organizations, and

provides recommendations for its initial and sustained operations.
There are several important concepts that can help us examine the Space
Force and determine where it fits in relation to previous models and structures.
Aristotle originated the idea that “form follows function,” a broad philosophical
construct that includes deliberations on how organizational functions ought to
shape organizational structure.3 This concept, along with Carl von Clausewitz’s
assessments about culminating points may be helpful as we consider the devel-
opment of spacepower and how organizational structures may need to evolve.4
Another consideration for framing discussions on the Space Force is the adage
that “when all you have is a hammer, everything looks like a nail” and the poten-
tial consequences of the United States choosing this military organization model
and discussing the need for space dominance.5 In addition, focusing directly
on space analogies and organizations may help us understand the full range of
perspectives and perhaps even counter a major finding in Yuen Foong Khong’s
Analogies at War: that decision makers often invoke inappropriate analogies that
not only fail to illuminate new situations but also mislead by emphasizing super-
ficial and irrelevant parallels.6 Unlike most other national security mission areas,
during the past thirty years the Pentagon was either directed to or decided itself
to make a number of significant changes in its national security space organi-
zational structures including: the Deputy Under Secretary of Defense for Space
(1994–1997); National Security Space Architect (1998–2004); National Security
Space Office (2004–2010); Department of Defense (DoD) Executive Agent
for Space (2003–2015); and Principal DoD Space Advisor (2015–2018).7 In
3 Discussions about the relationships between the physical form of objects and their intended
functions are found throughout Aristotle’s works; see, e.g., Book VI (1139a6–11) in the Nicomachean
Ethics (translated by W.D. Ross), <http://classics.mit.edu/Aristotle/nicomachaen.6.vi.html>
(accessed May 13, 2020); or the analysis in The Crossroads of Norm and Nature: Essays on
Aristotle’s Ethics and Metaphysics (May Sim ed., 1995).
4 Clausewitz discusses “The Culminating Point of the Attack” and “The Culminating Point of
Victory” extensively in Book Seven. These concepts refer to a point beyond which an attacker should
not proceed due to a variety of problems that may include stretched supply lines, weakened morale,
and inability to successfully defend against counterattacks. See Carl von Clausewitz, On War 528
and 566–573 (first published 1832, Princeton University Press 1989).
5 Vice President Mike Pence quoted President Donald Trump on the need for space domi-
nance: “As President Trump has said, in his words, ‘It is not enough to merely have an American
presence in space; we must have American dominance in space.’ And so we will.” Remarks by Vice
President Pence on the Future of the U.S. Military in Space, The White House (Aug. 9, 2018), <http://
www.whitehouse.gov/briefings-statements/remarks-vice-president-pence-future-u-s-military-
space/> (accessed Apr. 29, 2020).
6 Yuen Foong Khong, Analogies at War: Korea, Munich, Dien Bien Phu, and the
Vietnam Decisions of 1965 (1992).

7 Some of these organizational changes are addressed in Donald H. Rumsfeld et al., Report of the
Commission to Assess United States National Security Space Management and Organization (Jan. 11,
2001), <https://apps.dtic.mil/dtic/tr/fulltext/u2/a404328.pdf> (accessed Apr. 29, 2020); A. Thomas
Young et al., Leadership, Management, and Organization for National Security Space (July 2008),
<https://spacepolicyonline.com/pages/images/stories/Allard_Commission_Report.pdf> (accessed
addition, Air Force Space Command was established in 1982 and redesignated
as the Space Force under the Space Force Act; and U.S. Space Command was es-
tablished in 1985, merged underneath U.S. Strategic Command in 2002, and re-
established as an independent geographic combatant command in August 2019.8
There is a great deal of work that must be accomplished during the eighteen
months Congress allotted to establish the initial operational capability of the
Space Force and implement several other key provisions in the Space Force
Act.9 The act established the U.S. Space Force, a distinct armed force within the
Department of the Air Force under the Secretary of the Air Force, and created a
new General Officer position, the Chief of Space Operations (CSO). On January
14, 2020, Vice President Mike Pence administered the oath of office to Air Force
General John “Jay” Raymond, making Raymond the first CSO and first member
of the Space Force.10 The CSO is already attending meetings of the Joint Chief
of Staff (JCS), and under the act becomes a member of the JCS on December
20, 2021.11 The Space Force must establish its headquarters along with deter-
mining its subordinate units and their basing locations. All Space Force units
will initially come from the Air Force but, over time, it is expected that some
Army and Navy units, along with appropriate Guard and Reserve units, will
also transfer to the Space Force. Likewise, officers and enlisted personnel, ini-
tially from the Air Force, can voluntarily transfer into the Space Force. It is ex-
pected that some officers and enlisted personnel from the other Services, along
with new accessions to the military, will also volunteer for the Space Force. Other
key provisions in the Space Force Act establish a new Assistant Secretary of the
Air Force for Space Acquisition and Integration (ASecAF SA&I) position12
and a new Space Force Acquisition Council (SFAC).13 The ASecAF SA&I is a
Senate-confirmed position that serves as the senior architect for space systems
and programs across the Department of the Air Force (DAF), chairs the SFAC, is
to become the Air Force Service Acquisition Executive (SAE) for space systems
Apr. 29, 2020); and Government Accountability Office, Defense Space Acquisitions: Too Early to
Determine If Recent Changes Will Resolve Persistent Fragmentation in Management and Oversight
(July 27, 2016), <https://www.gao.gov/assets/680/678697.pdf> (accessed Apr. 29, 2020).
8 Air Force Space Command, Air Force Space Command History, <https://www.afspc.af.mil/
About-Us/AFSPC-History/> (accessed Apr. 29, 2020); US Space Command, United States Space
Command Fact Sheet (Feb. 26, 2020), <https://www.spacecom.mil/About/Fact-Sheets-Editor/
Article/1948216/united-states-space-command-fact-sheet/> (accessed Apr. 29, 2020).
9 National Defense Authorization Act for Fiscal Year 2020, sect. 951–961.
10 Charles Pope, Pence Swears In First Chief of Space Operations at White House Event (US
Department of Defense, Jan. 14, 2020), <https://www.defense.gov/Explore/News/Article/Article/

2057350/pence-swears-in-first-chief-of-space-operations-at-white-house-event/> (accessed Apr.
29, 2020).
11 National Defense Authorization Act for Fiscal Year 2020, sect. 953.
12 Id. sect. 956.
13 Id. sect. 954.
and programs as of October 1, 2022, and provides fiscal and strategic guid-
ance by overseeing and directing the Space Rapid Capabilities Office, the Space
and Missile Systems Center, and the Space Development Agency. The SFAC is
to meet monthly, and its membership includes the Under Secretary of the Air
Force, the Assistant Secretary of Defense for Space Policy, the Director of the
National Reconnaissance Office (NRO), the CSO, and the Commander of the
U.S. Space Command. Another reflection of congressional concerns about the
Space Force is the unprecedented level of oversight and reporting requirements
Congress has levied on the new organization, including quarterly reporting on
the SFAC and bimonthly reporting on Space Force Budget activity and progress
toward implementing the provisions of the Space Force Act.14
Developing Space Doctrine and Incubating a

Space-Minded Culture
There is nothing the Space Force will do that is more important and challenging
than developing appropriate doctrine and culture. Simple, clear, and strongly
held doctrine orients a military and is a sine qua non for creating a strong and
distinct military culture. Creation of the Space Force as an independent mili-
tary organization should accelerate the development of space doctrine and help
move it beyond what are, arguably, some of the most tenuous but often invoked
analogies from maritime and air doctrine. Over time, as the space doctrine de-
velopment process matures, it should provide an excellent foundation for the
generation-long informal processes that will incubate a space-minded culture
for the Space Force.
Doctrine orients a military and provides a foundation for further strategic and
operational thought. Military doctrine can be defined as a formal set of beliefs
that help to translate national security strategies and policies into specific mil-
itary objectives, develop the most effective and efficient military strategies for
accomplishing these objectives, and create appropriate military organizations,
systems, and tactics for obtaining these objectives. In theory, doctrine could exist
without, or be drafted prior to, creation of organizations for its implementation,
but in practice doctrine and organizations are almost always inextricably woven
together.
“Culture” is a more amorphous term that is centered on the social behavior and
values of a group, how group members identify themselves, the contributions
and achievements of the group, and the things that distinguish one group from
14 Id. 1335–1339.
another. Distinct military cultures arise from operational and social factors in-
cluding shared concepts, values, behavior, and identity. Formal processes are
seldom primary drivers in shaping culture, and it is normally a generation-long
process to develop or change the culture of a military organization.
The Risks of Doctrinal Analogies
While Max Weber’s and Robert Michel’s iron laws of bureaucracy and oligarchy
tell us that military organizations are likely to promote doctrines that build upon
and expand their turf,15 broader processes for doctrine development may indi-
cate that organizations need to be expanded or reduced, or that new organiza-
tions should be created. Duke University historian I.B. Holley Jr. emphasized
inherent links between doctrine and organizations in his concise definition of
doctrine as “what is officially believed and taught about the best way to conduct
military affairs.”16 In addition, doctrine—like strategy itself—can be thought
of as theory. Good doctrine will perform the primary roles of any theory: de-
scription, explanation, and prediction. The critique that generals are focused on
winning the last war has some validity—most militaries are far from ideal or-
ganizations for thinking in innovative ways about new doctrine or responding
to technical and environmental changes. This is because of their hierarchical
structures, heightened senses of duty and tradition due to self-selection pro-
cesses, and the serious consequences of making mistakes when using deadly
force to achieve political objectives.
Dennis Drew’s doctrine tree metaphor builds on Holley’s definition and
provides a useful framework for addressing two key issues related to military
doctrine.17 The first concerns the scope of doctrine and whether it should consist
of fundamental principles of war applicable across different military branches,
different States, and different times, or be more narrowly crafted to apply to a
specific Service within a specific State at a specific time. A second set of similar is-
sues relates to the role of the organization in formulating doctrine and the role of
doctrine in organizational change. Drew posits that the different ideas within the
concept of doctrine can best be thought of as parts of a tree, where the roots repre-
sent the historical lessons from which doctrine is drawn, the trunk fundamental
15 Max Weber, Political Writings (Peter Lassman ed., Ronald Speirs trans., 1994); Robert
Michels, Political Parties: A Sociological Study of the Oligarchical Tendencies of

Modern Democracy (first published 1915, Eden Paul & Cedar Paul trans., 2001).
16 Dennis M. Drew, Of Leaves and Trees: A New View of Doctrine, 33 Air University Review 41
(1982); I.B. Holley Jr., An Enduring Challenge: The Problem of Air Force Doctrine, 16 The Harmon
Memorial Lecture Series in Military History (1974).
17 Drew, supra note 16, at 40–43.
doctrine, the branches environmental doctrine, and the leaves organizational

doctrine. He defines fundamental doctrine as relatively abstract concepts such as
“beliefs about the purposes of the military, the nature of war, [and] the relation-
ship of military force to other power instrument.”18 Drew also emphasizes the
“timeless” nature of fundamental doctrine and indicates that it “is relatively in-
sensitive to political philosophy or technical change.”19 Environmental doctrine
“is a compilation of beliefs about the employment of military forces within a par-
ticular operating medium.”20 Moreover, environmental doctrine is “narrower in
scope than fundamental doctrine because it deals with the exercise of military
power in a particular medium” and is “significantly influenced by factors such as
geography and technology.”21 Finally, organizational doctrine “is best defined as
basic beliefs about the operation of a particular military organization or group
of closely linked military organizations.”22 Drew indicates that organizational
doctrine “is very narrow in scope” and that it “tends to change relatively fre-
quently in order to remain ‘current.’ ”23 Drew’s tree metaphor also illustrates the
interrelationships between the different forms of doctrine: a sturdy trunk of fun-
damental doctrine must be developed before environmental doctrine branches
or organizational doctrine leaves can grow. Similarly, leaves blow in the wind and
fall off as a normal part of the life cycle of the tree, but a disease in the roots or the
lower levels of the tree will impact growth at higher levels.
The Space Force should apply Drew’s metaphor and focus sequentially on
first developing doctrine rooted in universally applicable fundamental princi-
ples, then doctrine for the space environment, and finally organizational doc-
trine specially adapted to space. This will help the Space Force avoid one set of
missteps the Air Force made in its development of space doctrine during the
Cold War, when it attempted to develop organizational doctrine without first
promulgating coherent environmental doctrine for space—an approach anal-
ogous to attempting to grow leaves without a supporting branch.24 Today, it is
not clear that the range of fundamental and environmental space doctrine issues
identified during the Cold War have received enough attention or been resolved.
There has been some progress in more recent issuances of U.S. military space
doctrine focused on the space environment and space operations such as the May
2018 version of Joint Publication 3-14, Space Operations, developed by the Joint
18 Id. 43.
19 Id. 44.
20 Id.
21 Id.
22 Id. 45 (emphasis in original).
23 Id. (emphasis in original).
24 Charles D. Friedenstein, The Uniqueness of Space Doctrine, 37:1 Air University Review 13–23
(1985).
Staff,25 and the Air Force’s August 2018 Annex 3-14, Counterspace Operations.26
But the United States still lacks definitive answers to several key environmental
doctrine issues, such as whether space is an inherently offensive domain.
Because military personnel have very seldom operated in outer space and
because of the fortunate lack of any conflict in space to date, the Space Force
faces very significant challenges as it develops independent doctrine and finds
a distinct culture. Sailors and pilots played an essential role in the development
of maritime and air doctrine, and they could build from at least decades if not
centuries of routine military operations at sea or in the air. The Space Force
must think creatively and draw from all possible sources in developing doc-
trine to deter and win space conflicts and, despite all the logical shortcomings
with this approach, look backward to see what doctrine for operations at
sea and in the air may have to offer for space. Seminal theorists who devel-
oped important perspectives on military operations in these two domains in-
clude: Alfred Mahan, Julian Corbett, Giulio Douhet, Billy Mitchell, and John
Warden.27 Some of the key concepts that these theorists developed or applied
to the air and sea domains are command of the sea, command of the air, sea
lines of communication, common routes, choke points, harbor access, concen-
tration and dispersal, and parallel attack.28 Several of these concepts have been
appropriated directly into various strands of embryonic space theory; others
have been modified slightly, then applied. For example, Mahan and Corbett’s
ideas about lines of communications, common routes, and choke points have
been applied quite directly onto the space domain. Maritime and airpower
concepts that have been modified to help provide starting points for thinking
about space doctrine include harbor access and access to space, and command
of the sea or air and space control.
The greatest shortfall in current space doctrine is that it lacks anything
like the simple, clear, and strongly held mantra that guided early airpower
25 Joint Chiefs of Staff, Joint Publication 3–14 Space Operations (Apr. 10, 2018), <https://www.jcs.
mil/Portals/36/Documents/Doctrine/pubs/jp3_14.pdf> (accessed Apr. 29, 2020).

26 Curtis E. Lemay Center for Doctrine Development and Education, Doctrine Annex 3– 14
Counterspace Operations (Aug. 27, 2018), <https://www.doctrine.af.mil/Portals/61/documents/
Annex_3-14/Annex-3-14-Counterspace-Ops.pdf> (accessed Apr. 29, 2020).
27 Alfred Thayer Mahan, The Influence of Sea Power upon History, 1660–1783 (1890);
Julian S. Corbett, Some Principles of Maritime Strategy (first published 1911, Eric J. Grove
ed., 1988); Giulio Douhet, The Command of the Air (first published 1921, Richard H. Kohn &
Joseph P. Harahan eds., 1983); William Mitchell, Winged Defense: The Development and
Possibilities of Modern Airpower—Economic and Military (first published 1925, 1988);
John A. Warden III, The Air Campaign: Planning for Combat (1988); Jon Tetsuro Sumida,
Inventing Grand Strategy and Teaching Command: The Classic Works of Alfred Thayer
Mahan Reconsidered (1997); Philip S. Meilinger, The Paths of Heaven: The Evolution
of Airpower Theory (1997); David R. Mets, The Air Campaign: John Warden and the
Classical Airpower Theorists (1999).
28 John J. Klein, Space Warfare: Strategy, Principles and Policy (2006).
advocates: airpower is inherently offensive, manifestly strategic, and should, there-

fore, be organized independently.29 As the Space Force struggles to develop this
simple yet powerful overarching doctrine, it must continue to wrestle with many
fundamental questions stemming from the environmental attributes of the space
domain and problems with analogizing directly from sea or air doctrine. Few
concepts from maritime theory translate directly into airpower theory—why
should we expect either maritime or airpower theory to apply directly for the
distinct domain of space?
These factors clearly contributed to another set of Air Force mistakes in de-
veloping space doctrine. For most of the Cold War, the Air Force insisted that
space and air formed a seamless operational domain which it defined as “aer-
ospace,” a position opposed by the rest of DoD that saw distinct space and air
domains.30 Under the seamless aerospace concept, for decades the Air Force
tended to “force-fit” space doctrine into the mold of air doctrine and argued,
inappropriately, that the three major airpower characteristics of speed, range,
and flexibility applied equally well to spacepower when, in fact, speed and
range mean very different things in space than in the air, and spacecraft are
among the least flexible of all today’s military systems. Fortunately, the Space
Force can now build on the much more appropriate space characteristics in
the joint publication on space operations that include: freedom of action;
overflight; global perspective, responsiveness, multiuser capacity; and speed,
reach, and persistence.31
Another underdeveloped construct for space doctrine is building from conti-
nental maritime theorists such as Raoul Castex and others, instead of continuing
initial focus on open-ocean (or blue-water) operations such as those emphasized
by Mahan.32 Rebalancing toward a more limited or continental perspective on
military space operations would align more closely with the current character-
istics and attributes of space operations, particularly in low Earth orbit or the
“cosmic coastline,” that are highly vulnerable to attack from Earth. Later, it may
become more appropriate to rebalance back toward Mahan and other blue-water
maritime theorists as space capabilities mature, conflicts over space resources
intensify, and the potential for large-scale, highly maneuverable space combat
emerges in higher orbits and cislunar space.
29 Metz, The Air Campaign (n 27) provides a helpful overview of this mantra for airpower pioneers.
30 Peter Hays & Karl Mueller, Going Boldly—Where? Aerospace Integration, the Space Commission,
and the Air Force’s Vision for Space, 15:1 Aerospace Power Journal 34–49 (2001); M.V. Smith, Ten
Propositions Regarding Spacepower 5–7 (2002).
31 Joint Chiefs of Staff, supra note 25, I-4 and I-5.
32 John J. Klein, Understanding Space Strategy: The Art of War in Space (2019); Bleddyn
E. Bowen, War in Space: Strategy, Spacepower and Geopolitics (2000).

Comparing Doctrinal Schools of Thought for Spacepower
A final construct that the Space Force should consider relates to doctrine, the
need for space weapons, and organizational structures. This construct is de-
rived from the four-part typology first developed by Air Force Lieutenant
Colonel David E. Lupton in 1983 and expanded for his 1988 book, On Space
Warfare.33 Lupton’s sanctuary school of thought posits that the most useful mil-
itary applications of space are for systems that enhance strategic stability and fa-
cilitate strategic arms control. Satellites contribute to these critical functions by
monitoring the strategic forces of potential enemies, reducing the likelihood of
surprise attack, and providing national technical means of verification (NTMV)
for arms control agreements. Missile warning satellites, such as the Space-Based
Infrared System, strengthen strategic stability by providing worldwide surveil-
lance of ballistic missile launches that enhances the survivability of, and con-
trol over, retaliatory strategic forces. Other military space systems—particularly
nuclear command, control, and communications supported by the Advanced
Extremely High Frequency satellites—are also critical for strategic stability. The
sanctuary school fits very closely with the mutual assured destruction paradigm
for strategic nuclear deterrence, a foundational concept during much of the Cold
War. Because of the critical importance of the stabilizing functions performed by
spacecraft, proponents of the sanctuary school believe that space must be kept
free of weapons, and they are especially concerned with prohibiting antisatel-
lite (ASAT) weapons that threaten spacecraft performing these vital functions.
Critics of this school charge that it minimizes the implications of many space sys-
tems that are dual-use, as well as the growing number of dedicated ASAT systems
and residual ASAT capabilities. Counterintuitively, by removing a threat to such
systems, an effective ASAT ban might even foster an environment conducive to
the development of very threatening and destabilizing space systems, including
potential space-to-Earth strike systems.34
The survivability school is focused on improving the resilience of space sys-
tems. It is clearly related to the sanctuary school in that it also sees the ability of
spacecraft to enhance stability as their most important function. However, the
survivability school evolves away from the sanctuary school because it argues
that technological developments indicate that space can no longer be maintained
as a sanctuary and, moreover, emphasizes that space systems deployed to pro-
mote stability also have significant ability to enhance the military effectiveness of
33 David E. Lupton, Space Doctrines, 11 Strategic Review 36–47 (1983); David E. Lupton, On
Space Warfare: A Space Power Doctrine (1988).

34 Ashton B. Carter, Satellites and Anti-Satellites: The Limits of the Possible, 10 International
Security 68 (1986).
terrestrial forces. This school also emphasizes and derives its name from the idea
that space systems are inherently less reliable, supportable, and survivable than
are terrestrial forces, and must therefore specifically be designed and deployed
in ways to make them more robust and resilient. In September 2015 the Office of
the Secretary of Defense issued a white paper explaining ways to improve space
mission assurance including defensive operations, reconstitution, and resilience;
resilience approaches were further divided into disaggregation, diversification,
deception, protection, proliferation, and distribution.35
Another distinguishing characteristic of the survivability school of thought is
its almost singular focus on defensive measures: it posits that passive defensive
measures can be sufficient to enhance survivability and maintains that actions
countering ASAT weapons (referred to in U.S. doctrine as defensive space con-
trol or defensive counterspace operations) should not be emphasized. Critics of
the survivability school question whether purely defensive approaches can be
effective and efficient, and are uncertain whether space systems are inherently
more vulnerable than other types of military systems, and some oppose the re-
strained approach to military space advocated by this school.36
The third school of thought identified by Lupton is the control school, which
holds that space should be thought of like other military theaters of opera-
tion where the primary military objective is to gain control over the domain.37
“Control” implies an ability to maintain one’s freedom of action while also having
the ability to deny freedom of action to adversaries. In the expanse of space, it is
unlikely that one can exert control over large areas for extended times; control is
more likely to be exercised over limited areas for specific times. Space strategists
also draw distinctions between temporary and reversible means to gain control
versus means of gaining control that cause permanent effects. More specifically,
they envision a scale of actions moving from temporary and reversible effects
toward permanent effects that includes: deception, disruption, denial, degrada-
tion, and destruction.38 The space control school posits that both offensive and
defensive operations are important and likely to be conducted in space. U.S. doc-
trine uses both the terms “offensive space control” (Joint doctrine) and “offensive
counterspace operations” (Air Force doctrine) in describing this school. The Air
Force defines offensive counterspace operations as those “undertaken to negate
an adversary’s use of space capabilities, reducing the effectiveness of adversary
35 Office of the Assistant Secretary of Defense for Homeland Defense & Global Security, Space
Domain Mission Assurance: A Resilience Taxonomy (Sept. 2015), <https://policy.defense.gov/Portals/

11/Space%20Policy/ResilienceTaxonomyWhitePaperFinal.pdf ?ver=2016-12-27-131828-623>
36 Discussions about dominating space, describing space as a warfighting domain, and creation of
the Space Force are implicit repudiations of the sanctuary school.

37 David E. Lupton, On Space Warfare: A Space Power Doctrine 60–70 (1988).
38 Joint Chiefs of Staff, supra note 25, II-2.
forces in all domains.”39 While space control can be considered independently,

this concept is often linked with helping to accomplish military missions from
space such as reconnaissance, force enhancement, and force application; it could
also be associated with nonmilitary functions such as exploration and com-
mercial exploitation of space. Critics of the space control school charge that it
encourages an expensive and unnecessary arms race in space that they believe
would not enhance security on Earth.40
Lupton’s final school on the military utility of space holds that space clearly has
the potential to be the decisive theater of combat operations. Reasoning by his-
torical analogy, the high ground school posits that just as holding the high ground
is often the decisive factor in a land battle or as airpower often prevails over land
and sea forces, in the future, space forces will dominate terrestrial forces. Lupton,
along with many other analysts in the 1980s, linked the high ground school di-
rectly with the strategic defense initiative (SDI) and the concept of space-based
ballistic missile defense (BMD).41 Conceptually, however, the high ground
school is broader than legacy strategic debates and envisions force application
missions from space for more than just BMD. As the widespread debate over
SDI indicated, many oppose these high ground concepts for several reasons in-
cluding: their undermining effect on mutual assured destruction as the basis for
strategic stability, the alleged extreme expense and technological barriers in-
volved, and the likelihood of stimulating a wide-open arms race in space.
Table 6.1 expands on Lupton’s concepts and provides brief descriptions of
space system characteristics and potential employment strategies, likely combat
missions for space forces operating in accordance with each of the schools, and
the types of military organizations for space operations and advocacy usually
desired by the proponents of each school. Several factors including traditional
military preferences for offensive doctrine in all domains, make it likely the
Space Force will accelerate the trend toward the control and high ground schools
that has emerged over the past thirty or more years.
Near-Term Operational Concerns
The Space Force must act initially to refine spacepower doctrine and begin the
generation-long process of developing a new space-minded culture for the new
service. It must also simultaneously address pressing operational challenges that
39 Curtis E. Lemay Center for Doctrine Development and Education, supra note 26, at 9.
40 Nancy Gallagher & John David Steinbruner, Reconsidering the Rules for Space
Security (2008).
41 Lupton “On Space Warfare”, supra note 33, at 52–59.
Table 6.1 Attributes of Military Space Doctrines
Primary Value Space System Conflict Appropriate

and Functions of Characteristics Missions of Military
Military Space and Employment Space Forces Organization for
Forces Strategies Operations and
Advocacy
Sanctuary • Enhance • Limited Numbers • Limited National

Strategic Stability • Fragile Systems Reconnaissance
• Facilitate Arms • Vulnerable Orbits Office
Control • Optimized for
NTMV Mission
Survivability Above • Terrestrial Backups • Force Major Command

functions plus: • Commercial and Enhancement or Combatant
• Force International • Degrade Command
Enhancement Augmentation Gracefully
• Autonomous
Control
• Attack Warning
Sensors
• Less
Vulnerable Orbits
• Hardening
• Redundancy
• Crosslinks
• Maneuver
• Space Mission
Assurance
• Defensive
Operations
Control • Control Space • Resilience: • Control Space Combatant
• Significant Force • Disaggregation • Significant Command, Space
Enhancement • Protection Force Corps, or Space
• Distribution Enhancement Force
• Proliferation • Surveillance,
• Diversification Offensive,
• Deception and Defensive
• Reconstitution Counterspace
• On-Orbit Spares
High Ground Above • 5Ds: Above Space Corps or
functions plus: • Deception functions plus: Space Force
• Decisive Impact • Disruption • Decisive
on Terrestrial • Denial Space-to-
Conflict • Degradation Space and
• Ballistic Missile • Destruction Space-to-
Defense (BMD) • Bodyguards and Earth Force
Convoys Application
BMD
weaken its ability to organize, train, and equip forces to provide prompt and sus-
tained space operations and freedom of operation for the United States in, from,
and to space.
Blunting Counterspace Threats
The largest and most immediate operational challenge facing the Space Force
is blunting the growing counterspace threats the United States now faces. By
describing space as a warfighting domain, the 2018 National Defense Strategy
marks a fundamental shift away from legacy U.S. perspectives on uncontested
military space operations and the principals of free access and peaceful purposes
enshrined in the OST.42 America’s potential adversaries, particularly China
and Russia, now view space—from launch, to on-orbit, the up-and downlinks,
and the ground stations—as a “weak link” in U.S. warfighting capabilities.
Conversely, because the United States had for generations believed space to be
a permissive environment, it did not make major investments in defensive cap-
abilities for its space systems, even as almost all modern military operations be-
came increasingly reliant on these space capabilities. These facts, coupled with
the re-emergence of great power competition, have led adversaries to believe
that by denying U.S. space-enabled capabilities, they can gain strategic advan-
tage over U.S. response options—making those options less assured, less oppor-
tune, and less decisive. These assumptions can be destabilizing as adversaries
may believe they can deter U.S. entry into a conflict by threatening or attacking
U.S. space capabilities; these beliefs may even embolden them to employ a space
attack as a “first salvo” in anti-access/area-denial strategies.43 This is a potentially
dangerous situation that has moved past an inflection point and is creating stra-
tegic disadvantages rather than the strategic advantages space traditionally pro-
vided the United States. Therefore, from a Clausewitzian perspective, the Space
42 US Department of Defense, Summary of the 2018 National Defense Strategy (Jan. 2018),
<https://dod.defense.gov/Portals/1/Documents/pubs/2018-National-Defense-Strategy-Summary.
pdf> (accessed Apr. 29, 2020).
43 Daniel R. Coats, Worldwide Threat Assessment of the Intelligence Community, Statement for the
Record: Senate Select Committee on Intelligence (Jan. 29, 2019), <https://www.dni.gov/files/ODNI/

documents/2019-ATA-SFR---SSCI.pdf> (accessed Apr. 29, 2020); Defense Intelligence Agency,
Challenges to Security in Space (Jan. 2019), <https://www.dia.mil/Portals/27/Documents/News/
Military%20Power%20Publications/Space_Threat_V14_020119_sm.pdf> (accessed Apr. 29, 2020);
National Air and Space Intelligence Center, Competing in Space (Jan. 2019), <https://media.defense.
gov/2019/Jan/16/2002080386/-1/-1/1/190115-F-NV711-0002.PDF> (accessed Apr. 29, 2020); Todd
Harrison, Kaitlyn Johnson, Thomas G. Roberts, & Makena Young, Space Threat Assessment 2020,
Center for Strategic and International Studies (Mar. 2020), <https://csis-prod.s3.amazonaws.com/
s3fs-public/publication/200330_SpaceThreatAssessment20_WEB_FINAL1.pdf?6sNra8FsZ1LbdVj
3xY867tUVu0RNHw9V> (accessed Apr. 29, 2020); Brian Weeden & Victoria Samson, Global
Counterspace Capabilities: An Open Source Assessment (2020).
Force must also consider whether our current space strategy and systems may be
approaching a culminating point where it becomes counterproductive to con-
tinue either offensive or defensive space operations in wartime.44
Chinese and Russian development of space and counterspace capabilities
is accelerating. The 2019 Defense Intelligence Agency Challenges to Security
in Space report found that “Chinese and Russian military doctrines indicate
that they view space as important to modern warfare and view counterspace
capabilities as a means to reduce U.S. and allied military effectiveness. Both
reorganized their militaries in 2015, emphasizing the importance of space op-
erations.”45 Chinese and Russian counterspace weapon systems are designed to
deny, degrade, disrupt, or destroy U.S. military space systems, along with other
civil, commercial, and international space capabilities upon which U.S. na-
tional security relies. The 2019 Worldwide Threat Assessment of the Intelligence
Community (IC) found “that commercial space services will continue to expand;
countries—including U.S. adversaries and strategic competitors—will become
more reliant on space services for civil and military needs, and China and Russia
will field new counterspace weapons intended to target U.S. and allied space
capabilities.”46
The strategy and doctrine of China and Russia makes it clear that they in-
tend to continue developing their own space capabilities while creating sys-
tems designed to counter the advantages provided by space-based systems to
the United States. According to recent Chinese space strategy and doctrine, the
People’s Liberation Army (PLA) views space superiority, the ability to control
the information sphere, and denying this to adversaries as key components of
conducting modern “informatized” wars.47 Russian military doctrine and au-
thoritative writings clearly articulate that Russia views space as a warfighting
domain, and that achieving supremacy in space will be a decisive factor in win-
ning future conflicts. For example, their 2014 Military Doctrine lists three space-
enabled capabilities as main external military threats to Russia: “global strike,”
the “intention to station weapons in space,” and “strategic non-nuclear precision
weapons.”48 In 2013, the Russian Duma officially recommended that Russia re-
sume research and development of an airborne antisatellite missile to “be able to
intercept absolutely everything that flies from space.”49
44 Clausewitz, supra note 4, at 528 and 566–573.

45 Defense Intelligence Agency, supra note 43, at iii.
46 Coats, supra note 43, at 16.
47 Dean Cheng, Cyber Dragon: Inside China’s Information Warfare and Cyber
Operations (2017).
48 “Military Doctrine of the Russian Federation, approved by Russian Federation President
V. Putin”; Official website of Russian Federation President; Dec. 31, 2014, translation from Russian,
BBC Monitoring.
49 Harrison et al., supra note 43, at 20.
To support their clear strategies and doctrines, China and Russia are de-
veloping and testing an array of increasingly sophisticated space capabilities
and are probably testing dual-use technologies in space that could be applied
to counterspace missions. The IC assesses that China and Russia are training
and equipping their military space forces and fielding new ASAT weapons to
hold U.S. and allied space services at risk, even as they push for international
agreements on the nonweaponization of space.50 The PLA has an operational
ground-based ASAT missile intended to target low-Earth-orbit (LEO) satellites,
and China probably intends to pursue additional ASAT weapons capable of de-
stroying satellites up to geosynchronous Earth orbit.51 Russia is developing a sim-
ilar ground-launched ASAT missile system for targeting LEO that is expected to
be operational within the next several years and deployed a ground-based laser
weapon, probably intended to blind or damage sensitive space-based optical
sensors, such as those used for remote sensing.52 As discussed in chapters 7 [Su]
and 10 [Doucet], Chinese and Russian proposals for international agreements
on the nonweaponization of space do not address multiple issues connected
to terrestrially based ASAT weapons development, which has allowed them to
pursue space warfare capabilities while maintaining the position that space must
remain weapons-free. These changes also highlight deficiencies in the current
OST-based regime and raise questions about the continuing efficacy of this re-
gime in addressing growing space security concerns.
In addition to the growing kinetic and directed energy threats discussed
previously, the United States faces an even more pervasive global threat from
electronic warfare (EW) systems and cyber capabilities capable of jamming
and disrupting many space systems, particularly systems for satellite commu-
nications and navigation. The IC assesses that EW and cyber technology will
continue to proliferate, and more advanced adversaries will continue to rap-
idly develop more sophisticated capabilities.53 The PLA routinely incorporates
jamming and anti- jamming techniques against multiple communication,
radar systems, and Global Positioning System (GPS) satellites in exercises.54
Russia acknowledges the deployment of radar-imagery jammers and is devel-
oping laser weapons designed to blind U.S. intelligence and ballistic missile
defense satellites.55
50 Coats, supra note 43, at 17.

51 Brian Weeden, Through a Glass, Darkly: Chinese, American, and Russian Anti-satellite Testing in
Space, Secure World Foundation (Mar. 17, 2014), <https://swfound.org/media/167224/through_a_
glass_darkly_march2014.pdf> (accessed Apr. 29, 2020).
52 Weeden & Sampson, supra note 43, at xii–xiii.
53 Coats, supra note 43, at 16–17.
54 Weeden & Sampson, supra note 43, at xiv.
55 Id. 2-23-24.
Creation of the Space Force should help the United States deal more effec-
tively with growing counterspace threats. A dedicated military organization fo-
cused on countering advances in Chinese and Russians counterspace capabilities
should be able to achieve more unity of effort and be more efficient and effective
than our current structures. Of course, simply creating a new organization will
not guarantee effectiveness. As with most issues, the devil is in the details re-
garding the Space Force’s ability to forge effective relationships with other na-
tional security space stakeholders as well as its success in setting appropriate
requirements, justifying sufficient funding, and prioritizing the best ways to
counter Chinese and Russian counterspace capabilities. Among the more diffi-
cult issues for the Space Force will be prioritizing and balancing the three space
mission assurance pillars of resilience, defensive operations, and reconstitution
as well as determining the relative weight it should place on offensive and/or de-
fensive measures to reduce the effectiveness of adversary counterspace capabil-
ities. As noted previously, it is likely that the Space Force will align more closely
with the control school than the survivability school with respect to the need
for offensive counterspace capabilities to enhance the survivability of U.S., al-
lied, and commercial space systems on which national security relies. Creation
of the Space Force and repeated statements from the president and vice president
about the need for the United States to dominate space56 are also sparking for-
eign reactions, including the announcement by France that it will create a space
force and mount weapons on some of its future satellites in order to defend them,
as well as statements from China and Russia condemning creation of the U.S.
Space Force as a direct threat to space peace and security.57
A final set of considerations for the Space Force and blunting growing
counterspace threats relates to the relative weight that it will place on offensive
and defensive counterspace missions versus all the space missions that enable
Joint Force operations. Both missions are critical, but an independent Space
Force may favor counterspace operations at the expense of continuing to provide
the same level of support to enable Joint Force operations.
56 On June 18, 2018, President Trump stated: “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.”
Remarks by President Trump at a Meeting with the National Space Council and Signing of Space Policy
Directive-3, The White House (June 18, 2018), <https://www.whitehouse.gov/briefings-statements/
remarks-president-trump-meeting-national-space-council-signing-space-policy-directive-3/>
57 The Associated Press, China Attacks US Space Force as Threat to Peace, Air Force Times
(Dec. 23, 2019), <https://www.airforcetimes.com/news/your-military/2019/12/23/china-attacks-

us-space-force-as-threat-to-peace/> (accessed Apr. 29, 2020); Kyle Rempfer, Russia Warns of a
“Tough Response” to Creation of US Space Force, Air Force Times (June 21, 2018), <https://www.
airforcetimes.com/flashpoints/2018/06/21/russia-warns-of-a-tough-response-to-creation-of-us-
space-force/> (accessed Apr. 29, 2020).
Improving Space Acquisition
Another key near-term task for the Space Force is improving space acquisition.
Perspectives on prioritizing this task relate to views about how “broken” space
acquisition is currently. Many, including Vice Chairman of the JCS General John
Hyten, believe that space acquisition takes too long and costs too much.58 Others
acknowledge these difficulties but see them more as a reflection of dysfunctions
across the whole DoD acquisition process rather than as problems specific to
space acquisition. Both sides would agree that the burgeoning commercial space
sector, with its billionaire space barons, creates important and novel opportuni-
ties for the DoD to leverage these new capabilities and services to at least supple-
ment and perhaps even replace some traditional DoD space missions. To better
leverage commercial space activity, the Space Force should first comprehen-
sively, transparently, and consistently determine those space mission areas where
it can rely on commercial services or international partners. Some space mis-
sion areas such as nuclear command, control, and communications will never
be outsourced, while others such as environmental monitoring might be com-
pletely provided by commercial or international partners. Other mission areas
could be mixed between U.S. or allied operated and commercially provided.
A whole-of government approach is then needed to assess the commercial vi-
ability of those services upon which the U.S. government intends to rely, either
wholly or in part, and the government must act to improve the commercial vi-
ability of these services. This is not explicitly picking winners, but rather using
comprehensive approaches such as serving as an anchor tenant, structuring
import-export bank loans, adjusting export controls, and tailoring licensing
and regulatory procedures to improve the commercial viability of services that
the U.S. government needs. Improving synchronization between the fielding of
space systems and ground user equipment is a final major issue that the Space
Force may be able to address more effectively, particularly if funding for ground
user equipment transfers to the Space Force.
The Space Force is to be organized, trained, and equipped (OT&E) to provide
freedom of operation for the United States in, from, and to space, and to provide
prompt and sustained space operations. Expectations regarding process changes
that may be needed for OT&E functions are not focused on the Space Force it-
self but on the new Assistant Secretary of the Air Force for Space Acquisition
and Integration position, the Space Force Acquisition Council, and space Service
Acquisition Executive (SAE) responsibilities.59 Key issues and questions as these
58 Hyten: Time to Acquire New Systems Is “Ridiculous,” Defense News (Dec. 2, 2017), <http://
www.defensenews.com/video/2017/12/02/hyten-time-to-acquire-new-systems-is-ridiculous/>
59 National Defense Authorization Act for Fiscal Year 2020, sect. 956–957.
new positions, authorities, responsibilities, and processes are established in-

clude: whether space requirements and acquisition processes should continue
to follow the joint capability integration and development system, or perhaps
require new processes to go faster and better leverage commercial developments;
how the new space SAE authorities and responsibilities may help to reduce tra-
ditional tensions and trade-offs between air and space funding within the DAF;
and how adoption of parts of the NRO’s streamlined acquisition processes may
help to speed space acquisition.
Accelerating Creation of Wealth in and from Space
A final set of interrelated initial opportunities and challenges for the Space Force
is related to its role in the creation of wealth in and from space, an issue that may
ultimately shape the very future of humanity. These opportunities and challenges
must be addressed by the Space Force, but they are also extremely long-term
matters, and it is not evident that a military organization is the best way to focus
on these concerns. As humanity continues to explore and increasingly harvest
space resources, the fundamental values and economic models that underpin
these activities are critical. The States and companies that first begin major oper-
ations to harvest space resources are likely to set important precedents and play
a major role in developing the governance structure for these resources. Moving
out and helping to set these precedents is an enormous opportunity for the
Space Force. But it also presents serious challenges with respect to the amount of
overlap with and difficulties in balancing exploration with all the required near-
term efforts discussed previously, as well as serious concerns about a military
organization doing this type of work.
For at least two generations, the United States has been thinking seriously
about long-term space exploration and exploitation challenges, the proper bal-
ance between this work and required near-term efforts, as well as the appropriate
role of the military in these activities, but it has yet to reach consensus on the
best approaches. In 1997, General Howell Estes, a commander of the original
U.S. Space Command, articulated a powerful vision for valuing space commerce
above military space activity that is today an even more important consideration
for the Space Force:
Today, more than ever, it is important that all Americans understand that our
investment in space is rapidly growing and soon will be of such magnitude that
it will be considered a vital interest—on par with how we value oil today. . . .
Now while it might seem appropriate that I should be more concerned with
military space, I must tell you that it is not the future of military space that is
critical to the United States—it is the continued commercial development of

space that will provide continued strength critical for our great country in the
decades ahead. Military space, while important, will follow.
Commercial space, as I said earlier, will become an economic center of
gravity, in my opinion, in the future and as such will be a great source of strength
for the United States and other nations in the world. As such, this strength will
also become a weakness, a vulnerability. And it’s here that the U.S. military will
play an important role, for we will be expected to protect this new source of ec-
onomic strength.60
Having endured the dot-com bubble, the economic downturn following the 9/
11 attacks, and the great recession, the commercial space sector did not experience
the explosive growth predicted by General Estes and others in the late 1990s, but it
has shown steady growth and may be poised for much more rapid expansion today.
The global space economy is currently valued at approximately $400 billion, about
80 percent is commercial activity, and several forecasts predict it will grow to over
$1 trillion within the next twenty years.61 The arrival of and increasingly significant
role of a number of billionaire “space barons” marks a major change in the economic
environment for space.62 These actors control more wealth than many States, and
they are pursuing long-term strategic objectives such as enabling billions to live and
work in space and humanity becoming a multiplanetary species. Such objectives
may not align with the short-term profit motive of traditional economic actors and
create novel opportunities and challenges for the U.S. government, particularly with
respect to how the government can best leverage the work of the space barons to
improve security. Another change with potential to drive space economics and the
flag-following trade is the re-establishment of U.S. Space Command in August 2019
and assigning the new command the global space Joint Operational Area, which
begins at 100 kilometers above sea level.
The role of the Space Force in enabling and protecting space-based global util-
ities is another distinct set of issues closely related to economic and commercial
space considerations. Space-based global utilities provide basic services or public
data, functions that are usually either highly regulated or freely provided by
governments on Earth. Examples of space-based global utilities include weather
data and GPS positioning and timing signals. Current U.S. policy calls for these
60 Howell M. Estes III, “The Promise of Space Potential for the Future” (prepared remarks to the
United States Space Foundation’s 1997 National Space Symposium, Colorado Springs, CO, Apr.
3, 1997).
61 Kevin O’Connell, Remarks on the Trillion Dollar Space Economy, Office of Space Commerce
(Nov. 27, 2018), <https://www.space.commerce.gov/remarks-on-the-trillion-dollar-space-economy/

> (accessed Apr. 29, 2020).
62 Christian Davenport, The Space Barons: Elon Musk, Jeff Bezos, and the Quest to
Colonize the Cosmos (2018).

services to be provided as a public good without direct user fees. The impor-
tance of these space-based global utilities is growing, and they often constitute
an embedded or enabling technology within many other systems. GPS timing
signals, for example, are used to synchronize the “handshake” between telecom-
munications networks worldwide, locate and coordinate enhanced emergency
responses, and provide a location-time stamp for financial transactions. These
examples indicate that space-based global utilities form a critical and expanding
foundation of the modern global infrastructure for public services and commer-
cial intercourse. There are, however, many questions about how global utilities
should be perceived, the types and severity of threats these systems face, and how
these threats might best be mitigated. Some analysts, primarily in the U.S. mili-
tary, believe that responding to threats to these systems requires increased space
control efforts in order to provide protection. Other analysts note that civil and
commercial satellite operators that provide global utilities are not clamoring for
military protection and wonder if concerns about defenses and resiliency war-
rant the development of dedicated offensive military space control capabilities.
Two recently retired Air Force officers, Lieutenant General Steven Kwast and
Lieutenant Colonel Peter Garretson, were among the strongest advocates for
creating a Space Force. They argue that the Space Force should initially and ag-
gressively pursue an expansive vision of its mission that emphasizes its role in
enabling accelerated exploration and harvesting of space resources.63 Kwast and
Garretson identify long-term strategic competition with China as the greatest
challenge facing the United States and strongly argue that the Space Force must
focus primarily on this threat rather than focusing on securing America’s terres-
trial military advantages over the short term. There are attractive aspects of this
vision that align with some of the best traditions in American foreign policy and
the benefits of a frontier to be tamed identified in Frederick Jackson Turner’s
Frontier Thesis.64 Questions, however, remain concerning the appropriate pri-
ority of this effort and whether everything may end up looking like a nail to the
Space Force. Garretson, in particular, recognizes these issues and argues that a
“space guard,” structured similarly to the U.S. Coast Guard, may be a more ap-
propriate model given the frontier perspective and the exploration, survey,
safety, and constabulary functions likely to be needed in space.65 A final related
63 Steven L. Kwast, The Urgent Need for a United States Space Force, 49:1 Imprimis (2020); Peter
Garretson, A Historic National Vision for Spacepower, War on the Rocks (Sept. 9, 2019), <https://
warontherocks.com/2019/09/a-historic-national-vision-for-spacepower/> (accessed Apr. 29, 2020).
64 Steve Kwast, Where the Space Force Must Go, Politico (Jan. 17, 2020), <http://www.politico.
com/news/2020/01/17/where-the-space-force-must-go-098884> (accessed Apr. 29, 2020); Ray

Allen Billington, The American Frontier (1958).
65 Cynthia McKinley, The Guardians of Space: Organizing America’s Space Assets for the Twenty
First Century, 1 Aerospace Power Journal 37–45 (2000); Michael Sinclair, Model a Space Force on
the Coast Guard, 144 United States Naval Institute Proceedings (2018).
issue for the Space Force is its prospective role in developing and securing space-
based solar power capabilities, technologies that hold the potential to free Earth
from fossil fuels and their attendant climate-change dangers.
Cautions and Concerns
Just as we must be circumspect when drawing analogies from doctrine and cul-
ture in the existing military forces to apply to the new Space Force, we must
also be prudent in attempting to replicate organizational structures. The inde-
pendence of the Space Force as a separate U.S. military force does not put it on
par with the Army, Navy, or Air Force, due to its comparatively smaller size and
its vastly different operational regime. At the same time, comparing the Space
Force with smaller units such as the U.S. Marines may also lead to some false
assumptions. Much can be learned from history, but some innovation is also
needed.
A first set of concerns relate to the size of the U.S. Coast Guard and the
U.S. Marine Corps and their roles within the Department of the Navy. Coast
Guardsmen and Marines have always been part of relatively small organizations
when compared to the Army, Navy, and Air Force; the small size of these or-
ganizations has sometimes exacerbated struggles with their culture, primary
missions, and relevance. The Marines, in particular, have repeatedly faced ex-
istential crises over the relevance of their current missions, the need for the
United States to have an independent Service to perform these missions, and
questions about changing Marine Corps roles in rapidly evolving security envir-
onments.66 These difficult conditions sometimes have contributed to pressures
for the Marines to care more about their organizational survival than their role in
addressing primary U.S. security challenges—interrelated issues that have been
and will remain problematic for small organizations within the DoD, and which
could therefore be problematic for the nascent Space Force.
At its inception, the Space Force will be only about one-third the size of the
active-duty Coast Guard, less than one-tenth the size of the Marines, and about
the same size as just one of the Army’s ten active-duty divisions. While the Space
Force may punch above its weight in terms of operational impacts, it is vanish-
ingly small in terms of personnel within the DoD. As this very small organiza-
tion attempts to find its way within a very large bureaucracy with several large
and powerful independent actors, the Space Force is likely to face several difficult
66 Lieutenant Colonel Lloyd Freeman, Can the Marines Survive?, Foreign Policy (Mar. 26, 2013),
<http://foreignpolicy.com/2013/03/26/can-the-marines-survive/> (accessed Apr. 29, 2020).

bureaucratic challenges, including pressures for it to pursue more ambitious and

risky missions to assert its relevance.
A second set of concerns relates to assertions that creating the Space Force
today is very similar to creating the Air Force. Drawing from the struggle be-
tween 1918 and 1947 to create an independent Air Force, and subsequent
maneuvering by the Air Force to establish and maintain its position as the domi-
nant space Service, some analysts have used the course of airpower development
as an analogy to describe, explain, and predict the course of spacepower devel-
opment and assess the need for a Space Corps or Space Force.67 While perhaps
politically expedient, even a cursory examination of these two events reveals
that they are not similar in any significant ways and in fact present a very mis-
leading and unhelpful analogy. The most significant distinctions between 1947
and 2019 include: the unique and sometimes powerful role of the highly secret
NRO during the Cold War and the high level of secrecy surrounding almost all
military space activities in general; there is far less space flight than aerial flight
by orders of magnitude, and far greater technological complexity and expense in
developing and deploying space hardware; there is no strident public advocacy
for the Space Force by the officer corps; there is no history of the use of force from
space or demonstrations of force from space that would challenge traditional
Service missions; there is no developed doctrine or major wartime application
of force from space, and much less focus by Congress on the development of
spacepower and its appropriate organizational structure.
The most significant differences with the evolution of airpower deserve addi-
tional focus. The first is major and continuing use of force from the air within less
than a decade of the Wright Brother’s first flight in 1903, in contrast to no use of
force from space more than sixty years after Sputnik. This single contrast should
alone invalidate the analogy since space has not generated and has no near-term
prospects for generating anything approaching the devastating use of airpower
throughout World War II that culminated in the collapse of the German and
Japanese wartime economies, horrific firebombings of cities including Dresden
and Tokyo, and the war-ending atomic bombing of Hiroshima and Nagasaki.
Contravention of the admittedly somewhat unclear but strong prohibitions the
great powers agreed to at the 1899 and 1907 Hague Conventions that banned
discharging “projectiles and explosives from balloons or by other new analogous
methods” also highlights that the international legal regime governing aerial
warfare fell apart in less than a decade, whereas the Outer Space Treaty regime
has remained in place for over fifty years.
67 Thomas Karas, The New High Ground: Systems and Weapons of Space Age War 9–37
(1983); John M. Collins, Military Space Forces: The Next 50 Years 81–83 (1989).
Other key distinctions are illustrated by Brigadier General William “Billy”

Mitchell, who commanded all American air combat units during World War
I. Mitchell demonstrated and strongly advocated for what he considered to be
decisive uses of airpower and became the most outspoken crusader for an inde-
pendent air force—convictions held so strongly and publicly that they led to his
court martial conviction and resignation from the Army. Mitchell’s demonstra-
tion of a new and different way to project force through airpower marks the most
significant distinction of all. In June and July 1921, Mitchell led an effort by var-
ious aircraft against several target ships that climaxed on July 21 when bombers
using 2,000-pound bombs sunk the captured German battleship Ostfriesland
under static conditions. Following this successful display of airpower, in his char-
acteristic hyperbolic style, Mitchell declared, “the problem of the destruction of
seacraft by Air Forces had been solved and is finished.”68 Mitchell’s demonstra-
tion provided paradigm-challenging evidence that the Army’s coastal defense
mission and the Navy’s hemispheric defense mission might be better performed
by aircraft. By emphasizing that airpower had rendered land and sea forces sub-
ordinate or obsolete, Mitchell was directly challenging the ability of the Army
and Navy to perform key aspects of their missions in effective and efficient ways.
An analogous demonstration of spacepower today would involve something
like using space-based force projection capabilities to shoot down a B-2 bomber
or sink an aircraft carrier—demonstrations that no one is close to proposing,
let alone conducting. And, in what is perhaps the best single indicator of military
thinking on these topics, there has not been even one senior active-duty officer
in the U.S. military who has been an outspoken advocate for creation of a Space
Corps or Space Force, let alone an officer who holds these beliefs so strongly and
publicly that they begin to approach the level of Mitchell’s convictions.
There is also a cautionary tale related to unintended consequences from the
creation of a small and relatively weak independent Royal Air Force (RAF) and
the United Kingdom’s deficiencies in developing naval aviation and other air-
power capabilities during the interwar period. From the defeat of the Spanish
Armada in 1588 and for more than three centuries, the Royal Navy ruled the
waves and was, as twentieth-century naval historian Alfred Thayer Mahan
emphasized, the primary force the British used to establish and police an empire
on which the sun never set.69 Given this long and glorious history, it is remark-
able how quickly the Royal Navy fell from preeminence during the interwar pe-
riod. The Royal Navy’s decline was caused by many factors, but none may be as
significant as the United Kingdom’s failure to develop world-class naval aviation
68 Robert F. Futrell, Ideas, Concepts, Doctrine: Basic Thinking in the United States
Air Force 21 (vol. I, 1971).

69 Alfred T. Mahan, The Influence of Sea Power Upon History, 1660–1783 (1918).
capabilities, to understand that aircraft carriers could supplant battleships as the

primary naval strike force, or to envision multicarrier operations. These failures
were clearly linked to its structure for developing airpower as well as the role of
the RAF within that structure. The decision in April 1918 to create the world’s
first independent air force from the Royal Naval Air Service and the army’s Royal
Flying Corps was politically driven, influenced by German bombing of London,
and focused on defense from aerial attack—it was not dictated by military neces-
sity. Under the “dual-control” system instituted after the RAF was created, the
Royal Navy no longer had sole authority over its pilots and aircraft, and the RAF
became a competitor to the Royal Navy for limited military resources during
the very austere interwar period. Moreover, the upstart RAF never came close
to being as large or politically powerful as the Royal Navy, was often fighting for
its very survival, and was focused primarily on doctrine and equipment for stra-
tegic bombing, rather than doctrine, pilots, or aircraft that would support naval
aviation. The Royal Navy’s doctrine for use of carrier aviation focused on finding
the enemy fleet and spotting naval gunfire against these targets and did not em-
phasize using naval aviation as a primary and independent strike capability. This
was a poor structure for advancing naval aviation, because championing these
capabilities was not the focus of any powerful organization. Perhaps even more
disturbingly, in an area under the RAF’s jurisdiction, it was not primarily the
RAF but outside civilians who drove development of the world-changing Chain
Home radar network that enabled the RAF to prevail in the Battle of Britain.
The overall lesson from these cautions and concerns is that the United
States cannot allow the creation of the Space Force to lull it into complacency.
Establishing the Space Force should not be considered a final step in thinking
about and using space for national security; it is, at best, an initial step that may
mark the end of the beginning. Likewise, a new, very small organization facing
novel challenges in developing space doctrine and effectively operating in an in-
creasingly contested domain should not be expected to have all the answers or
always have a clear vision for addressing some of its most pressing challenges.
Having won a difficult struggle for independence, spacepower enthusiasts must
now turn to the more difficult task of creating consensus around a compelling
and enduring vision for what the Space Force must do. Some missteps are inev-
itable, but the Space Force will help to avoid some problems through a realistic
assessment of its origins and antecedents, use of open and rigorous processes to
debate and refine doctrine, and the discernment and humility needed to adopt
the most effective and efficient approaches wherever they are found.
The highly politicized environment that birthed the Space Force creates a
final set of potentially serious concerns to be touched on here. If the Space Force
comes to be seen as “partisan football,” it will face extreme scrutiny and limited
funding that might call into question its existence and make it very difficult to
successfully pursue the critical priorities outlined in this chapter. Even without
partisan squabbling, the United States has made significant mistakes that
stunted the growth of spacepower, including when it disestablished the orig-
inal U.S. Space Command in 2002 and broke apart Air Force leadership of the
NRO in 2005. The re-emergence of great power competition and the essential
contributions of space capabilities in meeting this challenge make it imperative
that the United States not allow polarization to drive the structure of its national
security space activities.
Conclusion
As the Space Force stands up, it faces great opportunities and serious challenges.
Its approaches for developing doctrine and culture, blunting counterspace
threats, improving space acquisition, and accelerating space resource exploita-
tion are likely to be the most important factors in establishing its relevance and
efficacy. Congress, the president, and the DoD itself will be carefully overseeing
the Space Force’s progress and—if the organizational churn of the past several
decades is any indication—will not hesitate to revisit management and organ-
izational structure issues if they perceive the Space Force is not advancing the
interests of the United States in space quickly or effectively enough. Throughout,
we must remain mindful that new organizations do not guarantee success and
apply the right lessons from past missteps.
ADDENDUM
This addendum outlines three significant recent developments related to the is-
sues addressed in Chapter 6.
The first is the release of the July 2020 National Space Council’s report, “A
New Era for Deep Space Exploration and Development.”70 This report is an im-
portant step toward developing more dialogue and achieving consensus on the
overarching principles, goals, and policies that will guide long-term U.S. efforts
in space. The report advances an ambitious and sustainable strategy to: enhance
commercial development in Earth orbit, leverage experience and resources
gained through sustainable lunar surface operations under the Artemis Program,
70 The White House, National Space Council, “A New Era for Deep Space Exploration and
Development,” (Washington: The National Space Council, 23 July 2020), <https://www.whitehouse.

gov/wp-content/uploads/2020/07/A-New-Era-for-Space-Exploration-and-Development-07-23-
2020.pdf> (accessed Aug. 23, 2020).
use discoveries and advances made on the Moon to shape the design of crewed
missions to Mars; provide opportunities for fundamental advances in deep space
science; and ensure the U.S. appropriately educates and incentivizes a workforce
with the skills and motivation to support these efforts. The report is not focused
on the DoD or Space Force but it is clear that creation of the Space Force has
renewed a good deal of enthusiasm toward space, particularly among young
people, and implementation of the recommendations in this report will create
several clear opportunities for the Space Force to advance its role in helping to
accelerate creation of wealth in and from space.
The most significant recent development related to issues in Chapter 6 was
the August 2020 release of the Space Force’s Spacepower Capstone Publication
(SCP).71 In his foreword, Chief of Space Operations, General Jay Raymond,
asserted that the SCP answers “why spacepower is vital for our Nation, how mil-
itary spacepower is employed, who military space forces are, and what military
space forces value.”72 General Raymond also emphasized that:
Agility, innovation, and boldness have always been the touchstone traits
of military space forces. Today, we must harness these traits to pioneer a new
Service and a new professional body of knowledge. This capstone doctrine is
a point-of-departure toward that goal, not a final adjudication. Given the nas-
cent state of spacepower theory, this publication will inevitably evolve over
time as it is applied, evaluated, and refined. Therefore, military space forces
are encouraged to read, critique, debate, and improve upon the ideas that
follow.73
The SCP is a critical and praiseworthy step forward that provides strong sup-
port for the importance of space to the U.S. and for creation of the Space Force.
Unfortunately, it has less specific guidance regarding how military spacepower
should be employed. It is undoubtedly appropriate for a capstone publication
to avoid tactical details about employment of spacepower, but the SCP does not
provide clear and comprehensive criteria for why it chose to incorporate, reject,
or ignore existing operational-and strategic-level space doctrine. In practice,
this shortfall will make it more difficult for space forces to apply, evaluate, and
refine the SCP.
A final recent development is the “Alternative Acquisition System for the U.S.
Space Force” report requested by the congressional defense committees in the
joint explanatory statement accompanying the National Defense Authorization
71 U.S. Space Force, “Spacepower: Doctrine for Space Forces,” (Washington: Headquarters US
Space Force, Space Capstone Publication, June 2020), <https://www.spaceforce.mil/Portals/1/

Space%20Capstone%20Publication_10%20Aug%202020.pdf> (accessed Aug. 24, 2020).
72 Id. iii.
73 Id. Emphasis in original.
Act for Fiscal Year 2020 (Public Law 116–92).74 The DoD completed this report
in May 2020 and it contains several important and detailed recommendations
for improving and streamlining the acquisition processes to be used by the
Space Force. Unfortunately, the White House Office of Management and Budget
has not yet completed their review of the report; and it has not been deliv-
ered to Congress or made available publicly. Readers interested in assessing
recommendations on improving the effectiveness, efficiency, and speed of space
acquisitions are encouraged to watch for the public release of this report.
74 The request for this report is found on pages 252–253 in the joint explanatory statement (JES).
The complete JES can be found at <https://docs.house.gov/billsthisweek/20191209/116hrpt333-

JointExplanatoryStatement.pdf>.
7
The Legal Challenge of Arms Control
in Space
Jinyuan Su
Introduction
Antisatellite weapons (ASATs) are designed to incapacitate or destroy space

assets, from space or from the Earth (land, sea, and air). They fall within
the broader concept of space weapons, which also comprise space-to-Earth
weapons.1 The pursuit of ASATs, by both the United States and the former Soviet
Union, can be traced back to the Cold War. The two superpowers, both heavily
dependent on space assets for civil, commercial, and strategic purposes, each
gradually realized that their pursuit of ASATs would instigate the other to follow
suit, spiraling into a situation contrary to their long-term interest. Thus for a few
decades, they refrained from further tests, while maintaining the necessary level
of counterspace capability. In the last two decades, China and India have joined
in the elite club of States with this capability.
This chapter deals with the legality of research and development, testing, pro-
duction, storage, and deployment of ASATs during peacetime, under the direct
constraints imposed by the law of arms control and the indirect constraints by
the law of environmental protection. While the assessment is conducted in light
of lex lata, existing proposals for the Prevention of an Arms Race in Outer Space
(PAROS) are also discussed. This chapter is not intended to address jus in bello
regarding the use of ASATs in armed conflicts.
Legality of ASATs under the Law of Space Arms Control
The law of space arms control primarily takes the form of treaties, notwith-
standing the existence of other sources of international law. It comprises rele-
vant provisions in the Outer Space Treaty and arms control treaties, bilateral or
1 Earth-to-Earth weapons which transit outer space temporarily, such as intercontinental ballistic
missiles and the more recent Hypersonic Vehicles, are usually not regarded as space weapons.
Jinyuan Su, The Legal Challenge of Arms Control in Space In: War and Peace in Outer Space. Edited
DOI: 10.1093/oso/9780197548684.003.0008
multilateral, which deal with space specifically, or have a bearing on it. These
treaties only prohibit ASATs in a partial manner, leaving conventional space-
based ASATs and ground-based ASATs unaddressed. For this reason, various
proposals have been made to fill the gaps.
The Outer Space Treaty (OST), regarded as the Magna Carta of space, was
concluded at the very early stage of human exploration and use of outer space,
with the peaceful use of outer space as one of its purposes. Space arms control
is thus a significant aspect of the treaty. Article IV, which addresses weapons in
space directly, provides:
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 de-
struction, install such weapons on celestial bodies, or station such weapons in
outer space in any other manner.
The Moon and other celestial bodies shall 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 con-
duct of military maneuvers on celestial bodies shall be 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 shall also not be
prohibited.2
For the convenience of discussion, a distinction should be made between

celestial bodies and “outer void space.” The latter refers to the immense void
space between celestial bodies, including the orbits around the Earth.3 Weapons
deployed in outer space, on celestial bodies or in outer void space, could be used
as ASATs or space-to-Earth weapons.
On celestial bodies, as per Paragraph 2 of Article IV, only the testing of weapons
is explicitly prohibited. The deployment of weapons thereon may fall within the
scope of “the establishment of military bases, installations and fortifications” and
“the conduct of military maneuvers,” and may thus be prohibited implicitly. Such
a broad interpretation should be upheld in view of the context in which the pro-
vision was adopted, namely, as an arms control measure during the Cold War,
Including the Moon and Other Celestial Bodies (opened for signature Jan. 27, 1967, entered into force
Oct. 10, 1967), 610 UNTS 205 [hereinafter OST], art. IV.
3 Bin Cheng, Properly Speaking, Only Celestial Bodies Have Been Reserved for Use Exclusively for
Peaceful (Non-Military) Purposes, but Not Outer Void Space, in International Law across the
Spectrum of Conflict: Essays in Honour of Professor L.C. Green on the Occasion of his
Eightieth Birthday 81, at 83–84 (Michael N. Schmitt ed., 2000).
The Legal Challenge of Arms Control in Space 183
with the intention to be long-lasting. This provision resulted from the Soviet-
U.S. moon race during the 1960s, during which both countries wanted to prevent
the militarization of the moon.4 To allow the deployment of weapons on celestial
bodies would have rendered their efforts futile.
The reservation of celestial bodies “exclusively for peaceful purposes” in itself
may contain the substantive obligation of nonmilitarization. Similar wording is
used in Article I of the Antarctic Treaty, which reserves Antarctica “for peaceful
purposes only,” and prohibits “any measures of a military nature, such as the
establishment of military bases and fortifications, the carrying out of military
maneuvers, as well as the testing of any type of weapons.”5 It is true that, in both
of these provisions, where the term “peaceful purposes” is qualified by “only” or
“exclusively,” the concrete substantive arms control obligations that follow are
more stringent than those in the OST. As such, it is difficult to draw parallels be-
tween the OST and the Antarctic Treaty in this respect. There are other treaties
that contain provisions in which the term “exclusively for peaceful purposes” is
not followed by any concrete substantive limitations, such as those regarding the
deep seabed and marine scientific research.6 Subsequent State practice shows
that these areas are not completely demilitarized. The deep seabed, for instance,
has long been of interest to the military.7 Ultimately, the term “peaceful” is open
to different interpretations, ranging from nonmilitarization to nonaggression,
leaving room for nonaggressive military uses.8 To consider any of the interpret-
ations to be universally applicable would be contrary to the fundamental prin-
ciple of State consent. Therefore, the arms control obligations in the OST must
be understood as deriving from the concrete substantive limits, rather than the
general concepts of “for peaceful purposes only” or “exclusively for peaceful
purposes.”
Paragraph 1 of Article IV of the OST addresses weapons of mass destruction
(WMDs) in outer space. It prohibits not only their placement in orbit around the
Earth and the installation on celestial bodies but also their stationing in space
4 James Clay Moltz, The Politics of Space Security: Strategic Restraint and the
Pursuit of National Interests 149 (2nd ed. 2008).

5 The Antarctic Treaty (opened for signature Dec. 1, 1959, entered into force June 23, 1961), 402
UNTS 71 [hereinafter AT], art. I, emphasis added.

6 United Nations Convention on the Law of the Sea (opened for signature Dec. 10, 1982, entered
into force Nov. 16, 1994), 1833 UNTS 397 [hereinafter UNCLOS], arts. 141, 143(1), 147(2)(d), 240,
and 246(3).
7 Bill Glenney, The Deep Ocean: Seabed Warfare and The Defense of Undersea Infrastructure, PT.1,
CIMSEC (Feb. 4, 2019), <http://cimsec.org/the-deep-ocean-seabed-warfare-and-the-defense-of-

undersea-infrastructure-pt-1/39593> (accessed Oct. 22, 2019); David Szondy, DARPA Wants to Hide
Naval Assets on the Sea Bottom, New ATLAS (Jan. 14, 2013), <https://newatlas.com/darpa-falling-
upward/25769/> (accessed Oct. 22, 2019).
8 See, e.g., Jinyuan Su, Use of Outer Space for Peaceful Purposes: Non-militarization, Non-aggression
and Prevention of Weaponization, Journal of Space Law 253, at 256 (2010).

“in any other manner.” The use of the latter term, which is all-encompassing,
indicates that the placement, installation, and stationing of WMDs is prohibited
in outer space generally, on celestial bodies, and in outer void space. Testing is
not addressed explicitly in this provision. But it is arguably prohibited implicitly,
since for a weapon to be tested in space, it has to be placed, installed, or stationed
there first.
Traditionally, WMDs include nuclear, chemical, and biological weapons. Nuclear
weapons are the WMDs of primary concern in outer space. During the Cold War,
early U.S. missile interceptors were tipped with megaton-class nuclear weapons,
which have a wide lethal range, and would lead to a successful ASAT attack. For
example, the U.S. Army tested the Nike-Zeus missile as an antisatellite weapon in
1963.9 However, due to their indiscriminative effect on space objects, including on
one’s own satellites, nuclear weapons were soon rejected for missile defense and
antisatellites purposes. The testing of nuclear weapons in outer space was then pro-
hibited by Article I of the 1963 Partial Test Ban Treaty.10
In sum, weapons, including ASATs, are prohibited on celestial bodies; while
in outer void space, including orbits around the Earth, only WMDs are prohib-
ited. It is unclear whether it was intentional that conventional weapons in outer
void space and terrestrially based ASATs were left unaddressed in the OST. In
any case, the prohibition of WMDs in outer space does not cover conventional
weapons.
With the practicality and legality of nuclear ASATs rejected, some other ASAT
mechanisms flourished over the years, including in particular “kinetic energy”
interceptors and “directed energy” ASAT technology, such as lasers.11 Tests of
the former were later regarded as detrimental to the environment because of the
creation of space debris and put under self-imposed moratorium. Tests of the
latter have continued, partly due to the small amount of debris generated. For
instance, on October 21, 1997, the U.S. Army tested the Mid-Infrared Advanced
Chemical Laser, which was aimed at the MSTI-3 U.S. military satellite at an al-
titude of 432 kilometers.12 The new millennium has witnessed the resurged in-
terest of States in tests of kinetic energy ASATs, with at least the United States,
China, and India exhibiting such a capability.13 Because there are no prohibitions
9 Justin Paul George, History of Anti-satellite Weapons: US Tested 1st ASAT Missile 60 Years Ago,
The Week (Mar. 27, 2019), <https://www.theweek.in/news/sci-tech/2019/03/27/history-anti-

satellite-weapon-us-asat-missile.html> (accessed Oct. 22, 2019).
10 AT, supra note 5, art. I(1).
11 David A. Koplow, ASAT-isfaction: Customary International Law and the Regulation of Anti-
Satellite Weapons, Michigan Journal of International Law 1187, at 1201 (2009).

12 Jos Heyman, Spatial Battlegrounds: Anti-Satellite Systems (ASATS), MilsatMagazine (Sept.
2015), <http://www.satmilmagazine.com/story.php?number=701833149> (accessed on Oct.

22, 2019).
13 See Global Counterspace Capabilities: An Open Source Assessment (Brain Weeden
& Victoria Samson eds., 2019); Laura Grego, A History of Anti-Satellite Programs, Union of
Concerned Scientists (Jan. 2012), <https://www.ucsusa.org/sites/default/files/2019-09/
against terrestrially based ASATs, these activities do not violate the law of arms
control.
Effectiveness of Current Proposals in Addressing ASATs
It is clear from the previous discussion that the current legal framework fails
to address the issue of PAROS effectively, especially as far as space-based con-
ventional weapons and terrestrially based ASATs are concerned. In order
to strengthen space arms control, various proposals have been made in the
Conference on Disarmament (CD) and the UN General Assembly (UNGA).
The PPWT Proposal in the CD
The CD is the single multilateral disarmament negotiating forum of the interna-

tional community. It reports to the UNGA annually. Over the decades of its exist-
ence, the number of its members has grown from the original forty to sixty-five
today.14 They meet in annual sessions and make decisions by consensus. The CD
and its predecessors have successfully negotiated various arms control treaties,
such as the Treaty on the Non-Proliferation of Nuclear Weapons, the Convention
on the Prohibition of Military or Any Other Hostile Use of Environmental
Modification Techniques, and the Comprehensive Nuclear-Test-Ban Treaty.
In 2008, at the CD, China and Russia proposed the draft Treaty on the
Prevention of the Placement of Weapons in Outer Space and the Threat or Use
of Force against Outer Space Objects (PPWT), which is intended to become a
legally binding treaty.15 Formal negotiation of the proposal never commenced,
as the CD has been unable to agree upon a program of work by consensus.
Nevertheless, views on the proposal have been exchanged between States by
written comments submitted to the CD and statements made at meetings. The
United States opposed the 2008 PPWT, stating that it does not consider it pos-
sible to develop an effectively verifiable agreement for the banning of space-based
“weapons” or terrestrially based antisatellite systems.16 After years of exchanging
a-history-of-ASAT-programs_lo-res.pdf> (accessed Oct. 22, 2019). An important recent develop-

ment not included in these reports is India’s successful test of its ASATs on March 27, 2019.
14 United Nations Geneva, An Introduction to the Conference, <https://www.unog.ch/
80256EE600585943/(httpPages)/BF18ABFEFE5D344DC1256F3100311CE9?OpenDocument>
(accessed Oct. 22, 2019).
15 Draft Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of
Force against Outer Space Objects, CD/1839.

16 Analysis of a Draft “Treaty on Prevention of the Placement of Weapons in Outer Space, or the
Threat or Use of Force against Outer Space Objects,” CD/1847, at 8, para. 24.
views, China and Russia submitted an updated version of the PPWT in 2014.17
The United States continued to reject the 2014 version on the grounds of the lack
of an integral verification regime to monitor or verify the limitation on the place-
ment of weapons in space, the risk of a party developing a readily deployable
space-based weapons breakout capacity, and the failure to address terrestrially
based antisatellite weapons systems.18
The PPWT proposes to prohibit the placement of any weapons in outer space,
space-to-space or space-to-Earth. This is potentially one of its most significant
contributions to the legal regime of space security. The 2014 PPWT defines
“weapon in outer space” as:
any outer space object or component thereof which has been produced or con-
verted to destroy, damage or disrupt the normal functioning of objects in outer
space, on the Earth’s surface or in its atmosphere, or to eliminate human beings
or components of the biosphere which are important to human existence, or to
inflict damage on them by using any principles of physics.19
Hence, a weapon in outer space is first of all an outer space object or compo-
nent thereof. “Outer space object” is defined as “any device placed in outer space
and designed for operating therein.”20 This definition contains a spatial element,
namely, being “placed in outer space,” and an objective element, namely, being
“designed for operating therein.” As to the spatial criterion, a device is considered
to have been “placed in outer space” if “it orbits the Earth at least once, or follows
a section of such an orbit before leaving that orbit, or is permanently located in
outer space or on any celestial bodies other than the Earth.”21 The distinguishing
line for an outer space object to be considered a weapon in outer space is “pro-
duction and conversion” for hostile purposes or use.
The PPWT explicitly prohibits the placement of weapons in outer space.22
Placement of space-based ASATs are included in the prohibition of outer space
objects “produced or converted to destroy, damage or disrupt the normal func-
tioning of objects in outer space.” The use of space-based ASATs is prohibited as
well, as States Parties undertake “not to resort to the threat or use of force against
outer space objects of States Parties to the Treaty.”23 It is arguable that testing
17 Draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of
Force against Outer Space Objects (PPWT), CD/1985 [hereinafter 2014 PPWT].
18 Analysis of the 2014 Russian- Chinese draft “treaty on the prevention of the placement of
weapons in outer space, the threat or use of force against outer space objects” (PPWT) (CD/1985),
CD/1998 [hereinafter US Analysis of 2014 PPWT], at 2, para. 1.
19 2014 PPWT, supra note 17, art. I(b).
20 Id., art. I(a).
21 Id., art I(c).
22 Id., art II.
23 Id., art II.
is prohibited implicitly, because for space-based ASATs to be tested, they have

to be placed in space first. Research and development, production, and storage
are not prohibited. However, it is doubtful if space-based ASATs can be effective
without being tested. The United States seems to agree on this, but also points
out that testing of space-based weapons would not be prohibited “if they were
tested against cooperative orbital targets and the test vehicle was launched into
a sub-orbital trajectory, therefore never being ‘placed in outer space.’ ”24 If the
proposal could be amended to prohibit any testing of space-based weapons, the
U.S. concern regarding the possibility of a readily deployable space-based ASAT
capability may be relieved.
The PPWT does not address terrestrially based ASATs explicitly. The use
of them, as that of space-based ASATs, is prohibited by the obligation “not
to resort to the threat or use of force against outer space objects of States
Parties to the Treaty.”25 The term “use of force” is defined in the 2014 text
of the PPWT as “any action intended to inflict damage on an outer space
object under the jurisdiction and/or control of other States,” and “threat of
force” is defined as “the clear expression in written, oral or any other form
of the intention to commit such an action.”26 This formula echoes the Moon
Treaty, which prohibits “[a]‌ny threat or use of force or any other hostile act
or threat of hostile act on the Moon.”27 While the use of terrestrially based
ASATs is thus prohibited implicitly, the research and development, produc-
tion, storage, and even testing of terrestrially based ASATs are not prohibited
by the PPWT.
The United States regards terrestrially based ASATs as “the most pressing, ex-
isting threat to outer space systems.”28 This is not difficult to understand, given
the heavy reliance of the United States on space assets. Therefore, the lack of an
explicit prohibition of terrestrially based ASATs appears to be a primary reason
for its opposition to the PPWT. The U.S., as one of the States that have conducted
such tests, has repeatedly raised its concern over ASAT tests.29 It is thus impor-
tant for the PPWT to include a new provision on terrestrially based ASATs in
order to have the support from the United States.
24 US Analysis of 2014 PPWT, supra note 18, at 4, para. 10.

25 2014 PPWT, supra note 17, art. II.
26 Id., art. I(d).
27 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (opened for
signature Dec. 18, 1979, entered into force July 11, 1984), 1363 UNTS 3, art. 3(2).
28 US Analysis of 2014 PPWT, supra note 18, at 2, para. 1.
29 “Statement by Ambassador Robert A. Wood, U.S. Permanent Representative to the Conference
on Disarmament, at the Conference on Disarmament Plenary Meeting on Agenda Item Three,

‘Prevention of an arms race in outer space,’ Geneva, August 14, 2019,” US Mission to International
Organizations in Geneva (Aug. 14, 2019), <https://geneva.usmission.gov/2019/08/14/statement-
by-ambassador-wood-the-threats-posed-by-r ussia-and-china-to-security-of-the-outer-space-
environment/> (accessed Oct. 22, 2019).
Unilateral Commitment of “No First Placement of Weapons

in Outer Space”
Within the UNGA, disarmament and international peace and security are
addressed by the First Committee. For three decades, the UNGA has adopted
resolutions entitled “Prevention of an Arms Race in Outer Space,” with almost
identical contents. The resolutions call upon “all States, in particular those with
major space capabilities, to contribute actively to the objective of the peaceful use
of outer space and of the prevention of an arms race in outer space and to refrain
from actions contrary to that objective and to the relevant existing treaties in the
interest of maintaining international peace and security and promoting inter-
national cooperation,” and invite “the Conference on Disarmament to establish
a working group under its agenda item entitled ‘Prevention of an arms race in
outer space’ as early as possible.”30
In recent years, new proposals regarding PAROS have emerged in the UNGA,
one of them being the initiative calling on States to pledge not to be first to deploy
weapons in space. In October 2004, at the First Committee, Russia announced a
new policy of “no first deployment of weapons in outer space” and called on all
other spacefaring and space-using nations to join in this pledge.31 A number of
States declared jointly with Russia that they will not be the first to place weapons
of any kind in outer space. On December 2, 2014, the UNGA adopted the reso-
lution entitled “No first placement of weapons in outer space,”32 which was also
originally proposed by Russia.33 The same resolution was adopted repeatedly in
the years that followed.34
This series of resolutions include statements urging the CD to commence sub-
stantive work on PAROS based on the 2014 PPWT; stressing the contribution
of other measures to ensure that weapons are not placed in outer space while an
agreement is not yet concluded; and encouraging States to consider the possi-
bility of upholding a political commitment not to be the first to place weapons
in outer space.35 As mentioned previously, weapons placed in outer space
30 “Prevention of an arms race in outer space,” GA Res. 73/30 (Dec. 5, 2018).

31 Vladimir Vozhzhov, The Russian Federation’s Priorities in the Field of Expanding International
Cooperation in the Use of Outer Space, in Safeguarding Space Security: Prevention of an Arms
Race in Outer Space 19, at 23–24 (UNIDIR ed., 2006).
32 “No First Placement of Weapons in Outer Space,” GA Res. 69/32 (Dec. 2, 2014).
33 Draft Resolution on “No First Placement of Weapons in Outer Space,” UN Doc. A/C.1/69/L.14
(2014).
34 “No First Placement of Weapons in Outer Space,” GA Res. 73/31 (Dec. 5, 2018); “No First
Placement of Weapons in Outer Space,” GA Res. 72/27 (Dec. 4, 2017); “No First Placement of
Weapons in Outer Space,” GA Res. 71/32 (Dec. 5, 2016); “No First Placement of Weapons in Outer
Space,” GA Res. 70/27 (Dec. 7, 2015).
35 See, e.g., “No First Placement of Weapons in Outer Space,” GA Res. 73/31 (Dec. 5, 2018), paras.
3, 4, & 5.
include space-based ASATs and space-to-Earth weapons. It is arguable that to

refrain from testing weapons in outer space is within the ambit of these negative
undertakings too, because in order to test weapons in outer space they would
need to be deployed in outer space first. Therefore, the resolutions and unilateral
commitments obviously have a political impact, and possibly a legal impact too,
on the limitation of ASATs.
The resolutions adopted by the UNGA are not legally binding in them-
selves. They may nevertheless play an important role in the identification
of customary rules. As the International Court of Justice (ICJ) said in the
Nicaragua case, “opinio juris may . . . be deduced from, inter alia, the attitude
of the Parties and the attitude of States towards certain General Assembly
resolutions,” and the effect of consent to the text of such resolutions “may be
understood as an acceptance of the validity of the rule or set of rules declared
by the resolution by themselves.”36 However, the Court also warned that
the deduction should be made “with all due caution.”37 In the Legality of the
Threat or Use of Nuclear Weapons advisory opinion, the Court said that in
order to determine whether an UNGA resolution provides evidence impor-
tant for establishing the existence of a rule or the emergence of an opinio
juris, “it is necessary to look at its content and the conditions of its adop-
tion; it is also necessary to see whether an opinio juris exists as to its norma-
tive character.”38 It also mentioned that “a series of resolutions may show the
gradual evolution of the opinio juris required for the establishment of a new
rule.”39
Applying this analysis to the “No first placement” resolutions, it would be
difficult to say that a customary rule against placing weapons in outer space
is emerging. The resolutions never make it a legal obligation not to be the first
to place weapons in outer space. In fact, they only go so far as to “encourage”
States to “consider the possibility of upholding as appropriate a political commit-
ment not to be the first to place weapons in outer space.” These carefully crafted
words show that there is a lack of consensus on the normative character of the
obligation.
However, unilateral declarations may incur binding obligations, and therefore
any unilateral declaration made by a State in pursuance of the “no first place-
ment” resolutions might itself lead to a legal obligation on that State. As the ICJ
expounded in the Nuclear Tests cases:
36 Military and paramilitary activities in and against Nicaragua (Nicaragua v. USA) (Merits)
[1986] ICJ Rep. 3, at 99–100, para. 188.

37 Id.
38 “Legality of the Threat or Use of Nuclear Weapons” (Advisory Opinion) [1996] ICJ Rep. 226
[hereinafter Nuclear Weapons Advisory Opinion], at 254–255, para. 70.

39 Id.
It is well recognized that declarations made by way of unilateral acts, concerning

legal or factual situations, may have the effect of creating legal obligations.
Declarations of this kind may be, and often are, very specific. When it is the
intention of the State making the declaration that it should become bound ac-
cording to its terms, that intention confers on the declaration the character of
a legal undertaking, that State being thenceforth legally required to follow a
course of conduct consistent with the declaration. An undertaking of this kind,
if given publicly, and with an intention to be bound, even though not made
within the context of international negotiations, is binding.40
The Court continued to state that “not all unilateral acts imply obligation” and
“[w]‌hen States make statements by which their freedom of action is to be limited,
a restrictive interpretation is called for.”41
Whether the unilateral declarations have the effect of creating a legal ob-
ligation of not being the first to place weapons in outer space needs to be
ascertained on a case-by-case basis. For example, Russia and Argentina jointly
declared that “they will not in any way be the first to place weapons of any kind
in Outer Space, that they will make all possible efforts to prevent Outer Space
from becoming an arena for military confrontation and to ensure security in
Outer Space activities.”42 This undertaking is specific and given publicly, and
is arguably accompanied by “an intention to be bound.”43 However, the obli-
gation is limited as the relevant States only pledge not “to be the first” to place
weapons in outer space. Any other State’s placement of weapons in outer space
would free them from the commitment. If the commitment is made by all
major spacefaring countries, a taboo would be formed between them on the
first placement of weapons in outer space. Unfortunately, it seems unlikely
that the major spacefaring nations will make this undertaking, as it would
amount to a similar result as entering into a treaty prohibiting the placement of
weapons in outer space. So far, many of the States making such a commitment
have limited space capability, such as Argentina, Brazil, Cuba, Indonesia, Sri
Lanka, Venezuela, Vietnam, and members of the Collective Security Treaty
40 Nuclear Tests (Australia v. France) (Judgment) [1974] ICJ Rep. 253 [hereinafter Australia
v. France], at 267, para. 43; Nuclear Tests (New Zealand v. France) (Judgment) [1974] ICJ Rep. 457
[hereinafter New Zealand v. France], 472, para. 46.
41 Australia v. France, supra note 40, at 267, para. 44; New Zealand v. France, supra note 40, at 472–
473, para. 47.

42 Joint Statement between the Russian Federation and the Argentine Republic of Not Being the First
to Place Arms in Outer Space, Moscow, May 28, 2014.

43 Jinyuan Su, Space Arms Control: Lex Lata and Currently Active Proposals, Asian Journal of
International Law 61, at 77–79 (2017).

Organization other than Russia (Armenia, Belarus, Kazakhstan, Kyrgyzstan,

and Tajikistan).
The contribution of unilateral “no first placement of weapons in outer space”
commitments to strengthening space arms control should not be overestimated
due to various shortcomings. For instance, without a definition of weapons in space,
State A may mistakenly evaluate the activities of State B as having placed weapons
in outer space, and therefore (wrongfully) interpret this to mean that it is now free
to also place weapons in space. This is indeed a valid concern, given the dual-use
nature of many space technologies. In addition, unilateral commitments place
their emphasis on space-based weapons, while failing to address terrestrially based
ASATs. This makes it nearly impossible for the United States to lend its support to
the proposal, given its repeated objection to any mechanism that does not address
such ASATs.
Legality ASATs under the Law of Environmental Protection
The law of environmental protection, whether under general international law,

or under the special international law of outer space, does not directly limit the
freedom of States to conduct military activities. It may nevertheless impose indirect
limits on them, by constraining the exterior impact of military activities on the envi-
ronment or on other States’ freedom of exploration and use of outer space. The test
or use of kinetic ASATs, terrestrially based or space-based, is likely to create large
amounts of space debris, inflicting damage on the space environment and/or inter-
fering with the freedom of others. International law with regard to the protection
of space environment thus comprises principles and rules for the protection of the
environment per se (environment-centric rules) and those aimed at protecting the
interests of others (anthropocentric rules).
The Obligation of Respecting the Environment of Areas

beyond National Control
Environmental protection was not a primary issue of concern in the early stages
of the Space Age. This explains the limited scope in which the issue is addressed
in Article IX of the OST, that is, the issues of harmful contamination of outer
space (forward contamination) and adverse changes in the environment of the
Earth (backward contamination). With respect to the former, which is perti-
nent here, Article IX determines that States Parties “shall pursue studies of outer
space, including the Moon and other celestial bodies, and conduct exploration of
them so as to avoid their harmful contamination . . . and, where necessary, shall

adopt appropriate measures for this purpose.”44
“Contamination,” in its ordinary meaning, means the act of pollution or infec-
tion.45 It is argued that space debris has become a new form of harmful contam-
ination of outer space.46 However, not all levels of space debris creation, which
is inevitable in any space activities, amounts to “harmful contamination,” which
has an inherent threshold of severity. It is noted that “harmful” means “causing
or capable of causing significant harm.”47 Thus, space debris created by routine
space activities, or even by military or defense activities, may not always reach
this threshold of severity if the amounts of debris are small, or if the debris is
only caused at such a low altitude that it would soon de-orbit. In addition, States
Parties are only obliged to “avoid” and adopt “appropriate” measures “where nec-
essary.” They have the discretion on when the circumstances render the adop-
tion of certain measures necessary and what measures are the most appropriate.
This obligation is further narrowed by the terms of “studies” and “exploration”
of outer space. It can be argued that neither of them covers the test, deployment,
and use of ASATs, which are “use” of outer space. Therefore, under treaty law, the
environment-centric rules in Article IX may not be effective in limiting the envi-
ronmental impact of the test and use of ASATs.
Conversely, under general international law, there exists the obligation of
States to respect the environment of areas beyond national control. This obli-
gation originated from the bilateral context to avoid transboundary environ-
mental harm. Due to the fluidity of air and water, pollutants may be carried from
a State where they are created to another State, thus inflicting injury to the life
and property in the latter. While States are expected to tolerate some level of
transboundary harm, their legitimate rights are damaged when the consequence
reaches a certain level of severity. As the arbitral tribunal in the 1941 Trail Smelter
case between Canada and the United States stated:
under the principles of international law . . . no State has the right to use or
permit the use of its territory in such a manner as to cause injury by fumes in or
to the territory of another or the properties or persons therein, when the case
is of serious consequence and the injury is established by clear and convincing
evidence.48
44 OST, supra note 2, art. IX.

45 The Oxford Encyclopedic English Dictionary (Joyce M. Hawkins & Robert E. Allen eds.,
1991), sub verbo “contamination.”
46 Sergio Marchisio, Article IX, in Cologne Commentary on Space Law 169, at 177 (vol. 1,
Stephan Hobe et al. eds., 2009).

47 Id., emphasis added.
48 Trail Smelter case (United States, Canada), Apr. 16, 1938, and Mar. 11, 1941, III RIAA 1905, at
1965, emphasis added.

As human activities extend from the territory of States to areas beyond the
limits of national jurisdiction, such as the high seas and the airspace beyond
national territory, the protection of these open environments gathered interna-
tional attention. It is against this backdrop that the obligation of transboundary
harm expanded from the original bilateral context, to cover the protection of the
environment of all areas beyond the limits of national jurisdiction. Principle 21
of the 1972 Stockholm Declaration provides:
States have, in accordance with the Charter of the United Nations and the prin-
ciples of international law, the sovereign right to exploit their own resources
pursuant to their own environmental policies, and the responsibility to en-
sure that activities within their jurisdiction or control do not cause damage
to the environment of other States or of areas beyond the limits of national
jurisdiction.49
This is repeated in the 1992 Rio Declaration.50 Under the sway of this obliga-
tion are now brought not only activities conducted in the territory of a State but
also those within its jurisdiction or control, and in areas beyond the limits of
national jurisdiction. Besides, the threshold for violation of this obligation, that
is, to ensure that no environmental damage is caused, is much lower than that
stated in the Trail Smelter case.
Without doubt, the Stockholm Declaration and the Rio Declaration have
played a significant role in the development of international and national en-
vironmental law. However, we should be careful in determining the customary
status of the preceding rule, given its departure from the Trail Smelter dictum.
It is true that the high threshold is adopted in the legally binding 1982 UN
Convention on the Law of the Sea (UNCLOS), which provides:
States shall take all measures necessary to ensure that activities under their ju-
risdiction or control are so conducted as not to cause damage by pollution to
other States and their environment, and that pollution arising from incidents
or activities under their jurisdiction or control does not spread beyond the areas
where they exercise sovereign rights in accordance with this Convention.51
Yet, to transport this treaty obligation in the law of the sea directly to other areas
beyond the limits of national jurisdiction would run counter to the fundamental
49 Declaration of the United Nations Conference on the Human Environment, June 16, 1972, UN
Doc. A/Conf.48/14/Rev.1 (1973), 11 ILM 1416, Principle 21.

50 Rio Declaration on Environment and Development, June 13, 1992, UN Doc. A/Conf.151/5/
Rev.1 (1992), 31 ILM 874, Principle 2.

51 UNCLOS, supra note 6, art. 194(2), emphasis added.
principle of State consent. It must not be neglected that, even on the high seas,
States are reluctant to subject their military activities to this regulation. This
provision, as well as others of the UNCLOS relating to the protection and pres-
ervation of the marine environment, does not apply to “any warship, naval auxil-
iary, other vessels or aircraft owned or operated by a State and used, for the time
being, only on government non-commercial service.”52 It is for States to “ensure,
by the adoption of appropriate measures not impairing operations or operational
capabilities of such vessels or aircraft owned or operated by it, that such vessels
or aircraft act in a manner consistent, so far as is reasonable and practicable, with
this Convention.”53
That being said, it remains to be explored whether the Trail Smelter dictum,
expressed nearly eighty years ago, has transformed to now include a lower
threshold of violation, with the previously mentioned international instruments
as the evidence. To this end, it is necessary to refer to more recent international
juridical decisions. In the 1996 Threat or Use of Nuclear Weapons advisory
opinion, the ICJ found:
The existence of the general obligation of States to ensure that activities within
their jurisdiction and control respect the environment of other States or of areas
beyond national control is now part of the corpus of international law relating
to the environment.54
This is repeated in the 1997 Gabčíkovo-Nagymaros Project case55 and in the

2010 Pulp Mills on the River Uruguay case.56 In these consistent decisions, the
Court did not identify that the rule had acquired a lower threshold of violation
of the obligation. Rather, the transformation of the obligation, as identified by
the Court, is in its emphasis from being on the consequence to now being on the
subjective element. This is especially evident in the judgment of the Pulp Mills on
the River Uruguay case, in which the ICJ stated that:
it may now be considered a requirement under general international law

to undertake an environmental impact assessment where there is a risk that
the proposed industrial activity may have a significant adverse impact in a
transboundary context, in particular, on a shared resource.57
52 Id., art. 236.

53 Id., art. 236, emphasis added.
54 Nuclear Weapons Advisory Opinion, supra note 38, at 241–242, para. 29, emphasis added.
55 Gabčíkovo- Nagymaros Project (Hungary/Slovakia) (Judgment) [1997] ICJ Rep. 7, at 41,
para. 53.
56 Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Judgment) [2010] ICJ Rep. 14, 78–79,
paras. 193–194.
57 Id. 82–83, para. 204.
It further said “due diligence, and the duty of vigilance and prevention which
it implies would not be considered to have been exercised, if a party planning
works liable to affect the regime of the river or the quality of its waters did not
undertake an environmental impact assessment on the potential effects of such
works.”58 This is not to say that consequence is irrelevant in determining a breach
of the obligation. Without doubt, it will be an important element to take into
account in assessing whether the conducting State has exercised due diligence.
Therefore, the general obligation of respecting the environment of areas be-
yond national control applies in outer space, given that Article III of the OST
determines that all activities in outer space must be in accordance with interna-
tional law. But it must be cautioned that the principle is essentially subjective—so
it will be in the hands of the actor to assess whether the principle applies and to
what extent—although the objective consequence must be taken into account in
its assessment.
The test of kinetic ASATs is likely to create a large amount of space debris, as
shown by those tests conducted in the Cold War and more recently. The severity
of their consequence depends on not only the amount of debris generated but
also the orbit on which the test is conducted. While the consequential impact of
these tests on the space environment has been frequently discussed, the subjec-
tive elements have seldom been put to the test. In any case, given that the States
with significant counterspace capability are most often also major spacefaring
countries, to conduct ASATs tests in a manner damaging the space environment
is ultimately contrary to their interest. While latecomers are often eager to ex-
hibit the capability once acquired—invoking the equal freedom to do the same
as the two superpowers did in the Cold War—the legal, political, and practical
implications have deterred them from conducting more debris-generating tests.
The Obligation of Paying Due Regard to the Interest of Others
Article IX of the OST also comprises an anthropocentric rule that may impose
indirect constraints on military activities in outer space, by limiting their exterior
impact on the activities of other entities. Accordingly, in the exploration and use
of outer space, States Parties “shall be guided by the principle of cooperation and
mutual assistance and shall conduct all their activities in outer space . . . with due
regard to the corresponding interests of all other States Parties to the Treaty.”59
This obligation derives from the freedom of exploration and use of outer space
by all States “without discrimination of any kind, on a basis of equality and in
58 Id.
accordance with international law.”60 It is common that in domains open to all,

like outer space and the high seas, there exist concurrent rights of other actors,
and a subject’s exercise of its right may cause interference with others. To recon-
cile possible conflicts, the obligation of due regard is often used in international
treaties.61 While not intended to introduce any hierarchy between conflicting
rights, this obligation essentially deals with the degree of interference that one
may reasonably cause to others and that others are expected to tolerate.
The obligation of “due regard” is general, and its scope and effect mostly “de-
pend on their interpretation in the course of their concrete enforcement by
executive authorities or courts and tribunals.”62 It has been applied in interna-
tional judicial decisions, such as the Chagos Marine Protected Area arbitration in
which the ad hoc arbitral tribunal was confronted with the interpretation of the
“due regard” that a coastal State owes to other States under Article 56(2) of the
UNCLOS, and vice versa under Article 58(3).63 The tribunal’s elaboration of the
obligation is perhaps the most explicit so far in international jurisprudence:
In the Tribunal’s view, the ordinary meaning of “due regard” calls for the United
Kingdom to have such regard for the rights of Mauritius as is called for by the
circumstances and by the nature of those rights. The Tribunal declines to find
in this formulation any universal rule of conduct. The Convention does not im-
pose a uniform obligation to avoid any impairment of Mauritius’ rights; nor
does it uniformly permit the United Kingdom to proceed as it wishes, merely
noting such rights. Rather, the extent of the regard required by the Convention
will depend upon the nature of the rights held by Mauritius, their importance,
the extent of the anticipated impairment, the nature and importance of the ac-
tivities contemplated by the United Kingdom, and the availability of alternative
approaches. In the majority of cases, this assessment will necessarily involve at
least some consultation with the rights-holding State.64
60 Id., art. I.
61 See, e.g., OST, supra note 2, art. IX; UNCLOS, supra note 6, art. 27(4), arts. 56(2) and 58(3),
60(3), 79(5), 87(2), and 234.
62 Mathias Forteau, The Legal Nature and Content of “Due Regard” Obligation in Recent
International Case Law, The International Journal of Marine and Coastal Law 25, at 25–26
(2019).
63 Article 56(2) of the UNCLOS provides that “[i]‌n exercising its rights and performing its duties
under this Convention in the exclusive economic zone, the coastal State shall have due regard to
the rights and duties of other States and shall act in a manner compatible with the provisions of this
Convention.” Article 58(3) of the UNCLOS provides that “[i]n exercising their rights and performing
their duties under this Convention in the exclusive economic zone, States shall have due regard to the
rights and duties of the coastal State and shall comply with the laws and regulations adopted by the
coastal State in accordance with the provisions of this Convention and other rules of international
law in so far as they are not incompatible with this Part.”
64 Chagos Marine Protected Area Arbitration (Mauritius/UK) (Award of Mar. 18, 2015), 202,
para. 519.
The tribunal proceeded to consider that the United Kingdom’s obligation

to act in good faith and to have “due regard” to Mauritius’ rights and interests
“entails, at least, both consultation and a balancing exercise with its own rights
and interests.”65 But it accepted the United Kingdom’s argument that consultation
need not continue indefinitely or “until the other party is happy.”66 Therefore, the
obligation essentially requires the conduction of a balancing exercise and, if nec-
essary, consultation.
As far as the testing of ASATs is concerned, what competes with the right
to conduct military activities in outer space is the freedom of others to ex-
plore and use outer space. As State practice shows, the freedom of exploration
and use of outer space includes the right to conduct military activities therein
for peaceful purposes. Although some military activities in outer space are
quite likely detrimental to the space environment, international law does not
preemptively degrade them into a position inferior to other freedoms. The
pursuit of ASATs arises from the necessity of guaranteeing national security.
With space arms control in stagnancy, the development of ASATs is regarded
as important means for the deterrence of space weapons. Consequently,
only by strengthening space arms control can the fascination with ASATs be
dispersed.
Consultation was taken, in the Chagos Marine Protected Area arbitration, as
the procedural requirement of the United Kingdom’s obligation of paying due
regard to Mauritius’ rights and interests. Coincidentally, Article IX of the Outer
Space Treaty contains a parallel consultation regime:
If a State Party to the Treaty has reason to believe that an activity or experi-
ment planned by it or its nationals in outer space, including the Moon and
other celestial bodies, would cause potentially harmful interference with activ-
ities of other States Parties in the peaceful exploration and use of outer space,
including the Moon and other celestial bodies, it shall undertake appropriate
international consultations before proceeding with any such activity or exper-
iment. A State Party to the Treaty which has reason to believe that an activity
or experiment planned by another State Party in outer space, including the
Moon and other celestial bodies, would cause potentially harmful interference
with activities in the peaceful exploration and use of outer space, including the
Moon and other celestial bodies, may request consultation concerning the ac-
tivity or experiment.67
65 Id., 210, para. 534.

66 Id., 208, para. 531.
This regime consists of the obligation on the part of a State planning activi-
ties in outer space to initiate consultation (the “obligation of initiating consulta-
tion”) and the right to seek consultation on the part of potentially affected States
(the “right to seek consultation”). They are both based on the fact that the State
initiating or requesting consultation has “reason to believe” that the activity in
question would cause “potentially harmful interference” with activities of other
States. This fact is one of probability, rather than certainty. The determination of
this probability is inherently a subjective one. It does not follow, however, that a
State is at absolute liberty in determining whether an activity planned in outer
space would or would not cause potentially harmful interference with activi-
ties of other States. Otherwise, the purpose of this provision would be defeated.
Therefore, although the determination is a subjective one, the determination it-
self shall be subject to an objective assessment if it is alleged that the obligation of
prior consultation is not fulfilled.
The dual regime of prior consultation has seldom been practiced. Among the
ASATs tests which created a large amount of debris, none were preceded by the
offering of consultations on the part of the conducting State. In 2008, when the
United States conducted Operation “Burnt Frost,” destroying its own orbiting
satellite, it did provide notification to the United Nations, but was careful to
specify that such notification was not considered to be a “consultation” under
Article IX, because it did not view the operation as potentially causing harmful
interference, due to projections that any resulting debris would not remain in
orbit due to the satellite’s low orbit.68 The right to request consultations, on the
other hand, would be meaningful only if the relevant information is available
before the activity in question is carried out. In reality, unless the State planning
an activity in outer space shares information voluntarily, it would be difficult for
other States to assess if there is any potentially harmful interference to their own
activities in outer space and to decide whether or not to request consultation.
The decision to conduct ASATs tests is usually confidential, making it difficult
for others to request consultations.
Conclusion
From the preceding analysis, the following conclusions can be drawn. During
peacetime, existing international law of space arms control prohibits, at best, the
testing and deployment of WMDs in outer void space and on celestial bodies,
68 DoD News Briefing with Deputy National Security Advisor Jeffrey, Gen. Cartwright and NASA
Administrator Griffin, U.S. Department of Defense (Feb. 14, 2008), <https://www.defense.gov/

transcripts/transcript.aspx?transcriptid=4145> (accessed Oct. 22, 2019).
and the testing and deployment of conventional ASATs on celestial bodies. The
issues of conventional ASATs in outer void space and of terrestrially based ASATs
are unaddressed. With these lacunae, the law of environmental protection may
come into play to constrain the testing of ASATs, by requiring States to take into
consideration their exterior impact on the environment and/or their potential
interference with others’ activities. However, the protection of the space environ-
ment from damage caused by military activities is only a complementary legal
regime to the law of space arms control. To address the core issue of space se-
curity, the law of space arms control itself should be strengthened. ASATs and
space-to-Earth weapons form the core issues that must be addressed in cur-
rent and future proposals of space arms control. As can be gleaned from public
discussions surrounding space arms control, States hold starkly different views
as to the urgency and feasibility of prohibiting them, which are shaped by their
primary security concerns. Over the years, no substantive progress has been
made in international space arms control, as is further discussed in chapters 2
[Hitchens], 3 [Kealotswe-Matlou], and 10 [Doucet]. Instead, the views seem to
be increasingly fragmented, as space is seen by key players such as the United
States as a “warfighting domain.” The international community, in particular
major spacefaring countries, should think more broadly about international
peace and security rather than their unilateral security interests, especially given
our mutual dependencies on a sustainable and stable space environment.
8
The Legality of Keep-Out, Operational,
and Safety Zones in Outer Space
Matthew Stubbs
Introduction
One of the fundamental principles of space law is that outer space is free for
exploration and use by all States.1 However, there is no such thing as absolute
freedom—the Outer Space Treaty (OST) itself imposes a variety of obligations
on States which limit this freedom. Principles of international law derived from
other legal regimes, including international humanitarian law, will impose addi-
tional limitations on the freedom. This is to be expected—there are a variety of
situations where it will be in the strategic (or even merely commercial) interests
of a State to seek to prevent other States from accessing an area of outer space.
As an example, there is in current practice—if not law—one instance of a
safety zone in outer space. Providers of Commercial Orbital Transportation
Services to NASA for resupply of the International Space Station are required
to observe specified procedures within an “approach ellipsoid” defined as a “4 x
2 x 2 km ellipsoid, centered at the ISS center of mass, with the long axis aligned
with the V-Bar,” and further requirements apply within a more narrowly defined
“keep-out sphere” of “200m radius, centered at the ISS center of mass.”2 These are
not generally applicable legal requirements but merely contractual conditions
applicable to commercial service providers. Nonetheless, they provide a unique
practical example of the sort of safety zone that might be relevant in outer space
in the future.
This chapter examines a number of legal bases on which States might seek
to impose a keep-out, operational, or safety zone in outer space, both in
Including the Moon and Other Celestial Bodies, opened for signature Jan. 27, 1967, 610 UNTS 205
(entered into force Oct. 10, 1967) [hereinafter OST], art. I; Francis Lyall & Paul B. Larsen, Space
Law: A Treatise 54 (2nd ed. 2018).
2 Diane S. Koons, Craig Schreiber, Francisco Acevedo, & Matt Sechrist, Risk Mitigation Approach
to Commercial Resupply to the International Space Station, <https://ntrs.nasa.gov/archive/nasa/casi.

ntrs.nasa.gov/20100014822.pdf> (accessed Mar. 30, 2020).
Matthew Stubbs, The Legality of Keep-Out, Operational, and Safety Zones in Outer Space In: War and Peace
Press. DOI: 10.1093/oso/9780197548684.003.0009
peacetime and during armed conflict. The chapter commences with two sce-
narios in which there can be little doubt that keep-out zones could be validly
declared: first, by the UN Security Council acting under Chapter VII of the UN
Charter,3 and second, by belligerents in the immediate area of military opera-
tions during an armed conflict. The potential for space exclusion zones to be
applied in armed conflict is also considered, modeled on maritime and air ex-
clusion zones which are recognized as an attribute of the right of self-defense.
Following this, an analysis is made of zones in outer space—by analogy to ac-
cepted zones on Earth—which might become part of future international space
law applicable in peacetime. In particular, the potential for space equivalents
of Air Defense Identification Zones (ADIZs) are considered, as well as safety
zones around space resource activities by analogy to safety zones under the UN
Convention on the Law of the Sea (UNCLOS).4 The focus of this chapter is on
areas where existing law is either clearly applicable or offers some insights from
regimes that are in some ways analogous, rather than on the creation of entirely
new legal regimes.5
The overall conclusion is that there are important, if narrowly defined,
instances where States can legally declare keep-out and operational zones in
outer space (under Security Council authority or during an armed conflict), and
that future practice may well recognize further limited instances of operational
3 Charter of the United Nations, 1 UNTS 16 (entered into force Oct. 24, 1945) [hereinafter Charter].
4 United Nations Convention on the Law of the Sea, 1833 UNTS 397 (entered into force Nov. 1,
1994) [hereinafter UNCLOS]. Two further areas of some tangential relevance might be noted that
are not examined in this chapter. First, States have a variety of obligations to avoid actions which
would amount to interference with satellites which form part of the national technical means of ver-
ification under arms control agreements. See Treaty Between the United States of America and the
Union of Soviet Socialist Republics on the Elimination of Their Intermediate-Range and Shorter-Range
Missiles (entered into force June 1, 1988), (1988) 27 ILM 90, art. 12(2)(a); Treaty between the United
States of America and the Russian Federation on Measures for the Further Reduction and Limitation of
Strategic Offensive Arms (entered into force Feb. 5, 2011), (2011) 50 ILM 342, art. 10(1)(b); Treaty on
Conventional Armed Forces in Europe (entered into force Nov. 9, 1992), 2441 UNTS 285, art. 15(2);
Comprehensive Nuclear Test Ban Treaty (not yet in force) (1997) 35 ILM 1439, art. 4(6). David A.
Koplow, An Inference about Interference: A Surprising Application of Existing International Law to
Inhibit Anti-Satellite Weapons, 35 University of Pennsylvania Journal of International Law
737, 781–794 (2014). Second, the International Telecommunication Union has allocated the use of
particular frequencies within particular areas of the geostationary orbit to particular States, as to
which see Lyall & Larsen, supra note 1, at 211–218; Gregory C. Staple, The New World Satellite
Order: A Report from Geneva, 80 American Journal of International Law 699 (1986).
5 There is at least one well-known attempt to define an entirely new regime of zones for outer
space. Brian Chow has argued for the law to be changed to permit the declaration of “a self-defense
zone around a nation’s satellite,” subject to the constraint that “satellites of all states enjoy the right
of passage through the self-defense zones of others, provided it is innocent and not part of a threat-
ening configuration to multiple satellites”: Brian G. Chow, Stalkers in Space: Defeating the Threat,
Strategic Studies Quarterly 82, 95 (Summer 2017). This is an updated and more nuanced ver-
sion of an earlier proposal for the creation of an Agreement on Self-Defense Zones in Space, which
would have essentially divided up the geosynchronous orbits: Albert Wohlstetter & Brian G.
Chow, Self-Defense Zones in Space (1986).
The Legality of Keep-Out, Operational, and Safety Zones 203
or safety zones both during armed conflict and in peacetime. While the general
principle remains the freedom of exploration and use of outer space, for which
the OST provides, this inevitably must be balanced against recognition of the
legitimate interests of other States, which will on occasion require that a State de-
clare a keep-out, operational, or safety zone in outer space.
The Fundamental Principle: Freedom of Exploration and Use
Any discussion of the possibility of legal zones in outer space must com-
mence from the general principle from which such zones would deviate—that
outer space is free for exploration and use by all States. As Article I of the OST
proclaims:
The exploration and use of outer space, including the Moon and other celestial
bodies, shall be carried out for the benefit and in the interests of all countries,
irrespective of their degree of economic or scientific development, and shall be
the province of all mankind.
Outer space, including the Moon and other celestial bodies, shall be free for
exploration and use by all States without discrimination of any kind, on a basis
of equality and in accordance with international law, and there shall be free ac-
cess to all areas of celestial bodies.6
These concepts are further supported by the nonappropriation principle

enshrined in Article II of the OST: “Outer space, including the Moon and other
celestial bodies, is not subject to national appropriation by claim of sovereignty,
by means of use or occupation, or by any other means.”7 This supplements the
freedom of exploration and use for which Article I provides by clarifying that no
State can claim or use any part of outer space in a manner which amounts to na-
tional appropriation. The potential for the declaration of a keep-out, operational,
or safety zone to violate this principle arises from the consequences such a zone
would have for the freedom of exploration and use of outer space by other States.
As U.S. President Lyndon B. Johnson put it:
Today, outer space is free. . . . No nation holds a concession there. It must remain
this way. We of the United States do not acknowledge that there are landlords
6 OST, supra note 1, art. I (emphasis added). See also “Declaration of Legal Principles Governing
the Activities of States in the Exploration and Uses of Outer Space,” GA Res. 1962 (XVIII) (Dec. 13,
1963) [hereinafter GA Res. 1962), paras. 1–2.
7 OST, supra note 1, art. II. See also GA Res. 1962, supra note 6, para. 3.
of outer space who can presume to bargain with the nations of the Earth on the
price of access to this domain.8
Although the following sections will address the limitations that may apply, the
starting point for analysis remains the general principle of the freedom of explo-
ration and use of outer space.
Limitations on the Freedom Derived from

the Outer Space Treaty
The OST itself encompasses a number of principles which will limit the freedom
of exploration and use of outer space. These include the prohibitions of placing
weapons of mass destruction into orbit or on a celestial body, and of placing mil-
itary facilities, testing weapons, or conducting military maneuvers on celestial
bodies, which are contained in Article IV of the OST:
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 de-
struction, install such weapons on celestial bodies, or station such weapons in
outer space in any other manner.
. . . The establishment of military bases, installations and fortifications, the
testing of any type of weapons and the conduct of military manoeuvres on ce-
lestial bodies shall be forbidden.9
Further and more general limits on the freedom of exploration and use of
outer space are contained in Article IX of the OST,10 which imposes the obliga-
tion of due regard, requires States to avoid harmful contamination of the Earth,
and requires States to undertake consultations to avoid activities which would
cause harmful interference with the activities of other States:
In the exploration and use of outer space, including the Moon and other ce-
lestial bodies, States Parties to the Treaty shall be guided by the principle of
cooperation and mutual assistance and shall conduct all their activities in outer
8 Treaty on Outer Space, Hearings before the Committee on Foreign Relations, United States Senate,
Ninetieth Congress, First Session on Executive D, 90th Congress, First Session, Mar. 7 and 13, and
Apr. 12, 1967 (U.S. Government Printing Office, Washington, DC, 1967), 105–106.
9 OST, supra note 1, art. IV.
10 There are also narrower limits—for example, Article V imposes a duty on astronauts to as-
sist the astronauts of other States: “In carrying on activities in outer space and on celestial bodies,
the astronauts of one State Party shall render all possible assistance to the astronauts of other States
Parties.”
space, including the Moon and other celestial bodies, with due regard to the
corresponding interests of all other States Parties to the Treaty. States Parties
to the Treaty shall pursue studies of outer space, including the Moon and other
celestial bodies, and conduct exploration of them so as to avoid their harmful
contamination and also adverse changes in the environment of the Earth . . . If
a State Party to the Treaty has reason to believe that an activity or experiment
planned by it or its nationals in outer space, including the Moon and other celes-
tial bodies, would cause potentially harmful interference with activities of other
States Parties in the peaceful exploration and use of outer space, including the
Moon and other celestial bodies, it shall undertake appropriate international
consultations before proceeding with any such activity or experiment.11
The possibility of declaring a keep-out, operational, or safety zone is not en-

tirely excluded by these principles. However, the need to show due regard for the
interests of other States and avoid harmful interference with their activities is
likely to significantly circumscribe the ability of any one State to declare a zone
which would keep other States from undertaking the exploration and use of
outer space.
It should also be noted that while the OST generally envisages the freedom of
exploration and use of outer space, it does recognize limitations arising from the
registration and ownership of objects. Thus, Article VIII provides that:
A State Party to the Treaty on whose registry an object launched into outer
space is carried shall retain jurisdiction and control over such object, and over
any personnel thereof, while in outer space or on a celestial body.12
Accordingly, the OST provides for jurisdiction and control over space objects
and their personnel by the State of registry, which limits the ability of any other
State to affect those objects and personnel. In addition to Article VIII, this limita-
tion is implicit in the provisions of Article XII regarding visits to certain facilities
on celestial bodies:
All stations, installations, equipment and space vehicles on the Moon and other
celestial bodies shall be open to representatives of other States Parties to the
Treaty on a basis of reciprocity. Such representatives shall give reasonable ad-
vance notice of a projected visit, in order that appropriate consultations may be
held and that maximum precautions may be taken to assure safety and to avoid
interference with normal operations in the facility to be visited.13
11 OST, supra note 1, art. 9.
12 Id., art. 8.
13 Id., art. 12.
Through these provisions, the OST recognizes special rights of the State of
registry, which will serve to limit the rights of other States over space objects and
any personnel thereof.
The freedom of exploration and use of outer space for which the OST provides
is, therefore, subject to a variety of limitations arising from the OST itself: the ex-
press prohibitions of certain military activities in Article IV; general obligations
of due regard and the avoidance of harmful contamination and harmful interfer-
ence in Article IX; and the rights of the State of registration over space objects and
their personnel. While none of these limitations alone would justify the declara-
tion by any State of a keep-out, operational, or safety zone, they are relevant for
two key reasons. First, they make clear that a State can exclude other States from
its space objects and facilities on celestial bodies (subject to the circumscribed
right of visit for which Article XII provides). Second, they demonstrate that the
freedom of exploration and use of outer space for which the OST provides is not
absolute, but must be balanced against the legitimate interests of other States—
something which is true not just in the context of interests arising under the OST
but also in respect of the interests of States under other principles of interna-
tional law. It is these limits on the freedom of exploration and use of outer space
arising from legal regimes outside international space law that the remainder of
this chapter addresses.
Limitations on the Freedom Derived

from Other Legal Regimes
The OST provides in Article III that general regimes of international law will
apply in outer space:
States Parties to the Treaty shall carry on activities in the exploration and use of
outer space, including the Moon and other celestial bodies, in accordance with
international law, including the Charter of the United Nations, in the interest
of maintaining international peace and security and promoting international
cooperation and understanding.14
The remainder of this chapter examines a variety of legal regimes which

might permit the declaration of some form of keep-out, operational, or safety
zone in outer space. Those first addressed are of undoubted—albeit limited—
application: the authority of the Security Council acting under Chapter VII of
14 Id., art. III (emphasis added).

the UN Charter to impose keep-out zones; and the belligerent right to control
the immediate area of military operations in an international armed conflict.
Thereafter, some regimes are considered which are more speculative—addressing
zones not presently part of international space law that might, by analogy to
contexts in which they are recognized, point to potential future developments in
space law, whether applicable in armed conflict or peacetime.
Security Council Authorization
Under the Charter of the United Nations, members confer upon the Security
Council “primary responsibility for the maintenance of international peace and
security.”15 The Council is authorized under Article 39 of the Charter to act when
it has found the existence of “any threat to the peace, breach of the peace, or act
of aggression.” (It should be noted that this is a broader range of circumstances
than armed conflict.) If the Security Council makes the determination called for
in Article 39, it may exercise the powers to be found in Articles 41 and 42, which
include powers to take “measures not involving the use of armed force”16 and “such
action by air, sea, or land forces as may be necessary to maintain or restore inter-
national peace and security.”17 The Security Council’s determination under Article
39 is a political one, not subject to judicial challenge.18 Its consequent powers of ac-
tion are extensive: “the Security Council has a broad discretion in deciding on the
course of action and evaluating the appropriateness of the measures to be taken.”19
There is little doubt that the Security Council’s powers extend to outer space.
It has already made the Article 39 determination that space-related activities
contribute to a threat to international peace and security in the context of the
Democratic People’s Republic of Korea’s (DPRK’s) ballistic missile development
program.20 In the same context, the Security Council has taken space-related
15 Charter, supra note 3, art. 24(1).

16 Id., art. 41.
17 Id., art. 42.
18 See, e.g., Prosecutor v. Kanyabashi (Decision on the Defence Motion of Jurisdiction) (International
Criminal Tribunal for Rwanda, Trial Chamber II, Case No. ICTR-96-15-T, Dec. 18, 1997), [20];
Prosecutor v. Milošević (Decision on Preliminary Motions) (International Criminal Tribunal for the
Former Yugoslavia, Trial Chamber, Case No. IT-02-54, Nov. 8, 2001), [[5]‌–11]; Prosecutor v. Tadić
(Decision on the Defence Motion on Jurisdiction) (International Criminal Tribunal for the Former
Yugoslavia, Trial Chamber, Case No. IT-94-1, Aug. 10, 1995), [24], [44]. Cf. Prosecutor v. Tadić
(Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction) (International Criminal
Tribunal for the Former Yugoslavia, Appeals Chamber, Case No. IT-94-1-AR72, Oct. 2, 1995), [24].
19 Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,
Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, Oct. 2,
1995, [31].
20 See, e.g., SC Res. 2270 (Mar. 2, 2016), [1]‌, SC Res. 2356 (June 2, 2017), [1], SC Res. 2371 (Aug. 5,
2017), [1], SC Res. 2397 (Dec. 22, 2017), [1].

enforcement measures under Article 41, in ordering that the DPRK “not con-
duct any further launches that use ballistic missile technology” and “immedi-
ately suspend all activities related to its ballistic missile program.”21 While Article
42 refers to “air, sea, or land forces,” there is no reason to believe this represents a
deliberate choice to exclude forceful actions in outer space. Instead, that human
activities in outer space would become so extensive as to be militarily important
was not widely recognized at the time the Charter was drafted. As Stephan Hobe
has noted, a necessary precondition to international regulation of outer space
was that:
the main space-faring nations, as well as other States involved, had to come to
an understanding that legal regulation was a necessary and useful undertaking
upon the inception of the space age with the launch of the first artificial satellite
Sputnik 1 on 4 October 1957.22
The failure to mention outer space in Article 42 simply reflects the fact that
use of the space domain in this way was not in the contemplation of the drafters
of the Charter. The same is true of the cyber domain, and it is now accepted that
the Security Council’s powers also apply in that domain.23 Finally, military space
activities (whether consisting of space-based reconnaissance or the use of space-
based PNT (position, navigation, and timing services—of which GPS is the
best-known example) for weapons guidance, or satellite communication) have
already been used by States in pursuance of Article 42 resolutions which man-
date the use of “all necessary means.”
Accordingly, it would be open to the Security Council to order a keep-out zone
(or other restrictive zone) in outer space under Article 41, and to enforce that
zone by authorizing member States to use force under Article 42,24 as measures
21 See, e.g., SC Res. 2270 (Mar. 2, 2016), [2]‌, SC Res. 2321 (Nov. 30, 2016), [2], SC Res. 2356 (June 2,
2017), [2], SC Res. 2371 (Aug. 5, 2017), [1], SC Res. 2375 (Sept. 11, 2017), [2], SC Res. 2397 (Dec. 22,
2017), [2].
22 Stephan Hobe, Historical Background, in Cologne Commentary on Space Law vol. 1, at 1, 2
(Hobe et al. eds., 2011).

23 Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations
(Michael N. Schmitt ed., 2nd ed. 2017) [hereinafter Tallinn Manual 2.0], Rule 76: “Should the
United Nations Security Council determine that a cyber operation constitutes a threat to the peace,
breach of the peace, or act of aggression, it may authorise non-forceful measures, including cyber op-
erations, in response. If the Security Council considers such measures to be inadequate, it may decide
upon forceful measures, including cyber measures,” at 357. The Tallinn Manual 2.0 expressly notes
that “While Article 42 indicates that enforcement measures may be taken by ‘air, sea or land forces of
Members of the United Nations,’ the International Group of Experts agreed that any action under-
taken on the basis of this Rule may be implemented ‘by, or against, cyberspace capabilities,’ ” at 359.
Indeed, transferring this logic to the outer space domain, the Tallinn Manual 2.0 indicates that “activ-
ities authorised by the UN Security Council under Chapter VII of the UN Charter in outer space, or
having effects therein, are lawful,” 274.
24 See, e.g., Michel Bourbonnière & Ricky J. Lee, Legality of the Deployment of Conventional
Weapons in Earth Orbit: Balancing Space Law and the Law of Armed Conflict, 18:5 European
to restore international peace and security. While it has not done so to date, the
Security Council’s authorization of no-fly zones (and other flight restrictions)25
and maritime sanctions and interdiction regimes26 on Earth suggest that the
Security Council may well resort in future to implementing zones restricting
access to areas of outer space, if it believes this is in the interest of restoring or
maintaining international peace and security (whether or not an armed conflict
is in fact occurring).
Belligerent Control of the Immediate Area

of Military Operations in Armed Conflict
As a matter of customary international law, State military forces are entitled to

exercise control over the immediate area of naval and air operations in an armed
conflict.27 In the naval context, this is reflected in the San Remo Manual on
International Law Applicable to Armed Conflicts at Sea (San Remo Manual), Rule
108 of which provides: “Nothing in this Section should be deemed to derogate
from the customary belligerent right to control neutral vessels and aircraft in the
immediate vicinity of naval operations.”28 Similarly, for air warfare the HPCR
Journal of International Law 873, 879 (2008) (“a decision made by the Security Council to use
military force in outer space would prevail over any prohibitions or obligations under Article IV of
the Outer Space Treaty”).
25 See, e.g., SC Res. 781 (1992), SC Res. 816 (1993), SC Res. 1973 (2011); Stefan A. Kaiser, No-
Fly Zones Established by the United Nations Security Council, 60 Zeitschrift für Luft-und
Weltraumrecht 402 (2011).
26 See, e.g., SC Res. 221 (1966), SC Res. 665 (1990), SC Res. 787 (1992), SC Res. 820 (1993), SC
Res. 875 (1993), SC Res. 917 (1994), SC Res. 1132 (1997), SC Res. 1973 (2011), SC Res. 2182 (2014),
SC Res. 2240 (2015); Rob McLaughlin, United Nations Security Council Practice in Relation to Use
of Force in No-Fly Zones and Maritime Exclusion Zones, in The Oxford Handbook of the Use
of Force in International Law, ch. 11 (Marc Weller ed., 2015); Magne Frostad, United Nations
Authorized Embargos and Maritime Interdiction: A Special Focus on Somalia, in The Future of the
Law of the Sea: Bridging Gaps Between National, Individual and Common Interests 213
(Gemma Andreone ed., 2017).
27 See, e.g., W. Heintschel von Heinegg, The Law of Armed Conflict at Sea, in The Handbook of
International Humanitarian Law 463, 528 (D. Fleck ed., 3rd ed. 2013) (“The recognition of spe-
cial belligerent rights in the immediate vicinity of operations is due to the fact that the presence of
vessels and aircraft in that area will legitimately be considered a high threat, both for the vehicles con-
cerned and for the belligerent units operating in the area in question. They therefore serve a twofold
protective purpose and, if not excessive in character, are considered in accordance with the law of
armed conflict.”). See also at 532; Dale Stephens & Matthew Stubbs, Naval Warfare Zones: Immediate
Area of Naval Operations and Maritime Exclusion Zones, in The Law of Naval Warfare [9.30]–
[9.12] (Dale Stephens & Matthew Stubbs eds., 2019).
28 San Remo Manual on International Law Applicable to Armed Conflicts at Sea (L.
Doswald-Beck ed., 1995) [hereinafter San Remo Manual], Rule 108. This statement is reproduced
in United Kingdom, JSP 383: The Joint Service Manual of the Law of Armed Conflict
(2004) [hereinafter UK Manual], [13.80]. An early recognition of this rule is Oxford Manual on
the Laws of Naval Warfare (1913), art. 50: “When a belligerent has not the right of seizing or of
capturing enemy vessels, he may, even on the high seas, forbid them to enter the zone corresponding
Manual on International Law Applicable to Air and Missile Warfare (Harvard

Manual) provides: “Nothing in this Section of the Manual ought to be deemed as
derogating from the right of a Belligerent Party: (a) to control civil aviation in the
immediate vicinity of hostilities.”29 Given that this rule has expanded from naval
warfare to air warfare as technology moved military activities and warfare into
the air domain, it is to be expected that it will also apply to military operations
in outer space, although there have been no express declarations on this issue by
States at the time of writing.
Legal Basis for Declaration of the Zone

In many national military manuals there is general agreement on most of the
features of this customary international law right of the belligerents. For example,
the legal basis on which a belligerent may assert control over the immediate area
of naval operations is indicated in the U.S. Commander’s Handbook on the Law of
Naval Operations:
Belligerent control over neutral vessels and aircraft within an immediate area of
naval operations is based on a belligerent’s right to attack and destroy its enemy,
its right to defend itself without suffering from neutral interference, and its
right to ensure the security of its forces.30
to the actual sphere of his operations. He may also forbid them within this zone to perform certain
acts calculated to interfere with his activities, especially certain acts of communication, such, for ex-
ample, as the use of wireless telegraphy. The simple infraction of these prohibitions will entail driving
the vessel back, even by force, from the forbidden zone and the sequestration of the apparatus. The
vessel, if it be proved that it has communicated with the enemy to furnish him with information con-
cerning the conduct of hostilities, can be considered as having placed itself at the service of the enemy
and, consequently, with its apparatus, shall be liable to capture.”
29 Program on Humanitarian Policy and Conflict Research at Harvard University,
Manual on International Law Applicable to Air and Missile Warfare (2013) [hereinafter
Harvard Manual], Rule 106. An early recognition of this rule is in Rules concerning the Control
of Wireless Telegraphy in Time of War and Air Warfare (The Hague, 1923) [hereinafter Hague Rules
of Aerial Warfare], art. 30: “In case a belligerent commanding officer considers that the presence of
aircraft is likely to prejudice the success of the operations in which he is engaged at the moment,
he may prohibit the passing of neutral aircraft in the immediate vicinity of his forces or may oblige
them to follow a particular route. A neutral aircraft which does not conform to such directions, of
which it has had a notice issued by the belligerent commanding officer, may be fired upon.” Similarly,
UK Manual, supra note 28, [12.80]: “Parties to a conflict may establish zones of immediate opera-
tions . . . within which they intend to pursue or are actively pursuing hostilities.”
30 United States, NWP 1- 14M: The Commander’s Handbook on the Law of Naval
Operations (2017) [hereinafter U.S. Commander’s Handbook], [7.8]. Similarly, United
States, Department of Defense Law of War Manual (2016) [hereinafter U.S. DoD Manual],
[13.8.1]: “to ensure proper battle space management and self-defense objectives” and “a bellig-
erent State’s right to ensure the security of its forces and its right to conduct hostilities without in-
terference from neutrals”; Denmark, Military Manual on International Law Relevant to
Danish Armed Forces in International Operations (2016) [hereinafter Denmark Manual],
[4.6.8]: “Belligerents are entitled under customary international law to undertake control measures
In short, the legal basis of asserting a keep-out zone in the immediate area
of military operations during an armed conflict is the belligerent State’s right of
self-defense.31
However, the right of self-defense is not the only basis on which such meas-
ures can be justified. As Norway’s Manual on the Law of Armed Conflict (Norway
Manual) indicates, keep-out zones in the immediate area of military operations
also serve to “reduce the risk of neutral vessels or civilian enemy vessels suffering
incidental damage, injury or loss.”32 While this is a significant matter, it perhaps
goes more to the question of whether a keep-out zone in the immediate area of
military operations shows due regard for the interests of other spacefaring States,
than serving as an independent justification for such a zone.
Location and Size of the Zone

An important question as to the scope of this belligerent right is the definition of
the location and size of the permitted zone. The Harvard Manual defines it as the
“area at sea or in the air in which hostilities are taking place or in which bellig-
erent forces are actually operating in support of the hostilities.”33 In the San Remo
Manual, it is defined as “that area within which hostilities are taking place or
belligerent forces are actually operating.”34 This definition is widely implemented
in national military manuals, whether identically35 or in a substantially similar
manner.36 Perhaps the most useful definition of the immediate area of operations
is offered in the Norway Manual:
the area in which hostilities occur or the belligerent parties in fact operate,
and in which the presence of unknown vessels will be regarded as a significant
threat. The definition of “immediate vicinity” will depend on the situation,
[and] potential threats.37
in areas in the immediate vicinity of hostilities in order to ensure that their operations are not
compromised.”
31 As the International Law Commission concluded in its Draft Articles on the Effects of Armed
Conflicts on Treaties, UN Doc. A/66/10 (2011), art. 14: “A State exercising its inherent right of indi-
vidual or collective self-defence . . . is entitled to suspend in whole or in part the operation of a treaty
to which it is a party insofar as that operation is incompatible with the exercise of that right.”
32 Norway, Manual of the Law of Armed Conflict (2013) [hereinafter Norway Manual],
[10.52].
33 Harvard Manual, supra note 29, at 238.
34 San Remo Manual, supra note 28, at 183, [108.1].
35 U.S. DoD Manual, supra note 30, [13.8.1].
36 Norway Manual, supra note 32, [10.51]: “the area in which hostilities occur or the belligerent
parties in fact operate”; Germany, Commander’s Handbook: Legal Bases for the Operations
of Naval Forces (2002) [hereinafter German Handbook], [303]: “the area within which combat
activities are taking place or units of the naval or air forces are actually operating, or in the adjoining
environment.”
37 Norway Manual, supra note 32, [10.51].
This definition helpfully draws attention to the zone as being limited to an

area “in which the presence of unknown vessels will be regarded as a significant
threat”—an implicit recognition that the declaration of a zone in the immediate
area of operations must be linked to the military necessity of the belligerent.
Examples of the scope of such zones on Earth include zones of five nautical miles
declared by U.S. forces during the Iran-Iraq war,38 and warning and exclusion zones
of up to three kilometers around offshore Iraqi oil terminals declared by U.S. forces
in 2004 in response to small boat attacks on naval forces there.39 It should be noted
that applying the test of the necessity to declare a keep-out zone as a measure of self-
defense in outer space is likely to require a more complex calculation than purely
the distance of a space object from belligerent forces or belligerent space objects.40
Features of an object’s velocity and trajectory are likely to be relevant. Nonetheless,
it should be possible to articulate the extent of the zone within which neutral space
objects are likely to be regarded as a significant threat to the belligerent, even if in
more complex terms than a mere number of kilometers from a particular point.
Powers Exercisable by a Belligerent within the Zone

Within the immediate area of military operations, a belligerent is entitled to ex-
ercise extensive powers. Indeed, the German Commander’s Handbook: Legal
Bases for the Operations of Naval Forces expressly notes that a complete ban on
access to an area may be justified: “If this is absolutely necessary for the safety of
the units or the success of the respective mission, the access of neutral vehicles to
the area of operations may be barred completely.”41 Similarly, the commentary to
the San Remo Manual states that “a belligerent may establish special restrictions
upon the activities of neutral vessels and aircraft and may prohibit altogether
such vessels and aircraft from entering the area.”42
38 Heintschel von Heinegg, supra note 27, at 532.

39 HYDROPAC 795/2004 (030850Z MAY 2004): “effective immediately, exclusion zones are estab-
lished and the right of innocent passage is temporarily suspended in accordance with international
law around the KAAOT and ABOT oil terminals within Iraqi territorial waters. The exclusion zones
extend 2000 meters from the outer edges of the terminal structures in all directions. Only tankers and
support vessels authorized by terminal operators or coalition maritime security forces are allowed to
enter the exclusion zones. Vessels attempting to enter the zones without authorization may be sub-
ject to defensive measures, including when necessary, the use of deadly force. All reasonable efforts
will be taken to warn vessels away before employing deadly force. However, deadly force will be em-
ployed when necessary to protect coalition maritime security forces, legitimate shipping present in
the exclusion zones and the oil terminals.” See, e.g., D. Stephens, Law of Naval Warfare and Zones, in
Maritime Operational Zones 4-1, 4-4–4-5 (R. Jaques ed., 2nd ed. 2013).
40 One example is Brian Chow’s suggestion that “too close” for a satellite in geostationary orbit
might be “if its longitude of the ascending or descending node or orbital plane’s inclination is less
than 0.2 degree from that of another country’s satellite already occupying that orbit . . . 148 km in
minimum separation,” Chow, supra note 5, at 96.
41 German Handbook, supra note 36, [303].
42 San Remo Manual, supra note 28, at 183, [108.1]. This is reproduced verbatim in Australia,
ADDP 06.4 Law of Armed Conflict (2006) [hereinafter Australia Manual], [6.16].
In other circumstances, of course, lesser intrusions might be all that can be

justified. For example, limitations on communication are frequently mentioned
in this context:
a belligerent warship may exercise control over the communications of any

neutral merchant vessel or civil aircraft whose presence in the area might other-
wise endanger or jeopardise naval operations.43
That control over communications is permitted within the immediate area of

military operations is supported by statements in numerous military manuals.44
Such control is frequently subject to a condition similar to that expressed in
the Australia Manual, that “Legitimate distress communications by neutral
vessels and aircraft should be permitted if they do not prejudice the success of
operations.”45
In the event of an armed conflict in outer space, it may be that either complete
exclusion from a zone in the immediate area of military operations or restrictions
on activities within that zone (for example, excluding the use of sensing equip-
ment on satellites or limiting communications from crewed spacecraft to only
those essential for the preservation of life) may be permissible.
Consequences of Failure to Comply with Declaration of the Zone

Importantly, entering a keep-out zone in the immediate area of military opera-
tions does not necessarily expose a vessel or aircraft to attack, because the mere
declaration of a zone “does not exempt a party from its obligations under the
law of armed conflict.”46 In other words, merely being inside a keep-out zone
is not sufficient to determine the status of an actor as a lawful target; rather,
this status depends upon all of the factors applicable in any armed conflict.
Nonetheless, the San Remo Manual indicates that “[v]‌essels or aircraft which
ignore directions . . . risk being fired upon or captured.”47 This arises from the

44 Australia Manual, supra note, 42 [6.17]: “a commanding officer of a belligerent warship may
exercise control over the communications of any neutral merchant vessel or aircraft whose presence
might otherwise endanger the success of the belligerent operation”; U.S. DoD Manual, supra note
30, [13.8.2]: “A belligerent warship may exercise control over the communications of any neutral
merchant vessel or civil aircraft whose presence in the immediate vicinity of naval operations might
otherwise endanger or jeopardize those operations”; U.S. Commander’s Handbook, supra note 30,
[7.8]; Denmark Manual, supra note 30, [4.6.8]: “Restrictions may also be imposed on the activities
of nearby merchant vessels—for instance, communication with other vessels to the detriment of the
ongoing fighting.”
45 Australia Manual, supra note 42, [6.17]; U.S. DoD Manual, supra note 30, [13.8.2]; U.S.
Commander’s Handbook, supra note 30, [7.8].

application of normal targeting principles to the keep-out zone, as the U.S.

Department of Defense Law of War Manual (U.S. DoD Manual) indicates: “A neu-
tral merchant ship or civil aircraft within that area that fails to conform to a bel-
ligerent warship’s directions . . . may thereby assume enemy character and risk
being fired upon or captured.”48 Accordingly, although the ordinary targeting
principles apply, vessels and aircraft entering a zone in the immediate area of mil-
itary operations run the risk of being treated as having acquired enemy character
and thus liable to capture or destruction. This occurs because entry into the zone
is itself suggestive of hostile intent and because ordinary principles permitting
the use of force against ships and aircraft engaging in belligerent acts on behalf
of the enemy,49 incorporated into the enemy’s intelligence-gathering system,50 or
otherwise making an effective contribution to the enemy’s military’s action,51 are
thus more likely to be reasonably thought to apply.
Conclusion on Zones in the Immediate Area

of Military Operations
Although there are no definitive statements by States as to the application of

zones in the immediate area of military operations in outer space, it would ap-
pear that this principle—which has already transferred from naval to air warfare,
and which is based on the inherent right of self-defense of belligerent States—
will also apply in outer space. Of course, such zones are applicable only in armed
conflict, in a highly circumscribed area in the immediate vicinity of which
belligerents are engaging in hostilities, and where the presence of unknown
space objects will be regarded as a significant threat. Zones in the immediate
area of military operations are not necessarily keep-out zones—it may be that
lesser interferences, such as prohibitions on communication, are all that can be
justified. The scope of protective measures permitted is dependent on the mili-
tary necessity for taking such measures. Such zones are also not free-fire zones,
although their practical consequences for targeting law are significant. Subject to
these conditions and qualifications, it is likely that the declaration of zones in the
48 U.S. DoD Manual, supra note 30, [13.8.2]; U.S. Commander’s Handbook, supra note 30,
[7.8]; see also Australia Manual, supra note 42, [6.16]: “vessels and aircraft which fail to comply
with a belligerent’s orders expose themselves to the risk of being fired upon or captured”; New
Zealand, DM69: Manual of Armed Forces Law, vol. 4: Law of Armed Conflict (2nd ed.,
2017) [hereinafter NZ Manual], [10.6.19(j)] (stating that vessels “violating regulations established
by a party to the conflict within the immediate area of naval operations” are liable to capture) (and
[10.6.28(i)] in respect of aircraft).
49 San Remo Manual, supra note 28, Rule 60(a) 20; Harvard Manual, supra note 29, Rule 27(a).
50 San Remo Manual, supra note 28, Rule 60(c) 20; Harvard Manual, supra note 29, Rule 27(c).
51 San Remo Manual, supra note 28, Rule 60(g) 20; Harvard Manual, supra note 29, Rule 27(e).
immediate area of military operations in outer space will occur and be regarded
as lawful by States, if we reach the state of affairs where hostilities are physically
taking place in the space domain.
Possible Exclusion Zones in Armed Conflict
A more extensive exclusion zone, again not based in treaty law, has arisen in the
practice of States in both naval and air warfare. A detailed articulation of the
limits in the establishment of such a zone is contained in Rule 106 of the San
Remo Manual:
Should a belligerent, as an exceptional measure, establish such a zone:

(a) the same body of law applies both inside and outside the zone;
(b) the extent, location and duration of the zone and the measures imposed
shall not exceed what is strictly required by military necessity and the
principle of proportionality;
(c) due regard shall be given to the rights of neutral States to legitimate uses of
the seas;
(d) necessary safe passage through the zone for neutral vessels and aircraft
shall be provided: . . .
(e) the commencement, duration, location and extent of the zone, as well
as the restrictions imposed, shall be publicly declared and appropriately
notified.
A similar rule, with modifications to air warfare, is included in the Harvard

Manual.52 When writing the San Remo Manual, the experts regarded this as
“a useful progressive development of the law.”53 Now, in addition to the cor-
responding rule in the Harvard Manual, these criteria can be found, often
52 Harvard Manual, supra note 29, Rule 107: “Should a Belligerent Party establish an “exclusion
zone” in international airspace:

(a) The same rules of the law of international armed conflict will apply both inside and out-
side the “exclusion zone”.
(b) The extent, location and duration of the “exclusion zone” and the measures imposed
must not exceed what is reasonably required by military necessity.
(c) The commencement, duration, location and extent of the “exclusion zone”, as well as the
restrictions imposed, must be appropriately notified to all concerned.
(d) The establishment of an “exclusion zone” must neither encompass nor completely bar
access to the airspace of Neutrals.
(e) Due regard must be given to the lawful use by Neutrals of their Exclusive Economic
Zones and continental shelf, in particular artificial islands, installations, structures and
safety zones.”
reproduced verbatim, in the military manuals of States including Australia,54

Canada,55 Denmark,56 Germany,57 Norway,58 the United Kingdom,59 and the
United States.60 Accordingly, there is a strong basis on which to conclude that ex-
clusion zones are now recognized in the law of naval and air warfare.
Legal Basis for Declaration of the Zone
Given that they do not arise from treaty law, the legal basis for the declaration of
exclusion zones is not entirely clear. Perhaps the most compelling articulation is
that exclusion zones arise from the inherent right of self-defense. For example,
the San Remo Manual indicates that:
A rule of reason prevails in determining the extent, location and duration of the
zone. There must be a proportional and demonstrable nexus between the zone
and the measures imposed, including both restrictive and enforcement meas-
ures, and the self-defence requirements of the State establishing the zone.61
That exclusion zones are constrained by requirements of necessity and pro-

portionality also seems appropriate if their foundation is self-defense. These
requirements can be found in the Helsinki Principles on the Law of Maritime
Neutrality: “The extent, location and duration . . . may not go beyond what is
required by military necessity, regard being paid to the principle of proportion-
ality.”62 Similarly, the German Handbook indicates that exclusion zones “must
not be disproportionate to the absolutely necessary and legitimate needs of se-
curity and defense”63—recognizing the purpose of the zone as promoting the
security and defense of the belligerent imposing it.
54 Australia Manual, supra note 42, [6.34].
55 Canada, Law of Armed Conflict at the Operational and Tactical Levels (2001)
[hereinafter Canada Manual], [853].
56 Denmark Manual, supra note 30, [14.4.6.7], [13.6.1].
57 German Handbook, supra note 36, [305]; Germany, Law of Armed Conflict Manual
(2013) [hereinafter German Manual] [1058], [1144].

58 Norway Manual, supra note 32, [10.49]–[10.50], [11.16].
59 UK Manual, supra note 28, [12.58], [13.78].
60 As to safe passage: U.S. Commander’s Handbook, supra note 30, [7.9]; U.S. DoD Manual,
supra note 30, [13.9.4]; as to notification: U.S. DoD Manual, supra note 30, [13.9.5].
61 San Remo Manual, supra note 28, at 182, [106.2]. The German Handbook, supra note 36,
adds an additional caveat: [304] maritime exclusion zones must not be used for “the purpose of
evading the requirements of the law of blockade.”
62 International Law Association, Helsinki Principles on the Law of Maritime
Neutrality (1998) [hereinafter Helsinki Principles], princ. 3.3.

63 German Handbook, supra note 36, [305]. Similarly: the German Manual, supra note 57,
[1058], declares that maritime exclusion zones must be limited to pursuing “legitimate national secu-
rity and defence requirements”; the UK Manual, supra note 28, [13.77]: “as a defensive measure or
to impose some limitation on the geographical extent of the area of conflict.”
However, this final comment—legitimate needs of security and defense—

raises an important issue: Are the exclusion zones recognized in the law of naval
and air warfare based solely on the inherent right of self-defense, or do they rely
on broader considerations of “security” that may not be perfectly transferrable to
outer space?
Certainly, there are relevant statements regarding exclusion zones that relate
to issues entirely separate from self-defense. For example, the Harvard Manual
states: “they may warn off neutral aircraft (or vessels) from areas of hostilities
and thereby reduce their exposure to collateral damage.”64 The U.S. Commander’s
Handbook refers to “reasonable, albeit coercive, measures . . . to keep neutral ship-
ping at a safe distance from areas of actual or potential hostilities . . . and thereby
reduce their exposure to collateral damage and incidental injury.”65 Similarly, the
Norway Manual states: “Maritime exclusion zones are lawful if established for
the purpose of warning neutral vessels and aircraft to keep away from dangerous
areas and thus to reduce the risk of exposure to the dangers inherent in acts of
war.”66 The German Handbook also refers to exclusion zones as areas in which a
belligerent “denies access to vessels and aircraft in order to protect them from the
effects of armed conflicts.”67
These comments are all perfectly altruistic. The difficulty they present is
that they articulate a quite different rationale for exclusion zones than the in-
herent right of self-defense of the belligerent. This is problematic because there
is little doubt of the transferability to the outer space domain of the right of self-
defense, but greater room for doubt as to the transferability of broader “security”
justifications.
A further justification can also be found in relevant manuals—that of limiting
the geographical scope of the conflict. Denmark’s Manual observes that exclu-
sion zones can be declared “to modify the geographical extent of a conflict.”68
The Norway Manual similarly indicates exclusion zones serve “to restrict the ge-
ographical area available for maritime operations,”69 and the U.S. Commander’s
Handbook acknowledges as one of their purposes “to contain the geographic area
of the conflict.”70 The German Manual further suggests exclusion zones can “fa-
cilitate the identification of military objectives and defence against hostile acts.”71

65 U.S. Commander’s Handbook, supra note 30, [7.9]. Similarly: “zones can perform a useful
humanitarian purpose by reducing the risks to civilian and neutral persons by excluding them from
coming into the area of operations”: NZ Manual, supra note 48, [5.5.6].
67 German Handbook, supra note 36, [304].
68 Denmark Manual, supra note 30, [4.6.7].
70 U.S. Commander’s Handbook, supra note 30, [7.9].
71 German Manual, supra note 57, [1056].
Perhaps the ambiguity of the UK Manual is illustrative: “exclusion zones . . . are

legitimate means of exercising the right of self-defense and other rights enjoyed
under international law.”72 This combination of bases for the declaration of ex-
clusion zones gives pause when considering whether such zones could be ap-
plicable in outer space. While the existence of the right of self-defense in outer
space is not open to any doubt, whether other justifications (such as the protec-
tion of neutral vessels or geographical containment of a conflict) are equally ap-
plicable is less certain.
Location and Size of the Zone
Exclusion zones can be significantly larger in size than zones in the immediate
area of military operations.73 The most important limits will be necessity and
proportionality, as outlined previously. The U.S. Commander’s Handbook also
makes reference to measures being required to be “reasonable” and to “not un-
reasonably interfere with legitimate neutral commerce.”74 Applying these prin-
ciples of necessity, proportionality, and reasonableness, the San Remo Manual
observes that:
Zones located in isolated areas far from normal shipping routes . . . are less
likely to raise objections than zones on major shipping routes . . . Zones occu-
pying relatively small areas or established for relatively brief periods are more
likely than the converse to be considered acceptable.75
The declaration by the United Kingdom of a two-hundred-nautical-

mile exclusion zone around the Falkland/Malvinas Islands during the 1982
72 UK Manual, supra note 28, [13.77.1].

73 Definitions of exclusion zones typically do not attempt to provide guidance on this point. San
Remo Manual, supra note 28, at 181: where belligerents “purport to interfere with the normal rights
of passage or overflight by denying or restricting access to ships or aircraft of non-parties without per-
mission”; Harvard Manual, supra note 29, at 235: “a three dimensional space beyond the territorial
sovereignty of any State in which a Belligerent Party claims to be relieved from certain provisions
of the law of international armed conflict, or where that Belligerent Party purports to be entitled to
restrict the freedom of aviation (or navigation) of other States.” See also German Handbook, supra
note 36, [304]: “three dimensional space in which a party to the conflict claims comprehensive con-
trol rights or denies access to vessels and aircraft in order to protect them from the effects of armed
conflicts”; Denmark Manual, supra note 30, [4.6.7]: “a three-dimensional area defined and estab-
lished by a belligerent, to which the access of other States’ vessels or aircraft is denied or restricted”;
Norway Manual, supra note 32, [10.45]: “a three-dimensional area or ‘box’ to which ship traffic and
all aircraft are refused access.”
74 U.S. Commander’s Handbook, supra note 30, [7.9]. Similarly: “zones can perform a useful
humanitarian purpose by reducing the risks to civilian and neutral persons by excluding them from
coming into the area of operations”: NZ Manual, supra note 48, [5.5.6].
armed conflict has largely been accepted,76 with only the USSR objecting.77
By contrast, Argentina’s purported declaration of the whole of the South
Atlantic as a war zone was not accepted.78 Argentina acted on its war zone
declaration by repeatedly attacking the Liberian-flagged tanker Hercules
some five hundred miles from the Falkland/Malvinas Islands.79 One com-
mentator has condemned the purported Argentinian war zone as it “fails
the tests of reasonableness, proportionality, clarity of definition, and self-
defense. It . . . amounted to little more than an excuse for conducting indis-
criminate attacks on neutral shipping.”80 More recently, in 2003, upon the
outbreak of armed conflict between the United States and Iraq, the United
States declared a maritime exclusion zone in the Eastern Mediterranean
which had a maximum width of around eighty nautical miles,81 which was
unchallenged.82
As with the immediate area of military operations, defining the scope of an
exclusion zone in outer space is likely to be more complex than merely identi-
fying a particular distance that should be maintained from an object. Instead,
a combination of an object’s velocity, trajectory, and location are likely to be
relevant. Nonetheless, it should be possible to identify the relevant factors,
even if the outcome is likely to be more complex given the physics of space
objects.
Powers Exercisable by a Belligerent within the Zone

Within a maritime or air exclusion zone, there is no change to the legal rights
and duties of belligerents, and in particular no displacement of the ordinary law
relating to targeting. As Rule 105 of the San Remo Manual makes clear:
76 See, e.g., S. Sivakumaran, Exclusion Zones in the Law of Armed Conflict at Sea: Evolution in Law
and Practice, 92 International Legal Studies 153, 176–182 (2016); Stephens, supra note 39, at
4.8–4.11; Heintschel von Heinegg, supra note 27, at 524; C. Michaelsen, Maritime Exclusion Zones
in Times of Armed Conflict at Sea: Legal Controversies Still Unresolved, 8:2 Journal of Conflict
& Security Law 363, 372–74 (2003); L.F.E. Goldie, Maritime War Zones & Exclusion Zones, 64
International Legal Studies 156, 171–74, 187 (1991). On its face, the exclusion zone declara-
tion raised some issues about it was “intended to lower the threshold for identifying vessels as lawful
military targets . . . The lawfulness of a zone depends on how it is enforced in practice, not what is
declared. In this case, the maritime zone was enforced in accordance with the law of armed con-
flict”: Norway Manual, supra note 32, at 232. And see U.S. Commander’s Handbook, supra note
30, [7.9]. The UK Manual now makes express the United Kingdom’s view that the normal rules of
targeting apply inside an exclusion zone: UK Manual, supra note 28, [13.78].
77 See, e.g., Sivakumaran, supra note 76, at 180–81.
79 Sivakumaran, supra note 76, at 182; Amerada Hess Shipping Corporation v. Argentine Republic,
830 F.2d 42 (2d Cir. 1987), rev’d, 488 U.S. 428 (Sup. Ct. 1989).
80 Goldie, supra note 76, at 174.
81 HYDROLANT 597/ 03 (202135Z MAR 2003). See Stephens, supra note 39, at 4– 14;
Sivakumaran, supra note 76, at 201–2; Heintschel von Heinegg, supra note 27, at 524.
82 Stephens, supra note 39, at 4–16.
A belligerent cannot be absolved of its duties under international humanitarian

law by establishing zones which might adversely affect the legitimate uses of
defined areas of the sea.83
As the U.S. Commander’s Handbook memorably notes:
the establishment of such a zone does not relieve the proclaiming belligerent
of the obligation under the law of armed conflict to refrain from attacking
vessels and aircraft that do not constitute lawful targets. In short, an otherwise
protected platform does not lose that protection by crossing an imaginary line
drawn in the ocean by a belligerent.84
Similar statements can be found in the military manuals of States including

Australia, Canada, Denmark, Germany, New Zealand, Norway, and the United
83 See also Australia Manual, supra note 42, [6.34]: “The establishment of an MEZ does not
relieve the belligerent of its duties under IHL”; Canada Manual, supra note 55, [853(1)(a)]: “The
law continues to apply in the same manner both inside and outside the zone”; Denmark Manual,
supra note 30: “4.6.7 the zone does not change what constitutes a military objective. This means that a
belligerent can under no circumstances lawfully decide that entering the zone by sea or air automati-
cally means that the vessel or aircraft in question becomes liable to attack”; German Handbook, supra
note 36, [304]: “A vehicle that must not be attacked, i.e. especially neutral merchant vessels and civil
aircraft, will never lose this protection for the sole reason that they have entered an exclusion zone
without authorization,” [305] “Inside the exclusion zone the same rules and principles of interna-
tional law applicable in international armed conflict will apply as outside”; German Manual, supra
note 57, [1058]: “The same rules and principles of international law which are applicable in interna-
tional armed conflicts will apply both inside and outside the exclusion zone; the exclusion zone does
not release naval forces from the obligation to identify valid military objectives”; U.S. DoD Manual,
supra note 30, [13.9.2]: “The establishment of such a zone does not relieve the proclaiming belligerent
State of its obligation under the law of war to refrain from attacking vessels and aircraft that do not
constitute military objectives. Thus, a vessel or aircraft that is otherwise protected does not forfeit
its protection from being made the object of attack simply by entering a zone of the ocean on the
high seas established by a belligerent State”; NZ Manual, supra note 48, [5.5.5]–[5.5.6]: “Members
of the NZDF are to apply LOAC to the same extent and in the same manner inside any operational
zone . . . as outside it. . . . The application of LOAC cannot be excluded by the imposition of artificial
zones. . . . LOAC applies inside a zone every bit as much as it does outside of it”; Norway Manual,
supra note 32, [10.47]–[10.48]: “The establishment of an exclusion zone does not exempt the party
that establishes the zone from any of its obligations under the law of armed conflict, including the
duty to refrain from attacking vessels or aircraft which are not lawful targets. This means that a vessel,
whether a maritime vessel, aircraft or other vessel which is otherwise protected against attack, does
not lose such protection simply because it crosses an imaginary line set by one of the parties to a con-
flict. In other words, the law of armed conflict applies equally both within and outside such zones”;
UK Manual, supra note 28, [13.77]: “a belligerent cannot be absolved of its duties under the law of
armed conflict by establishing zones in such a manner that they adversely affect the legitimate uses of
defined areas of the sea”; Harvard Manual, supra note 29, Rule 107(a): “The same rules of the law of
international armed conflict will apply both inside and outside the ‘exclusion zone.’ ”
84 U.S. Commander’s Handbook, supra note 30, [7.9]. See also Helsinki Principles, supra note
62, princ. 3.3: “the establishment by a belligerent of special zones does not confer upon that bellig-
erent rights in relation to neutral shipping which it would not otherwise possess. In particular, the
establishment of a special zone cannot confer upon a belligerent the right to attack neutral shipping
merely on account of its presence in the zone.”
Kingdom.85 The manuals of Canada, New Zealand, Norway, and the United
States all go further and expressly declare that maritime exclusion zones are not
“free-fire zones.”86
Exclusion zones, however, offer practical benefits to belligerents (without
changing the applicable law). As the U.S. DoD Manual notes:
the notification of the zone in advance may mean that most neutral or protected
vessels and aircraft have departed the area. . . . the entry into the zone of an un-
identified vessel without authorization may be probative of whether the vessel
constitutes a military objective.87
Similarly, as the San Remo Manual notes:
Bearing in mind the factual circumstances surrounding zone creation, how-

ever, parties might be more likely to do certain things in a zone than outside of
a zone . . . For example, if a party established a zone . . . it might be more likely
to presume that ships or aircraft in the area without permission were there for
hostile purposes than it would be if no zone had been established.88
Accordingly, while the belligerents gain no additional legal rights through the
declaration of an exclusion zone, practical benefits may arise, and the application
of targeting law may be affected (similarly to in zones in the immediate area of
military operations).
Conclusion on Exclusion Zones in Armed Conflict

Whether the exclusion zones which are part of maritime and air warfare law will
also be part of international space law can only be answered by future State prac-
tice. The mixed justifications for the declaration of exclusion zones make their
application in outer space less certain, with the exception of the zone in the im-
mediate area of military operations, which is based firmly on the inherent right
of self-defense. The fact that the Harvard Manual expressly indicates that an air
exclusion zone cannot be established “in the airspace above Antarctica”89 also
85 See supra note 83.

86 Canada Manual, supra note 55, [852]; U.S. Commander’s Handbook, supra note 30, [7.9];
NZ Manual, supra note 48, [5.5.6]; Norway Manual, supra note 32, [10.48].
87 U.S. DoD Manual, supra note 30, [13.9.2].
88 San Remo Manual, supra note 28, at 181, [105.1]. Similarly, the Norway Manual, supra note
32, [10.48]: “The establishment of such a zone may, however, affect situational awareness in the area,
provided that the zone is announced and can thus be assumed to be generally known to seafarers in
the area. A vessel which moves into the zone and fails to respond to calls may be considered to have
hostile intent. Nevertheless, the parties are obliged to take all feasible precautions to verify that a
vessel is a lawful target.”
suggests a need for caution before determining that the declaration of exclusion
zones in outer space during armed conflict would be lawful. If exclusion zones
do apply in outer space, then they will be subject to the same limits as on Earth—
measures must satisfy tests of necessity, proportionality, and reasonableness, and
the belligerents have to be content with the practical benefits arising, as no new
legal powers accrue from the declaration of an exclusion zone. Accordingly, ex-
clusion zones may well apply during an armed conflict in outer space as they do
in naval and air warfare, but in the absence of State practice to this effect the issue
remains uncertain.
Possible Space Object Identification Zones
On Earth, there are a number of zones applicable in peacetime which may have
outer space analogies. The practice by around twenty States of declaring ADIZs
on Earth during peacetime90 suggests that this is a concept that may in the fu-
ture be considered useful in outer space by States. At present, however, there
is no explicit legal basis for asserting a space object identification zone (SOIZ)
within which space objects entering the vicinity of another space object might
be required to identify themselves. There are no express treaty provisions that
would justify the imposition of an ADIZ extending beyond national airspace.91
A definition of an ADIZ has been adopted by the International Civil Aviation
Organization (ICAO): “Special designated airspace of defined dimensions
within which aircraft are required to comply with special identification and/or
reporting procedures additional to those related to the provision of air traffic
services (ATS).”92 This definition lacks specificity as to when declaring an ADIZ
will be lawful, and why.
The legal basis for imposing an ADIZ is unclear, and legal commentators
are divided on this issue. Pedrozo has claimed that “The international legal
basis for such zones is the right of a nation to establish reasonable conditions
of entry into its territory.”93 Almond instead indicates that “ADIZs arise from
90 Roncevert Almond, Clearing the Air Above the East China Sea: The Primary Elements of Aircraft
Defense Identification Zones, 7 Harvard National Security Journal 126, 135 (2015).
91 Peter Dutton, Caelum Liberum: Air Defense Identification Zones Outside Sovereign Airspace, 103
American Journal of International Law 691, 694, 699–700 (2009). See also Almond, supra note
90, at 132.
92 The definition appears in Annex 15 to the Convention on International Civil Aviation,
signed in Chicago on Dec. 7, 1944 (the Chicago Convention), entered into force on Apr. 4, 1947
(although it should be noted that the annexes are not part of the convention at all, but Standards
and Recommended Practices documents adopted by the ICAO under Article 37 of the Chicago
Convention).
93 Raul (Pete) Pedrozo, Responding to Ms Zhang’s Talking Points on the EEZ, 10 Chinese Journal
of International Law 207, 211 (2011).

the inherent right to self-defense.”94 Papp regards both justifications as appli-

cable.95 Abeyratne has noted the uncertainty, but points out the general accept-
ance of ADIZs:
Although there is no overwhelming evidence, either from a scholastic or

legislative perspective that lends legal legitimacy to the establishment of
ADIZs, such a concept has never been challenged as being inconsistent with
existing law.96
While this conclusion may be acceptable for an Earth-based analysis, the

legal basis of an ADIZ is critical to determining its potential for application
in outer space. If an ADIZ is justified as an extension of the rights of a State
to control its territorial airspace, its application to outer space—where there
can be no territory because of the nonappropriation principle in Article II of
the OST—is problematic. However, if an ADIZ is based on the inherent right
of self-defense, the creation of a SOIZ might be consistent with international
space law.
This uncertainty as to the legal basis of an ADIZ is related to controversies as to
the permissible scope of an ADIZ. The U.S. Commander’s Handbook on the Law of
Naval Operations recognizes U.S. acceptance (and imposition) of ADIZs, but only
in respect of aircraft seeking to enter national airspace:
The legal basis for ADIZ regulations is the right of a State to establish reason-
able conditions of entry into its territory. Accordingly, an aircraft approaching
national airspace can be required to identify itself while in international air-
space as a condition of entry approval. ADIZ regulations promulgated by the
United States apply to aircraft bound for U.S. territorial airspace and require
the filing of flight plans and periodic position reports. The United States does
not recognize the right of a coastal nation to apply its ADIZ procedures to
foreign aircraft not intending to enter national airspace nor does the United
States apply its ADIZ procedures to foreign aircraft not intending to enter
U.S. airspace.97
94 Almond, supra note 90, at 136.

95 Zoltán Papp, Air Defense Identification Zone (ADIZ) in the Light of Public International Law,
Pécs Journal of International and European Law 28, 30 (2015).
96 Ruwantissa Abeyratne, In Search of Theoretical Justification for Air Defence Identification Zones,
5 Journal of Transportation Security 87, 88 (2012). Abeyratne goes on to suggest a wide variety
of (nonlegal) theoretical justifications including the precautionary principle (at 89–90), necessity (at
91), and a variation on the controversial maxim inter armes silent leges (in times of war the law is si-
lent) (at 91).
97 U.S. Commander’s Handbook, supra note 30, [2.7.2.3].
This limitation to aircraft entering national airspace is reasonably well ac-

cepted,98 although China’s controversial declaration of an East China Sea ADIZ
in 2013 purported to apply to all aircraft in the airspace, not merely those in-
tending to enter the national airspace it surrounds.99 In this context, Lamont has
noted that “ADIZs risk increasingly evolving from a defensive security measure
into a means to advance claims of sovereignty over contested territories.”100
The predominant approach of States linking ADIZs to entry into national
airspace implicitly supports the legal basis for the ADIZ as being sovereignty
over national airspace and not the inherent right of self-defense. Accordingly,
it would appear that the acceptance of ADIZs on Earth is not sufficient to ac-
cept SOIZs in outer space merely by analogy. However, it may be that the SOIZ
is a concept that will be found useful by States in the future, and its evolution
could mirror that of the ADIZ on Earth, whose beginnings were no more nor-
mative than the actions of some States in declaring them and others in not
objecting. Whether or not there is sufficient state practice and opinio juris to
establish ADIZs as forming part of customary international law in airspace,
there is no relevant basis to establish a SOIZ as reflecting customary interna-
tional law in outer space. Nonetheless, given the use of the concept on Earth,
this remains a potential area for the future development by States of peacetime
legal zones in outer space.
Possible Safety Zones for Space Resource Activities

on Celestial Bodies
Thus far, this examination of the potential for the declaration of zones in outer
space has focused either on armed conflict (in the case of zones in the immediate
area of military operations or exclusion ones) or on peacetime zones with an ex-
plicit security focus (in the case of Security Council action and ADIZs). However,
strategic interests are not the only interests of States in outer space. One clear ex-
ample of an important State interest in outer space that might involve a desire to
declare zones is the commercial interest in space resource activities.
98 Australia Manual, supra note 42, [8.23]–[8.24]; German Handbook, supra note 36, [172];
Harvard Manual, supra note 29, at 239; UK Manual, supra note 28, [12.15.1]; U.S. DoD Manual,
supra note 30, [14.2.4.1].
99 See Almond, supra note 90, at 130, 146–151, 182, 184–185; Dutton, supra note 91, at 691;
Christopher K. Lamont, Conflict in the Skies: The Law of Air Defence Identification Zones, 39 Air
& Space Law 187, 190, 199 (2014); Jae Woon Lee, Tension on the Air: The Air Defense Identification
Zones on the East China Sea, 7 Journal of East Asia and International Law 274, 275–276
(2014); Jinyuan Su, The East China Sea Air Defense Identification Zone and International Law, 14
Chinese Journal of International Law 271, 280 (2015).
100 Lamont, supra note 99, at 202.
At present, there is no legal basis for asserting a safety zone in respect of space
resource activities. However, such zones are likely to be desired by those enti-
ties undertaking (and those States encouraging) space resource activities. The
Building Blocks for the Development of an International Framework on Space
Resource Activities developed by the Hague International Space Resources
Governance Working Group at the University of Leiden have already suggested
as much. Advocating for the development of “Technical standards for, prior re-
view of, and safety zones around space resource activities,”101 the Building Blocks
suggest that a future legal regime for space resource activities should permit
safety zones as follows:
Taking into account the principle of non-appropriation under Article II OST,

the international framework should permit States and international organ-
izations responsible for space resource activities to establish a safety zone,
or other area-based safety measure, around an area identified for a space re-
source activity as necessary to assure safety and to avoid any harmful interfer-
ence with that space resource activity. Such safety measure shall not impede
the free access, in accordance with international law, to any area of outer space
by personnel, vehicles and equipment of another operator. . . . a State or in-
ternational organization may restrict access for a limited period of time, pro-
vided that timely public notice has been given setting out the reasons for such
restriction.102
A close reading makes clear that the only legal basis referred to in suggesting
that such zones be developed for the future is the obligation of States under
Article IX of the OST to “undertake appropriate international consultations be-
fore proceeding with . . . an activity . . . [that] would cause potentially harmful
interference with activities of other States Parties in the peaceful exploration and
use of outer space.”
It is a very large step indeed from the Article IX obligation to seek to avoid
harmful interference to the proposed space resource activity safety zone. Article
IX does not suggest an authorization to a State to preemptively declare a safety
zone; instead, it envisages that the State will “invoke remedial measures” which
will “maintain a balance” between the interests of it and other affected States.103
101 Hague International Space Resources Governance Working Group, Building Blocks for the
Development of an International Framework on Space Resource Activities (2019), <https://www.

universiteitleiden.nl/binaries/content/assets/rechtsgeleerdheid/instituut-voor-publiekrecht/lucht--
en-ruimterecht/space-resources/final-bb.pdf > [11].
102 Id., [10.3].
103 Sergio Marchisio, Article IX, in Cologne Commentary on Space Law vol. 1, at 169, 180
(Hobe et al. eds., 2011).

The point here is not to deny the potential importance of establishing safety
zones in connection with space resource activities, but to demonstrate that the
legal basis for such zones remains undeveloped at this time.
One potentially analogous regime of safety zones exists under the UNCLOS.
Article 60(1) gives a coastal State “the exclusive right to construct and to au-
thorize and regulate the construction, operation and use of ” artificial islands,
installations, and structures within its exclusive economic zone (EEZ). The ar-
ticle further permits the coastal State to declare a limited safety zone of up to five
hundred meters around such features constructed within its EEZ:
4. The coastal State may, where necessary, establish reasonable safety zones
around such artificial islands, installations and structures in which it may
take appropriate measures to ensure the safety both of navigation and of the
artificial islands, installations and structures.
5. The breadth of the safety zones shall be determined by the coastal State,
taking into account applicable international standards. Such zones shall be
designed to ensure that they are reasonably related to the nature and func-
tion of the artificial islands, installations or structures, and shall not exceed
a distance of 500 metres around them . . . Due notice shall be given of the
extent of safety zones.
This analogy is far from perfect. To begin, there is no doubt that UNCLOS
does not in fact apply in outer space. Moreover, this right arises only for the
coastal State in its EEZ, a zone in which it enjoys “sovereign rights for the pur-
pose of exploring and exploiting, conserving and managing the natural re-
sources . . . and with regard to other activities for the economic exploitation
and exploration of the zone.”104 There is no equivalent to an EEZ in outer space,
given the nonappropriation principle of Article II of the OST. Nonetheless, the
example is illustrative of the sort of measure States have agreed to in another
context and which may be of potential future relevance to lawmaking for outer
space. Therefore, while the declaration of a safety zone around a space resource
activity on a celestial body is not part of existing international space law, this is
a concept which may evolve in the future.105 At present, it has no legal basis, but
104 UNCLOS, supra note 4, art. 56(1)(a). Similar safety zones are envisaged in respect of “scientific
research installations” under Article 260, and “Installations used for carrying out activities in the
Area” under Article 147(2)(c) (the Area being “the seabed and ocean floor and subsoil thereof, be-
yond the limits of national jurisdiction” (i.e., under the high seas) as defined in Article 1(1)(1), which
can only be “organized, carried out and controlled by the Authority” pursuant to Article 153(1)).
105 Whether as a matter of hard law (treaty or customary international law), or as a result of na-
tional regulation or even private rights allocation—the three mechanisms labeled by Brian Israel re-
spectively as Space Law 1.0, 2.0, and 3.0: Brian R. Israel, Space Resources in the Evolutionary Course
of Space Lawmaking, 113 American Journal of International Law Unbound 114 (2019). On
soft law developments supplementing hard law in outer space, see also Brian Israel, Treaty Stasis, 108
this represents one way in which States might choose to develop the law as space
resource activities start to be carried out.
Conclusion
The aim of this chapter has been to identify departures from the general freedom
of the exploration and use of outer space which might justify the declaration of
keep-out, operational, or safety zones in outer space, under international law as
it currently stands as well as in areas where some future development might be
reasonably anticipated.
There is little doubt that the UN Security Council acting under Chapter VII of
the UN Charter could impose keep-out zones in outer space. Similarly, it appears
highly likely that belligerent States in an international armed conflict could im-
pose zones in the immediate area of military operations in outer space. These
are the only two areas in which it is highly likely the state of international law at
the time of writing permits the declaration of keep-out or operational zones in
outer space. A third possible form of zone that might be applicable in outer space
during armed conflict would be exclusion zones; however, it will not be possible
to reach a conclusion on whether these are applicable in outer space until there is
State practice clarifying the issue.
In addition, there are a number of areas in which it might be anticipated that
international space law will evolve to permit the declaration of zones during
peacetime. First, the declaration of SOIZs by analogy to ADIZs on Earth. While
there is no practice in this respect to date, it is possible that SOIZs might become
an accepted part of international space law in the future. Second, the possibility
of permitting the declaration of safety zones around space resource activities on
celestial bodies. There is no legal basis for asserting such a zone at present, but
the analogy to safety zones recognized under UNCLOS points to the possibility
of future development of the law in this direction, most likely as part of broader
normative evolution in international space law regarding resource activities.
American Journal of International Law Unbound 63 (2014). On the prospects for market-
based regulation of outer space activities more generally, see Bruce B. Cahan, R. Bruce Pittman,
Sarah Cooper, & John Cumbers, Space Commodities Futures Trading Exchange: Adapting Terrestrial
Market Mechanisms to Grow a Sustainable Space Economy, 6:3 New Space: The Journal of Space
Entrepreneurship and Innovation 211 (2018); Bruce B. Cahan, Irmgard Marboe, & Henning
Roedel, Outer Frontiers of Banking: Financing Space Explorers and Safeguarding Terrestrial Finance,
4:4 New Space: The Journal of Space Entrepreneurship and Innovation 253 (2016); Bruce B. Cahan &
Timothy Locke, “Space Commodities in Service of National Security” (Paper presented at the 2018
American Institute of Aeronautics and Astronautics SPACE and Astronautics Forum and Exposition,
Orlando, Florida, Sept. 15–17 2018), <https://doi.org/10.2514/6.2018-5150>.
The freedom of exploration and use of outer space will remain a fundamental
principle of the regime of international space law. Any deviations from that prin-
ciple will be exceptional and are likely to be closely constrained. Nonetheless,
there are already the two situations identified in this chapter in which keep-out
or operational zones might be lawfully declared in outer space. As the explora-
tion and use of outer space continues to intensify and diversify in coming years,
it would appear likely that certain additional zones will come to be recognized,
whether based on the three additional possibilities explored in this chapter (ex-
clusion zones in armed conflict, as well as peacetime space object identifica-
tion zones and space resource activity safety zones) or arising from normative
developments as yet unanticipated.
APPENDIX
As this book went to press, information regarding the principles guiding NASA’s
proposed Artemis Accords became available.106 Relevantly, they propose the
recognition of ‘safety zones’ on celestial bodies as follows:
via the Artemis Accords, NASA and partner nations will provide public in-
formation regarding the location and general nature of operations which will
inform the scale and scope of ‘Safety Zones’. Notification and coordination be-
tween partner nations to respect such safety zones will prevent harmful inter-
ference, implementing Article IX of the Outer Space Treaty and reinforcing the
principle of due regard.
There is nothing in this scant statement of principle regarding the compati-

bility of safety zones with Articles I and II of the OST, but the reliance on both
the “harmful interference” and “due regard” aspects of Article IX of the OST is
broader than the Hague Building Blocks (which addressed only “harmful inter-
ference”). Recognition of safety zones in the Artemis Accords may provide a
means through which future state practice develops to recognize the lawfulness
of the implementation of safety zones on celestial bodies.
106 National Aeronatics and Space Administration, The Artemis Accords: Principles for a Safe,
Peaceful and Prosperous Future <https://www.nasa.gov/specials/artemis-accords/img/Artemis-

Accords_v7_print.pdf>.
9
Prominent Security Risks Stemming
from Space Hybrid Operations
Jana Robinson
Introduction
The ever-growing dependence on the space environment for a variety of socio-

economic and national security applications has elevated the priority attached to
protecting space assets. The surge of new space actors (including commercial),
the proliferation of advanced space technology, and the ability of nations to lev-
erage space for defensive—as well as offensive—conventional military operations
have challenged many national and international space security assumptions.
Unlike in the early 1970s, when a handful of countries operated satellites, there
are currently over seventy entities (countries and organizations) with assets in
space.1 Besides traditional aerospace companies, new entrepreneurs, including
billionaires and venture capitalists, have entered the space market.
Governments and companies are fueling the advancement and prolifera-
tion of space technology, including small satellites, very large low Earth orbit
constellations, new on-orbit applications (e.g., satellite servicing or active debris
removal), and reusable launchers. Between 2012 and 2013, for example, there
was a 269 percent increase in the launch of small satellites (weighing between 1
and 50 kilograms), many of them with limited or nonexistent maneuvering and
tracking capability.2
Since the success of the United States in integrating space capabilities as a key
component in combat in the Operation Desert Storm in 1991,3 many nations, both
allies and adversaries, have built space capabilities to support conventional military
operations. Space is indispensable for strategic and conventional operations, for
1 Online Index of Objects Launched into Outer Space, UNOOSA (2019), <http://www.unoosa.org/
oosa/osoindex/search-ng.jspx?lf_id=> (accessed Mar. 16, 2020).

2 James A. Vedda & Peter L. Hays, Major Policy Issues in Evolving Global Space
Operations 15 (2018), <https://aerospace.org/sites/default/files/2018-05/Space_Policy_FINAL_

interactive_0.pdf> (accessed Mar. 16, 2020).
3 Shannon Collins, Desert Storm: A Look Back, U.S. Department of Defense (Jan. 11, 2019),
<https://www.defense.gov/Explore/Features/Story/Article/1728715/desert-storm-a-look-back/ >
Jana Robinson, Prominent Security Risks Stemming from Space Hybrid Operations In: War and Peace in Outer Space.
Edited by: Cassandra Steer and Matthew Hersch, Oxford University Press (2021). © Oxford University Press.
DOI: 10.1093/oso/9780197548684.003.0010
example, for collecting intelligence, early warning against nuclear attack, effective-
ness of weapon delivery, and provision of environmental data in support of mili-
tary missions. The United States, China, and Russia lead the global competition
to acquire strategic advantage in space. There appears to be an increased appetite
for the development of counterspace capabilities by the U.S. competitors—that is,
capabilities that could be used to disrupt, deny, degrade, or destroy space systems.
The combination of reliance on space for military operations and vitally im-
portant socioeconomic services to many nations, as well as the need to maintain
space stability put at risk by geopolitical flashpoints, have brought space vulner-
abilities into sharper relief as never before. French Minister of Defense Florence
Parly voiced a concern, for example, over the nontransparent approaches by the
Russian Luch satellite since its launch in 2014 to space assets of other nations
and commercial operators, including the Franco-Italian Athena-Fidus military
satellite communications satellite.4 Another close approach of the Luch satellite
was reported on August 27, 2019, to the Intelsat 17 satellite.5 This was not the first
time that Luch had shadowed the Intelsat 17.
The dual-use nature of rendezvous and proximity operations (RPO) and ac-
tive debris removal, together with other issues such as space debris and uninten-
tional radiofrequency interference, have raised the stature of Space Situational
Awareness as an indispensable component of space security. It has also resulted
in intensified discussions concerning a need for a comprehensive space traffic
management regime.
In the spectrum of the threats, hybrid operations present a major policy
challenge. Although not a new phenomenon, to date, hybrid threats in space
have largely been confined to classified, often stovepiped, environments. Open
discussions concerning hybrid threats have been almost exclusively focused on
the terrestrial and maritime domains.
Hybrid threats are listed as one of seven categories in a December 2016 Joint
Declaration of the EU and NATO Councils, which called for improved “mu-
tual relations.”6 In the 2017 European Commission report on the implemen-
tation of the “Joint Framework on countering hybrid threats—a European
Union response,” the Commission also proposed expanding the monitoring of
4 Pierre Tran, The French Minister of Defense Lays out the Way Ahead for French Military Space
Policy, SDLinfo.com (2019), <https://sldinfo.com/2019/07/the-french-minister-of-defense-lays-

out-the-way-ahead-for-french-military-space-policy/> (accessed Sept. 12, 2019).
5 Nathan Strout, Russian Satellite Creeps Up to Intelsat Satellite—Again, c4isrnet.com (2019),
<https://www.c4isrnet.com/battlefield-tech/2019/09/03/russian-satellite-creeps-up-to-intelsat-
satellite-again/> (accessed Sept. 12, 2019).
6 NATO, EC, Joint declaration by the President of the European Council, the President of the
European Commission, and the Secretary General of the North Atlantic Treaty Organization (Dec. 5,
2017), <https://www.nato.int/cps/ic/natohq/official_texts_133163.htm> (accessed Sept. 12, 2019).
The other six are operational cooperation, cybersecurity and defense, defense capabilities, defense
industry and research, exercises, and defense and security capacity-building.
Prominent Security Risks Stemming 231
hybrid threats to space infrastructures.7 In this connection, the Commission

stated: “within the context of the Space Strategy and European Defence Action
Plan, the Commission will propose to increase the resilience of space infrastruc-
ture against hybrid threats, in particular, through a possible extension of the
Space Surveillance and Tracking scope to cover hybrid threats, the preparation
for the next generation of GovSatCom at European level and the introduction of
Galileo in critical infrastructures dependent on time synchronization.”8
In 2016, the EU Hybrid Fusion Cell was established within the EU Intelligence
and Situation Centre of the European External Action Service (EEAS), to receive,
analyze, and share both classified and open source information from the EEAS,
the European Commission (EC), and EU Member States, on indicators and
warnings related to hybrid threats. The goal was to inform the European Union’s
strategic decision-making processes, including security risk assessments.
Separately, the European Centre of Excellence for Countering Hybrid Threats
was launched in October 2017 under the joint auspices of the European Union
and NATO, to encourage strategic dialogue and to conduct research and anal-
ysis on hybrid threats. The Center’s work has largely been dedicated to produ-
cing white papers, conducting training courses, and providing workshops to
policymakers and practitioners.9
These developments are a reaction to the reality that America and Europe’s
competitors have become fond of operating in the “grey zone,” an environment
that permits them to achieve desired objectives or effects without triggering un-
wanted military or political responses by other nations. China and Russia stand
out with respect to engaging in activities that enable them to pursue strategic
objectives steadily, without the impediments of democratic principles, processes,
and genuine election cycles.
Examples include Russia’s activities in Crimea and the Black and Azov Seas,
and their global information operations.10 Similarly, China’s illegal island-
building and militarization in the South China Sea, its cyber campaigns in
Europe and the United States, and Chinese and Russian economic and financial
“nation-capturing” activities are all emblematic of this brand of hybrid activities.
7 European Commission, Security and Defence: Significant Progress to Enhance Europe’s Resilience
against Hybrid Threats—More Work Ahead (2017), <http://europa.eu/rapid/press-release_IP-17-

2064_en.htm> (accessed Sept. 13, 2019).
8 European Commission, Implementation of the Joint Framework on Countering Hybrid Threats—
A European Union Response (2017), <https://eeas.europa.eu/printpdf/46398_en> (accessed Sept.

13, 2019).
9 Reid Standish, Inside a European Center to Combat Russia’s Hybrid Warfare, Foreign Policy
(2018), <https://foreignpolicy.com/2018/01/18/inside-a-european-center-to-combat-russias-hybrid-
warfare/> (accessed Sept. 13, 2019).
10 Sydney J. Freedberg Jr., Russia’s Real Target Is US Alliances & Ukraine, Not Elections: CIA
Veterans, Breaking Defense (2018), <https://breakingdefense.com/2018/06/russias-real-target-is-

us-alliances-ukraine-not-elections-cia-veterans/> (accessed Sept. 13, 2019).
Given the advances in the counterspace capabilities of these competitors, cou-

pled with a far more contested space domain in recent years, these activities have
become a growing concern. Beyond the vulnerabilities of satellites and ground
segments to damaging or destructive kinetic attacks, there is a worrying spec-
trum of space hybrid threats that are associated with deliberate actions that have
been permitted to take place with impunity. It is not only military but also civil
and commercial space assets that are now at greater risk.
In 2016, General Joseph Dunford, then U.S. Chairman of the Joint Chiefs
of Staff, stated that U.S. adversaries compete “with a military dimension short
of a Phase 3 or traditional conflict.”11 In January 2018, France’s Joint Space
Commander, Air Force General Jean-Pascal Breton, observed that the space en-
vironment is being contested in new ways and that it is essential to have the capa-
bility to detect and identify potential unfriendly or aggressive acts.12
On January 14, 2019, The U.S. Defense Intelligence Agency released a report
on China’s global military capabilities and plans for the future. The report, enti-
tled “China Military Power: Modernizing a Force to Fight and Win,”13 asserts
that China’s ambitions are no longer regional but global and that “information
dominance” is a prerequisite for victory in a modern war. It states that Beijing
can reach adversaries anywhere on Earth with its space, cyberspace, and nuclear
capabilities. It likewise warned of China’s improving antisatellite capabilities that
could interfere with reconnaissance and communications systems in order to
“blind and deafen the enemy.”14
Increasingly, military and civilian policy decision makers will be confronted
with this harsh reality and will be in need of a comprehensive assessment of these
threats and available solution sets. This chapter first provides an overview of
space hybrid operations. It then introduces a new threat category associated with
the space security portfolio, namely, the material economic and financial risks
associated with nondemocratic space partnerships. It then examines challenges
related to these gray-zone activities. Finally, it provides some observations and
recommendations.
11 Sydney J. Freedberg Jr., Russia, China Are Outmaneuvering US: Generals Recommend New
Authorities Doctrine, Breaking Defense (2018), <https://breakingdefense.com/2018/06/russia-

china-are-outmaneuvering-us-generals-recommend-new-authorities-doctrine> (accessed Sept.
13, 2019).
12 Pierre Tran, Foreign Governments Are Approaching French Satellites in Orbit, Says Space
Commander, Defense News (2018), <https://www.defensenews.com/space/2018/01/26/foreign-

governments-are-approaching-french-satellites-in-orbit-says-space-commander/> (accessed Apr.
10, 2020).
13 China Military Power Report, Defence Intelligence Agency (2019), <http://www.dia.mil/
Military-Power-Publications/>.
14 Gordon Lubold & Dustin Volz, China’s Confidence Rises in Its Military, U.S. Says, Wall Street
Journal, A10 (2019), <https://www.wsj.com/articles/chinas-confidence-rises-in-its-military-u-s-

says-11547597775> (accessed Apr. 10, 2020).
Space Hybrid Operations
Space hybrid operations are of great concern due to their asymmetry and pos-
sible strategic effects. The Prague Security Studies Institute (PSSI) defines them
as “intentional, sometimes reversible, and often harmful space actions/activi-
ties specifically designed to exploit the links to other domains and conducted
just below the threshold of requiring meaningful military or political retaliatory
responses.”15
These malevolent activities can take a variety of forms, including directed en-
ergy operations, electronic operations, cyberattacks, RPOs, or economic and fi-
nancial initiatives that are aimed at partial or full control of the space sectors
of various nations (so-called “space sector capture”).16 Table 9.1 illustrates se-
lect examples of space hybrid operations that have been, or are anticipated to be,
deployed.
Just prior to the annexation of Crimea, Moscow jammed communications
and spoofed GPS systems.17 During NATO’s Trident Juncture exercises in
October–November 2018, Russia was said to disrupt GPS signals over northern
Scandinavia. Both Finland and Norway warned against possible threats from
this jamming to civilian traffic. Similar jamming happened earlier in 2017.18
Proximity operations, such as those conducted by Russia’s Luch satellite since
2014, represent an excellent example of how difficult it is to assess intent when
using inherently dual-use space technologies. They can be seemingly benign, but
can also be used for espionage, or even attacking other satellites. It is suspected
that Luch has been used for espionage against the United States19, France,20 and
possibly other countries.
In 2018, Russia reactivated its satellite, Kosmos 2504 (third in this series of
inspection satellites), launched in 2015, and conducted maneuvers close to the
15 J. Robinson et al., Europe’s Preparedness to Respond to Space Hybrid Operations (2018),
<http://www.pssi.cz/download/docs/600_report-on-space-hybrid-operations.pdf> (accessed Apr.

10, 2020).
16 Jana Robinson, Cross- Domain Responses to Space Hybrid Provocations via Economic and
Financial Statecraft (2018), <pssi.cz/download/docs/552_paper-2018-deterrence-and-assurance-
conf-final.pdf> (accessed Sept. 13, 2019).
17 Sergey Sukhankin, Russian Electronic Warfare in Ukraine: Between Real and Imaginable, 14:71
Eurasia Daily Monitor (2017), <https://jamestown.org/program/russian-electronic-warfare-

ukraine-real-imaginable/> (accessed Apr. 15, 2020).
18 Gwladys Fouche & Nerijus Adomaitis, Joining Finland, Norway Says Russia May Have Jammed
GPS Signal in Arctic, Arctic Today (2018) <https://www.arctictoday.com/joining-finland-norway-

says-russia-may-jammed-gps-signal-arctic/> (accessed Mar. 22, 2019).
19 Mike Gruss, Russian Luch Satellite Relocates—Next to Another Intelsat Craft, SpaceNews.com
(2015), <https://spacenews.com/russian-luch-satellite-relocates-next-to-another-intelsat-craft/>
(accessed Sept. 6, 2018).
20 Angelique Chrisafis, “Act of Espionage”: France Accuses Russia of Trying to Spy on Satellite Data,
Guardian (2018), <https://www.theguardian.com/world/2018/sep/07/france-accuses-russia-

spying-satellite-communications-espionage> (accessed Apr. 10, 2020).
Table 9.1 Illustrations of Deployable Space Hybrid Operations1
Space Hybrid Operation2 Examples
Directed Energy Operations Low-Power Laser Dazzling or Blinding4

that May Result in Space High-Power Microwave or Ultrawideband Emitters
Debris3
Orbital Operations that Space Object Tracking and Identification;
Generally Do Not Result in Rendezvous and Proximity Operations
Space Debris
Electronic Operations5 Jamming6 (Orbital/Uplink, Terrestrial/Downlink)
Spoofing7
Cyber Operations8 Attack on satellite or ground station antennas
Attack on ground stations connected to terrestrial
networks
Attack on user terminals that connect to satellites
Economic and Financial Investments in, and financing for, a targeted
Operations9 country’s space infrastructure for the purpose of
influence/control
1 Information in this table was adopted from various sources, including Todd Harrison, Kaitlyn
Johnson, & Thomas G. Roberts, Space Threat Assessment 2018 (2018), <https://aerospace.csis.
org/space-threat-assessment-2018/> (accessed Apr. 15, 2020); Samson Weeden, Global
Counterspace Capabilities: An Open Source Assessment (Apr. 2018), <https://swfound.
org/media/206118/swf_global_counterspace_april2018.pdf> (accessed Apr. 15, 2020); A. Jafri,
& J. Stevenson, NSI Concept Paper, Space Deterrence: The Vulnerability-Credibility
Tradeoff in Space Domain Deterrence Stability (2018), <http://nsiteam.com/sma-
publications> (accessed Apr. 15, 2020); Tom Wilson, “Threats to United States Capabilities”
(Paper prepared for Prepared for the Commission to Assess United States National Security Space
Management and Organization 2000), <https://fas.org/spp/eprint/article05.html#9> (accessed
Apr. 15, 2020).
2 This list purposely does not include ground-based kinetic antisatellite weapons, co-orbital kinetic
weapons, electromagnetic pulse weapons, high-power lasers, and so forth as their effects are easier to
attribute and are not reversible.
3 The attack is quick and degradation of the targeted spacecraft may not be immediately apparent.
4 Spoofs or jams of satellite electro-optical sensors using laser radiation that is in the sensor pass band
(in-band), temporarily blinding the satellite.

5 The use of electromagnetic or directed energy to control the electromagnetic spectrum or to attack
an adversary’s space system. Communications/navigation satellites and other satellite’s communica-

tions, data, and command links are likely targets.
6 Emitting noise or some other signal for the purpose of preventing the sensor from being able to
collect the real signals.

7 Emitting false signals that mimic real signals (a type of electronic decoy).
8 Targets data and the systems that use the data (i.e., information services and operator’s control over
the asset).
9 Use of economic and financial transactions to advance “space sector capture.”
remnant of a weather satellite shot down by China in 2007.21 In December 2017,

French then Joint Space Commander, General Jean-Pascal Breton, admitted
that his country’s satellites had been closely inspected by foreign governments.22
A similar remark was made by his predecessor, General Jean-Daniel Teste, in
2016.23
Space dependency on the cyber domain increases the asymmetric risks of
disruption. Space operations are almost entirely cyber dependent,24 and critical
portions of cyberspace can only be provided by space operations.25 Moreover,
cyberattacks on space assets have multiple advantages over kinetic attacks, for
example, plausible deniability, time-consuming attribution, and muted public
reaction.
Although these cyber operations are below the threshold of what is under-
stood to be traditional conflict, it is reasonable to expect that they can cause
major incidents involving, for example, injury or death of individuals or damage/
destruction to assets (including those in space).26 In short, the temptation of
State actors to exploit asymmetric space vulnerabilities through the cyber do-
main has emerged as a major concern.27
The first publicly known space asset targeted by a cyberattack was the German
ROSAT satellite in 1998.28 After investigation, NASA stated the cause was a
cyberattack on the Goddard Space Flight Center by Russia.29 Since that time,
cyberattacks targeting operating assets have continued to be reported at more
frequent intervals, raising international security concerns.30
21 Jamie Seidel, Killers or Fixers? Russia’s “Space Apparatuses Inspectors” Raise US Fears of Satellite
Sabotage, News Corp Australia Network (Aug. 20, 2018), <https://www.adelaidenow.com.

au/technology/science/killers-or-fixers-russias-space-apparatuses-inspectors-raise-us-fears-of-
satellite-sabotage/news-story/9a71d406635150819eeeb29ce927ee1c> (accessed Apr. 10, 2020).
22 Jana Robinson, Cross- Domain Responses to Space Hybrid Provocations via Economic and
Financial Statecraft (USSTRATCOM 2018 Deterrence and Assurance Academic Alliance
Conference 2018), <pssi.cz/download/docs/552_paper-2018-deterrence-and-assurance-conf-final.
23 Assemblée Nationale, Audition du général Jean-Daniel Testé, commandant interarmées de l’espace
(Assemblée Nationale, Compte rendu n° 48, May 17, 2016), <http://www.assemblee-nationale.fr/14/

cr-cdef/15-16/c1516048.asp> (accessed Apr. 10, 2020).
24 Jana Robinson, Governance Challenges at the Intersection of Space and Cyber Security, The Space
Review (Feb. 15, 2016), <http://www.thespacereview.com/article/2923/1> (accessed Apr. 10, 2020).

25 Joint Chiefs of Staff, Cyberspace Operations, Joint Publication (JP) 3– 12 (R), (Cyberspace
Operations Feb. 5, 2013), v-vi and I-2.
26 Michael Schmittet al., Tallinn Manual on the International Law Applicable to
Cyber Warfare (2013).

27 European Commission, Building an Effective European Cyber Shield: Taking EU Cooperation to
the Next Level (Issue 24, EPSC Strategic Notes May 8, 2017).
28 Xavier Pasco, Various Threats of Space Systems, Handbook of Space Security 673–674
(2015).
29 Jason Fritz, Satellite Hacking: A Guide for the Perplexed, Culture Mandala: The Bulletin of
the Centre for East-West Cultural and Economic Studies 31 (2013), <https://epublications.
bond.edu.au/cm/vol10/iss1/3> (accessed Apr. 10, 2020).
30 UK HM Government, National Space Security Policy (UKSA/13/1292, 2014), 2.
A well-known example of cyberespionage using space assets was under-

taken by the Russian-led Turla group, which hacked into satellites to gain
access to sensitive and confidential information of Western embassies, govern-
ment institutions, and military entities between 2008 and 2016.31 The attack
was directed against forty-two countries, including the United States and six
European States (France, Germany, Latvia, Poland, Serbia, and Spain).32 As of
June 2019, the group, linked to the Russian intelligence services, seemed to be
still operational.33
In 2014, China hacked the U.S. weather satellite system.34 A 2015 agreement
between then U.S. President Barack Obama and Chinese President Xi Jinping on
cyberespionage resulted in the cessation of activities by a China-affiliated hacker
group called Thrip.35 Thrip, however, appeared to have re-emerged after two
years of dormancy. In 2017, Symantec discovered a Thrip attack on two satel-
lite companies, a U.S. Defense Department contractor, and a geospatial-imaging
firm.36 The Chinese hackers seemed intent on specifically gaining access to op-
erational technology that is used to physically control satellite systems in space.
The threat posed by State actors (including through the deployment of their
State-controlled enterprises) is particularly troubling. The disruption of services
that space assets provide would have immediate, far-reaching, and devastating
economic and social consequences, as well as potentially damaging geostrategic
knock-on effects.37
Economic and Financial Space Operations
A new element of space security involves China’s and Russia’s active pur-
suit of international space partnerships. These seemingly benign partnering
31 Ellen Nakashima, Russian Hacker Group Exploits Satellites to Steal Data, Hide Tracks,
Washington Post, Sept. 9, 2015.

32 Stefan Tanase, Satellite Turla: APT Command and Control in the Sky (Kaspersky Lab Sept.
9, 2015).
33 Catalin Cimpanu, Russian ATP Hacked Iranian APT’s Infrastructure Back in 2017, ZDnet (June
20, 2019), <https://www.zdnet.com/article/russian-apt-hacked-iranian-apts-infrastructure-back-

in-2017/> (accessed Apr. 15, 2020).
34 Everett Rosenfeld, Chinese Hack US Weather Systems, Satellite Network: Wash Post, CNBC
(Nov. 12, 2014), <https://www.cnbc.com/2014/11/12/chinese-hack-us-weather-systems-satellite-

network-washington-post.html> (accessed Apr. 10, 2020).
35 Chris Bing, Chinese Hacking Group Resurfaces, Targets U.S. Satellite Companies and Systems,
Cyberscoop (June 19, 2018), <https://www.cyberscoop.com/symantec-thrip-satellite-hacking-

trojans/> (accessed Apr. 10, 2020).
36 Caleb Henry, Satellite Industry Doing Surprisingly Well Against Cyber Threats, Experts Say,
SpaceNews (June 28, 2018), <https://spacenews.com/satellite-industry-doing-surprisingly-well-

against-cyber-threats-experts-say/> (accessed Apr. 10. 2020).
37 Jana Robinson, Governance Challenges at the Intersection of Space and Cyber Security, The Space
Review (Feb. 15, 2016), <http://www.thespacereview.com/article/2923/1> (accessed Sept. 14, 2019).

arrangements often involve purposely building inordinate dependencies (on a

sole-source basis) that open recipient countries to the risk of so-called “space
sector capture.” PSSI defines space sector capture as “a state actor’s provision of
space-related equipment, services and financing, ultimately designed to limit the
freedom of action and independence of the recipient state’s space sector, gener-
ally implemented on an incremental basis.”38
New spacefaring nations or aspirants are vulnerable to being, in effect, cap-
tured by vertically integrated control of their space sectors by these external
actors. For example, China and Russia provide a targeted country with one or
more satellites, launch services, the construction of ground stations, the pro-
vision of operating personnel, subsidized financing, and other services such as
those from their Global Navigation Satellite Systems (GNSS)—the net effect of
which is to create a sole-source supplier relationship and often a perilous level of
dependency.
Space sector capture is a means of leveraging a country’s space sector vis-à-
vis its broader economy and system of government, creating a welcoming po-
litical and commercial environment (e.g., to help protect the secrecy of military
space programs like the Bejucal signals intelligence site in Cuba), and advancing
various overarching national and multilateral objectives. Often times, an incre-
mental approach is undertaken, for example by setting up educational, scien-
tific, or purely commercial constructs, which are then developed into something
more significant (e.g., in the Arctic). Such activities are, naturally, harder to pin-
point or protect against.39
The partnerships concluded by Beijing and Moscow are, in fact, driven by a
desire to gain access to valuable space-relevant geographical locations and/or
strategic resources and assets of particular countries. The PSSI, through tracking
and mapping of the transactions of the Chinese and Russian enterprises glob-
ally (as of March 2019, the PSSI had identified 216 transactions in 78 countries),
assesses that China and Russia have concluded space partnership arrangements
with at least forty-nine and thirty-nine countries, respectively.40
These transactions, including loans or subsidized financing on below-market
terms, are also employed to expand these space actors’ global space footprint, with
a number of associated political and military benefits.41 More open space sector
capture largely takes place via the offering of end-to-end “package deals.” On a
38 J. Robinson et al., State Actor Strategies in Attracting Space Sector
Partnerships: Chinese and Russian Economic and Financial Footprints (2019), <http://
www.pssi.cz/download/docs/686_executive-summary.pdf>.
39 Id.
40 Id.
41 Jana Robinson et al., Europe’s Preparedness to Respond to Space Hybrid Operations
4 (July 2018).
number of occasions, China and Russia have been able to construct successfully
dual-use space infrastructure and services due to hospitable political relations,
corruption, and internal economic and social strife in the targeted countries (e.g.,
Argentina, Brazil, Cuba, Colombia, Nicaragua, Nigeria, Pakistan, Sri Lanka, and
Venezuela). Countries lacking space capabilities, adequate funding, and technical
expertise are generally receptive to such offers, even if it means their countries
might become perilously dependent on these outside “benefactors.”42 Figure 9.1
illustrates the space transactions around the globe, by Russia (light grey), China
(dark grey), and by the two countries combined (diagonal stripes). 43
(a)
(b)
Figure 9.1 PSSI Global Map of Space Transactions (as of March 2019)
Manifestations of Economic and Financial Space Operations

and Implications
With regard to some African countries, China has been their largest trading
partner for some time. Kenya and Ethiopia signed economic and trade
agreements at the Belt and Road Forum in Beijing in May 2017, the only African
42 Robinson, supra note 31.

43 Jana Robinson, ‘Cross-Domain Responses to Space Hybrid Provocations via Economic and Financial
Statecraft’ (USSTRATCOM 2018 Deterrence and Assurance Academic Alliance Conference 2018) <pssi.
cz/download/docs/552_paper-2018-deterrence-and-assurance-conf-final.pdf> accessed 10 April 2020
countries to do so. Moreover, China has been engaged in many infrastruc-

ture projects on the continent (e.g., a railway in Kenya, an electric railway in
Ethiopia), spending some $95.5 billion between 2000 and 2015.44
More recently, Russia has been trying to revive some of its old ties on the
African continent, attempting to assist authoritarian leaders as well as pro-
vide arms shipments, oil, and diamond mining equipment, among other
items.45 In the space sector, Russia has, for example, reached out to Angola,
Egypt, and South Africa. China has assisted Algeria, Democratic Republic
of Congo, Ethiopia, Namibia, Nigeria, Tunisia, and Uganda. In all cases, sat-
ellite technology and related ground infrastructure were provided, often
through subsidized lending arrangements or even taking stakes in the local
companies.
In Latin America, China’s space outreach has involved Argentina, Bolivia,
Brazil, Chile, and Venezuela. Russia has a space presence in Brazil, Cuba,
Ecuador, and Nicaragua. Both Russia and China have collaborated jointly with
Brazil and Venezuela.46
In Southeast Asia, China has been able to become the partner of choice for
the space program development of countries in its neighborhood. This has made
it more challenging for India, for example, to expand collaboration through
its “South Asia Satellite” project aimed at benefiting Afghanistan, Bangladesh,
Bhutan, the Maldives, Nepal, and Sri Lanka.47 In 2015, Afghanistan accepted col-
laboration within this initiative, but Pakistan opted out in favor of collaboration
with China.
Pakistan’s national space agency, the Space and Upper Atmosphere Research
Commission, has received assistance from Chinese companies and organi-
zations, which have provided everything, including loans,48 designing and
manufacturing services,49 and the launch of PakSat- 1R,50 PRSS-1,51 and
44 Nick Mead, China in Africa: Win-Win Development, or a New Colonialism?, The Guardian
(2018), <https://www.theguardian.com/cities/2018/jul/31/china-in-africa-win-win-development-
or-a-new-colonialism> (accessed Apr. 10, 2020).
45 Henry Foy et al., Russia: Vladimir Putin’s Pivot to Africa, Financial Times (Jan. 22, 2019),
<https://www.ft.com/content/a5648efa-1a4e-11e9-9e64-d150b3105d21> (accessed Apr. 10, 2020).

46 Robinson et al., supra note 43.
47 Shounak Set, India’s Regional Diplomacy Reaches Outer Space, Carnegieendowment.org 3
(2017), <https://carnegieendowment.org/files/7-3-2017_Set_IndiaRegionalDiplomacy_Web.pdf>
48 Pak, China Sign Loan Agreement For Satellite Ground Control Segment, Dawn.com (2010),
<https://www.dawn.com/news/577205> (accessed Apr. 10, 2020).

49 Rui Barbosa, China Debuts Partnership with Pakistan— Long March Launches Paksat-1R,
NASASpaceFlight.com (Aug. 11, 2011), <https://www.nasaspaceflight.com/2011/08/china-
debuts-partnership-pakistan-long-march-launches-paksat-1r/> (accessed Apr. 10, 2020).
50 Id.
51 Satellite to Be Launched for Monitoring CPEC Projects, Dawn.com (Apr. 21, 2016), <https://
www.dawn.com/news/1253323> (accessed Apr. 10, 2020).

PakTES-1A.52 Pakistan is also a beneficiary of China’s Beidou GNSS, including

for potential military operations. China also offered to send aloft a Pakistani as-
tronaut by 2022 (based on the 2015 Karamay Declaration).53 Indeed, Pakistan
has become the largest debtor nation to China in Southeast Asia. It is also one of
the best examples of rather fulsome space sector capture by China.
Similarly, Sri Lanka appears to have been receiving recurring assistance from
China with tangible results for Sri Lanka’s space program. Its satellite operator,
SupremeSAT (Pvt) Ltd., has worked with numerous Chinese entities since at
least 2012.54 These companies have provided a range of services, including de-
signing, manufacturing, and launching the satellite SupremeSAT-2, as well as aid
for the Pallekele Space Academy. At the same time, Sri Lanka has made efforts
to reduce its more than $8 billion in Chinese debt, including by handing over in
2017 its strategically located deepwater port at Hambantota pursuant to a debt
default.55
Tracking and visually mapping the international transactions of State-owned
or State-controlled enterprises in the space sectors of various countries has dem-
onstrated that China and Russia engage in offers of assistance to the nascent
space programs of targeted countries, which, in many cases, result in dependen-
cies consistent with the space sector capture concept. It has also revealed that the
stated purpose of such assistance is often at odds with the on-the-ground activi-
ties.56 The underlying strategic objective of global spacepower projection (often
with associated economic benefits) has been evident, prominently through
the offer of the “package deals” (i.e., end-to-end space capabilities) referenced
previously.57
China and Russia are actively pursuing international space partnerships, in
no small part, to increase their influence in multilateral space fora and shape
behavioral norms, standards, and other elements of operations in the space do-
main. The economic and financial incentives provided, including financing on
below-market terms, often build problematic, long-term dependencies for the
52 China to Launch Two Remote Sensing Satellites for Pakistan in June, GBTimes (May 24, 2018),
<https://gbtimes.com/china-to-l aunch-t wo-remote-s ensing-s atellites-for-p akistan-in-june>

53 Pakistan Will Send First Astronaut into Space in 2022: Fawad Ch, Daily Times (Oct. 25, 2018),
<https://dailytimes.com.pk/314453/pakistan-will-send-first-astronaut-into-space-in-2022-fawad-
ch/> (accessed Apr. 10, 2020).
54 Guillaume Houdu, Sri Lanka’s First Space Academy to Be Created with Chinese Support Space
Safety Magazine (2012), <http://www.spacesafetymagazine.com/space-on-earth/national-space-

programs/sri-lankas-space-academy-created-chinese-support/> (accessed Apr. 10, 2020).
55 Shanthi Kalathil, How Beijing Is Reshaping the Infrastructure of Development (May 10, 2018),
<https://w ww.power3point0.org/2018/05/10/how-b eijing-is-reshaping-the-infrastructure-of-

development/> (accessed Apr. 10, 2020).
56 Robinson et al., supra note 43.
57 Id.
recipient countries. Although it can be argued that the United States also seeks
to shape the global space agenda, particularly with regard to behavioral norms
and space safeguards, the underlying motives are fundamentally different, based
on the principles of democracy and a free market economy. In the case of China
and Russia, inordinate space dependencies are often intended to translate into
political leverage with the host countries to advance their strategic objectives in
space. Their State-controlled enterprises are vehicles of national policy unlike
their Western corporate counterparts. They are also governed by nondemocratic
principles and impulses.
Key Challenges in Addressing Space Hybrid Operations
Key challenges related to identifying and addressing space hybrid operations are
connected to existing limitations concerning the ability to observe space activi-
ties and the environment continually. Deployment of capabilities that intention-
ally disrupt or deny space-related benefits for a specific amount of time may not
always be detected, or may be misinterpreted, resulting in possible overreaction,
or even escalation.58 It is also often difficult to attribute or verify such attacks.
To improve the latter, enhanced intelligence-sharing concerning space domain
awareness (SDA) should be promoted, rather than arms control techniques.
China and Russia promote the notion that if countries do not engage in space
arms control, the world will face unrestricted “weaponization.” This premise
is difficult to accept, however, as space security is not a zero-sum game, and
targeted counterspace tool development and use, rather than an unrestricted one
to gain asymmetric advantages, is underway.
Other difficulties are connected to the ability to enforce behavioral norms
and institute effective deterrence measures. Deterrence against irresponsible or
threatening actions in space requires increased consideration of options outside
the space domain. The cross-domain options are designed to dissuade an adver-
sary from seeking to deliver asymmetric effects via space or penalize the perpe-
trator convincingly. Economic and financial measures that would penalize those
States and their companies engaged in malevolent space-related behavior could
be part of a package of such measures to deter hostile behavior in space.59 This
could be accomplished by revealing publicly instances of malevolent behavior
58 Alison Astorino-Courtois, Robert Elder, & Belinda Bragg, Contested Space Operations, Space
Defense, Deterrence and Warfighting: Summary Findings and Integration Report (2018), <https://
nsiteam.com/social/wp-content/uploads/2018/11/Space-SMA-Integration-Report-Space-FINAL.
59 Kalathil, supra note 64.
by Chinese or Russian enterprises to increase the perceived risk associated with

such firms in the global markets, negatively affecting their share values and cor-
porate reputations.
Precedents exist from other domains. In 2016, for example, CCCC Dredging,
the world’s largest dredging company and a subsidiary of China Communications
Construction Company (China’s largest port construction company), delayed
a planned $1 billion Initial Public Offering (IPO) on the Hong Kong Stock
Exchange after being questioned with regard to its involvement in the illegal
island-building by China in the South China Sea.60 The company refused to con-
firm or deny its involvement in the dredging in the disputed territory. Earlier in
the year, surveillance photos identified one of its ships at Mischief Reef (Spratly
Islands).61
Due to the asymmetry of vulnerabilities and effects (embodying significant
escalatory potential) for all space actors (i.e., military, civil, and commercial) and
the lack of precedents, the consequences of actual incidents resulting from space
hybrid operations are difficult to predict. These operations could well be a set of
events, rather than an isolated incident, that probe the gaps in readiness, partner
coordination, and response options. Better understanding of these capability
gaps permits an adversary to configure an effective strategy to gain a decisive
advantage.
Conclusion
The United States fully recognizes the challenges related to operating in a “gray
zone” environment. It observes in its National Security Strategy that “adversaries
and competitors became adept at operating below the threshold of open military
conflict and at the edges of international law” and that deterrence must be ex-
tended across all domains (including space) and “must address all possible stra-
tegic attacks.”62
Similarly, the National Defense Strategy specifically references China and
Russia’s “increased efforts short of armed conflict” and “deliberately blurring
60 Kane Wu, South China Sea Work Dredges Up Questions, Delays Planned IPO, Wall Street
Journal (Nov. 27, 2015), <https://www.wsj.com/articles/chinese-dredger-delays-ipo-over-

questions-about-island-building-1448623226> (accessed Apr. 10, 2020).
61 Steve Mollman, Chinese Company Reportedly Involved in South China Sea Dredging Won a Big
Project in the Philippines, Quartz (Oct. 27, 2016), <https://qz.com/820447/a-chinese-company-

reportedly- i nvolved- i n- s outh- china- s ea- d redging- won- a - big- project- i n- t he- philippines/ >
62 National Security Strategy of the United States of America, The White House 27 (Dec. 2017),
<https://w ww.whitehouse.gov/wp-content/uploads/2017/12/NSS-Final-12-18-2017-0905.pdf>
lines between civil and military goals.”63 Responding to hybrid threats is also
a growing portfolio of cooperation in, and between, the European Union and
NATO. Efforts to share intelligence and threat assessment (e.g., through the EU
Fusion Cell and the NATO Hybrid Center of Excellence) is designed to reduce
uncertainty and enhance situational awareness. But much remains to be done to
configure proper responses to these activities.
If left unattended to, adversaries may become emboldened to intensify these
operations, raising the escalatory potential. Although transatlantic allies and
their partners (e.g., Japan) appear not to have settled on a comprehensive policy
direction with regard to the counterspace threat described herein, they fortu-
nately recognize the bottom-line requirements for collaboration in order to pre-
serve a stable space environment.
Asymmetric space vulnerabilities are a critical security issue and a greater ef-
fort is required to work toward improved SDA.64 Absent adequate information
concerning the context of emerging threats, an appropriate response is difficult
to configure. Accordingly, partnerships of responsible space actors are essen-
tial to strengthening SDA, as well as deterring against these threats. Situational
awareness and continuous analysis of the space environment is likewise critical.
The dual-use potential of space technologies establishes a thin line between a be-
nign and an offensive action, as even seemingly inconspicuous actions could be
turned into offensive operations.
A mapping and tracking capability to identify, and monitor, such incidents
will be required to determine what is an isolated event versus a part of a hybrid
campaign. Such a capability would have to integrate information from a wide
range of sources, for example, legal constraints on response options and possible
economic impacts.
An expanded scope of space hybrid operations that includes the economic
and financial elements will likely prove helpful in assisting with proper manage-
ment of this form of limited warfare deliberately wrapped in ambiguity and de-
ception and designed to thwart effective responses largely via “incrementalism.”
As hybrid threats are constantly evolving, adaptive countermeasures will
have to be continuously developed or updated. Collaboration—regional and
international—represents a strategic pillar in managing these threats. It can
63 Summary of the 2018 National Defense Strategy of the United States of America: Sharpening the
American Military’s Competitive Edge, Department of Defense 2 (Jan. 2018), <https://www.defense.

gov/Portals/1/Documents/pubs/2018-National-Defense-Strategy-Summary.pdf> (accessed Sept.
15, 2019).
64 “Space domain awareness” is defined as actionable knowledge required to predict, avoid, deter,
operate through, recover from, and/or attribute cause to the loss and/or degradation of space cap-
abilities and services. Source: M.J. Holzinger & M.K. Jah, Challenges and Potential in Space Domain
Awareness, 41:1 Journal of Guidance, Control, and Dynamics 15–18 (2018), <https://doi.org/
10.2514/1.G003483> (accessed Apr. 15, 2020).
help improve resiliency and deterrence via coordination of actions and preven-
tive measures. Programmatic decisions need to be considered in an overall stra-
tegic framework that has a much bolder and forward-leaning posture on space
security.
As in other domains, to build a sustainable model of international
partnerships, transparency, accountability, respect for sovereignty of nations,
and rule of law are required. A model of space partnerships built on the shared
principles of fairness and inclusiveness should be the global standard.
Countries seeking new or enhanced space programs should be provided as-
sistance by more advanced space actors in a fair, transparent, and commercial
fashion that preserves the space sector “independence” of the nation receiving
such assistance. Space hybrid operations in the economic and financial do-
main present a new challenge for the global space community and SDA as they
could disrupt the regional balance of power and complicate further global space
security.
PART IV
TOWA R D STA BI LI T Y
10
A Proposed Transparency Measure as a
Step Toward Space Arms Control
Gilles Doucet
Introduction
Efforts at space arms control conventions have not been successful. The only
publicly announced initiative has been the proposed Treaty on the Prevention
of the Placement of Weapons in Outer Space (PPWT), sponsored by Russia and
China.1 The United States has consistently rejected the PPWT, and it has been
long-standing U.S. policy to retain its freedom of action in outer space.2 It is the
U.S. position that international space security issues should be addressed through
nonbinding norms of behavior, in which transparency and confidence-building
measures (TCBM) are a useful and important component. Disappointingly,
there has been little progress in developing internationally recognized norms of
behavior for military activities or, more generally, TCBMs for space security and
stability.
TCBMs are internationally agreed measures that promote trust and stability
in internationally sensitive environments. Because TCBMs are generally (though
not always) nonbinding, they are often seen as a nonthreatening measure useful
in reducing tension in international relations, particularly in situations where
binding conventions are illusive. Such is the case for the space environment,
where TCBMs are seen a useful measure in reducing tensions and ensuring pro-
moting the safe and sustainable use of outer space. In 2011, the UN Secretary
General convened a Group of Governmental Experts (GGE) on TCBMs in Outer
Space Activities. This GGE concluded a report of recommendations that was
1 Draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of
Force against Outer Space Objects, Conference on Disarmament, CD/1839, Feb. 29, 2008.
2 “Letter dated 19 August 2008 from the Permanent Representative of the United States of America
Addressed to the Secretary-General of the Conference Transmitting Comments on the Draft Treaty
on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force Against
Outer Space Objects (PPWT) as Contained in Document CD/1839 of 29 February 2008,” Conference
on Disarmament, CD/1847, Aug. 28, 2008.
Gilles Doucet, A Proposed Transparency Measure as a Step Toward Space Arms Control In: War and Peace
Press. DOI: 10.1093/oso/9780197548684.003.0011
248 Part IV: Toward Stability
delivered in 2013.3 While useful, the recommendations were of a general nature,

mostly reflected current practices of many States, and were not focused on secu-
rity concerns. A second GGE was convened in 2018 as a result of the UN General
Assembly Resolution 72/250, which asked the Secretary General to establish a
new GGE to “consider and make recommendations on substantial elements of
an international legally binding instrument on the prevention of an arms race in
outer space, including, inter alia, on the prevention of the placement of weapons
in outer space.”4 The GGE has held workshops in 2018 and 2019, but the initia-
tive ended without consensus on a final report.5
One of the greatest challenges in developing effective arms control
mechanisms for space is the need for technical definitions which are sufficiently
broad that they can cover a wide range of activities and technologies which would
be considered threatening, and at the same time sufficiently narrow that they do
not limit the ability of States to develop and use technologies to defend and pro-
tect their space assets and their ground stations. The United States has consist-
ently rejected binding instruments such as the proposed PPWT based on the
position that they do not want to limit their freedom of activity in space. Many
U.S. allies take similar positions, creating a standstill when it comes to arms con-
trol measures, whether binding or nonbinding. This chapter, therefore, proposes
a multilateral treaty that could act as a TCBM and that will address some of the
identified stumbling blocks in the processes described previously. The proposal
offers the potential of easing tensions, increasing trust, and achieving significant
arms control objectives among the participating States. The adoption of such a
TCBM would make it more difficult for States to develop antisatellite weapons
and also, more importantly, reduce their perceived need for such capability.
The main thrust of the convention would be States agreeing to the following
(or a similar) transparency measure: Any activity that results in the transfer of
kinetic energy to an object in Earth orbit requires prior notification and reporting.
The careful wording of this phrase will be unpacked in detail later. This transpar-
ency measure is anticipated to reduce the risk of misinterpretation of scientific
experiments or technology developments, particularly when the technologies
can have dual roles. For example, it would allow continued development of
commercial technologies such as orbital servicing and active debris removal,
3 Group of Governmental Experts on Transparency and Confidence-Building Measures in Outer
Space Activities, UN GAOR, 68th Session, UN Doc. A/68/189* (July 29, 2013), <http://www.un.org/
ga/search/view_doc.asp?symbol=A/68/189> (accessed Mar. 30, 2020).
4 Further practical measures for the prevention of an arms race in outer space, UN GAOR, 72nd
Session, UN Doc. A/72/250 (adopted Dec. 24, 2017), <https://undocs.org/A/RES/72/250> (accessed

Mar. 30, 2020).
5 Report of the Group of Governmental Experts on further practical measures for the prevention of an
arms race in outer space, UN Doc. A/74/77, Apr. 9, 2019, <https://undocs.org/pdf?symbol=en/A/74/

77> (accessed Mar. 30, 2020).
Transparency Measure as a Step Toward Space Arms Control 249
while discourage testing of weapons applications based on similar technologies.

Moreover, this proposed transparency convention would be verifiable, since the
notification obligations would highlight undisclosed space activities in contra-
vention to the agreement. This proposal also encompasses ground-based sys-
tems, since it does not discriminate as to the original provenance of the object
that ultimately transfers kinetic energy in space. It also does not rely on a defini-
tion of weapon, since it is the behavior (transfer of kinetic energy) that is being
addressed. It therefore solves many of the objections raised thus far to the pro-
posed PPWT, and the problem of needing definitions which are at once suffi-
ciently broad and sufficiently narrow.
In the section “The Russia-China PPWT and U.S. Objections,” a detailed
overview of the Russia-China PPWT is provided, focusing on its main nor-
mative elements and the U.S. objections. The United States identified “flaws”
in the PPWT inspired the TCBM proposal presented here, albeit in an indi-
rect manner. The section “Proposed Transparency and Confidence-Building
Measure” presents the proposed TCBM text and discusses its primary elem-
ents. In order to provide a historical comparison, in the section “Verification
Example: U.S.— USSR/ Russia Strategic Arms Limitation and Reduction
Bilateral Treaties,” the verification measures and processes of the U.S.-USSR
bilateral strategic arms limitation treaties are discussed, including their po-
tential applicability to the outer space domain and to the TCBM proposed
here. Finally, the section “Conclusion: Anticipated Impact of the TCBM”
presents conclusions and the anticipated impact of the proposed TCBM.
The Russia-China PPWT and U.S. Objections
Over the past few decades, there have been very few proposals for space arms
control measures. One of the few public efforts has been a joint Russia-China
draft treaty proposal, first tabled at the UN Conference on Disarmament in 2008,
entitled Treaty on the Prevention of Placement of Weapons in Outer Space and
on the Threat or Use of Force in Outer Space (the aforementioned PPWT).6 The
treaty’s core normative element was Article II, which states:
The States Parties undertake not to place in orbit around the Earth any objects
carrying any kinds of weapons, not to install such weapons on celestial bodies
and not to place such weapons in outer space in any other manner; not to re-
sort to the threat or use of force against outer space objects; and not to assist or
6 See supra note 1.

induce other States, groups of States or international organizations to partici-

pate in activities prohibited by this Treaty.
The United States rejected the PPWT proposal, with the U.S. State
Department presenting an analysis that highlighted a number of issues it deemed
unacceptable.7
Firstly, the State Department pointed out that the proposed treaty bans the
placement of weapons in orbit, regardless of the targets for those weapons, which
is considered to be far too restrictive on lawful defense activities. For example, it
would restrict the placement in orbit of ballistic missile defense weapons, even if
they are not targeted against space objects.
Secondly, the United States objected to the fact that the proposed treaty would
ban the placement of weapons in space, but not research and development. This
leaves open the possibility that a compliant State could develop and build a ca-
pacity without deployment, then in a time of crisis immediately deploy the capa-
bility with little notice. As an arms control measure it is therefore deficient.
Thirdly, the treaty does not ban the placement of antisatellite weapons that
are ground-based. This is a major point for the United States since ground-based
direct ascent interceptors would represent major threats to low Earth orbit satel-
lites. Furthermore, the treaty could be interpreted as not prohibiting tests against
a country’s own cooperative outer space objects (i.e., targets) employing ground-,
sea-, or air-based weapons. In support of their argument, the United States
highlighted the January 11, 2007, antisatellite (ASAT) weapons test conducted
by China.8 However, it should be noted that the United States has itself developed
and proven such a capability,9 as has India more recently in March 2019,10 both
of which will be discussed in more detail later. Such tests, and the deployment of
such systems, would not be prohibited by the draft PPWT proposal.
A major objection of the United States was that the draft treaty does not in-
clude an integral, legally binding verification regime for effectively monitoring
compliance with its obligations, including prohibitions. The proposal relies on
the establishment of an executive organization, which is to be defined by a sub-
sequent protocol. The United States also viewed the failure to set sufficiently
detailed parameters on the conduct of the executive organization as another se-
rious flaw in the draft treaty.
7 See supra note 2.

8 See supra note 2, at 12 (i).
9 A. Webb, Joint Effort Made Satellite Success Possible, US Strategic Command, 30th Space Wing
Public Affairs (Feb. 25, 2008), < https://www.stratcom.mil/Media/News/News-Article-View/Article/

983539/joint-effort-made-satellite-success-possible/> (accessed Dec. 5, 2019).
10 A. Panda, Indian Prime Minister Announces Successful Anti-Satellite Weapon Test in National
Address, The Diplomat (Mar. 27, 2019), <https://thediplomat.com/2019/03/indian-prime-minister-

announces-successful-anti-satellite-weapon-test-in-national-address/> (accessed Dec. 5, 2019).
Additionally, the United States objected to the proposed amending formula

for the treaty, which is a simple majority vote of States Parties.11 The United States
insists that no sovereign government would agree to a legally binding instrument
in which its national security interests could be jeopardized by a simple majority
of subscribing States. No State Party should be bound by any subsequent amend-
ment unless it agrees with it, explicitly or implicitly.
An important point made in the letter outlining all of the objections of
the United States is that although the United States does not support a treaty
proposal, it does support transparency and confidence- building measures
(TCBMs)—with some qualifiers:
20. The draft Treaty also encourages the subsequent negotiation of voluntary
transparency and confidence-building measures.
(i) The United States supports voluntary TCBMs which can reduce the
chance of miscalculation or misinterpretation during a crisis.
(ii) However, such TCBMs should be developed without linkage to any arms
control agreement.
(iii) Any such TCBMs are not substitute for an effective verification regime.12
The United States has consistently expressed the view that outer space TCBMs
offer a pragmatic, voluntary approach to addressing near-term concerns for outer
space security and sustainability. The United States supported the 2013 consensus
report of the UN GGE on Transparency and Confidence-Building Measures in
Outer Space Activities and reported to the Conference on Disarmament on how
it was implementing the recommendations.13 Additionally, the United States
supports the COPUOS Long-Term Sustainability Guidelines, many of which are
transparency measures.14
In 2014, China and Russia jointly proposed an updated version of the draft
PPWT Treaty.15 The new version contained a number of minor changes from
11 This provision was changed in the subsequent 2014 PPWT proposal, whereby proposed
amendments would only enter into force upon their acceptance by consensus.
12 See supra note 2, at 20.
13 Note Verbale dated 29 August 2016 from the Delegation of the United States of America addressed
to the Secretary-General of the Conference on Disarmament transmitting the submission of the United
States to the Conference on Disarmament: “Implementing the Recommendations of the Report (A/68/
189*) of the Group of Governmental Experts on Transparency and Confidence-Building Measures in
Outer Space Activities to Enhance Stability in Outer Space,” CD 2078, Sept. 16, 2016.
14 Statement by the United States on Agenda Item 4: General Exchange of Views, 62nd Session of
the UN Committee on the Peaceful Uses of Outer Space, As prepared for delivery by Jon Harrison,
Senior Advisor, US Department of State, Vienna, June 13, 2019.
GE.14-05066.
the 2008 original. The amending formula was changed from a simple majority
in 2008 (Article X) to consensus in the 2014 version (Article XI). This addressed
one of the U.S. objections. While some minor changes were made, for example,
to the dispute-resolution process (Article VII) and clarification of role of the
executive organization (Article VIII in 2008 and Article VI in 2014), the major
points of contention with the United States remained. There was still no inte-
gral verification regime, relying instead on the subsequent negotiations of an
additional protocol for verification. The 2014 proposal still did not prohibit the
possession, testing, production, or stockpiling of ASATs, only their placement in
outer space. The 2014 proposal did not address what the United States considers
to be the most pressing current threat to outer space systems: terrestrially based
antisatellite weapon systems. As a result, the changes were insufficient to entice
the United States to enter into serious negotiations on the basis of the PPWT
proposal.
For several decades, the United States has consistently opposed binding arms
control conventions in outer space, preferring a policy that places no restrictions
on their freedom to operate in space. This policy was clearly expressed in their
2008 rebuttal of the PPWT proposal justified by the United States view that “it is
not possible to develop an effectively verifiable agreement for the banning of ei-
ther: (i) space-based weapons or (ii) terrestrial-based anti-satellite systems.” This
view remains firmly entrenched in U.S. policy and continues to be articulated.
Recent examples are to be found in the 2017 National Security Strategy and the
October 2018 White House statement on the president’s directive to form the
U.S. Space Force.16 It is debatable whether this strategy of maintaining freedom
of action at the cost of allowing potential adversaries the same right will result
in greater security for the United States than would otherwise be the case by
agreeing to restrictions on all parties. That debate is far too complex to be under-
taken in this chapter. Regardless, the United States has not wavered in its policy
of retaining its freedom of action in space over several decades.
Since the path to any form of binding arms control convention appears closed
at this time, and for the foreseeable future, progress in TCBMs appears to offer
the best avenue in creating a more secure and stable space operating environ-
ment. This chapter proposes one such TCBM that, although simple in its enun-
ciation, would address many of the deficiencies that the United States identified
in the PPWT, and at the same time offers the possibility of reducing tension and
suspicion in the activities in outer space. Additionally, while not an arms control
measure in itself, the proposed TCBM would make it significantly more difficult
16 National Security Strategy of the United States of America, The White House, Washington, D.C.,
December 2017; President Donald J. Trump Is Launching America’s Space Force, The White House,
Washington, DC, Oct. 23, 2018.
for adherent States to surreptitiously develop antisatellite capabilities and also,

hopefully, reduce their perceived need for such capability.
Proposed Transparency and Confidence-Building Measure
Outer space, being essential to modern civil society through the provision of nu-
merous services such as communications, navigation, and environmental data,
supports a multitude of space activities conducted by thousands of active sat-
ellites. Satellites conducting military and civil missions coexist in earth orbit,
sharing the same physical space. Generally, they do not interfere with each other
barring an unfortunate accident, such as the collision between the U.S. com-
mercial satellite Iridium 33 and the defunct Russian Cosmos 2251 satellite in
2009.17 However, there are some types of space activities in which the orbits of
different space objects are deliberately manipulated toward a conjunction. These
applications are relatively few at the present time. One example is the docking of
spacecraft with the International Space Station, which has become a routine oc-
currence. Another example would be conducting a kinetic ASAT test, where the
interceptor deliberately collides with its target, which, as discussed previously,
has been tested already by China, India, and the United States. Additionally,
technological developments are enabling future applications in which space
objects will be deliberately brought together; for example, significant research
is being conducted into the concept of orbital servicing. This concept uses a spe-
cially designed platform that would be launched in order to refuel, repair, or
modify an existing satellite in orbit. Another application is for active debris re-
moval. In this concept, a specially designed satellite approaches a space debris
object and captures it in order to remove it from orbit in some manner. Such
novel applications will require substantial testing in orbit before becoming com-
mercially viable. Of concern with respect to arms control is the fact that both of
these concepts can be easily repurposed and applied to an ASAT mission, since
the enabling capabilities are the same. These capabilities could be used to inter-
fere with a satellite or to damage or disable it.
The primary goal of space arms control provisions is to prevent interference
with satellites of other States, be they military or civilian in nature. The PPWT
attempted this by prohibiting the placement of “weapons” in Earth orbit. Apart
from the difficulty of defining a “weapon” and the exclusion of ground-based
systems, the proposal sought to prohibit a specific condition or status (presence
17 B. Weeden, 2009 Iridium-Cosmos Collision Fact Sheet, Secure World Foundation (updated Nov.
10, 2010), <https://swfound.org/media/6575/swf_iridium_cosmos_collision_fact_sheet_updated_

2012.pdf> (accessed Dec. 5, 2019).
of weapons in outer space) and not specific behaviors or actions. This led to
another of the deficiencies identified by the United States: that of verifiability.
How do you determine if an object in space is a “weapon” before it has actually
conducted a test or hostile act, especially given the possibility of repurposing be-
nign technologies?
In order to resolve these issues, a key element of the TCBM proposed here is
that it provides transparency to certain actions in outer space rather than focus
on a condition or status, such as presence of weapons. Actions or events are gen-
erally much more verifiable than a status condition. The proposed TCBM would
therefore focus on States agreeing to the following (or a similar) transparency
measure:
Any activity that results in the transfer of kinetic energy to an object in Earth
orbit requires prior notification and reporting.
While this single sentence appears simple, the wording is critical. It is intended
to solve the dilemma of providing a restriction on behavior that is sufficiently
narrow so as to limit an arms race in space, while also remaining sufficiently
broad so as not to limit the freedom of States’ activities in space and their na-
tional security needs. The TCBM instrument containing this sentence would
need to clarify a number of concepts from this core statement, as discussed in
the following.
“Kinetic Energy”
The term “transfer of kinetic energy” essentially means contact between

objects in space, since any contact, however slight, results in an effective
transfer of kinetic energy because it affects the velocity of each object. The
term “transfer of kinetic energy” is preferred over “physical contact” since it is
more general, covers some additional scenarios, and may be a steppingstone
to future expansion of the TCBM to simply “transfer of energy.” The wording
of “transfer of energy” would then include directed energy, such as laser light
or high-power microwaves. However, this is technically more difficult to de-
limit, with foreseeable difficulties regarding the use of radio-frequency en-
ergy and lasers for tracking and communications applications. The author
considers that this complexity would make it unlikely that any agreement
could be reached among States. The more constrained wording “transfer of
kinetic energy” is much simpler to understand and has a greater probability of
being acceptable to Sates.
Kinetic energy exists when an object is in motion. It is dependent on the mass

and velocity of the object. Kinetic energy is defined in physics as: ½ MV2, where
M represents the mass of an object and V represents its velocity. Thus, this TCBM
would apply to any activity that changes either the mass or the velocity (or both)
of any object in Earth orbit, provided that it is the result of a transfer of kinetic
energy involving a second object. A single object’s kinetic energy changing due
to a change in its velocity or mass, without interaction with a second object, is not
part of this TCBM.
“Transfer . . . To”
The kinetic energy must be transferred to an object in Earth orbit in order to

fall under the TCBM proposed here. In order for a transfer to occur, the ki-
netic energy must originate from another object (with its own properties of
mass and velocity). Therefore, the activity must involve at least two objects. This
covers the case where two or more objects come into physical contact, and also
when a single object spawns another object (such as a subsatellite), thus creating
two objects from one and transferring kinetic energy. Subsatellites have been
“spawned” in orbit recently, making it difficult to track the objects in question
and raising tensions when the purpose of the spawned object is unknown.18 The
transfer of energy is to an object in Earth orbit, regardless of its provenance. This
implies that the energy could be transferred from another space object, or from
a terrestrial object or an aircraft in flight. The origin of the kinetic energy source
is not important.
Any contact between two objects would be included, because this contact will
cause a change to the velocity or the mass of the objects, even if only slightly.
For example, the docking of human-piloted spacecraft or uncrewed resupply
vehicles involves the transfer of kinetic energy. Such routine operations would
necessarily involve prior notification, as required under the phrasing of the
TCBM. Another example would be any interaction between two satellites that
includes a contact with a robotic arm. Also included would be any type of ASAT
activity or tests that involves contact; for example kinetic intercepts from terres-
trial based direct ascent missiles.
18 For example, there was speculation and concern following the launch of a satellite by China
which subsequently ejected its own subsatellite: Stephen Clark, China Launches Mysterious
Geostationary Satellite, Spaceflight Now (Oct. 18, 2019), <https://spaceflightnow.com/2019/
10/18/china-launches-mysterious-geostationary-satellite/> (accessed Dec. 5, 2019); TJS 3/TJS 3
Subsatellite, Gunter’s Space Page, <https://space.skyrocket.de/doc_sdat/tjs-3.htm> (accessed Dec.
5, 2019).
“An Object”
The proposed TCBM includes all objects in Earth orbit, regardless of ownership.
Therefore, it includes transfers of kinetic energy to one’s own spacecraft as well.
This means that any testing against one’s own objects also requires notification
and reporting. During the development of counterspace capabilities, testing
must be conducted against one’s own assets. Four countries have conducted de-
structive ASAT tests against their own space objects. During the 1970s and 1980s
the USSR conducted several destructive co-orbital ASAT tests using the Istrebitel
Sputnik (IS) system against purpose-built target objects.19 In 1985, the United
States conducted a successful intercept of an inactive NASA satellite (Solwind
P78-1) in low Earth orbit using a missile launched from an F-15 aircraft.20 The
United States also conducted a successful intercept of the disabled USA-193 mil-
itary satellite in 2008 using a modified SM-3 ballistic missile defense system.21
China demonstrated an ASAT capability in 2007 with a destructive intercept of
its own inactive meteorological satellite (FY-1C). Recently, in March 2019, India
demonstrated a kinetic ASAT by the destruction of its own recently launched
military satellite with a ground-based missile.22 Of all these cases, only the
U.S. intercept was publicly announced before the event and would have com-
plied with the proposed TCBM. In all the other cases, no prior notification or an-
nouncement was made, which raised tension immediately following each event.
The proposed TCBM would have required prior notification. It would not have
prohibited such tests, merely provided greater transparency. Although it is im-
possible to predict the influence of such a TCBM, this greater transparency may
have led to a reduction in tests, or provided an opportunity for the international
community to influence the events.
“Earth Orbit”
The proposal specifies Earth orbit rather than “outer space.” This is a very im-
portant distinction. Earth orbit encompasses specifically satellites, while “outer
space” would include ballistic missiles and ballistic missile interceptors, since
these objects traverse temporarily through space but do not achieve orbit. During
19 A. Zak, SPACECREFT: Military: IS Anti- satellite System, Russia Space Web, <http://www.
russianspaceweb.com/is.html> (last update July 13, 2017).
20 B. Keller, Air Force Missile Strikes Satellite in First U.S. Test, New York Times, (Sept. 14, 1985),
<https://www.nytimes.com/1985/09/14/us/air-force-missile-strikes-satellite-in-first-us-test.html>.
21 Navy Hits Satellite with Heat-Seeking Missile, Space.com (Feb. 21, 2008), <https://www.space.
com/5006-navy-hits-satellite-heat-seeking-missile.html>.
their flights, intercontinental ballistic missiles (ICBMs) can reach altitudes

greater than 2,000 kilometers, which is far above the orbital altitude of most low
Earth orbit satellites (400 to 1,000 kilometers). However, ballistic missiles do not
have the tangential velocity (parallel to the Earth’s surface) required to achieve
orbit, and gravity pulls them back to Earth along what is known as a ballistic
trajectory. Midcourse ballistic missile defense systems, such as the U.S. Ground-
Based Interceptor, are designed to intercept ballistic missiles near the zenith of
their trajectories at between 1,000 and 2,000 kilometers in altitude. This TCBM
is not intended to apply to these types of systems. The prospect of including bal-
listic missile defense tests would likely be very problematic and greatly reduce
the probability of acceptance of the TCBM by a number of States.
“Notification”
Perhaps the most controversial aspect of the proposed TCBM is the requirement
of notification. The meaning and scope of notification would need to be negoti-
ated by the partners, depending upon the existent political will to subject them-
selves to such a requirement.
One possible model would be to require notification to only the other States
Parties to the agreement. The TCBM agreement would specify what information
is to be included in the notification, such as a list of objects and the purpose of
the activity, and what lead time is required. This notification would permit the
other States Parties to focus technical intelligence sensors and capabilities, in so
far as possible, to verify that the activity corresponded to the notification. For
example, if State A wishes to conduct an orbital servicing or debris removal test,
then the notification would help avoid that activity from being interpreted as an
ASAT test. In the actual conduct of the test and the technologies involved, there
would be very little to distinguish the debris removal test from an ASAT test. For
example, some concepts being researched for active debris removal include the
use of a harpoon or net to capture an inactive satellite.23 The notification would
allow other States to monitor the activity and provide the transparency required
to reassure other States that the test was not related to an ASAT capability. This
TCBM would also discourage the conduct of an actual ASAT test, because of
the increased likelihood that it would be discovered and identified by the other
parties.
Another model would be a more public notification, such as notice to the UN
Secretary General, a designated office in the United Nations such as the Office
23 SSTL’s 2918 Remove Debris Mission Included Both Harpoon and Net Capture Tests, <https://
www.surrey.ac.uk/surrey-space-centre/missions/removedebris> (accessed Dec. 5, 2019).

of Outer Space Affairs, or an international secretariat created for this specific

purpose outside the United Nations. In this scenario, the notification would be
available to all States, even those not party to the agreement. The benefit of this
arrangement would be greater global transparency. However, the pitfall is that
it may discourage States from becoming parties to the TCBM, since they would
be able to monitor the activities of other States without being subject to similar
obligations. For that reason, this model is not preferred.
“Reporting”
Like the “notification” requirements, the “reporting” requirements would need

to be negotiated by the State Parties. In this proposal, the “reporting” is intended
to be delivered following the conclusion of the activity. It may be that the States
Parties decide that a reporting mechanism (or phase) is not required or desired,
as they may judge it to be too intrusive and potentially creating a risk to sensitive
national security or commercial information. This willingness, or lack thereof,
may all depend on the scope and specifics of the reporting requirements.
If the parties agree to a reporting mechanism, then what might it include? In
its simplest form, the reporting could consist of merely confirming that the ac-
tivity has been conducted, perhaps including a date and time. Alternatively, a
summary of the event could be provided with some information on the results.
Another possibility may include the sharing of telemetric information. Telemetry
is the means by which operators monitor the activity of their satellites. Sensors
and monitors are designed and built into a satellite such that their measurements
are compiled and transmitted to the operators in a radio frequency (RF) signal,
known as telemetry. The telemetric data normally includes a large number of
measurements of technical parameters, thereby enabling the operators to un-
derstand an activity in space, as well as the health and performance of satellite
subsystems.
The sharing of telemetric data may appear to be a very intrusive measure; how-
ever, a precedence for this type of data sharing can be found in the strategic arms
limitation bilateral treaties between the United States and the USSR, and later be-
tween the United States and Russia. Sharing of telemetric information from bal-
listic missile tests was first instituted in the 1991 Strategic Arms Reduction Treaty
(START).24 The START telemetric protocol requires sharing of telemetric data
on the flight tests of the missiles that are subject to the treaty. This protocol was
24 Treaty Between the United States of America and the Union of Soviet Socialist Republics on the
Reduction and Limitation of Strategic Offensive Arms, signed at Moscow July 31, 1991, entered into
force Dec. 5, 1994, expired Dec. 5, 2009 (START).
carried over into the 2010 New START, which replaced the 1991 agreement.25
The sharing of telemetric information is a key component of the verification of
the U.S.-Russia strategic arms reduction mechanism and is essential to each State
Party having confidence that the other party is respecting its terms.
A similar measure, regarding the sharing of telemetric information, could
be part of the reporting requirements of this proposed TCBM. Although States
may be reluctant to accept such a measure, it should still be noted that greater
reporting would increase confidence in the TCBM agreement. The verification
measures that have been negotiated by the United States and the USSR (and later
Russia) for strategic arms have stood the test of time and can serve as examples of
what can be done if States are willing, as is explained in the following.
Verification Example: U.S.—USSR/Russia Strategic Arms

Limitation and Reduction Bilateral Treaties
The initial strategic arms control instruments were signed as part of the SALT
(Strategic Arms Limitations Talks) begun between the United States and the
Soviets in 1972.26 This first set of agreements were a significant achievement,
coming as they did during an era of superpower rivalry and Cold War tension.
The SALT agreements instituted a significant verification methodology that has
carried on and has been strengthened with each of the succeeding set of stra-
tegic arms control bilateral treaties. Article V(1) of the SALT treaty27 states that
the parties will use “national technical means of verification in a manner con-
sistent with the general principles of international law.” Although not explicit in
the treaty, it was understood that the term “national technical means” meant the
use of satellites to observe and verify activities of the other State.28 Further, the
parties agreed not to interfere with each other’s national technical means (Article
V(2)) and not to use deliberate concealment measures that impede verification
by national technical means (Article V(3)). This noninterference provision had
two major impacts. Firstly, each country’s strategic intelligence systems (in-
cluding satellites in orbit) were not subject to interference. Secondly, missiles and
missile silos could not be deliberately concealed, and therefore their numbers, as
limited by the treaty, could be verified.
25 Treaty on Measures for the Further Reduction and Limitation of Strategic Offensive Arms, signed
at Prague Apr. 8, 2010, entered into force Feb. 5, 2011. TIAS 11–205 (New START).
Republics on Certain Measures with Respect to the Limitation of Strategic Offensive Arms, signed at
Moscow May 26, 1972 (SALT I).
27 Id., at art. V(I).
28 Memorandum for M. John P. Shaw, SUBJECT: Comments on Draft Report of 156 Committee,
National Reconnaissance Office, Washington, DC, Nov. 5, 1971 (Declassified by NRO).

The SALT II treaty was intended to become the successor to SALT and in-
cluded greater obligations to reduce nuclear armed intercontinental ballistic
missiles. However, although signed on June 18, 1979, SALT II never entered into
force because it was not ratified by the U.S. Senate.29 Nonetheless, its terms were
generally respected. Article XV of SALT II30 also included the same national tech-
nical means of verification language as SALT I. However, SALT II went a bit fur-
ther by adding some “common understanding” paragraphs, intended to ensure
both States were interpreting their obligations comparatively, by defining certain
provisions or terms in the treaty. The Second Common Understanding prohibits
the deliberate denial of telemetric information “whenever such denial impedes
verification of compliance with the provisions of the Treaty.”31 For example, en-
cryption of the telemetry RF signal such that it is unintelligible to another
State would be a denial measure that would be prohibited under this Common
Understanding, if that telemetry information was useful to verification.
The inclusion of a specific reference to telemetric information is significant.
Ballistic missile test flights generally carry instruments to transmit telemetry
such that the operators receive data with regards to the performance of the mis-
sile. By the same measure, telemetric data can also permit another party to assess
the performance of the missile’s flight and to verify its compliance with the treaty.
The SALT II Common Understanding does not compel the sharing of the tele-
metric data, but only that it must not be deliberately concealed. It leaves it to the
responsibility of the other party to use national technical means “in a manner
consistent with generally recognized principles of international law,” as is stated in
Article XV(1) (emphasis added) to collect the telemetry signals and to analyze
them to ensure compliance.
Following the failure of SALT II, START was negotiated by Presidents George
H.W. Bush and Mikhail Gorbachev in 1991.32 The same language of “national
technical means of verification” was included in Article IX, and some further
measures were added with regards to monitoring numbers and locations of stra-
tegic missiles. Additionally, START added a number of protocols, one of which is
the Telemetry Protocol.33 The Telemetry Protocol provides very specific details
regarding the telemetry encoding and transmission. Of note is the requirement
Limitation of Strategic Offensive Arms, Together with Agreed Statements and Common Understandings
Regarding the Treaty, signed at Vienna June 18, 1979, never entered into force (SALT II).
30 Id., at art. XV.
31 Id., at art. XV, Second Common Understanding, emphasis added.
Reduction and Limitation of Strategic Offensive Arms, signed at Moscow July 31, 1991, entered into
force Dec. 5, 1994, expired Dec. 5, 2009 (START).
33 Protocol on Telemetric Information Relating to the Treaty Between the United States of America
and the Union of Soviet Socialist Republics on the Reduction and Limitation of Strategic Offensive Arms,
signed at Moscow July 31, 1991, entered into force Dec. 5, 1994, expired Dec. 5, 2009.
to share tapes of recorded telemetry from missile flight tests.34 Each party has
sixty-five days to provide the other party, through diplomatic channels, tapes of
the telemetry data of the flight tests of the missiles that are subject to the treaty.
START expired in 2009, and in 2010 the New START was signed by Presidents
Barak Obama and Dmitry Medvedev.35
The New START also carried over the language of “verification by national
technical means” with prohibitions on interfering and on concealment to impede
verification.36 The wording is identical to that first used in the SALT treaty of
1972 and all subsequent strategic arms control bilateral agreements between the
United States and the USSR/Russian Federation. The New START also includes
a Telemetry Annex that is very similar to the Telemetry Protocol of START, with
the basic objectives of not preventing the other party from collecting telemetry
during flight tests and then sharing the recorded telemetry from the flight tests
within a certain time period following the test.37
Through the succession of strategic arms control treaties, we observe the
gradual increase in transparency and information sharing for the purposes of
verification. From the initial steps of acknowledging national technical means
and the prohibition on concealment and interference in SALT, transparency
measures have grown to include the sharing of telemetric information in START
and New START.
The challenge of verifying ballistic missile performance during flight test bears
some similarities with verifying activities of a spacecraft in Earth orbit. The mis-
sile tests are conducted from secure military bases, with little public information
being released, apart from safety alerts as required.38 Intelligence assessments
concerning foreign ballistic missile capability must be gleaned from various data
sources collected from geographically remote locations (radar tracking of the
trajectory, satellite imagery, radio signals, and so forth). The difficulties of ver-
ifying activities in orbit are very similar. Satellite orbits are determined though
radar and optical tracking, and some intelligence may be gleaned from satel-
lite radio signals. Therefore, the concept of prohibiting measures to interfere
with telemetric data (i.e., prohibiting encryption), or even that of encouraging
or requiring the explicit sharing of telemetric data from spacecraft during the
34 Id., at art. I.
35 Treaty on Measures for the Further Reduction and Limitation of Strategic Offensive Arms, signed
at Prague Apr. 8, 2010, entered into force Feb. 5, 2011. TIAS 11–205 (New START).
36 Id., at art. X.
37 Annex on Telemetric Information to the Protocol to the Treaty Between the United States of
America and the Russian Federation on Measures for the Further Reduction and Limitation of Strategic
Offensive Arms, signed at Prague Apr. 8, 2010, entered into force Feb. 5, 2011.
38 For example, a NOTAM (Notice to Airmen) must be issued based on ICAO Annex 15
(Aeronautical Information Services) if a ballistic missile launch poses a potential hazard along the
flight routes of international civil aviation.
course of activities that result in the transfer of kinetic energy to an object in

orbit, may be more easily acceptable than they appear at first glance. The pro-
posed TCBM is therefore not only feasible, it has great potential to impact the
behavior of States with regards to reducing the escalation of a space arms race.
Conclusion: Anticipated Impact of the TCBM
Although the negotiation of such a TCBM may be caught up in similar challenges

faced by other initiatives regarding activities in outer space, it has the advantage
of being based upon the construct of agreements signed throughout periods of
political history that were extremely tense. Based on the past willingness of com-
peting powers to enter into agreements where their shared interests intersected,
it is argued here that negotiating such a TCBM with the proposed characteristics
should be easier than one might think.
If implemented, the TCBM would be expected to reduce tension in outer
space and contribute to a more secure and stable environment for all space actors.
Eventually, it may also discourage the further development of space weapons by
making it more difficult to surreptitiously conduct research and development
and testing of ASATs, and also by reducing suspicions regarding the activities of
other States. To illustrate these points, consider the following two scenarios: one
in the absence of the TCBM and one in full compliance of the TCBM.
1. State A conducts an orbital servicing experiment, testing the ability to re-

fuel a spacecraft in orbit, without notification. State B detects the activity,
but has incomplete intelligence knowledge. Using a worst-case scenario
assessment model, which may be typical for States during times of polit-
ical tensions, or with regards to a potential adversary, State B determines
it to be malevolent and concludes that State A is a step forward in devel-
oping ASAT capabilities. As a result of this assessment, State B expands its
own classified program for defending satellites against co-orbital ASATs.
State A’s intelligence collection discovers some clues to this project and
concludes that it is for an offensive co-orbital ASAT capability. State A then
initiates a co-orbital ASAT program of its own. State B’s intelligence detects
the new project being developed by State A, which “confirms” their orig-
inal suspicions. Both countries blame each other, each stating that they do
not desire an arms race in outer space but are compelled to respond to the
threats from the other State. This leads to an escalation that counters the
expressed interests of both States.
2. State A conducts an orbital servicing experiment, testing the ability to re-
fuel a spacecraft in orbit, after having provided notification according to
the TCBM agreement. State B is able to focus some intelligence collection

assets to monitor parts of the test. This intelligence collection might in-
clude radar tracking of the orbits, imagery from other satellites in orbit,
or the interception of telemetry and command RF signals. Following the
activity, State A delivers a report in compliance with the TCBM agreement.
State B concludes that the reporting is consistent with the information they
were able to gain from their intelligence activities and that the experiment
was indeed for orbital servicing. No response is required.
It is clear in the second scenario that the existence of the TCBM provides an
opportunity for clarity and therefore de-escalation. Reciprocal adherence to the
TCBM is in the interest of both States, and the fact that all States desire long-
term stability in space means that there is a very high likelihood of compliance.
Under this TCBM agreement, any development activity in space will be clearly
highlighted, and an actual weapons or counterspace test would be more easily
detected. This is no guarantee that a State will choose not to conduct such a test
anyway. However, the State will understand that it is unlikely that it can clandes-
tinely conduct these activities. Therefore, undertaking to do so would represent
a clear and deliberate decision to escalate the tension in the outer space environ-
ment, which is a position States may not wish to take. In an environment of se-
crecy and mistrust, a TCBM such as the one proposed, which will be difficult to
circumvent, can contribute to a more stable and secure environment.
Although not intended as an arms control measure, the proposed TCBM
addresses a number of deficiencies that have been identified with the PPWT pro-
posal. Firstly, the TCBM does not use the term “weapon.” It relies on a definable
characteristic of the activity: “transfer of kinetic energy.” It does not discriminate
with regards to the source of the energy (land-based or space-based). It discourages
development of ASAT capabilities because it renders research and development
and testing more transparent. And finally, it applies equally to a State’s own objects
and to those of other States. In this sense, concepts from this proposed TCBM
could assist in moving forward with outer space arms control discussions, should
there be a desire to do so on the part of the major space-faring nations.
Even if the prospects for such a TCBM are uncertain, the challenge is not in-
surmountable if States come to realize their common interest in outer space secu-
rity. For inspiration we can look to the historic strategic arms control agreements
between the United States and the USSR during the height of the Cold War,
where States recognized their common interests in certain mutual restrictions
of capabilities and increased transparency in their actions. In today’s multipolar
world, where dependencies upon and activities in space are on the increase, such
common interests are once again at play and should be leveraged to move toward
increased security and stability in space.
11
Outer Space and Crisis Risk
Laura Grego
Introduction
Outer space activities present a particular risk of sparking or exacerbating terres-

trial crises in ways that may be difficult to predict or manage. This is due both to
the physical nature of operating in the space environment and to space’s central
role in military systems. Considering these factors that have continued to influ-
ence activities in space, many initiatives to bolster space security do so within the
framework of preventing an arms race or of preserving the space environment,
and in doing so they miss some of the solutions. This chapter will explore space
security through the lens of mitigating the risks that space activities may have
on crisis stability between State actors to better identify which space activities
and strategies are particularly dangerous. Unilateral and collective approaches
are recommended in the conclusion, to help avoid crisis situations in the space
domain.
Why Crisis Escalation and Stability
For the foreseeable future, military tensions between the United States, China,
and Russia are likely to remain high, as are those between China and India. Even
absent intentional confrontation, regional problems, such as those that have
emerged in the Baltics and in East and South Asia, have illustrated the potential
to draw these actors into conflict.
This is particularly of concern as these States have invested in increasingly
complex and dangerous military postures. The United States and Russia con-
tinue to retain large nuclear arsenals on high alert.1 Russia has declared its de-
velopment of novel nuclear delivery systems is a response to U.S. missile defense
1 According to a 2019 estimate, nearly 1,800 U.S., Russian, British, and French weapons are on
high alert. Hans M. Kristensen & Matt Korda, Status of World Nuclear Forces, Federation of American
Scientists (May 2019), <https://fas.org/issues/nuclear-weapons/status-world-nuclear-forces/>
Laura Grego, Outer Space and Crisis Risk In: War and Peace in Outer Space. Edited by: Cassandra Steer and Matthew
Hersch, Oxford University Press (2021). © Oxford University Press. DOI: 10.1093/oso/9780197548684.003.0012
systems;2 while they do not alter the essential relationship of mutual vulnera-
bility, these new weapons can complicate the management of crises. China is
reportedly considering increasing the size, capacity, and alert status of its nu-
clear weapons delivery systems3 and is also developing new kinds of strategic
weapons. China, the United States, and Russia are all developing fast-moving,
maneuverable hypersonic weapons,4 which may be intended to promptly de-
stroy unhardened command and control facilities or time-sensitive targets, such
as ground-based antisatellite weapons or mobile missiles, and the ingredients for
an arms race around these technologies are in place. India continues to increase
the sophistication of its strategic posture. India, China, Russia, and the United
States have or are pursuing missile defense systems and antisatellite technolo-
gies. Space systems provide critical communications and command and control
capabilities for these strategic systems and provide them the information they
need to be used. These complex and interacting weapons systems comprise a for-
midable challenge for management in a crisis.
Thus, it is imperative to pay attention to any pathways that increase risks of
these actors being drawn into a conflict because of misperception or miscalcu-
lation, or because incentives for preemptive military action accumulate. Because
of the high stakes, it is critical to ensure that, in times of tension, no actor initiates
or escalates a crisis inadvertently or against their better judgment and that if they
do, hostilities can be resolved as peacefully and as quickly as possible. These hall-
mark conditions are what this chapter means by “crisis stability.”
In response to the existential risks posed by nuclear weapons, significant work
has been done over the years to examine these issues in that context5 and to try
to establish a common understanding among actors about what it would take
2 Anton Troianovsky, Putin Claims Russia Has Nuclear Arsenal Capable of Avoiding Missile
Defenses, Washington Post (Mar. 1, 2018), <https://www.washingtonpost.com/world/europe/

putin- claims- r ussia- has- nuclear- arsenal- c apable- of- avoiding- m issile- d efenses/ 2 018/ 0 3/ 0 1/
d2dcf522-1d3b-11e8-b2d9-08e748f892c0_story.html?utm_term=.495dc8f3c5cc> (accessed Mar.
16, 2020).
3 Gregory Kulacki, China’s Military Calls for Putting Its Nuclear Forces on Alert, Union of
Concerned Scientists (Jan. 2016), <http://www.ucsusa.org/sites/default/files/attach/2016/02/China-

Hair-Trigger-full-report.pdf> (accessed May 13, 2020).
4 Ankit Panda, China’s Hypersonic Weapon Ambitions March Ahead, The Diplomat (Jan. 8,
2018), <https://thediplomat.com/2018/01/chinas-hypersonic-weapon-ambitions-march-ahead/>
(accessed Mar. 16, 2020); John Borrie, Amy Dowler, & Pavel Podvig, Hypersonic Weapons: A
Challenge and Opportunity for Strategic Arms Control, UN Office for Disarmament Affairs and United
Nations Institute for Disarmament Research (Feb. 2019), <http://unidir.org/files/publications/
pdfs/hypersonic-weapons-a-challenge-and-opportunity-for-strategic-arms-control-en-744.pdf>
(accessed May 13, 2020).
5 The body of work includes: T.C. Schelling, “The Reciprocal Fear of Surprise Attack” (RAND
paper P-1342, Apr. 16, 1958, revised May 28, 1958, at 1), https://www.rand.org/content/dam/rand/
pubs/papers/2007/P1342.pdf> (accessed May 13, 2020); Crisis Stability and Nuclear War (Kurt
Gottfried & Bruce G. Blain eds., 1988); Barry Posen, Inadvertent Escalation: Conventional
War and Nuclear Risks (June 30, 2013).
Outer Space and Crisis Risk 267
to create a system resilient to mistakes. For example, early on Thomas Schelling

addressed the stability problems introduced by the fear of surprise attack:
This is the problem of surprise attack. If surprise carries an advantage, it is

worthwhile to avert it by striking first. Fear that the other may be about to strike
in the mistaken belief that we are about to strike gives us a motive for striking,
and so justifies the other’s motive. But if the gains from even successful sur-
prise are less desired than no war at all, there is no “fundamental” basis for an
attack by each side. Nevertheless, it looks as though a modest temptation on
each side to sneak in the first place—a temptation too small by itself to moti-
vate an attack—might become compounded through a process of interacting
expectations.6
The problem of a surprise attack, of course, suggests its own solution. That is, a
nuclear armed State should structure its forces to make the advantage of surprise
attack negligible and the disadvantages as great as possible; to make sure this ar-
rangement has been made clear to all relevant actors; and to endeavor that actors
understand each other’s motivations well enough to avoid miscalculation.
A RAND Corporation monograph commissioned by the U.S. Air Force7 on
first-strike stability in space was conceptually based on work on first-strike and
crisis stability in the nuclear realm8 and examined the structural and technical
factors that could make a crisis unstable. The premise is that “space, like the nu-
clear realm, is an offense-dominant environment with substantial incentives for
striking first should war appear probable.”9
This chapter argues that the frame of crisis stability is useful and important
for outer space security, especially because attacks on satellites can create or es-
calate terrestrial crises in ways potentially difficult to predict, as space is at the
6 Schelling, supra note 5.

7 Forrest E. Morgan, “Deterrence and First Strike Stability in Space” (RAND, 2010), <https://
www.rand.org/content/dam/rand/pubs/monographs/2010/RAND_MG916.pdf> (accessed May
13, 2020).
8 Glenn A. Kent & David E. Thaler, “First- Strike Stability: A Method for Evaluating Strategic
Forces” (RAND Corporation, R-3765-AF, 1989). Charles L. Glaser, Analyzing Strategic
Nuclear Policy (1990).
9 Morgan, supra note 7, at 2. Analysis in the last decade looking at this issue from a U.S. per-
spective has suggested strategies including deterrence, reassurance, and proactive prevention. This
scholarship includes James Finch, Bringing Space Crisis Stability Down to Earth, 76:1 Joint Forces
Quarterly (2015), <http://ndupress.ndu.edu/JFQ/Joint-Force-Quarterly-76/Article/577582/
bringing-space-crisis-stability-down-to-earth/> (accessed May 13, 2020); Elbridge Colby, From
Sanctuary to Battlefield: A Framework for a U.S. Defense and Deterrence Strategy for Space, Center
for a New American Security, (Jan. 2016); Theresa Hitchens & Joan Johnson-Freese, “Toward a
New National Security Space Strategy: Time for a Strategic Rebalancing” (Atlantic Council Strategy
Paper Series, June 17, 2016); LTC Brad Townsend, Strategic Choice and the Orbital Security Dilemma,
Strategic Studies Quarterly (Spring 2020).
heart of so many military systems. The chapter first looks at some of the cur-
rent frameworks for space security, identifies particular attributes of space op-
erations that pose challenges to stability, and finally, through the lens of stability,
prioritizes existing initiatives and proposes some new ones.
Stability in the Space Environment
Space activities are missing many of the attributes and strategies that can be sta-
bilizing. In the last twenty years, national space assets have become increasingly
important not only for their traditional strategic missions such as early warning
of ballistic missile launch, secure command and control of nuclear forces, and
verification of arms control agreements, but also increasingly to support con-
ventional terrestrial military activities. Today, most modern militaries de-
pend on space systems, especially those with expeditionary forces, such as the
United States. These systems provide intelligence, surveillance, and reconnais-
sance; precision navigation and timing services; weather prediction; global, high
throughput, and secure communications. Not only do satellites perform many
more missions than they have in the past—providing essential civilian, commer-
cial, and scientific services—there are many more spacefaring nations today than
in previous decades. While most satellites belong to the United States, Russia,
and China, more than sixty countries own satellites or a large stake in one.10
At the same time, the technologies that can be used to hold satellites at
risk have developed in sophistication and capacity even in the last decade, as
discussed in detail in chapter 7 [Su]. The world is drifting toward a space regime
with ever more prevalent and more sophisticated antisatellite technology and
greater numbers and types of targets in space, as discussed in chapters 7 [Su] and
9 [Robinson], with very little mutual understanding about how actions in space
are perceived. While space’s foundational legal document, the 1967 Outer Space
Treaty, sets out the principles by which space is used and provides a number of
useful guidelines, most recognize that more is needed to provide a safe and se-
cure space environment.
Different stakeholders are tackling space security issues from different angles.
China and Russia are advancing a treaty-based approach with the framework
of preventing an arms race in space. Under the aegis of the UN Conference on
Disarmament (CD)’s “Prevention of an Arms Race in Space” (PAROS) agenda
item, Russia and China have proposed the “Treaty for the Prevention of the
10 Around 20% of satellites are military owned, and about twice as many are commercial satel-
lites. The United States, Russia, and China claim around two-thirds of satellites collectively. Union of
Concerned Scientists Satellite Database, <http://ucsusa.org/satellites> (accessed May 12, 2020).
Placement of Weapons in Outer Space,” a comprehensive ban on the deployment

of space-based weapons and on threats of any kind against satellites.11 As de-
tailed in c hapter 10 [Doucet], the United States has stated that it sees little value
in this treaty but has not proposed revisions that would make it more acceptable
nor suggested its own preferred legally binding elements. The CD has struggled
for decades to extricate itself from a deadlock that has kept it from moving for-
ward on discussions on this (and all other) topics. Other States have suggested
less comprehensive but more achievable steps, such as a moratorium on testing
antisatellite weapons and bans on debris-creating weapons.12 These efforts have
not yet produced any appreciable progress at the time of publication.
Others have been working on the issue via the approach of protecting the
long-term sustainability of space; this has arguably made the most progress.
While the long-term sustainability of space does require the space environment
not be threatened by debris, including the large amount of debris that can be pro-
duced by destructive antisatellite (ASAT) weapons, work on long-term sustain-
ability does not generally tackle security issues head-on. In particular, much of
the sustainability work is being done in the UN Committee on the Peaceful Uses
of Outer Space (COPUOS); the CD is meant to cover space security issues and
COPUOS the nonmilitary space issues. COPUOS has drafted a set of Guidelines
for the Long-Term Sustainability of Outer Space Activities,13 which was adopted
by COPUOS in June 2019.14 These guidelines, rather than forbidding the in-
tentional destruction of satellites, proposes the “monitoring,” “mitigation,” and
“management” of space debris.
Alternatively, some actors prefer a hybrid approach, including developing
transparency and confidence-building measures (TCBMs) that are politically
compelling and which bridge the security and sustainability approaches. In
11 Foundational documents and drafts of the draft treaty texts and U.S. responses are avail-
able at the UN Conference on Disarmament archive of documents, <https:// www.unog.ch/

80256EE600585943/(httpPages)/D4C4FE00A7302FB2C12575E4002DED85?OpenDocument>
12 For example, Canada proposed to the UN Conference on Disarmament several measures, in-
cluding a moratorium on antisatellite tests, Note Verbale Dated 12 February 2007 from the Permanent
Mission of Canada Addressed to the Secretary-General of the Conference on Disarmament Transmitting
Canada’s Contribution Entitled “Transparency and Confidence Building Measures in Outer Space,” UN
Doc. CD/1815, Feb. 20, 2007; and a pledge not to use weapons to damage or destroy satellites, On
the Merits of Certain Draft Transparency and Confidence-Building Measures and Treaty Proposals for
Space Security, UN Doc. CD/1855, June 5, 2007. Similarly, Germany has stated that debris-creating
intentional satellite destruction should be banned, Statement on Space Debris at the 58th session of
the UN Space Legal Subcommittee, Vienna, 1–12 April 2019, <https://wien-io.diplo.de/iow-en/news/
statement-debris/2208724> (accessed May 13, 2020).
13 Guidelines for the Long-term Sustainability of Outer Space Activities, UN Doc. A/AC.105/C.1/
L.366, <https://undocs.org/A/AC.105/C.1/L.366> (accessed May 13, 2020).

14 Press Release: Guidelines for the Long- Term Sustainability of Outer Space Activities of the
Committee on Peaceful Uses of Outer Space Adopted, UNIS/OS/518, June 22, 2019, <https://www.
unoosa.org/oosa/en/informationfor/media/2019-unis-os-518.html> (accessed May 13, 2020).
2015, the European Union proposed an International Code of Conduct for Outer
Space Activities,15 which would set out rules of the road for space, creating trans-
parency and building confidence. The Code of Conduct did not directly address
core security issues, as it was focused more upon general principles of respon-
sible behavior in space, but it did establish a norm that adherents would refrain
from intentional destruction of or damage to satellites. The more specific gestures
it made to security concerns, such as an exemption from this non-destruction
norm in the case of self-defense, created disagreements serious enough to not
be easily addressed in this format.16 The process hit a wall in 2015, as further
outlined in c hapter 12 [Meyer] in this volume. Since then, a process under the
aegis of the United Nations, a Group of Governmental Experts convened to con-
sider TCBMs for space, has produced a consensus document,17 though for sev-
eral reasons, little progress has been made on implementing them.18
Each of the preceding approaches (e.g., preventing an arms race, preserving
the space environment) have something distinct to offer. The overarching objec-
tive of this chapter, however, is to instead use another organizing principle, that
of limiting the risk of space activities generating or amplifying a crisis. This lens
will be used to identify which space activities are particularly dangerous and to
offer unilateral and collaborative actions that can help reduce the pathways to
confrontation. Crisis stability here is taken to mean the avoidance of incentives
to strike first, reducing the risks of misinterpretation and miscalculation, and
increasing resilience to incipient crises, allowing them to be resolved as quickly
and nonviolently as possible.
Why Outer Space Can Be a Problem for Crisis Stability
The space domain presents distinct challenges when it comes to preventing a

crisis from starting or to managing a crisis well. Some challenges arise from the
15 European External Action Service, Security and Sustainability in Outer Space (Jan. 14, 2015),
<https://eeas.europa.eu/headquarters/headquarters-homepage/8466/security-and-sustainability-
outer-space> (accessed May 13, 2020).
16 Lucia Marta, “Code of Conduct on Space Activities: Unsolved Critiques and the Question of
Its Identity,” Notes de la FRS, Fondation Pour La Recherche Stratégique (Dec. 17, 2015), <https://
www.frstrategie.org/en/publications/notes/code-conduct-space-activities-unsolved-critiques-and-
question-its-identity-2015> (accessed May 13, 2020).
17 Group of Governmental Experts on Transparency and Confidence-Building Measures in Outer
Space Activities, Note by the Secretary-General, UN Doc. A/68/189*, July 29, 2013, <https://www.
stimson.org/sites/default/files/file-attachments/GGE_July_2013_1.pdf> (accessed May 13, 2020).
18 “Implementing the GGE: Challenges for Space Security Diplomacy, Remarks by Paul Meyer to
UNIDIR Conference Sustaining the Momentum: the Current Status of Space Security,” April 28–29,
2016, Geneva, Switzerland, <http://www.unidir.ch/files/conferences/pdfs/implementing-the-gge-
challenges-for-space-security-diplomacy-en-1-1130.pdf> (accessed May 13, 2020).
physical nature of operating in the space environment: satellites are inherently

difficult to protect from attack, and their remoteness increases the difficulty of
determining the cause of a satellite malfunction or attributing responsibility to
an antisatellite attack in a timely way. Other challenges are due to the way space
is used, such as hosting both civil and military missions on the same satellite
or having multiple, potentially undisclosed users of satellites. Some are due to
the relative immaturity of space operations, resulting in the absence of a shared
understanding of appropriate behaviors and consequences and a dearth of stabi-
lizing personal and institutional relationships. While many of these issues have
terrestrial equivalents, taken together, they present a special challenge.
Vulnerability of Satellites and First-Strike Incentives
Satellites are inherently fragile and difficult to protect. Absent a robust strategy to
mitigate this, space is an environment where it is generally easier to target satel-
lites than defend them.19 Relatively less-capable actors can hold at risk the space
systems of a more technologically advanced adversary. This can lead to pressures
to strike first before important capabilities are lost that do not exist for other,
better-protected domains.
While some areas of space are more accessible or less depending on an actor’s
technical abilities, safe areas simply do not exist in the space environment. This is
because satellites travel on predictable orbits repeatedly around the Earth. In low
Earth orbit (LEO), satellites are also relatively close to the Earth’s surface, orbiting
between an altitude of around 300 kilometers and 2,000 kilometers. Missiles,
less powerful and less sophisticated than those needed to launch satellites into
orbit, can still launch a weapon to LEO altitudes and potentially harm satellites.
Ground-based weapons can use lasers at visible wavelengths to interfere with
satellite sensors or use radio-frequency weapons to drown out communications
channels or disrupt satellite command and control links. Even those satellites at
higher altitudes may be vulnerable to weapons lofted by ground-based missiles
and co-orbiting weapons that approach them closely.
While some practical steps can be used to make satellites more robust and
to make space systems (rather than individual satellites) resilient to failure, it
is difficult to keep any given satellite free from interference by a dedicated ad-
versary using physical protections. As space launch is very expensive, satellite
armor is impractical at the masses needed to protect against attacks; at the speeds
19 See, e.g., David Wright, Laura Grego, & Lisbeth Gronlund, “The Physics of Space Security”
(American Academy of Arts and Sciences, 2005); Yousaf Butt, Can Space Weapons Protect U.S.
Satellites?, Bulletin of Atomic Scientists (July 22, 2008).
characteristic of orbit, a collision with a five-centimeter object imparts as much

energy as being hit by a bus.20 Large or rapid maneuvers on orbit to evade a threat
require expending significant amounts of fuel, and is not a capability generally
built into satellites. Evasionis also costly and can only be done for a limited du-
ration, and only if threats can be identified in time. Identifying potential threats
can be difficult to do in real time, since satellites generally do not have on-board
sensors looking in all directions. This type of situational awareness typically
comes from ground-based sensors monitoring the many thousands of orbital
objects. In short, these very valuable satellites are also inherently vulnerable and
may present as attractive targets, in particular if they provide unique capabilities
to the user or an advantage in a particular scenario.
Thus, an actor with substantial dependence on space may have an incentive
to strike first if hostilities look probable, to ensure these valuable assets are not
lost to an adversary’s first strike. This incentive is likely to be yet stronger if that
adversary has demonstrated significant antisatellite capability, such as direct as-
cent weapons or satellites capable of proximity operations, or is believed to have
significant cyberweapon capability. Even if all actors in a conflict prefer not to
engage in war, this perceived vulnerability may provide an incentive to approach
warfare closely anyway. The shortening of timescales to react is a hallmark of
crisis instability and a key attribute of the space environment, leading to a greater
risk of crisis leading to conflict when space assets are involved.
For example, in the case of the United States, the fact that conventional
weapon capabilities are so heavily dependent on potentially vulnerable satellites
may create incentives for the United States to strike first terrestrially in the lead-
up to a confrontation, before its space-derived advantages are eroded by anti-
satellite attacks. Indeed, any actor for which satellites or space-based weapons
are an important part of its military posture, whether for support missions or
on-orbit weapons, will experience some measure of “use it or lose it” pressure be-
cause of the inherent vulnerability of satellites. Mitigation strategies for this are
discussed in the following.
Short Timelines and Difficulty of Attribution
These “use it or lose it” pressures to shrink timelines couples dangerously with
the inherent difficulty of timely determination of the causes of satellite degrada-
tion or malfunction, whether malicious or from natural causes. And if a satellite
20 Roger Thompson, A Space Debris Primer, Crosslink, The Aerospace Corporation
Magazine of Advances in Aerospace Technology 4 (Fall 2015).

failure appears to be an intentional attack, it may take some time to verify the
attacker’s identity.
Satellites operate in a harsh environment, exposed to high levels of dam-
aging radiation and amid increasing amounts of debris. As a rule, they cannot
be repaired or maintained. While on-board diagnostics and space surveillance
can help the user understand what went wrong in the case of malfunction, it is
difficult to have a complete picture on short timescales. Satellite failure on-orbit
is a regular occurrence21—and moreover, many satellites are kept in service long
past their intended lifetimes.
A collision with a debris object the size of a marble could be catastrophic for a
satellite, but objects of that size cannot be reliably tracked. Consequently, a failure
due to a collision with a small piece of untracked debris may be interpreted as
an intentional attack, particularly if an adversary has maneuvering antisatellite-
capable satellites nearby, or is suspected of fielding weapons designed to be diffi-
cult to track.
In the past, when fewer actors had access to satellite-disrupting technologies,
satellite failures were routinely ascribed to natural causes such as radiation expo-
sure. But increasingly, even during times of peace, space operators may assume
malicious intent. More to the point, in a crisis when the costs of inaction may be
perceived to be costly, there is an incentive to choose the worst-case interpreta-
tion of events even if the information is incomplete or inconclusive.
Entanglement of Strategic and Tactical Missions
During the Cold War, nuclear and conventional arms were well separated, and
escalation pathways were relatively clear. The United States and Soviet Union
recognized that attacking strategically important satellites could be destabilizing.
For space-based assets that performed critical strategic missions, including early
warning of ballistic missile launch and secure communications in a crisis, the
United States and the Soviet Union eventually established a relatively clear sense
that these targets were off limits, as attacks on them could undermine nuclear
deterrence. Other strategically important satellites were also conferred special
status; in the Strategic Arms Limitation Treaty22 and the Anti-Ballistic Missile
21 Mak Tafazoli, A Study of On-Orbit Space-craft Failures, 64:2–3, Acta Astronautica (Jan.–Feb.
2009), <https://www.sciencedirect.com/science/article/pii/S0094576508003019> (accessed May

13, 2020).
Republics on Certain Measures with Respect to the Limitation of Strategic Offensive Arms, Signed at
Moscow, May 26, 1972 (SALT I).
Treaty,23 the United States and the Soviet Union pledged not to interfere with
each other’s “national technical means” of verifying compliance with the agree-
ment, including the satellite technologies used at the time.
However, where the lines between strategic satellite missions and other
missions are blurred, these norms can be weakened. The use of systems, in-
cluding satellites, for both nuclear and non-nuclear command and control can
lead to a more serious escalatory pathway than has been generally appreciated.
This may also be the case for sensors that formerly provided early warning of nu-
clear ballistic missile launch and which now also are critical sensors for missile
defenses, including against conventionally armed missiles.24 Interference with
such systems, even if intended to support a conventional fight, might equally well
be interpreted as a precursor to a nuclear attack. Thus, it may accelerate the use of
nuclear weapons rather than inhibit it.
Misperception and Dual-Use Technologies
A number of space technologies can be used both for relatively benign purposes
but also for hostile ones. It may be difficult for a potential adversary to under-
stand the intent behind the development, testing, use, and stockpiling of these
technologies. They may see threats where there are none, or they may miss a
threat until it is too late. This may start a cycle of action and reaction based on
misperception.
For example, increasing numbers of satellites are being built with the ability
to maneuver autonomously and closely approach other satellites that are not ac-
tively cooperating. This ability may be intended for peaceful purposes, such as
satellite maintenance or the building of complex space structures, or for more
controversial reasons, such as intelligence-gathering or even antisatellite attacks.
Another example isground- based lasers coupled with satellite- tracking
mirrors. They can be used to dazzle the sensors of an adversary’s remote-sensing
satellites, and, with sufficient power, they may damage those sensors. At the
same time, scientists have for decades used similar technologies to illuminate
a constellation of laser-ranging satellites to monitor precisely the Earth’s shape
and gravitational field.25 Higher-powered lasers coupled with satellite-tracking
Limitation of Anti-Ballistic Missile Systems, Signed at Moscow, May 1972.

24 James M. Acton, Escalation through Entanglement, 43:1 International Security
(Summer 2018).
25 See, e.g., International Laser Ranging Service, <https://ilrs.cddis.eosdis.nasa.gov/network/
index.html> (accessed May 13, 2020).

optics that could be used to damage satellites have fewer benign uses and may be
more easily distinguished as potentially problematic.
Additionally, because midcourse missile defense systems are intended to de-
stroy long-range ballistic missile warheads, which travel at speeds and altitudes
comparable to those of satellites, such defense systems also have inherent antisat-
ellite capabilities. In fact, while the technologies being developed for long-range
missile defenses might not prove very effective against ballistic missiles—for ex-
ample, because of the countermeasure problems associated with midcourse mis-
sile defenses—they could be far more effective against satellites. This capacity
is not just theoretical. As mentioned in other chapters in this volume, in 2007,
China first demonstrated a direct-ascent antisatellite capability which could be
used both in an antisatellite and missile defense role, and which has been tested
multiple times since (although not against a satellite again).26 Likewise, in 2009,
the United States used a missile defense interceptor to destroy a satellite.27 In
March 2019, Prime Minister Modi of India announced that his country had
joined an elite club of space powers,28 having destroyed one of its own satellites
with a hit-to-kill missile defense interceptor.29 Recent U.S. plans have indicated
a projected inventory of missile defense interceptors with capability to reach all
LEO satellites in the dozens in the 2020s, and in the hundreds by 2030.30
Ambiguity of Owners and Purposes of a Satellites
The political and military consequences of interfering with a satellite may be

vastly different depending on who is affected by a satellite’s loss and how they are
affected by it. Moreover, determining whether a satellite represents a legitimate
military objective may be difficult.
26 Brian Weeden & Victoria Samson eds., Global Counterspace Capabilities: An Open Source
Assessment, April 2020 edition, Secure World Foundation Report, <https://swfound.org/media/

206970/swf_counterspace2020_electronic_final.pdf> (accessed May 13, 2020).
27 Thom Shanker, Missile Strikes a Spy Satellite Falling From Its Orbit, New York Times (Feb. 21,
2008), <https://www.nytimes.com/2008/02/21/us/21satellite.html> (accessed May 13, 2020).

28 A. Vaidyanathan & Sunil Prabhu, India Shot Down Live Satellite, A Space Power Now, Says PM,
NDTV video (Mar. 27, 2019), <https://www.ndtv.com/india-news/pm-narendra-modi-to-address-

nation- around- 1 1- 4 5- am- 1 2- noon- w ith- i mportant- message- u rges- p eople- to- w a- 2 013480>
29 Frequently Asked Questions on Mission Shakti, India’s Anti-Satellite Missile Test, Conducted on 27
March 2019, Ministry of External Affairs, Government of India (Mar. 27, 2019), <https://www.mea.
gov.in/press-releases.htm?dtl/31179/Frequently_Asked_Questions_on_Mission_Shakti_Indias_
AntiSatellite_Missile_test_conducted_on_27_March_2019> (accessed May 13, 2020).
30 George Lewis, How Many SM-3 Block IIA Missiles?, mostlymissiledefense (Jan. 25, 2016),
<https://mostlymissiledefense.com/2016/01/25/how-many-sm-3-block-iia-missiles-january-25-
2016/> (accessed Mar. 17, 2020).
The military nature of a satellite may be deliberately obscured by space

operators, or its value as a military asset may change over time. For example, the
share of a commercial satellite’s capacity used by military customers may wax
and wane over time, changing the dominant nature of that satellite at any given
moment. Alternatively, a potential adversary’s satellite may have different or ad-
ditional missions that are more vital to that adversary than an outsider may per-
ceive. Furthermore, it will not always be clear who the owners and operators of
a satellite are, and users of a satellite’s services may be numerous and not public.
Registration of satellites is incomplete,31 and current ownership is not neces-
sarily updated in a publicly available repository.
This may have important implications. The Pentagon holds an annual war
game, or simulated conflict, involving space assets, and in 2015 it focused on a fu-
ture regional conflict. The official report warned that it was hard to keep the con-
flict contained geographically (horizontally) when using antisatellite weapons:
As the wargame unfolded, a regional crisis quickly escalated, partly because of

the interconnectedness of a multi-domain fight involving a capable adversary.
The wargame participants emphasized the challenges in containing horizontal
escalation once space control capabilities are employed to achieve limited na-
tional objectives.32
Lack of Shared Understanding

of Consequences/Proportionality
States have reached some common understanding of the implications of military

actions on the ground, in the air, and at sea, built over decades of experience.
States have some transparency of doctrine, and the international law governing
these regimes is relatively mature. This common understanding leads to a certain
stability and can in any case be of critical assistance to decision makers in times
of tension or crisis.
While the world has seen an example of nuclear war with the U.S. atomic
bombing of Japan, there has been no experience in strategic nuclear warfighting.
However, the United States and the Soviet Union/Russia have built some shared
understanding of each other’s strategic thinking on nuclear weapons, built over a
31 Ram Jakhu, Bhupendra Jasani, & Jonathan McDowell, Critical Issues Related to Registration of
Space Objects and Transparency of Space Activities, 143 Acta Astronautica 406–420 (Feb. 2018),
<https://www.sciencedirect.com/science/article/pii/S0094576517315138> (accessed May 13, 2020).
32 Air Force Space Command Public Affairs, Schriever Wargame Concludes (Feb. 18, 2015),
<http://www.schriever.af.mil/News/Article-Display/Article/735507/schriever-wargame-concludes/
> (accessed May 13, 2020).
long history of strategic discussions and treaty negotiations. This history can play
a similar role to the shared understanding between States in conventional war-
fare about the implications of specific military actions. This is less true for other
States with nuclear weapons. However something can be learned from the bi-
lateral standoffs and strategies between the United States and the Soviet Union/
Russia.
Conversely, States lack experience in hostilities that target space-based cap-
abilities, thus there is little shared sense of what the proper response to a mil-
itary space activity is and where the escalation thresholds or “red lines” lie.
Compounding this is the fact that attacks on satellites are unlikely to result im-
mediately in human casualties. This may on the one hand lead States to prefer
attacks on satellites, or on the other hand to consider them less critical as targets.
This calculus will differ for different States, making it an uncertain and poten-
tially unstable decision-making environment. Additionally, because dependence
on space is unevenly held, as is the ability to substitute terrestrial capabilities for
a lost satellite, it is possible that not all actors will assign the same value to a given
type of target or see the same escalatory nature to different actions. For example,
the United States has more military space capability than all other countries
combined.33
Because of space’s great importance, the United States has sought a way to
create a strategic framework for military space activities.34 A common theme has
been that a deterrence strategy would need to work quite differently from nu-
clear deterrence, for example, because actors value their space assets differently
from each other, and it is not at all clear how to identify appropriate targets for a
retaliatory strategy.
33 The United States owns 55% of military satellites by mass (a proxy for capability), China
and Russia have 19% and 14%, respectively. “Munich Security Report 2020: Westlessness”
(Munich Security Conference, at 54), <https://securityconference.org/assets/user_upload/
MunichSecurityReport2020.pdf> (accessed May 13, 2020).
34 Some governmental and nongovernmental perspectives include the Eisenhower Center
for Space and Defense Studies deterrence study, <https://www.usafa.edu/app/uploads/Space_

and_Defense_3_1.pdf> (accessed May 13, 2020); Elbridge Colby, From Sanctuary to Battlefield: A
Framework for a U.S. Defense and Deterrence Strategy for Space, Center for New American Security
(Jan. 27, 2016), <https://www.cnas.org/publications/reports/from-sanctuary-to-battlefield-
a-framework-for-a-us-defense-and-deterrence-strategy-for-space> (accessed May 13, 2020);
Theresa Hitchens & Joan Johnson-Freese, “Toward a New National Security Space Strategy: Time
for a Strategic Rebalancing” (Atlantic Council Strategy Paper, June 17, 2016), <https://www.
atlanticcouncil.org/in-depth-research-reports/report/toward-a-new-national-s ecurity-space-
strategy-time-for-a-strategic-rebalancing-2/> (accessed May 13, 2020); Forrest E. Morgan,
“Deterrence and First Strike Stability in Space: A Preliminary Assessment” (RAND, 2010),<https://
www.rand.org/pubs/monographs/MG916.html> (accessed May 13, 2020); Nancy Gallagher, “A
Reassurance Based Approach to Space Security,” International Security Outreach and Research
Programme, Foreign Affairs and International Trade Canada (Oct. 2009), <https://cissm.umd.edu/
sites/default/files/2019-07/a_reassurance_based_approach_to_space_security.pdf> (accessed May
13, 2020).
Little Experience in Engaging Substantively in

These Issues in Outer Space
Related to this issue is that there is relatively little experience among the major
space actors in handling a crisis with the others. The United States and the Soviet
Union, then Russia, have had a long history of strategic discussions and negoti-
ations with respect to their political, conventional, and nuclear relations. This
has built up a shared understanding of each other’s point of view, developed
relationships between those conducting those discussions, and created bureau-
cracies and expertise to support those discussions. This experience and these
relationships are important to interpreting events and to resolving disputes be-
fore they turn into a crisis, and to managing one once it begins. There is nothing
like this level of engagement around space issues between these two States,
and much less between the United States and China. Forums such as the UN
Committee on Peaceful Uses of Outer Space and the Office of Outer Space Affairs
are not effective when it comes to bilateral political understandings, as they are
consensus-based multilateral bodies with limited mandates.
One of the participants in a 2010 U.S. space war game, a diplomatic veteran,
imagined how things would play out if one or more militarily important U.S. sat-
ellites failed amid a crisis with an adversary known to have sophisticated offen-
sive cyber and space capabilities:
The good news is that there has never been a destructive conflict waged in either
the space or cyber domains. The bad news is that no one around the situation room
table can cite any history from previous wars, or common bilateral understandings
with the adversary, relating to space and cyber conflict as a guide to what the in-
coming reports mean, and what may or may not happen next. . . . This is the big
difference between the space-cyber domains, and the nuclear domain. There is,
in this future scenario, no credible basis for anyone around the president to at-
tribute restraint to the adversary, no track record from which to interpret the
actions by the adversary. There is no crisis management history: the president has
no bilateral understandings or guidelines from past diplomatic discussions, and
no operational protocols from previous incidents where space and cyber moves
and counter-moves created precedents. Perhaps the adversary intended to make a
point with one series of limited attacks, and hoped for talks with Washington and
a compromise; but for all the president knows, sitting in the situation room, the
hostile actions taken against America’s space assets and information systems are
nothing less than early stages of an all-out assault on U.S. interests.35
35 Ambassador Lincoln P. Bloomfield Jr., National Security Fundamentals in the Space and Cyber
Domains, 7:1 High Frontier 34–35 (Nov. 2010).

Information about potential adversaries’ technical capabilities can be gathered

by intelligence sources, but assessing their intentions is important as well and
is aided by experience. Understanding an adversary’s intentions brings more
clarity and streamlines decision-making in a complex operating environment.
How to Prioritize Efforts in Increasing Stability

in Outer Space
Given all of the pitfalls and challenges described previously, and the lack
of clarity between States as to the meaning of military activities that might
threaten space-based assets, a framework is needed to identify the very
real risks and challenges that outer space poses to managing a crisis. Such
a framework is proposed here and can be used to prioritize work by States
and civil society. This would be complementary to existing work discussed
in other chapters in this volume, such as PAROS through the CD and the UN
General Assembly, and space sustainability through the UN Working Group
on the Long-term Sustainability,36 much of which is mutually reinforcing.
The following recommendations are a few ways in which strategies could be
implemented in the 2020s to increase international efforts at improving sta-
bility and de-escalation in the space domain.
Start a Substantive, High-Level Arms Control Discussion
Starting a credible high-level discussion will require countries to identify key do-
mestic stakeholders, assemble teams of experts on relevant issues, and develop
detailed policy positions. The resulting informed dialogue will increase under-
standing between countries, identify important areas of agreement and disagree-
ment, clarify intentions, and establish better channels of communication.
One path forward could be a resumption of the discussion of the International
Code of Conduct for Space, the history of which is covered in chapters 2
[Hitchens] and 3 [Kealotswe-Matlou] in this volume. This would also serve to es-
tablish important norms of acceptable behavior in space, support predictability,
and contribute to avoiding misperceptions. The process could be revised to be
more inclusive of emerging space actors, to address a major criticism of the pre-
vious effort.
36 Long-term Sustainability of Outer Space Activities, United Nations Office of Outer Space Affairs,
<https://w ww.unoosa.org/o osa/en/ourwork/topics/long-term-sustainability-of-outer-space-

activities.html> (accessed May 13, 2020).
However, it does have some drawbacks. While discussion of voluntary meas-

ures may make it easier to get the process started, this may also cause States not
to engage all of their stakeholders at a serious level. There is a significant differ-
ence in the level of preparation and buy-in that States require when participating
in the negotiation of a legally binding treaty when compared with what is seen as
necessary for a voluntary code.
Reduce Incentives to “Use It or Lose It” or to Strike First
States can unilaterally and cooperatively implement measures to reduce the at-
tractiveness of a surprise or first-strike attack on an adversary’s space assets, or
on one’s own space assets that seem vulnerable.
One unilateral approach is to pursue a strategy of reducing reliance on space
assets, improving the robustness of individual satellites to attack, and increasing
the resilience of space-based systems to disruption. Some capabilities that sat-
ellites provide, such as precision navigation signals,37 could be brought back to
Earth, though perhaps less efficiently and on a regional basis. The vulnerability of
individual satellites can be reduced by hardening them to attack, for example, by
increasing their ability to withstand jamming.38 Alternatively, one can reduce the
value of each target with a disaggregation strategy, by distributing the mission
over a constellation of satellites, so that there are smaller, less valuable targets
rather than one important one. States can improve the resiliency of the satellite-
based capabilities by designing satellite systems with redundancy and preparing
to launch replacements.
The U.S. strategy for “mission assurance” includes “defensive operations,
reconstitution, and resilience”; defensive operations include evasion and de-
ception, as well as active measures to “destroy targeting systems” of the adver-
sary,39 though government auditors found that implementing these approaches
had some significant challenges.40 A resilient posture can reduce one’s own
incentives to “use it or lose it,” and the effective communication of the depth of
37 See, e.g., Jeff Foust, DARPA Space Efforts Address U.S. Reliance On Space, Space News (Mar.
30, 2015), <https://spacenews.com/darpa-space-efforts-address-u-s-reliance-on-space/> (accessed

May 13, 2020).
38 For example, the United States has been improving anti-jamming technology on its important
communications satellites. Nathan Strout, Air Force Anti-Jamming Efforts to Get a Boost, Defense
News (July 8, 2019), <https://www.defensenews.com/battlefield-tech/c2-comms/2019/07/08/air-
force-anti-jamming-efforts-get-a-boost/> (accessed May 13, 2020).
39 Space Operations Joint Publication 3-14, U.S. Department of Defense, I-7 and I-8, Apr. 10, 2018,
<https://fas.org/irp/doddir/dod/jp3_14.pdf> (accessed May 13, 2020).

40 DOD Faces Significant Challenges as it Seeks to Accelerate Space Programs and Address Threats,
GAO-19-458T, Government Accountability Office (Mar. 27, 2019), <https://www.gao.gov/products/

GAO-19-458T> (accessed May 13, 2020).
this resiliency may reduce a potential adversary’s incentive to strike first because
they will not reap the benefits they seek. This is “deterrence by denial,” a familiar
strategy in nuclear and conventional deterrence.41
Additionally, States should resist placing weapons in space, particularly if the
same strategic or military objectives could be met with terrestrial alternatives.
While space is well suited to many missions that involve passive observation
of the Earth or relaying and broadcasting information, it is poorly suited for
missions that require rapid transfer of mass, such as ground-attack weapons
or ballistic missile defenses.42 Therefore, little would be lost by foregoing these
options. The fielding of provocative but difficult to protect weapons in space
creates unnecessary risks and use it or lose it incentives.
Reducing first- strike incentives can also be pursued via cooperative
agreements. In the nuclear realm, the great powers took steps that improved sta-
bility, such as limiting the numbers and types of weapons and defenses, ensuring
robust crisis communications channels, and exchanging information about
forces and policies, as discussed in detail in c hapter 10 [Doucet]. The processes
of negotiating these cooperative agreements also provided each side with insti-
tutional experience and working relationships with each other. This benefit may
also accrue to the multiple relevant actors in the space domain as they discuss
these guardrails to conflict.
More Capable Space Situational Awareness
It is critical to build systems that can provide accurate and detailed informa-
tion about the health of satellites to their operators, as well as identify where all
space objects, including satellites and debris, are and will be and, if possible, who
operates them. This information can mitigate some of the risks of misunder-
standing and misjudgment.
For example, while disaggregation strategies such as those just described may
increase resilience to attack, they do present the risk that failures may be more
likely. If space postures do indeed move toward more distributed capabilities and
hence larger constellations of lower quality assets (so as to control costs), satel-
lites may fail more. Satellites generally may also be built less robustly as launch
becomes cheaper. Even if a relatively unimportant satellite’s failure does not pre-
sent a crippling of capability, it might send a signal that must be interpreted, with
41 See, e.g., Michael J. Mazarr, “Understanding Deterrence” (Perspectives, 2018, RAND), and
references therein, <https://www.rand.org/content/dam/rand/pubs/perspectives/PE200/PE295/

RAND_PE295.pdf> (accessed May 13, 2020).
42 See discussion in Wright, Grego, & Gronlund, supra note 19, sec. 9.
the potential for misinterpretation—is this merely a failure, or is it the onset of a

bigger attack?
Additionally, the credibility of retaliation to satellite attacks can be
undermined if the attacker has a reasonable expectation of not being identified,
or that the attribution will be unclear or delayed. This absence of information
works against stability, since retaliation can be delayed, or challenged as being
unjustified.
States should invest in these “space situational awareness” capabilities, and in-
vest in making their satellite more trackable by others. Though this should be
considered in the context that more space-tracking capability may also support a
State’s ability to target adversaries with ASATs weapons.
Also useful would be a trusted, impartial source of this space situational
awareness information, which could be used to identify potentially aberrant
on-orbit behavior and could verify compliance with norms and agreements.
Space actors could contribute data to such an entity, which would be equipped
to carefully handle data that is sensitive for proprietary or security reasons. This
could be an important role for a civil society or civil/government partnership en-
tity. Some civil society entities have begun assembling aspects of such services,
aggregating public and contributed data and providing analysis to support space
traffic management services, threat and hazard warning, as well as norm and reg-
ulatory compliance support.43
Establish Confidence-Building Measures

to Alleviate Misperception
As already discussed, a key destabilizing factor in space is the difficulty of attrib-

uting intent to specific technologies and events. Measures to alleviate mispercep-
tion can contribute to a more predictable and stable environment, which is in the
interests of all actors. While TCBMs are broadly useful, special attention should
be paid to those which address the most problematic technologies and behaviors.
For example, the ability to closely approach a satellite that is unable (or un-
willing) to cooperate is a key example of a “dual-use” technology. The technique
may facilitate the repair or refueling of a satellite in orbit, or the building of
large or complex space structures. It also may be used to get close to a potential
adversary’s satellite to spy on it or interfere with it. In the latter case, the target
43 Examples include ASTRIAGraph, <http://sites.utexas.edu/moriba/astriagraph/> (accessed
May 13, 2020); LeoLabs, <https://www.leolabs.space/> (accessed May 13, 2020); AGI ComSpOC,
<https://www.agi.com/comspoc> (accessed May 13, 2020).
could be disrupted or destroyed without creating a large amount of residual

debris.
The United States has developed this technology both through its civilian
space agency and its military research arms. It presently fields Geosynchronous
Space Situational Awareness Program (GSSAP)44 satellites in Geosynchronous
Orbit, which plan to closely approach and survey six hundred satellites. China
and Russia have tested rendezvous technologies as well.45 Because these technol-
ogies are broadly useful, they are likely to be widely adopted.
A satellite owner who detects a satellite closely approaching without having
declared a motive or having provided notice may feel threatened and take de-
fensive actions using on-board defensive weapons or a defensive escort.46
Without consensus about expected behaviors or clarity around intentions, the
approaching satellite may look more threatening than it actually is, and the
owner of the targeted satellite may claim its use of defensive weapons to pre-
empt an attack is legitimate.
While the idea of the idea of “keep out zones,” which would establish protected
areas around satellites, has been considered over the years, it has not been
prioritized.47
A common argument against keep-out zones is that the protection they pro-
vide is limited and would not stop a determined adversary. The hostile satellite
could loiter outside the keep-out zone indefinitely and then be poised to inter-
fere with the satellite when the timing was right. While keep-out zones would be
devised based on contemporary threat assessments, the adversary satellite could
be equipped with an ASAT technology that was developed specifically to hold
satellites at risk from further distances. In a framework for preventing an arms
race or devising robust satellite protection, keep-out zones may not be particu-
larly attractive. But if the organizing principle is stability, it’s possible this assess-
ment could be revised and renewed attention given to the notion. While a buffer
44 Mike Gruss, New U.S. Air Force Space Surveillance Satellites Require Great Precision, Space
News (Jan. 12, 2015), <https://spacenews.com/new-u-s-air-force-space-surveillance-satellites-

require-great-precision/> (accessed May 13, 2020).
45 See Weeden & Samson, supra note 26; Todd Harrison, Kaitlyn Johnson, & Thomas G. Roberts,
Space Threat Assessment 2019, Center for Strategic and International Studies (Mar. 30, 2020),
<https://www.csis.org/analysis/space-threat-assessment-2020> (accessed May 13, 2020).
46 In 2019, France publicly floated the idea of fielding defensive “patroller” satellites to accom-
pany their priority satellites and to use them to respond to threats in an appropriate and propor-
tional manner, in compliance with international law. See Remarks of Mme. Florence Parly, Minister
of Defense (July 25, 2019), <https://www.defense.gouv.fr/english/salle-de-presse/discours/discours-
de-florence-parly/discours-de-florence-parly_presentation-de-la-strategie-spatiale-de-defense>
47 See, e.g., U.S. Congress Office of Technology Assessment, Anti- Satellite Weapons, Counter-
measures, and Arms Control (Sept. 1985), <http://www.princeton.edu/~ota/disk2/1985/8502/8502.
PDF> (accessed May 13, 2020); and Michael A. Levi & Michael E. O’Hanlon, The Future of
Arms Control (2004).
zone may have limited value to provide protection, it is likely to have more value
in providing accountability and transparency. For example, while a country may
have legitimate reasons to occasionally come near a buffer zone, it would have
no reason to loiter at its periphery. Compliance or its absence could be a useful
signal of the intentions of the potential adversary.
The logistics of such an arrangement can be improved by requiring highly ma-
neuverable satellites to amplify their trackability with technological aids that are
already in use, such as highly radar reflective coatings, optical retroreflectors, or
signaling beacons.
While it would not be necessary, desirable, or, as discussed in detail in
chapter 8 [Stubbs], perhaps not even legal to establish buffer zones around all
satellites, the main benefits would come from doing so around a subset of impor-
tant satellites. Should a regime for protective zones be established, States could
negotiate the number of protected satellites allowed, as well as terms for inspec-
tion satellites to be allowed into the zone, should there be a need to confirm that
the protected satellite complies with other agreements. While States are likely to
be extremely reluctant to identify publicly the locations of their most important
satellite assets, in reality, important satellites are likely to be large and thus al-
ready easily tracked from the ground with little difficulty.48
Clarify Permissible and Impermissible Behaviors
Just as misperception regarding intent is a key factor that threatens stability

in space, so too does the lack of clarity regarding legal norms applicable in
space. Unlike other major arms control treaties, such as the Treaty on the Non-
Proliferation of Nuclear Weapons or the Chemical Weapons Convention, the
Outer Space Treaty does not have a review conference or a conference of States
Parties which could serve to ensure compliance or review relevant new tech-
nical developments. The Outer Space Treaty, in Article IX, does provide States
a consultation mechanism to engage other States around its own planned activ-
ities that may interfere with others’ “peaceful exploration and use” of space, or
to consult with other States that it has reason to believe are planning such activi-
ties.49 No State has invoked this provision, and some may have carefully avoided
doing so even when it looked potentially applicable, for example, following the
48 See, e.g., the tracking and identification of a classified U.S. imaging satellite by hobbyist obser-
vers in Geoff Brumfiel, Amateurs Identify U.S. Spy Satellite Behind President Trump’s Tweet, National
Public Radio (Sept. 2, 2019), <https://www.npr.org/2019/09/02/756673481/amateurs-identify-u-
s-spy-satellite-behind-president-trumps-tweet> (accessed May 13, 2020).
49 Article IX, 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use
of Outer Space, Including the Moon and Other Celestial Bodies, UNTS vol. 610, No. 8843.
deliberate destruction of satellites by China in 2007, by the United States in 2008,

and by India in 2019. This lack of State practice may undercut the perception of
the usefulness of Article IX. Alternatively this lack may simply reflect the past era
in which space was less crowded and provided benefits to fewer actors. The Outer
Space Treaty’s Article IX also states that space activities be conducted with “due
regard to the corresponding interests of all other States Parties to the Treaty.” It is
therefore incumbent on each State to take into account the impact of its actions
on other States; however, this requires a more proactive stance of States poten-
tially affected by activities to demand compliance with this obligation.
In the absence of treaty consultations, civil society efforts may play a role.
Projects, such as the Woomera Manual on the International Law of Military Space
Operations50 and the Manual on International Law Applicable to the Military Uses
of Outer Space,51 seek to lay out how existing laws apply to military uses of space.
These manuals seek to clarify the fundamental rules applicable to the military
use of outer space, in times of peace, in periods of rising tension, and during
armed conflict. Such initiatives can contribute to a shared understanding of the
applicable law, which in turn can lead to greater predictability and, over time,
greater stability in space.
Looking Forward
It will take sustained and substantial effort to keep the space and nuclear powers
working toward systematic peaceful resolutions of their differences and toward
the eventual elimination of nuclear weapons. But as that process proceeds, it is
critical to minimize the risks that conflicts will escalate catastrophically. This
includes careful consideration of the ways space activities provide additional
pathways to escalation and finding ways to mitigate this problem. Those offered
in this chapter are just a start.
50 The Woomera Manual on the International Law of Military Space Operations,
<https://law.adelaide.edu.au/woomera/> (accessed Apr. 9, 2020).

51 The Manual on International Law Applicable to Military Activities in Outer
Space, <https://www.mcgill.ca/milamos/> (accessed Apr. 9, 2020).

12
Diplomacy
The Missing Ingredient in Space Security
Paul Meyer
Outer space has long held a special place in humanity’s imagination and inge-
nuity. It has also enjoyed a unique status under international law as “a province
of all mankind” (in the language of the day) in which national appropriation or
sovereign claims are prohibited and the use and exploration of which shall be
“for peaceful purposes” and in the interests of all. These provisions are contained
in the foundational Outer Space Treaty of 1967, which, with 109 States Parties,
has for decades enabled the pursuit of a wide array of interests within an environ-
ment free of man-made threats.1
As a result of this relatively benign operating environment, space activity
has increased enormously in the half century since the Outer Space Treaty was
concluded. Today some 1,900 satellites are active in Earth’s orbits, furnishing a
myriad of services from telecommunications to remote sensing on which global
society is increasingly dependent. Space is no longer a “rich men’s club” dom-
inated by a handful of space powers, but has democratized extensively with
over sixty countries, representing both developed and developing States, now
possessing their own satellites.2 Technological advances in terms of increased
payload capacities, miniaturization, and reduced launch costs have opened up
prospects for mega-constellations, comprised of several thousand satellites, to be
launched in the next few years, permitting transformative leaps in space-enabled
functionality across a wide spectrum of applications.
Much of this new satellite capacity will be placed in low Earth orbits (LEOs)
that represent a diminishing free resource and which are vulnerable to damage
from space debris. This enduring detritus of earlier space activity and misadven-
ture has reached such proportions (some 23,000 items larger than ten centimeters
are tracked by the U.S. Space Surveillance Network) as to pose a significant threat
including the Moon and other Celestial Bodies, July 1, 1967, <https://www.un.org/disarmament>
2 Figures from Space Security Index 2017, at 147, <https://www.spacesecurityindex.org> (accessed
Mar. 30, 2020).
Paul Meyer, Diplomacy In: War and Peace in Outer Space. Edited by: Cassandra Steer and Matthew Hersch, Oxford
University Press (2021). © Oxford University Press. DOI: 10.1093/oso/9780197548684.003.0013
to future LEO operations.3 While guidelines for debris mitigation have been de-
veloped and adopted by the UN Committee on the Peaceful Uses of Outer Space
(COPUOS), it remains to be seen how effective they will prove in curbing the
exacerbation of the debris problem.
The preceding shorthand description of the outer space environment is in-
tended to convey the growing importance of space for our well-being and that
a legacy of past actions in space (which took a more cavalier approach to de-
bris creation) is one of the key constraints on future use. A far greater threat to
the future exploitation of outer space resides in the potential for the “peaceful
purposes” of the Outer Space Treaty regime to be challenged by States intent on
extending earthly conflict into this environment and, by means of “weaponiza-
tion,” transform it into just another domain for “warfighting.” It is my contention
that such a challenge is beginning to be mounted by leading space powers, and
unless countervailing diplomatic efforts are made to preserve the special, pacific
legal regime established for outer space half a century ago, we could witness a
rapid degradation of this vital (if vulnerable) environment at great loss for hu-
manity. A revival of diplomatic activism on behalf of space security is required,
not only by concerned States but also on the part of the wider stakeholder com-
munity, including the private sector and civil society that benefit from the cur-
rent regime.
The downplaying of diplomacy in national approaches to space security has
been a gradual if steady process. This chapter will first examine the various
developments over the past decade that have contributed to the current impasse
in international space security cooperation and then proceed to consider sev-
eral recent diplomatic initiatives that may hold some promise for improving the
situation. The chapter concludes with an assessment of the prospects for these
initiatives and offers some suggestions for how best to proceed in the near term
to forestall the extension of conflict into the outer space realm.
As noted previously, outer space enjoys a special status under international
law as a form of “global commons” beyond sovereign claims, the use of which is
to be for peaceful purposes and in the interests of all. The peaceful orientation of
the treaty is reinforced by specific prohibitions on the stationing of weapons of
mass destruction in space and on any militarization of the moon and other celes-
tial bodies. The international community has, however, long expressed the view
that “the legal regime applicable to outer space does not in and of itself guar-
antee the prevention of an arms race in outer space” and that therefore “there is
a need to consolidate and reinforce that regime and enhance its effectiveness.”4
This view has been reiterated since the early 1980s in the annual resolution
3 Id., 19.
4 “Prevention of an arms race in outer space,” UNGA Resolution A/RES/74/32, Dec. 12, 2019.
Diplomacy 289
entitled “Prevention of an Arms Race in Outer Space” (PAROS) that has been
adopted with overwhelming support (in its most recent iteration with a vote of
183 in favor, no abstentions, and only two “no” votes, of which the United States
was one).
The motivation for preventing an arms race in outer space is made clear in
the resolution’s preamble, which recognizes that such prevention “would avert a
grave danger for international peace and security.”5 The preamble also expresses
the conviction that “further measures should be examined in the search for ef-
fective and verifiable bilateral and multilateral agreements in order to prevent an
arms race in outer space, including the weaponization of outer space.”6 This last
phrase is significant in that it makes clear that the intent of the resolution is to
oppose weaponization of outer space and not just to prevent an arms race in that
environment.
Despite this unequivocal policy direction, progress toward realization of
the “further measures” and enhanced “effectiveness” of the existing legal re-
gime has been scant. While no single factor can explain this situation, several
developments over the last decade have had a detrimental impact on coopera-
tive space security. I would note in particular: (1) revival of antisatellite weapon
(ASAT) testing; (2) blockage in the Conference on Disarmament (CD), especially
with respect to the Sino-Russian draft Treaty on the Prevention of the Placement
of Weapons in Outer Space (best known by its acronym PPWT); (3) the lack of
follow-up to the successful Group of Governmental Experts (GGE) report on
Transparency and Confidence-Building Measures (TCBMs) in Outer Space;
(4) the failure of the EU-initiated proposed International Code of Conduct for
Outer Space Activities (ICoC); (5) the introduction of divisive resolutions on
outer space at the UN General Assembly (UNGA); and (6) escalating and hostile
official rhetoric regarding space security.
Revival of ASAT Fears
Although both the United States and the Soviet Union had engaged in research
and development of ASATs during the Cold War period, these systems were es-
sentially mothballed by the mid-1980s. For more than a quarter of a century the
ASAT threat remained dormant, and the world was able to increase its activity
in outer space free from concerns about ASAT threats. This positive situation
was rudely disrupted in January 2007 by the conduct of an ASAT test by China
against one of its own satellites. The action was undertaken in an irresponsible
5 Id.
6 Id.
manner in that the interception occurred at a high altitude that created a major
debris cloud that endangered other spacecraft and that prompted an outcry from
concerned spacefaring nations. A demonstration of an ASAT capability of the
SM-3 ballistic missile defense interceptor aboard a U.S. Navy cruiser carried out
in February 2008 raised once again the specter of an ASAT competition arising
among leading space powers with its attendant risks and uncertainties for the
peaceful use of outer space.7
PPWT Impasse
Although the CD has had a PAROS agenda item since 1982 and had actually
realized an ad hoc committee on the subject during the 1985–1995 time frame,
since then it has not been able to undertake official work on this item. This un-
productive situation is a function of a broader disagreement among the sixty-five
member States of the CD over the priority and scope to be accorded its agenda
issues that has prevented the adoption and implementation of a program of work
for twenty years. The protracted impasse has had a particularly adverse impact
on consideration of the Sino-Russian proposed treaty on the PPWT. The PPWT
was originally tabled at the CD in 2008, with a revised version submitted in June
2014. Its sponsors have repeatedly said that they would welcome discussion of
the draft, but given the lack of an agreed program of work at the CD, there has
been no authorized subsidiary body at the CD to take up this proposal. China
and Russia have been reluctant, however, to take the draft treaty outside the
CD for consideration, given their broader position that only the CD should be
entrusted with the negotiation of multilateral agreements regarding arms con-
trol and disarmament.
To a degree, the deadlock over the PPWT has also been a proxy battle with
respect to the acceptability of legally binding arms control accords for outer
space. The United States, while theoretically open to new legal instruments,
has, in practice, only been willing to support politically binding measures. In
proposing the PPWT, China and Russia reflect their long-standing preference
for legally binding instruments when addressing international security issues.
The sharply opposing views on the contents of the PPWT and the absence of
any working body for engaging the protagonists in an effort to reconcile these
views are impediments to progress on space security and the elaboration of
7 For a discussion of the 2008 operation and the ASAT capabilities of U.S. ballistic missile defense
interceptors, see Laura Grego, The Anti-Satellite Capability of the Phased Adaptive Approach Missile
Defense System, Public Interest Report Federation of American Scientists (Winter 2011),
<https://fas.org/> (accessed Mar. 30, 2020).
Diplomacy 291
new multilateral agreements whatever their status. A recent development that

will be discussed later is the first indication that China and Russia may finally
seek to have the PPWT considered in another diplomatic context, although they
maintain their insistence that any eventual negotiation would be the preserve of
the CD.
Failure to Implement the 2013 GGE Report on TCBMs

in Outer Space
A high point in intergovernmental consideration of space security issues was the

UN Group of Governmental Experts (GGE) on Transparency and Confidence-
Building Measures in Outer Space Activities, which met over three sessions in
the 2012–2013 time frame and produced a consensus report in the summer of
2013. The GGE report was a substantive one, with a broad set of recommended
TCBMs as well as an expression of criteria that should be applied to any new
TCBM proposal. The fact that a broadly representative group of fifteen States
had, despite the difficulties already evident in the space security field, agreed on
a series of practical TCBMs to propose was considered a positive development.
The GGE even managed a degree of self-congratulations when it included in the
report the statement, “The Group was of the opinion that its establishment, work
and consultative function serve as transparency and confidence-building meas-
ures in their own right.”8
Whatever hopes the GGE members may have had that the positive mo-
mentum generated by their consensus report would be translated into rapid
adoption of their recommendations were shortly dashed against a background
of a chilling diplomatic climate and State indifference. The only recommenda-
tion of the 2013 GGE report that was promptly acted upon was the proposal for
a joint meeting of the two UNGA committees that have responsibility for outer
space affairs. Hence a joint session of the First (Disarmament and International
Security) and the Fourth (Peaceful Uses of Outer Space) was held in 2015, and
a follow-up meeting occurred in 2017. Although these half-day joint sessions
were a positive innovation, they were essentially a symbolic gesture toward some
unity of UN space activity which had been strictly siloed between the security di-
mension that was the preserve of the CD in Geneva and the civilian facet, which
was the purview of COPUOS, based in Vienna. Besides the bureaucratic step
of the joint sessions, the GGE’s substantive recommendations remained merely
that, with little in the way of any take-up by States or impetus for continued work.
8 Report of the Group of Governmental Experts on Transparency and Confidence-Building Measures
in Outer Space Activities, UNGA A/68/189, July 29, 2013, at 20.

Failure of the International Code of Conduct Proposal
In addition to the success of the 2013 GGE in agreeing to a consensus report,

considerable expectations for progress on space security diplomacy had rested
on the EU-initiated proposal for an ICoC to cover outer space activities.9 The
proposal, first tabled in 2008, provided an opportunity for the European Union
to take an initiative in the often difficult (for the European Union) field of in-
ternational security at a time when the resumption of ASAT testing mentioned
earlier had served to attract attention to the subject of space security. The initial
text, which took the form of a set of politically binding measures, was the basis
for a lengthy if uneven process of EU-controlled consultation and textual refine-
ment. The tempo and extent of these consultations increased in the 2013–2014
time frame, and although some major space powers such as Russia and China
made known their concerns about the process, the EU sponsors decided that
the project was ready to move into a final round of multilateral negotiations
to finalize the text. The meeting the European Union convened in New York
in July 2015 was something of a diplomatic debacle and failed to produce the
desired endorsement of the EU proposal. At the meeting, significant opposition
regarding the basic process was expressed especially by the BRICS grouping of
States (Brazil, Russia, India, China, and South Africa), which issued a joint state-
ment stipulating that “the elaboration of such an instrument should be held in
the format of inclusive and consensus-based multilateral negotiations within the
framework of the UN.”10
The European Union voiced its regret that negotiations to finalize the text of
the ICoC had proven impossible, but did not seek a new UN-mandate for an
open- ended negotiation process at subsequent UNGA sessions. Although
acknowledging the need to develop new norms to govern activity in space, the
European Union appears to be assuming a “hands-off ” posture toward the ICoC.
In its submission in response to a call by the UN Secretary General for views on
TCBMs, the European Union limited itself to calling “for increased international
cooperation that should help us to establish agreed standards of responsible be-
havior in outer space.”11 At present, the ICoC initiative is in a kind of diplomatic
limbo with no official champion committed to taking the proposal forward.
9 European External Action Service, “Draft International Code of Conduct for Outer Space
Activities,” Version 31 (Mar. 2014), <http://eeas.europa.eu/non-proliferation-and-disarmament/

pdf/space_code_conduct_draft_vers_31-march-2014_en.pdf> (accessed Mar. 30, 2020).
10 BRICS Joint Statement Regarding the Principles of Elaboration of International Instruments on
Outer Space Activities, New York (July 27, 2015), <https://www.mid.ru/en/foreign_policy/news/-/

asset_publisher/cKNonkJE02Bw/content/id/1623220> (accessed Mar. 30, 2020).
11 See EU reply in “Transparency and confidence-building measures in outer space activities,”
Report of the Secretary General, UNGA A/72/65 Feb. 16, 2017, at 24.
Diplomacy 293
Divisive Resolutions and the Breakdown of Consensus
The cooling diplomatic atmosphere for space security was also manifested in a
change of tack at the UNGA that served to highlight new policy divisions on
the part of States. Hitherto a positive feature of the international community’s
declaratory policy on outer space security, as evidenced by the resolutions sub-
mitted at the UNGA, has been the high degree of consensus regarding them.
The annual resolution on the PAROS, for example, has had no opposing votes in
recent years and only two abstentions. The resolution on TCBMs was adopted
during the last UNGA session without a vote being required. At the sixty-ninth
session of the UNGA in 2014, however, this pattern of consensual policy expres-
sion was broken with the introduction by Russia of a new resolution on the “No
First Placement of Weapons in Outer Space.”12 This resolution (69/32) encour-
aged States to adopt a political commitment not to be the first to place weapons
in outer space. There was significant resistance to this resolution, with some
arguing that it did not meet the criteria for TCBMs that had just been arrived
at by the GGE. Others thought the “no first placement” phraseology as opposed
to a simple “no placement” pledge period to be problematic as it could be seen
as providing a justification for the development of space weapons in order to be
prepared to engage in space warfare once the first weapon had been introduced.
Despite these misgivings, the resolution sponsors did not offer up any modifica-
tion to the text to accommodate them and opted to press ahead to a vote with the
predictably divisive results of 126 for–4 against–46 abstentions.
At the 2017 session, the same resolution (72/27) was again adopted with a
sizeable minority of States not supporting it (131 for–4 against–48 abstentions).
Further discord was initiated with the introduction of a resolution in 2017 that
sought the authorization of a new GGE to operate in the 2018–2019 time frame
with a mandate “to consider and make recommendations on substantial elem-
ents of an international legally binding instrument on the prevention of an
arms race in outer space, including, inter alia, on the prevention of placement of
weapons in outer space.”13 Given the disagreements among States as to the ap-
propriateness of pursuing legally binding instruments on space security at this
stage, it was not a surprise that the resolution was not supported by a significant
minority of States, being adopted on a vote of 108 for–5 against–47 abstentions.
In contrast to the consensual nature of the PAROS and TCBM resolutions,
these two resolutions have introduced a discordant element into what had
12 Current version of this resolution: “No First Placement of Weapons in Outer Space,” UNGA A/
RES/72/27, Dec. 11, 2017.

13 “Further Practical Measures for the Prevention of an Arms Race in Outer Space,” UNGA A/
RES/72/250, Jan. 12, 2018.

been the essentially common viewpoint that had characterized the UNGA’s
pronouncements on space security.
Escalating Threat Perceptions, Bellicose Rhetoric, and

Diplomatic Decline
Recently, a prominent theme in official policy statements has been the escala-
tion of threat perceptions and a rise of belligerent narratives in response with
allegations of weapon development programs aimed at deploying counterspace
systems. Indicative of this trend was the U.S. Director of National Intelligence’s
recent worldwide threat assessment, which stated, “Both Russia and China con-
tinue to pursue ASAT systems as a means to reduce US and allied military effec-
tiveness.” The assessment projects that “Russian and Chinese destructive ASAT
weapons probably will reach initial operational capability in the next few years.”14
The assessment also asserts that Russia and China are being disingenuous in
their diplomatic proposals regarding the nonweaponization of space, as “many
classes of weapons would not be addressed by such proposals, allowing them to
continue their pursuit of space warfare capabilities while publicly maintaining
that space must be a peaceful domain.”15
Against this backdrop of a threat assessment that alleges major programs of
counterspace capabilities development, it is easier to adopt a belligerent posture
in response. In the U.S. context, President Donald Trump has reflected this new
tone in the National Space Strategy issued in March 2018. In keeping with what
is described as a “peace through strength” stance, the new policy “affirms that
any harmful interference with or attack upon critical components of our space
architecture that directly affects this vital interest will be met with a deliberate
response at a time, place, manner and domain of our choosing.”16 Besides this
wide-ranging right of retaliation (which implies that even a nuclear response
could follow an attack on American space assets) the National Space Strategy
“recognizes that our competitors and adversaries have turned space into a
warfighting domain.”17 This is a dubious assertion given the numerous statements
by relevant U.S. officials who have described outer space as a “warfighting” do-
main.18 President Trump in subsequent remarks has proclaimed, “We must have
14 Daniel R. Coats, Director of National Intelligence, Worldwide Threat Assessment of the US
Intelligence Community (Feb. 13, 2018), <https://www.dni.gov/> (accessed Mar. 30, 2020).
15 Id.
16 President Donald J. Trump Is Unveiling an America First National Space Strategy, White House
Fact Sheet (Mar. 23, 2018), <https://www.whitehouse.gov/briefings-statements/president-donald-j-

trump-unveiling-america-first-national-space-strategy/> (accessed Mar. 30, 2020).
17 Id.
18 See testimony of General John. E. Hyten, Commander, US Strategic Command, Senate Armed
Services Committee, 11 (Mar. 20, 2018), <https://www.armed-services.senate.gov/imo/media/doc/

Diplomacy 295
American dominance in space,” and he has ordered the Pentagon to create a new
branch of the armed forces to that end: “the Space Force—separate but equal.”19
For many States and other stakeholders, the depiction by leading powers of
outer space as a “warfighting” domain (whatever the claims of which State was
the first to do this) is incompatible with the “peaceful purposes” of the Outer
Space Treaty and the regime it supports. Whatever the reality of the alleged
counterspace programs—and this is clearly an area of military activity which
would benefit from greater transparency—the ratcheting up of threat rhetoric
works to accelerate arms racing and detract from diplomatic efforts to foster in-
ternational space cooperation. There is, in fact, little trace of diplomacy in the
National Space Strategy, which is silent on international cooperation or the pos-
sibility of diplomatic solutions to the space security challenges being referenced
by the U.S. administration. Some administration officials have spoken ap-
provingly of norm development to assist the international management of
space, but without specificity or a plan to promote them. As one observer has
remarked: “given its general aversion to multilateral diplomatic approaches, it’s
likely that the Trump administration will focus the majority of its efforts in this
area on developing bilateral mechanisms.”20
Although the “America First” stress of the Trump administration may high-
light the turning away from diplomatic engagement, there was already evidence
of this trend under the Obama administration. Its National Security Space
Strategy was issued in February 2011 and introduced the characterization of
outer space as “congested, contested and competitive,” an alarming depiction of
space activity that ignored another “c” word that had figured prominently in past
human activity in space: cooperation.21 The downplaying of diplomacy with re-
spect to national security policy for outer space in official American thinking
was already evident in the fact that it was only the secretary of defense and the
director of National Intelligence who were tasked with and issued the National
Security Space Strategy with no reference to the secretary of state as an authority
who would also be a key actor in formulating such a strategy.
Hyten_03-20-18.pdf> (accessed Mar. 30, 2020). President Trump had earlier stated, “My new na-
tional strategy for space recognizes that space is a war-fighting domain.” Speech to Miramar Marine
Corps Air Station, cited by Ian Schwartz, Trump: “Space Is a War-Fighting Domain” (Mar. 18, 2018),
<https://www.realclearpolitics.com/> (accessed Mar. 30, 2020).
19 Remarks by President Trump after signing Space Directive #3 (June 18, 2018), <https://www.
whitehouse.gov/> (accessed Mar. 30, 2020).

20 Frank A. Rose, Safeguarding the Heavens: The United States and the Future of Norms of Behavior
in Outer Space, Policy Brief, Brookings Institution, 7 (June 2018), <https://www.brookings.edu/>

21 National Security Space Strategy (Feb. 4, 2011), <https://www.defense.gov/> (accessed Mar.
30, 2020).
The National Security Space Strategy does contain a sentence to the effect that
the Department of Defense and the intelligence community “will support the
diplomatic and public diplomacy efforts of the Department of State to promote
the responsible use of space and discourage activities that threaten the safety,
stability, and security of the space domain.”22 There is, however, no elaboration
of these diplomatic efforts nor is any specific arms control or restraint measure
endorsed. The State Department and its diplomats are essentially referenced in
the document as merely a means of disseminating the new policy abroad. The
concept of national security being applied to outer space evidently wasn’t judged
to require a diplomatic input on par with that of the military or intelligence
communities.
The ascent of bellicose posturing and the decline of diplomatic efforts in the
realm of space activity have not gone unnoticed within the international com-
munity and have arguably spurred some new initiatives in multilateral forums
concerned with space security. It is too early to judge how effective these steps
will be in countering the trend toward “warfighting” in space, but they reflect at
least a desire to take some corrective action rather than remain passive onlookers
as the environment for international cooperation in space deteriorates. The
three initiatives to be considered are: (1) the UN GGE; (2) the UN Disarmament
Commission; and (3) the guidelines developed by the Long-term Sustainability
Working Group of COPUOS. A likely constraint on these three initiatives is that
they are all occurring within multilateral bodies that operate on the consensus
rule and hence require unanimous support from their diverse constituencies to
take any substantive decision.
UN GGE on Further Practical Measures
As noted earlier, a rare diplomatic initiative relating to space security, although

one not free from controversy, was the adoption by the UNGA at its fall 2017
session of a resolution creating a new GGE to address possibilities for legal meas-
ures. This enlarged GGE, with up to twenty-five members, met over a total of four
weeks in the 2018–2019 time frame “to consider and make recommendations on
substantial elements of an international legally binding instrument on the pre-
vention of an arms race in outer space, including, inter alia, on the prevention
of the placement of weapons in outer space.”23 The first session of the GGE took
place in August 2019, however, no public report of its findings was available at
the date of writing this book.
22 Id., 10.
Diplomacy 297
In part, it would appear that this GGE was motivated by the desire of Russia
and China to get around the self-inflicted failure to ensure attention to their
PPWT proposal at the CD, given that forum’s procedural paralysis. At the same
time, while making reference to the PPWT, the GGE’s mandate was not confined
to it, and the group was able to consider other possible legally binding measures.
Such a discussion was overdue, and if nothing else would provide a useful airing
of the pros and cons of new legal instruments for space security. Issues such as
the definition of space weapons or the nature of verification required to support
legally binding agreements were frequently raised as objections to concluding
agreements, but rarely debated in depth. The GGE could provide for such dis-
cussion even though it had a difficult task in finding common ground among its
members to support substantive recommendations. And like the 2013 GGE be-
fore it, even delivering a solid, consensus set of recommendations was no guar-
antee that they would be taken up by States.
UN Disarmament Commission
The UN Disarmament Commission (UNDC) is an open-ended deliberative body

that meets at UN headquarters in New York each spring. At its organizational ses-
sion in February 2018, the UNDC agreed to establish a new Outer Space Working
Group “to promote the practical implementation of transparency and confidence-
building measures in outer space activities with the goal of preventing an arms race
in outer space.”24 This tasking made specific reference to the recommendations on
TCBMs that had been generated by the 2013 GGE. In this way the United Nations
could be seen as trying to salvage the work of the GGE from the diplomatic oblivion
into which it seemed to have fallen. The UNDC Working Group held ten meetings
during its two-week session in April 2019 and in accordance with UNDC procedures
will have a three-year remit for undertaking its work. The UNDC operates by con-
sensus, and it will be necessary to temper expectations as to an eventual product with
the recognition that the UNDC’s success rate in recent years has been very limited.
COPUOS Long-term Sustainability of

Outer Space Working Group
The final diplomatic process that holds some promise for improving space secu-
rity is that of the COPUOS Working Group on the Long-term Sustainability of
24 “Report of the Disarmament Commission, UN A/

73/42, 11 (Apr. 23, 2018), <https://www.
un.org/disarmament/> (accessed Mar. 30, 2020).
Outer Space. This Working Group of the Scientific and Technical Subcommittee
has been engaged in recent years in developing a set of voluntary guidelines for
“enhancing the long-term sustainability of outer space activities and, in partic-
ular, enhancing the safety of space operations.”25 In 2016, the Working Group
was able to agree on an initial set of twelve guidelines and managed to finalize
a preamble and nine further guidelines in 2018. As per this preamble, “The
development of voluntary guidelines is premised on the understanding that
outer space should remain an operationally stable and safe environment that is
maintained for peace purposes. . . .”26
While COPUOS has eschewed engagement in space security issues (which
are seen as the preserve of the CD and the First Committee of the UNGA), its
adoption of the guidelines has been generally viewed as contributing indirectly
to space security as a form of TCBMs such as those earlier generated by the 2013
GGE. While a positive development, the nature of the measures outlined in the
guidelines are tangential to the chief security challenges of space, and like all
such voluntary measures are dependent for their ultimate significance on the de-
gree to which States actually implement them.
A Way Forward
As the leading space power appears to be bent on undertaking unilateral steps

regarding space security matters, a challenge is posed to those wishing to uphold
the “peaceful purposes” aims of the Outer Space Treaty. Remedial action to pro-
mote cooperative security approaches in outer space will require a far more ac-
tive campaign that is not limited to States, but that also engages all constituencies
within the space community. While the three multilateral processes mentioned
earlier hold out some prospect of success, they are a thin reed to lean on given
their inherent constraints. Any effort to revitalize space security diplomacy will
need to feature several, mutually reinforcing measures. Some possible near-term
steps that could be taken to avoid a drift into space conflict and which would help
to restore a more constructive atmosphere include the following:
1. All States should practice strategic restraint in their military space

programs, offer greater transparency as to their nature, and mute the esca-
lating threat rhetoric and belligerent posturing.
25 Conference room paper by the Chair of the Working Group on the Long-term Sustainability of
Outer Space Activities, A/AC.105/C.1/2018/CRP.18/Rev.1, Feb. 8, 2018, at 2, <https://www.unoosa.

org> (accessed Mar. 30, 2020).
26 Id., 2.
Diplomacy 299
2. A representative group of States should initiate a process at the UNGA to

establish an open-ended working group to elaborate an International Code
of Conduct on outer space activities. Despite its problematic diplomatic
roll-out by the European Union, this initiative has too much useful poten-
tial to be simply set aside and abandoned.
3. Whereas through the creation of the GGE, China and Russia have man-
aged finally to escape the moribund CD and empower a UN forum to
initiate discussion of their proposed PPWT and legally binding arms
control in space generally, this step needs amplification. The closed-
door nature of the GGE process and its dependency on an ultimate
consensus for results makes this a risky vehicle for conducting a dis-
cussion of legally binding versus politically binding approaches to space
security. The GGE could be supplemented by a series of open-ended
consultations hosted by concerned States or nongovernmental organiza-
tions to permit discussion of the important factors of definitions, scope,
and verification that have not had a thorough or transparent airing in a
multilateral context.
4. Similarly, a concerted effort should be made to revisit and promote the
TCBMs recommended by the 2013 GGE. Greater acceptance and imple-
mentation of these TCBMs would be a powerful counterforce to those
seeking to depict outer space as a battleground in which inter-State con-
flict is inevitable. While it would be desirable if a group of like-minded
States cooperated on convening a conference to focus on TCBMs, this
work could also benefit from private sector and civil society involvement
as well.
5. A deliberate effort is pursued to re-establish common ground concerning
the regime governing outer space. As the Outer Space Treaty is the embod-
iment of this regime, an effort to raise its profile and remind audiences of
its core principles and provisions is called for. One step of both symbolic
and substantive importance would be to have a champion State or a core
group of “Friends of the Outer Space Treaty” convene the first ever meeting
of its States Parties. As an early multilateral accord, the Outer Space Treaty
was not provided with follow-up mechanisms and hence lacks the atten-
tion that annual conferences of States Parties provide for most multilateral
agreements. After half a century of being in effect, it is overdue to bring to-
gether its membership.
Such a diplomatic gathering in honor of this cornerstone treaty could help

consolidate support for its key principles and obligations as well as stimulate new
cooperative steps for the future. A suitable gathering of States Parties could also
provide an incentive for further universalization of the treaty as countries out-

side the treaty will likely want to attend.
These proposed actions could help revitalize diplomacy, that missing ingre-
dient from current considerations of space security and realign the depiction of
outer space as a realm of promising international cooperation rather than one of
inevitable confrontation and conflict.
13
Conclusion
Cooperation, Collaboration, and
Communication in Space
Cassandra Steer and Matthew Hersch
The creation of the U.S. Space Force at the end of 2019,1 France’s steps toward cre-
ating a similar dedicated military body,2 and NATO’s formal recognition of space
as a military operational zone integral to international security3 were all markers
of the beginning of a new era as we entered the second decade of the century.
Although space-based technologies have been utilized by world militaries since
the beginning of the space age in the 1960s, the militarization of space has not
been on the public radar to the extent it now is, and the likelihood of space-based
conflict has never been greater. Concern about the weaponization of outer space
and publications about the inevitability of a war in space have proliferated in re-
cent years. At the same time, popular awareness of civil and commercial uses of
space has also increased, and in the wake of COVID-19 shutdowns, the essential
nature of space-based technologies for so many critical services and infrastruc-
ture has become even more apparent.
Toward the end of the last decade, the international media paid significant
attention to the fiftieth anniversary of the first landing on the moon, and increas-
ingly asked what humanity had achieved in outer space since and where hu-
manity might be going next. The United States announced the Artemis program
to return human astronauts to the moon within just a few years,4 and commer-
cial entities such as SpaceX, Blue Origin, Swarm, the Israeli company Beresheet,
and others became household names, as much for their achievements as for the
ways in which they challenged or threatened laws and norms of responsible
behavior in space. In short, we are in a New Space Age, one that is equal parts
1 S.1790—National Defense Authorization Act for Fiscal Year 2020.

2 “Macron Announces Creation of French Space Force,” France24 (July 13, 2019), <https://www.
france24.com/en/20190713-macron-france-space-force> (accessed Feb. 26, 2020).
3 Berthiaume Lee, Canada’s U.S., NATO Allies Developing Divergent Views on Weaponizing Space,
National Post (Nov. 24, 2019), <https://nationalpost.com/news/canada/canadas-u-s-nato-allies-

developing-divergent-views-on-weaponizing-space> (accessed Feb. 26, 2020).
4 “NASA: Artemis” (NASA), <https://www.nasa.gov/specials/artemis/index.html> (accessed Feb.
28, 2020).
Cassandra Steer and Matthew Hersch, Conclusion In: War and Peace in Outer Space. Edited by: Cassandra Steer and
Matthew Hersch, Oxford University Press (2021). © Oxford University Press.
DOI: 10.1093/oso/9780197548684.003.0014
commercial and political, and one which—arguably even more so than the first
Space Age—has national and international security interests at its center. The
need for ethically sound policy and law at this time is irrefutable, and it is in an-
swer to this need that our contributing authors have tackled various challenging
issues, applying their exceptional expertise.
As we stated in our introduction, the range of disciplines and perspectives
presented here is deliberate, and there is therefore no single authorial voice to be
found in this volume. In fact, we believe that the multidisciplinary approach taken
both in the conference upon which this volume is based, and in this volume it-
self, where legal arguments are weighed against ethical and policy ones, is unique
compared to existing literature and compared to most debates among decision
makers, practitioners, and operators. Too often we work in silos, as academics,
government employees, commercial actors, diplomats, or scientists, focusing on
our own discipline and on the interests immediately before us. But there is much
to be gained from widening the aperture to include multiple perspectives, voices,
and solutions, and much to be learned from each other.
At the same time, there is some measure of consensus to be found among the
critiques and solutions offered by our contributors, despite their diversity. In ad-
dition to agreement as to current and future threats to national and global secu-
rity stemming from the use—and misuse—of the space environment, there are
many suggested measures for ameliorating the risk of conflict in space, including
international negotiation, transparency and reporting on the use of space-based
assets, and the establishment of clear rules, backed up by sanction regimes,
against hostile actions that threaten the peaceful use of space by all nations.
A central theme in all of the chapters is that the best way to avoid capricious use
of the space environment in wartime is to create an explicit set of norms in peace-
time, recognizing that shared use, rather than dominance, is the preferred out-
come for all spacefaring nations. Though not discussed by our contributors, we
could also posit that these same lessons apply in a post-COVID-19 world, where
the need for increased cooperation and transparency with respect to space-based
services has become evident in times of relative peace.
Countering the Key Concerns in Space
The catchphrase that space is “congested, contested and competitive” has almost
been worn out by overuse; however, it captures the concerns shared by mili-
tary, civil, and commercial users of space as we move even further into this new
space age. Artificial threats such as space debris and covert weaponization add
to the complexity of the environment that is already complicated by increased
commercial and international competition in space. The multiple, intertwined
Conclusion 303
dependencies on space mean that all nations have a stake in the ways we respond
to these threats. Our military and civilian dependency on space-based technolo-
gies requires that policymakers, legislators, and other stakeholders have a greater
degree of awareness of what makes space unique compared to other physical
domains. Unfortunately, “space literacy” is severely lacking among decision
makers. It behooves all those with an interest in national and international secu-
rity to become more familiar with our uses of space and the space environment’s
unique characteristics and challenges.
In order to counter the problems of “congestion, contestation and competi-
tion” in space, we need to focus on “cooperation, collaboration, and communica-
tion,” which should be held as paramount by State actors and private actors as we
continue to be more and more dependent on space technologies and space oper-
ations. This includes capacity-building both nationally and internationally. How
can the range of space experts working in their silos better share their know-
ledge with each other and improve on the lack of space literacy among decision
makers? This effort must start with educating younger generations, who will be
even more dependent upon space activities than we are today, but it also means
facilitating more scholarship, such as this volume and the conference it is based
upon, and seeking more opportunities for interdisciplinary research and project
development. Where military exercises such as the Schriever space wargames
and Global Sentinel experiment already take place regularly among allies, a rich
alternative exercise would be to attempt “peace games” or other tabletop exercises
explicitly focused on de-escalation, which include not only military partners but
academic, scientific, and industry partners. If our contributing authors are to be
believed, greater transparency regarding both general capabilities and specific
intentions with certain maneuvers or technologies should be encouraged to re-
duce the risk of miscalculation or misinterpretation, thus reducing the risk of un-
necessary escalation. If each State actor’s capabilities are known, an appropriate
and proportional response will always be more likely than if those capabilities
are shrouded in uncertainty and secrecy. Increased transparency is something
from which we can all benefit, and it is therefore in the interest of all States and
all actors in space to have norms and practices which either require or encourage
exchange of information, particularly in respect of Space Situational Awareness
(SSA) and space traffic management.
On the other hand, this transparency may be seen as a vulnerability. The chal-
lenge is how to balance the clear benefits of increased collaboration and commu-
nication with the need to protect one’s own space assets and the need to maintain
some secrecy with respect to one’s own capabilities. There is large agreement to
be found among our contributors that despite this vulnerability, transparency
will lead to better global security and potential for peace, which is ultimately the
goal for all parties involved.
Diplomacy and Global Leadership
As the space domain becomes more relevant in shaping global balances of power
and forming alliances, the possibility for nontraditional international alliances
has become more viable. Past the traditional “Five Eyes” allies—which consists
of Australia, Canada, New Zealand, the United Kingdom, and the United States,
who cooperate closely for intelligence purposes—there are multiple other State
actors whose cooperation would be beneficial for all States’ interests in the
space domain. However, such alliances may also create tensions with private-
sector actors in space: many commercial actors have a broader client base than
one State and may have clients who have problematic relationships with the
U.S. government.
This is where Meyers’ argument that diplomacy is the “missing ingre-
dient” in the space domain is important: without it, space security faces a se-
rious threat. Meyers’ position is shared by Grego, Hitchens, Johnson-Freese
and Smith, and Robinson: the United States should act as a leader with a
“rules-based system” approach to space, and in so doing contribute to in-
ternational security and a global order. Other influential space-faring States
such as Canada, France, Italy, Japan, South Korea, and newcomers such as
Australia and New Zealand, should also step up and play a role in creating
and maintaining a peaceful space system. Passivity is a factor likely to lead to
conflict, and it is therefore imperative to take up the responsibility of actively
working toward peace in the space domain.
While domestic political trends are transient, they can also impact in-
ternational leadership. There is no doubt that the ways in which the Trump
administration stepped away from a global leadership undermined space
diplomacy; however, a gap in international space leadership was already
opening up under the Obama administration. As Doucet, Hays, Hitchens,
Kealotswe-Matlou, Robinson, and Su all point out, progress has been, in
part, hampered by the U.S.’ refusal to support efforts, such as the proposed
International Code of Conduct for Space Activities (ICoC), the draft Treaty
on the Prevention of the Placement of Weapons in Outer Space (PPWT)
proposed by China and Russia, and the UN Group of Government Experts
on Further Practical Measures for the Prevention of an Arms Race in Outer
Space, without putting forward any real alternative proposals. Even if the ex-
isting proposals are problematic, rebuffing international attempts to create
more collaboration without providing alternatives means that the United
States is failing to take a leadership role. Such is the ethical imperative built
into the humanist values of the Outer Space Treaty, as Blount lays out in his
chapter.
Conclusion 305
Given the international approach taken in this volume, and the range of na-
tional perspectives offered by our authors, it is not a foregone conclusion that the
United States must take the prime leadership role in space diplomacy. In fact, as
the geopolitical balance is once again shifting in this third decade of the century,
many States and non-State actors may feel it is time for multiple States and re-
gional organizations to become more active leaders. In this light, note should be
taken of the open letter signed by hundreds of prominent international experts,
petitioning the UN General Assembly to be proactive about establishing a multi-
lateral regime to regulate mining of natural resources in space, in response to the
unilateral stance being taken by the United States on this matter.5 We must take
into account, however, that currently the United States owns, or has jurisdic-
tion over, approximately half of all operational satellites, and still has the largest
national space program and the largest number of military satellites and space-
based systems. It also still has a powerful hand to play in any political negoti-
ations and is a powerful leading player in space whether others like it or not. It
is therefore incumbent on the United States to consider long-term sustainability
and stability in space, as much for its own interests as for international ones, and
for decision makers to take note of the positions and perspectives of other space-
faring and space-dependent nations.
International Transparency and

Confidence-Building Measures
Since transparency is the key to stability, the importance of more transpar-

ency and confidence-building measures (TCBMs) is raised by nearly all of the
authors in this volume. While there is a need for States to display leadership
and to improve their initiatives for international diplomacy, the question arises
as to the most appropriate forum for creating and adopting successful TCBMs.
As Doucet, Hitchens, Stubbs, and Su argue, past failures of the ICoC and
attempts to move toward new space arms control treaties teach us that cooper-
ation and inclusive processes are necessary to successfully implement TCBMs
internationally. The United Nations is historically seen as the appropriate body
for the development of TCBMs; however, Kealotswe-Matlou takes the position
that an independent international body is needed to take over this space di-
plomacy and regulatory role, given the limitations of existing UN specialized
bodies to fulfill this role. At the same time, Hitchens reminds us that there is
5 Outer Space Institute, “Open Letter on Space Mining,” August 2020, <http://www.
outerspaceinstitute.ca/docs/InternationalOpenLetterOnSpaceMining.pdf> (accessed Sept. 1, 2020).

success to be found in the normative guidelines developed by the UN Group of

Governmental Experts on Transparency and Confidence-Building Measures
in Outer-Space Activities, and the more recently adopted Guidelines on the
Long-Term Sustainability of Outer Space Activities drafted by the Committee
on the Peaceful Uses of Outer Space.
There is also the question of whether such TCBMs need to be in the form of
binding treaties or norms, or whether nonbinding instruments are more effec-
tive. Doucet proposes a very carefully thought-out clause for a binding treaty,
which would require prior notification of specific activities and maneuvers in
space, if they involve the transfer of energy. This could be seen as an expansion
upon with Article IX of the Outer Space Treaty, which requires States to notify
others when their activities may cause harm. As Su explains, definitional ambi-
guities are part of the problem in terms of defining what a “weapon” is in space,
especially in light of the large number of dual-use satellites. This is exactly why
Doucet proposes regulating conduct rather than specific technologies in space.
Attempting to regulate certain hardware will very quickly become obsolete as
technology advances and instantly creates loopholes which actors can abuse to
justify unwanted behavior.
Alternatively, non-binding instruments may be more attractive to States that
are loathe to bind themselves to definitions which may prove too limiting. Such
nonbinding instruments may be the right solution for the current ambiguity sur-
rounding the legality of declaring keep-out zones, operational zones, or safety
zones around a satellite, as discussed by Stubbs. Even if the legality remains un-
certain, agreements on best practices could be reached, or tacit acceptance of
norms may be achieved, leading to greater clarity, predictability, and eventually
stability in the space domain.
When faced with questions regarding the applicability of the law of armed con-
flict to space, as Steer and Stephens highlight, it may not be necessary to create
new norms so much as simply to clarify how existing international law applies
to this untested domain. Ultimately, simply having more clarity can contribute
to de-escalation and in any case to mitigation of the impact of a conflict, should
it take place in space. As Grego points out, crisis management depends upon
shared understandings and common points of reference. Two projects raised
by Steer and Stephens, which seek to aid in such clarification, are the Woomera
Manual on the International Law of Military Space Operations,6 which aims to
restate and clarify the law applicable during tensions and hostilities involving
space, in particular the application of the law on the use of force and the law
of armed conflict; and the Manual on International Law Applicable to Military
6 The Woomera Manual, <https://law.adelaide.edu.au/woomera/home> (accessed July
17, 2019).
Conclusion 307
Operations in Outer Space,7 which focuses on the law applicable in peacetime.

Both were drafted by a collective of international, independent experts and pro-
vide a model for how nongovernmental entities can provide much-needed clar-
ification on the application of international laws. We can also look to the relative
success of the Space Debris Mitigation Guidelines,8 which were the result of col-
laborative work of the Inter-Agency Space Debris Coordination Committee, in
bringing subject matter experts from various national space agencies together.
This process avoided the political stumbling blocks that are so often involved
in lengthy, higher-level government negotiations, and the outcome was a lower
stake in that it was nonbinding, yet an extremely important contribution to
efforts to encourage more responsible behavior in space.
This point underlines once again the benefit of interdisciplinary coopera-
tion. Policymakers may face less gridlock if they were to come together with field
experts and technical experts, seeking input from a range of disciplines. It must
be acknowledged that there are contradictory factors which can prevent trans-
parency efforts from succeeding. Many States claim they want transparency,
while also hesitating to disclose knowledge or information about their own cap-
abilities to other State actors or to private sector firms for their use. Therefore,
given the dynamic and multidimensional nature of the space domain, the
benefits of “Track 1.5” diplomacy—in which the commercial sector, technical
experts, national policymakers, and the United Nations can all have an input
in deciding on space norms—should be implemented more often, as Hitchens
argues so compellingly. Furthermore, this may better allow for the prioritization
of safety, decrease in debris, and overall security; rather than individual State
missions and interests.
How Cooperation, Collaboration, and Communication Can

Aid Ethical Space Policy and Space Law
A returning theme highlighted by many of the authors in this volume is that

lack of transparency and lack of clarity with respect to the intention of specific
activities in space can often lead to problems that could have otherwise been
avoided. As well, geopolitical barriers to building trust and promoting transpar-
ency can often get in the way of joint international progress. However, as former
diplomat Meyers notes, and as several other authors highlight, space operation
7 Manual on International Law Applicable to Military Uses of Outer Space, McGill
University, <https://www.mcgill.ca/milamos/> (accessed Dec. 27, 2019).

8 Adopted by the UN General Assembly in Resolution 62/217 (Dec. 22, 2007). See also Gregory
L. Schulte & Audrey M. Schaffer, Enhancing Security by Promoting Responsible Behavior in Space, 6
Strategic Studies Quarterly (2012).
coalitions are on the rise and are becoming more inclusive, which demonstrates
a slow move toward the transparency that the experts collected in this volume
believe is necessary. Trust, improved understanding of the geopolitical situation,
increased SSA, and greater communication at every level can all contribute to a
greater likelihood that potentially escalating situations in space can be resolved
peacefully.
Given the environmental challenges which are unique to the space domain
and the exponential increase in the number and different types of actors in space,
the tenets of cooperation, collaboration, and communication are necessary to
avoid unwanted escalation of friction or potential conflicts. It is our belief that
the contributions in this volume, both individually and collectively, go a long
way to answering many of the urgent questions facing us as we move further into
the twenty-first-century Space Age.
Index
Tables are indicated by an italic t following the page numbers.

For the benefit of digital users, indexed terms that span two pages (e.g., 52–53) may, on
occasion, appear on only one of those pages.
Agreement on the Rescue of Astronauts, Committee on the Peaceful Uses of Outer

the Return of Astronauts and the Space (COPUOS), 56–57, 59–61, 62,
Return of Objects Launched into 63, 64, 65–67, 69, 74, 76, 77, 79, 83,
Outer Space (Return and Rescue 85, 86–87, 88–89, 97–98, 102, 251,
Agreement), 57–58 269, 287–88, 291, 296, 297–98
Air Defence Identification Zone communications, 29, 86, 234t, 242
(ADIZ), 222–24 Conference on Disarmament (CD), 10,
Allison, Graham, 126, 128, 141–42 96–97, 98, 185–86, 188–89, 247, 251–
Antarctic Treaty, 96, 183 52, 268–69, 279, 289, 290–91, 297,
Anti-Satellites (ASATs) 298, 299
ground-based, 271, 274–75 confidence-building measures, 60, 61,
space-based, 172–73 101, 247–48, 251, 268–70, 282, 289,
test, 7–8, 26–27, 49, 187, 253, 256, 257, 291, 305–6
289–90, 292 consensus, 293
weapons, 26, 27, 28, 140, 163, 168, 294 Convention on International Liability for
Apollo, Project, 4, 6–7, 114–15 Damage Caused by Space Objects
arms race in space, 56–57, 59–60, 75, 97, (Liability Convention), 58, 70–71
98, 100, 181, 188, 268–69, 288–89, Convention on the Registration of
293–94, 304 Objects Launched into Outer Space
artificial intelligence, 139 (Registration Convention), 40–41,
asymmetric advantage, 146–47 58, 62–63, 70–71, 72, 81, 82
attack, 47, 48, 155–56, 165, 266–67 cooperation, 6, 45, 59, 91–92, 97, 98–99,
authority, 14, 84, 91, 92–93, 97, 102, 102, 149, 188, 235, 301, 307–8
103–4, 105–6, 226–27 customary, 30–31, 35, 184–85
ballistic, 3, 5–6, 71, 102, 165, 260, 273–74 diplomacy, 19, 239, 269–70, 287, 304
ballistic missile defense (BMD), 164, 234t distinction, 35, 36, 37
intercontinental ballistic missile dominance, 16, 123, 142–43
(ICBM), 4, 115 due regard, 215–16
Benefits Declaration, 59, 118
Earth orbit, 26–27, 49, 94, 110, 114, 165,
celestial bodies, 25, 57, 58, 91–92, 109, 208–9, 232, 256–57, 273, 275, 283
130–31, 145–46, 153–54, 182, 187, Eisenhower, Dwight D., 114–15,
201, 224, 284–85, 287 117–18, 277
Cold War, 4, 10–11, 28–29, 36–37, 57, 59, enforcement
111–12, 113, 119–20, 121, 140, 159– mechanisms, 226–27
60, 161, 162, 175, 181, 182–83, 184, environment
195, 259, 263, 273–74, 289–90 environmental protection, 191–92
310 Index
ethical approaches 104, 110–11, 112, 114–15, 117–19,

common, 135, 208–9, 260 121–22, 140–41, 149–50, 162, 165,
fairness, 132 166–67, 182, 184–85, 187, 188, 189,
good, 135, 158 190–91, 196, 201–2, 207, 208–10,
humanism, 116–17 211, 216, 218–19, 222–23, 224, 225,
rights, 112–13, 116–17, 129–30 226–27, 235, 253, 269–70, 274–75,
virtue, 136–37 277, 279, 283, 285, 289, 291, 292, 299,
European Union (EU), 230–31, 235, 242– 304, 305–7
43, 289, 292 International Civil Aviation Organization
exclusion zone, 208–10, 215, (ICAO), 104–5, 222, 261–62
218–19, 221–22 International Code of Conduct (ICoC),
10, 289, 292, 304, 305–6
force International Geophysical Year (IGY),
threat of force, 10, 185–86, 187, 249 114–15, 117–18
use of force, 10, 34–35, 52–53, 92–94, international humanitarian law (IHL), 13,
95, 112, 113, 175, 185–87, 213–14, 24, 29–33, 34–35, 36–37, 43, 46, 47,
249–50, 306–7 48, 51, 52–53, 220
France, 7–8, 9, 31–32, 37, 61, 66, 169, 190, International Space Station (ISS), 201
232, 233, 236, 283, 301, 304 International Telecommunications Union
freedom of exploration and use, 203 (ITU), 73, 85, 86, 104–5
Iran, 7–8, 65, 119–20, 147–48, 212
Gauthier, David, 145
General Assembly (GA), 10, 36–37, Johnson, Lyndon B., 4, 9, 10–11, 15, 16,
188–89, 203 23–24, 123, 127, 133, 134, 146–47,
geography, 110–11, 114 148–49, 150, 166–67, 203, 234t, 267,
Group of Government Experts (GGE), 56, 277, 283, 304
60–63, 67, 69, 71, 72, 74, 75, 76, 77,
78–79, 81, 82, 83, 87, 88–89, 99, 100– Kant, Immanuel, 129–30, 146–47
1, 247–48, 251, 269–70, 289, 291–92, Kessler, Donald, 7–8, 49, 143–44
293–94, 296–97, 298, 299 kinetic, 26, 40–41, 95–96, 254, 255
kinetic energy, 95–96, 254
Harvard Manual, 47, 209–10, 211, 213–14, Korolev, Sergei, 2–3, 4
215–16, 217, 218, 220, 221–22, 224
Hobbes, Thomas, 145 Long-Term Sustainability, 66
human rights, 112–13, 116–17 low Earth orbit (LEO), 27, 69, 86, 168, 271,
Hyten, Gen. John, 123, 124, 129, 132, 144, 275, 287–88
146–48, 149–50, 170, 294–95
Malina, Frank, 2–3, 4
India, 7–9, 18–19, 23–24, 26, 27, 49, 68– Markkula Center for Applied Ethics,
69, 76, 80, 95–96, 99, 119–20, 181, 125, 126, 128, 129–30, 131, 132–33,
184–85, 239, 250, 253, 256, 265–66, 135–37, 138
275, 284–85, 292 military necessity, 34–35
interference, 201–2, 274 Moon, 25, 57, 58, 91–92, 97, 103–4,
international, 10, 13, 14, 23–24, 25, 30–32, 109, 112–13, 114, 116–17, 130–31,
33, 34–35, 36, 38, 40, 42, 46–47, 50, 145–46, 153–54, 165, 182, 187,
52–53, 56–57, 58, 59, 61, 63, 64, 69, 191–92, 197, 201, 203, 204–5, 206,
71, 72, 77, 80, 81, 83, 85, 86, 87–88, 284–85, 287
91–92, 93–94, 97, 98–99, 101, 102, Moon Agreement, 58, 91–92, 97, 103–4
Index 311
multilateral 242, 252, 267, 268–70, 271, 274, 277,

multilateral treaties, 10–11, 12–13, 55, 278, 287, 291, 295, 296, 306–7
59–60, 61, 62, 67, 73, 74, 75–76, 79, 80, Outer Space Treaty (OST)
82, 84, 86–87, 88–89, 91–92, 97, 98, Article I, 15–16, 25, 31, 33, 51, 55, 57,
103, 110, 113–14, 116, 118–19, 120–21, 93–94, 95, 96, 103, 109, 110–11, 114,
181–82, 185, 237, 240–41, 248, 278, 119, 182–84, 191–92, 195–96, 197,
289, 290–91, 292, 295, 296, 298, 299 198, 203, 204, 206, 208–9, 223, 225–
multilateralism, 118–19, 121 27, 249, 260–61, 284–85, 306
Article II, 31, 33, 51, 55, 57, 93–94,
National Aeronautics and Space 110–11, 195, 203, 206, 223, 225,
Administration (NASA), 2–3, 4, 6–8, 226–27, 249
26, 68–69, 112–13, 114–15, 116–17, Article III, 33, 51, 57, 93–94, 195, 206
143, 198, 201, 235, 256, 301–2 Article IV, 15–16, 25, 57, 94, 95, 103,
National Reconaissance Office (NRO), 109, 110, 114, 119, 182–84, 204,
156–57, 170–71, 175, 177–78, 234t 206, 208–9
National Space Defense Center Article IX, 191–92, 195–96, 197,
(NSDC), 140–41 198, 204, 206, 225–26, 260–61,
National Space Strategy (NSS) 284–85, 306
national technical means, 242 Article VI, 103–4, 205, 251–52
New START, 258–59, 260–61 Article VIII, 205, 251–52
Nike-Zeus, 6, 184 Article XII, 205, 206
No First Placement, 188, 189
North Korea, 7–8, 119–20, 134, 147–48 peaceful purposes, 116
notification, 71, 221, 257 People’s Republic of China (PRC), 7–9, 10,
nuclear 16, 17–19, 23–24, 26, 27, 28, 29, 45, 48–
Legality of the Threat or Use of Nuclear 49, 59, 61, 68–69, 75–76, 77, 78–79, 80,
Weapons, 32–33, 94, 95, 189 82, 87, 95–97, 99, 100, 119–20, 123–24,
nuclear weapons, 3, 6, 32–33, 34–35, 47, 126–28, 132, 136, 140–42, 143–44,
59–60, 91–92, 94, 111–12, 184, 185, 145–46, 147–48, 166–67, 168, 169,
189, 190, 194, 201–2, 265–67, 284–85 173–74, 181, 184–86, 222, 224, 229–30,
231, 232, 233–35, 236–41, 242–43, 247,
Oberth, Herman, 2–3 249, 250, 251–52, 253, 255, 256, 265–
orbit, 26–27, 49, 94, 110, 114, 165, 208–9, 66, 268–69, 275, 277, 278, 283, 284–85,
232, 256–57, 273, 275, 283 289–91, 292, 294, 297, 299, 304
organization, 63, 69, 73, 85, 123, 149– Prevention of an Arms Race in Space
50, 155–56, 165, 190–91, 222, (PAROS), 56–57, 59–60, 88, 98, 99,
230–31, 234t 100–1, 181, 185, 188–89, 268–69,
outer space 279, 288–89, 290, 293–94
debris, 7–8, 26, 27, 48–49, 56, 63, 68–69, proportionality
78, 88–89, 143, 234t, 257, 268–69, Protocol, 31, 34–35, 36, 38, 40, 41–42,
271–72, 306–7 43–44, 46, 48, 260–61
security, 7–8, 14–16, 18–20, 23–24, proximity operation, 233
26–27, 28, 39–40, 61, 93–94, 97, 101,
109, 110, 111–12, 114, 119, 123, 127, regime, 103, 114
148, 153–54, 155–56, 162–64, 166– resource activities, 224
67, 182–83, 188, 190–91, 198, 201–3,
206–9, 218–19, 222, 223, 224, 226– San Remo Manual, 38, 42, 52–53, 209–10,
27, 229, 230–31, 233, 234t, 235, 236, 211, 212, 213–14, 215–16, 218–19, 221
312 Index
satellite, 3, 6–7, 25–27, 28, 39–40, 45, 78– Treaty on the Prevention of the Placement
79, 80, 86, 99, 111–12, 114–15, 119, of Weapons in Outer Space and on
120, 136, 140–41, 184–85, 201–2, the Threat or Use of Force in Outer
230, 233–35, 236, 237, 239–40, 250, Space (PPWT), 10, 18, 59–60, 75,
255, 256, 261–62, 268, 273, 275, 283, 96–97, 100, 185–87, 188–89, 247,
284, 289–90 248–49, 250, 251–54, 263, 289, 290–
security, 7–8, 14–16, 18–20, 23–24, 26–27, 91, 297, 299, 304
28, 39–40, 61, 93–94, 97, 101, 109,
110, 111–12, 114, 119, 123, 127, 148, unilateralism, 188, 265
153–54, 155–56, 162–64, 166–67, Union of Soviet Socialist Republics
182–83, 188, 190–91, 198, 201–3, (USSR), 2–3, 4, 6–8, 28–29, 59–60,
206–9, 218–19, 222, 223, 224, 226– 111–12, 114–15, 118–20, 137–38,
27, 229, 230–31, 233, 234t, 235, 236, 140–41, 181, 182–83, 201–2, 218–19,
242, 252, 267, 268–70, 271, 274, 277, 249, 256, 258–59, 260–61, 263, 273–
278, 287, 291, 295, 296, 306–7 74, 276–77, 278, 289–90
space arms control, 17–18, 119–20, 134, United Nations Charter, 18, 57, 76, 91, 93–
148–49, 165, 181–82, 190–91, 247, 94, 111–12, 113–14, 121, 193, 201–2,
265–66, 279, 283 206–8, 227
space domain awareness (SDA), 78–79, Article 39, 207–8
241, 243, 244 Article 41, 207–9
Space Force Article 42, 94, 207–9
United States, 9, 15, 16, 23–24, 28, 120, Chapter VII, 18, 93–94, 201–2, 206–7,
153–57, 159–61, 162, 163, 164–67, 208, 227
169, 170–71, 172–75, 176, 177–78, United Nations Convention on the Law of
234t, 252, 294–95, 301 the Sea (UNCLOS), 97, 183, 193–94,
space object identification zone (SOIZ), 195–96, 201–2, 226–27
222, 223, 224 United Nations Disarmament
space power, 23–24, 29, 99, 124, 162, 275 Commission (UNDC), 297
space security, 56–57 United Nations General
Space situational awareness (SSA), 49, 78– Assembly (UNGA)
79, 80, 81, 83, 84, 303, 307–8 resolutions, 111–13, 115–17, 118, 185,
Sputnik 1, 4, 110–12, 114–15, 175, 188, 189, 288–89, 291, 292, 293–94,
208, 256 296, 298, 299
START, 258–59, 260–61 United Nations Group of Governmental
State practice, 33, 64, 70–71, 74, 183, 197, Experts (GGE), 56, 60–63, 67, 69, 71,
221–22, 227, 284–85 72, 74, 75, 76, 77, 78–79, 81, 82, 83,
Strategic Arms Limitation Talks (SALT), 6, 87, 88–89, 99, 100–1, 247–48, 251,
259, 260–61, 273–74 269–70, 289, 291–92, 293–94, 296–
97, 298, 299
Tallinn Manual, 50, 52–53, 208, 235 United Nations Office of Outer Space
telemetry, 258, 260–61 Affairs (UNOOSA), 62, 70–71, 77,
telemetric information, 260–61 80, 82, 86, 102
Thucydides Trap, 124, 126–27, United States, 1–3, 4, 6–11, 15, 16, 18–19,
141–42, 147–48 23–24, 25–27, 28–29, 32, 35, 38, 43,
transparency and confidence-building 45, 49–50, 59–60, 61, 65, 66, 69, 75–76,
measures, 19, 87, 247, 248, 249, 252– 77, 78–79, 80, 82, 83–84, 85–86, 87,
53, 254–58, 259, 261–63, 291, 293–94 88, 96–97, 98, 99–100, 101, 111–12,
treaties, 57, 93–94, 103, 211, 249, 259 114–16, 118–20, 123–24, 126–30, 131,
Index 313
132–33, 134–39, 140–42, 143–44, 145– weaponization, 23–24, 25, 48–49, 93–94,
48, 149–50, 153–54, 155–56, 159–60, 96–97, 114, 145, 183
164–67, 168, 169, 170–72, 173–74, 176, weapons, 10, 26, 28, 29, 32–33, 34–35, 38,
177–78, 181, 184–87, 191, 192, 198–99, 47, 59–60, 75, 94, 96–97, 102, 110,
201–2, 203–4, 210, 215–16, 218–19, 111–12, 114, 119, 175, 182, 184–86,
220–21, 223, 229–30, 231, 232, 233, 188–89, 194, 201–2, 208–9, 247, 249,
234t, 236, 240–41, 242–43, 247, 248, 251–52, 265–66, 268–69, 271, 283,
249, 250–54, 256, 258–59, 260–61, 263, 284–85, 289, 293, 304
265–66, 267, 268–69, 271, 272, 273–74, Woomera Manual on the International
275, 276–77, 278, 280–81, 283, 284–85, Law of Military Space Operations
288–91, 295, 301–2, 304, 305 (Woomera Manual), 52–53, 87–88,
285, 306–7
V2, 3 World Health Organization
verification, 18, 148–49, 249, 259 (WHO), 104–5
von Braun, Wernher, 2–3 World Trade Organization
(WTO), 104–5
warfighting
domain, 162–63, 233–35, 234t, zone, 210, 211, 212, 213–14, 216, 218, 219,
243, 294–95 222–23, 224

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The Oxford Series in Ethics, National Security,

About the Series

With a foreword from Lieutenant General David D. Thompson,

Published in the United States of America by Oxford University Press

© Oxford University Press 2021

You must not circulate this work in any other form

Library of Congress Cataloging-​in-​Publication Data

(Based on the Declaration of Principles jointly adopted by a Committee of the

Foreword by Lt. Gen D. Thompson, U.S. Space Force  vii

1. International Humanitarian Law and Its Application in

4. Peaceful Purposes for the Benefit of All Mankind: The Ethical

6. What Should the Space Force Do? Insights from Spacepower

8. The Legality of Keep-​Out, Operational, and Safety Zones

10. A Proposed Transparency Measure as a Step Toward Space

Conclusion: Cooperation, Collaboration, and Communication

In April 2018, I had the opportunity to participate in a conference on the use of

Matthew Hersch is an Associate Professor of the History of Science at Harvard University

Icho Kealotswe-Matlou is an independent legal and policy expert in space law. An

Dale Stephens is a Professor of Law at the University of Adelaide Law School. He is a

The History of War in Space

1 See generally Michael J. Neufeld, Spaceflight: A Concise History (2018); Roger D.

Launius, NASA: A History of the U.S. Civil Space Program (1994).

Fueled by postwar superpower competition in the early years of the Cold

6 Frank J. Malina, Interview with Frank J. Malina (1980), 14, <http://​resolver.caltech.edu/​

CaltechOH:OH_​Malina_​F> (accessed Oct. 23, 2017).

Comparisons between the space environment and other battle environ-

9 “Speech to Democratic Congressional Conference, January 7, 1958,” reproduced in Lloyd C.

fas.org/​spp/​starwars/​program/​soviet/​990600-​bmd-​rus.htm> (accessed Mar. 1, 2020).

Nuclear Strategy (1987).

(Nov. 16, 2015), <https://​www.popularmechanics.com/​military/​weapons/​a18187/​here-​is-​the-​

com/​5006-​navy-​hits-​satellite-​heat-​seeking-​missile.html> (accessed Apr. 20, 2020).

<https://​orbitaldebris.jsc.nasa.gov/​quarterly-​news/​pdfs/​odqnv12i1.pdf> (accessed Apr. 20, 2020), in

friction to slow debris particles enough to eventually re-​enter the atmosphere.

france24.com/​en/​20190713-​macron-​france-​space-​force> (accessed Apr. 20, 2020).

Third, there is a geopolitical standoff on negotiating new international

Scope of the Study

The Law of War and Peace in Space

undertaken in accordance with international law, have served to keep space a

to legally binding commitments in space (as in many other arenas affecting

The Ethics of Space Security

of achieving U.S. space dominance in an effort to prevent potential adversaries

Current and Future Threats to Space Security

armed conflict, compound this problem. If there are terrestrial-​based tensions

As we argue in our concluding chapter to this volume, there is some measure of

Air Force Law Review 1, 4 (n.4) (2000).

(Dec. 8, 2014), <https://​spacenews.com/​42895object-​2014-​28e-​benign-​or-​malignant/​> (accessed

<https://​www.uscc.gov/​Annual_​Reports/​2015-​annual-​report-​congress> (accessed Dec. 5, 2019).

National Post (Nov. 24, 2019), <https://​nationalpost.com/​news/​canada/​canadas-​u-​s-​nato-​allies-​

The Weaponization of Space

The 1967 Treaty on Principles Governing the Activities of States in the

Department of Defense, June 2015), para. 14.10.3.1.

Information Center, <https://​www.dtic.mil/​doctrine/​new_​pubs/​jp3_​14.pdf>.

Quarterly 124, 125 (2012).

antisatellite weapons (ASATs), co-​orbital ASATs, electromagnetic pulse (EMP)

Kinetic Antisatellite Weapons

ASAT weapons are primarily surface-​to-​space and air-​to-​space missiles. The

Source Assessment, Secure World Foundation (2019), <https://​swfound.org/​counterspace/​>

Library of Congress Cataloging-in-Publication Data

Foreword by Lt. Gen D. Thompson, U.S. Space Force  vii

8. The Legality of Keep-Out, Operational, and Safety Zones

6 Frank J. Malina, Interview with Frank J. Malina (1980), 14, <http://resolver.caltech.edu/

CaltechOH:OH_Malina_F> (accessed Oct. 23, 2017).

fas.org/spp/starwars/program/soviet/990600-bmd-rus.htm> (accessed Mar. 1, 2020).

(Nov. 16, 2015), <https://www.popularmechanics.com/military/weapons/a18187/here-is-the-

com/5006-navy-hits-satellite-heat-seeking-missile.html> (accessed Apr. 20, 2020).

<https://orbitaldebris.jsc.nasa.gov/quarterly-news/pdfs/odqnv12i1.pdf> (accessed Apr. 20, 2020), in

friction to slow debris particles enough to eventually re-enter the atmosphere.

france24.com/en/20190713-macron-france-space-force> (accessed Apr. 20, 2020).

armed conflict, compound this problem. If there are terrestrial-based tensions

(Dec. 8, 2014), <https://spacenews.com/42895object-2014-28e-benign-or-malignant/> (accessed

<https://www.uscc.gov/Annual_Reports/2015-annual-report-congress> (accessed Dec. 5, 2019).

National Post (Nov. 24, 2019), <https://nationalpost.com/news/canada/canadas-u-s-nato-allies-

Information Center, <https://www.dtic.mil/doctrine/new_pubs/jp3_14.pdf>.

antisatellite weapons (ASATs), co-orbital ASATs, electromagnetic pulse (EMP)

ASAT weapons are primarily surface-to-space and air-to-space missiles. The

Source Assessment, Secure World Foundation (2019), <https://swfound.org/counterspace/>

3, <https://orbitaldebris.jsc.nasa.gov/newsletter/pdfs/ODQNv12i1.pdf>, in P.J. Blount, Targeting in

2008), <https://www.nytimes.com/2008/02/21/us/21satellite.html?_r=0> (accessed Mar. 30, 2020).

India (Mar. 27, 2019), <https://timesofindia.indiatimes.com/india/india-joins-super-space-club-

cnet.com/news/air-forces-space-fence-passes-debris-test/> (accessed Dec. 6, 2019); Caleb Henry,

Co-orbital ASATs are rocket-launched objects that achieve a similar orbital

An electromagnetic pulse (EMP) is created when a high-altitude nuclear explo-

13, 2009), <https://www.newscientist.com/article/dn16604-satellite-collision-more-powerful-than-

“Soft-Kill” Weapons: Cyberattacks, Jamming, Altering,

www.bbc.co.uk/news/magazine-35130478> (accessed Dec. 5, 2019).

38 See, e.g., Jean-

The general principles of humanity and military necessity are well-known

72 Encounter 1802, <https://www.slsa.sa.gov.au/encounter/1802.htm> (accessed Dec. 5, 2019).

73 The Hague Rules of Air Warfare, Dec. 1922–Feb. 1923, <https://lawofwar.org/hague_rules_of_

air_warfare.htm> (accessed Dec. 5, 2019).

NWP 1-14M (2007) [Navy Commander’s Handbook], art. 8.1.1, <https://www.lawofwar.org/naval_

Journal of Space Communication (2004), <http://spacejournal.ohio.edu/issue6/perspectives1.

Linked to Government Priorities/Departments (2012), <https://www.asc-csa.gc.ca/pdf/solintermed-

items such as oxygen-and water-generating facilities, as well as return rockets

(May 19, 2014), <https://www.gps.gov/policy/cooperation/china/2014-joint-statement/> (accessed

Engineering (Mar. 2011), 1, 3, <https://www.raeng.org.uk/publications/reports/global-navigation-

Humanitarian Policy and Conflict Research at Harvard University, <https://ihlresearch.org/amw/

115 David Kennedy, Of War and Law 96–97 (2006).

118 Fengyun-1C Debris: One Year Later, supra note 19.

cnet.com/news/air-forces-space-fence-passes-debris-test/> (accessed July 15, 2019); Caleb Henry,

126 The Woomera Manual, <https://law.adelaide.edu.au/woomera/home> (accessed July 17, 2019).

<https://www.mcgill.ca/milamos/> (accessed Dec. 27, 2019).

Indeed, norms and transparency and confidence-building measures (TCBMs)

oosa/en/ourwork/spacelaw/treaties.html> (accessed Apr. 14, 2018).