Outer Space Arms Control: Can the USA, Russia and China Make this Happen

Outer Space Arms Control: Can the USA, Russia and China Make this Happen Abstract This article describes the existing outer space military strategies of the three superpowers. The USA is the predominant military power in outer space. It wants to maintain that posture. It is being challenged by Russia and increasingly by China. In response the USA is increasing its defensive and offensive military capabilities, Russia, and increasingly China, are likewise escalating their capabilities. The sure consequence of the current arms escalation is disaster for all parties and is in nobody’s best interest. Even limited engagements would increase space debris beyond that which is tolerable and would close access to outer space for everybody. Neither the UN Disarmament Conference nor the UN Committee for Peaceful Uses of Outer Space are able to agree how to constrain the escalating weaponization of outer space. The new US President is expected soon to convene a committee to draft new US space policy. This article urges US adoption of a policy of direct diplomatic engagement with Russia and China in order to place constraints on the weaponization of outer space. 1. Introduction: Military Practices and Developing Policies: USA, Russia, China and European Union1 Three states–the USA, Russia and China–possess significant military space technology and have developed policies and attitudes about military uses of outer space. The USA maintains a predominant role,2 seeking to protect against increasing encroachments by Russia and China. The three superpowers are fierce competitors who are willing to do what it takes to remain competitive with each other. The European Union, India and Japan are active participants in military space policy formation. On the fringe is the rogue state of North Korea. On the fringe are also the increasingly active non-governmental entities such as INTELSAT, SES, Eutelsat and Space-X, which depend on peace in outer space to operate commercially. All are subject to the prevailing international space law treaties. Beyond the treaties there is no secure legally binding agreement among the parties.3 Except for North Korea, however, States share a general wish to avoid conflicts in outer space. This article explores not only the history of the world’s current dangerous space arms race. It examines the fora for achieving mutual de-escalation of space weaponry. It concludes that an independent understanding between the US, Russia and China is possible. 2. The United States This section addresses the recent chronology of US military space policy. It explains how US military space policy developed from the Bush–Rumsfeld era of unilateralism to the current base line of international interaction established by the 2010 White House Space Policy Statement. That policy was subsequently implemented by the US Department of Defense (DOD) and the US Intelligence Community in their 2011 National Security Space Strategy and again in the 2012 DOD Space Policy and most recently in the 2016 Air Force Space Command’s Space Enterprise Vision. Military space policy has been actively discussed in the recent space policy news and literature.4 To what extent is military space policy mixed with, or even at odds with political policy? The natural inclination of the military is assertive defense, while in an increasingly weaponized world political policy is leaning toward détente. Given current military–political tensions, what are the prospects for international arms control in outer space? These issues are expected to be reviewed by a White House policy task force as soon as the new US President takes office in 2017. A. Bush–Rumsfeld Era of Unilateralist Policies 1998–2008 The US has in the past issued a number of documents and reports that contemplate and even recommend active military uses of outer space. The 1998 Rumsfeld Commission reported on ballistic missile threats to the US and warned of a ‘space Pearl Harbor’, unless the US made itself ready to defend its space assets.5 In 2001 a second Rumsfeld report considered US requirements in space.6 This bulky document concluded that throughout history land, sea and air have all seen conflict, and space would be no different. It resolved that outer space had to be a top US national security interest and US military power should therefore be extended into it. The Rumsfeld Commission concluded that the US considers its national security to be ‘critically dependent’ on its space capability, and that this dependence would grow.7 Since then the US Air Force Space Command adopted a Strategic Master Plan for a 25-year period which is revised on a two-year cycle.8 These Plans contemplated inter alia the deployment of non-nuclear space-based weaponry. The ‘Joint Doctrine for Space Operations’ of 2002,9 complemented by the Air Force ‘Counterspace Operations’ of 2004,10 show how US military thinking as to potential use of outer space had developed at that time.11 These plans are reflected in section 5 of the 2006 (Bush) Statement on National Space Policy. Bullet point 5 of section 2, ‘Principles’ states: 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 protect its space capabilities; respond to interference; and deny, if necessary, adversaries the use of space capabilities hostile to US national interests. The 2006 US policy is in line with the suggestions of the 2001 Rumsfeld Commission regarding organization and use of military forces in outer space. The 2006 policy favoring unilateral action in outer space may be viewed as a ‘unilateralist vision of the US role in space’ and ‘as a step towards weaponization of space’.12 What the 2006 statement engendered was a debate on ‘the lawfulness of the deployment of conventional weapons in outer space under public international law’.13 B. The Obama Era: Moving from International Cooperation in 2010 toward offensive Capability in 2013–201614 (i) 2010 White House policy statement Review of the unilateralist policy of the 2006 Presidential policy statement led to the 2010 US presidential policy recognizing the inherent international nature of outer space and the need for international cooperation. The 2010 policy stresses the following six principles: (a)The strategic environment: ‘The now-ubiquitous and interconnected nature of space capabilities and the world’s growing dependence on them mean that irresponsible acts in space can have damaging consequences for all [States].’ In the US view15 all outer space stakeholders are struggling to operate in an increasingly degraded environment. There are about 1300 actively operating satellites in orbit; there are hundreds of thousands of man-made debris objects in orbit of which the US is able to track in excess of 23000 large objects. There is strong competition for scarce resources like orbital slots and radio frequencies. The US military must compete for room to operate in this increasingly difficult environment. Thus maximum order and rationality are desirable objectives. (b) International stability: ‘To promote security and stability in space, the US will pursue activities consistent with the inherent right of self-defense, deepen cooperation with allies and friends, and work with all nations toward the responsible and peaceful use of space.’ In the US view16 the UN Charter, Article 51, incorporated into the Outer Space Treaty by its Article III, assures States the right of self-defense in outer space.17 Consistent with the self-defense limitation military activities are permitted, although the US states that it intends to promote peaceful and safe activities in outer space. The US intends to cooperate with other States and with commercial space activities. However, consistent with and subject to Article 51, the US will deter foreign unfriendly activities. The legal right of self-defense is not unlimited; there is a time contingent. The right of self-defense only exists ‘until the Security Council has taken measures necessary to maintain international peace and security’. Actual threats to use force in outer space are subject to UN Security Council jurisdiction pursuant to the UN Charter Chapter VII. However, it may take some time for the Security Council to act in a degraded environment where there are many competing claims. Having the capability to engage in military outer space activities is in itself important, because that is powerful leverage. Ultimately, however, the US preference is to cooperate with other States in establishing order and stability in outer space,18 so as to avoid the chaos that would result from military engagements in outer space. (c) Preference for international cooperation over military intervention: ‘All nations have the right to use and explore space, but with this right also comes responsibility. The United States, therefore, calls on all nations to work together to adopt approaches for responsible activity in space to preserve this right for the benefit of future generations.’ As follow-up policy19 the US supports maximum safety in military, civilian and commercial outer space activities. Thus it is US policy to join both civilian and commercial operators in coordinating outer space operations in international fora such as the UN Committee for the Peaceful Uses of Outer Space (COPUOS), International Committee on Global Navigation Satellite Systems and the UN Platform for Space-based Information for Disaster Management and Emergency Response.20 The US favors ‘common international data standards and data integrity measures’ and will seek other ways to improve space flight safety.21 Importantly the US will consider new arms control measures for international outer space operations ‘if they are equitable, effectively verifiable, and enhance the national security of the United States and its allies’. Furthermore, the US will promote space situational awareness (SSA) and will share data tracking information about outer space objects for the purpose of improving the safety of outer space traffic. (d) Cost effectiveness: ‘[B]eing able to deliver capability cost-effectively when it is needed improves mission effectiveness, provides leadership with flexibility in making investments and precludes gaps in capabilities.’ The US22 has considerable space capability which it intends to provide to military as well as to civilian users. The US will improve interoperability and accuracy of its space services. It will make its space data collection available to the public at the lowest possible security classification. The US has liberalized export controls on space materials.23 By lowering the barriers to accessing US space technology, the US technology becomes more widely available to other countries. Greater availability benefits not only the immediate users of technology; it benefits the entire chain of technology producers from the final assembler down to the second and third tier suppliers. For example, under the liberalized policy, third-tier suppliers will be able to supply foreign manufacturers of space products. The US intellectual and academic partnerships with foreign counterparts will also be easier to arrange, thus encouraging advances in space sciences. The US plans to build capacity and education in space sciences not just domestically, but also abroad and not just among academics but also at the technical and entrepreneurial levels. (e) With greater emphasis on international cooperation, with less emphasis on unilateralism, the US will: ‘explore opportunities to leverage growing international and commercial expertise to enhance U.S. capabilities and reduce vulnerability of space systems and their supporting ground infrastructure’. Consequently,24 it is the US policy to cooperate with other States ‘ensuring global access to the radiofrequency spectrum and related orbital assignments and promoting the responsible peaceful and safe use of outer space’. Furthermore, the US will seek greater interoperability and compatibility of US networks with foreign networks. It is US policy to integrate foreign space technology into US systems. Thus the US global navigation satellite system (GNSS) will be made interoperable with non-US GNSS systems. The US will also make SSA data available to other countries in order to affect greater safety and order in outer space. Furthermore, the US military forces intend to work closely with, and take advantage of, commercial space technology. ‘Strategic partnerships with commercial firms will be pursued in areas that both stabilize costs and improve resilience of space architectures upon which we rely.’ The US military will prefer commercial space services over military services. It will only develop its own space services when adequate commercial services are not available. The US is aware that, to the extent that the US military employs commercial space services, it is also becoming dependent on those services. Such dependence could result in the US being compelled to defend foreign attacks on those commercial services. The line between military and civilian–political concerns is increasingly difficult to discern.25 (f) Preservation of a strong US military deterrence capability: ‘U.S. Forces must be able to deter, defend against, and defeat aggression by potentially hostile nation-states. This capability is fundamental to the nation’s ability to protect its interests and to provide security to key regions.’ It is a priority of the US military26 to improve and share space situational awareness and to gather intelligence about outer space activities. Predicting, characterizing and attributing activities in outer space can diminish the chances of being surprised by a ‘space Pearl Harbor’. The US military especially wants to ensure that it will be capable of operating in a space environment that is degraded by foreign attacks, excessive space debris, scarce radio frequency and orbital resources, and other obstacles. (g) Infrastructure support for civilian partners. The US will: ‘[I]ncrease assurance and resilience of mission-functions enabled by commercial, civil, scientific, and national security spacecraft and supporting infrastructure against disruption, degradation and destruction, whether from environmental mechanical, electronic, or hostile causes.’ The US27 intends to be fully capable of using military force in outer space to support activities of non-governmental entities to the extent permitted by international law. That includes the right of self-defense allowed by Article 51 of the UN Charter. The US may deploy land, sea, air, space and cyber-based alternatives from space-based platforms. In conclusion, the 2010 US policy statement indicated a welcome shift towards international cooperation and away from unilateral military action in outer space.28 The increasing US dependence on commercial space is interesting because it assumes that military and commercial space policies are compatible. However, one can imagine situations where they would conflict. For example suppose a commercial operator on its own initiative acts in violation of the Outer Space Treaty (OST). Such acts would cast responsibility on the USA as the authorizing state under OST Article VI, which in turn could drag the US into confrontation with another state. Thus the interdependence of military and commercial policies easily entails dangers of military conflicts. The US military deterrence will be subject not only to the military rules of proportionality of response. It will also be subject to new policy guidance from the new President that may contain new outer space arms control regulations that are coordinated with other States for implementation by the Department of Defense. Having the technical capability to dominate outer space militarily and considering the past claims of authority to act unilaterally in outer space, the Air Force Space Command has a natural inclination to use military technology despite shifts in policy. It is thus interesting to note the 2012 official US DOD space policy statement.29 The sustainability and stability of the space environment, as well as free access to and use of space, are vital to U.S. national interests. Purposeful interference with U.S. space systems, including their supporting infrastructure, will be considered an infringement of U.S. rights. Such interference, or interference with other space systems upon which the United States relies, is irresponsible in peacetime and escalatory during a crisis. The United States will retain the capabilities to respond at the time and place of our choosing. This DOD policy statement may appear to be a greater assertion of right to unilateral action. However, the same DOD document also states that in order to deter military attacks, DOD will (i) support international safety, stability and security standards for outer space activities; (ii) enforce the international space debris mitigation guidelines; (iii) support an international code on safe traffic management, including coordination, space situational awareness and transparency of operations; (iv) engage in closer cooperation with other states in order to avoid misunderstandings and mistakes; (v) share spaceflight tracking data with the commercial operators; and (f) abide by treaty obligations. (ii) The de facto policy 2013–2016 In 2013, US military space policy clearly shifted away from an emphasis on diplomacy, combined with military enforcement capability, toward an emphasis on military offensive capability. The policy shift was caused by launch of an alleged Chinese anti-satellite missile (ASAT) to near geostationary altitude (36 000 kilometers). At the same time Russia and China also maneuvered similar satellites in low earth orbits (LEO). These maneuvers caused a ‘quiet panic’ among US military intelligence officials which in turn caused a change in priorities involving a hardening of US military attitude with increased US space weaponization. The US policy moved back towards the unilateral Bush era policy.30 In 2016, the US Air Force Space Command is assigned enforcement responsibility for US military activities in outer space. Space Command asserts that it ‘is prepared to fight through and win in a contested, degraded and operationally-limited environment’.31 War fighting is the task and inclination of the Air Force Space Command. That includes its task of protecting the very substantial US outer space assets as well as being prepared to attack the space assets of other countries, including preemptive strikes. The more activist policy is supported by President Obama. The escalating weaponization of outer space is implied in the recent White House statements supporting military deterrence to foreign attacks.32 The DOD plans an additional annual budget of $5.5 billion for outer space military activities and projects spending additionally $60 billion on military outer space programs in the next 5 years.33 Analysis of the 2001 Rumsfeld report and China’s 2007 use of its ASAT to destroy its own satellites as well as subsequent reports of Chinese military activities in outer space are used as justifications for the large DOD budget allocation.34 The objective appears to be to preserve US military predominance in outer space. On 12 April 2016 the military Commander of Air Force Space command, General Hyten, announced the most recent mission of his more than 38 000 ‘warfighters’:35 He stated that although ‘In the recent past, the United States enjoyed unchallenged freedom of action in the space domain’, that is no longer the case. He announced that a new and comprehensive ‘Space Enterprise Vision’ is necessary to oppose new and additional threats. It will coordinate the multiple defensive units of the USA including other DOD units as well as the military and civilian intelligence community.36 The focus of 2016 US policy on military uses of outer space is on fighting wars rather than on arranging peaceful coexistence in outer space by diplomacy. The US outer space military policy is drifting back to the times of the Rumsfeld Commission of 2001. The current space policy situation is ripe for review of national and international priorities by a new White House policy task force to be assembled by the next US president who will assume leadership in January 2017. Whereas the military interests appear to dominate 2016 policy-making, new White House space policy formation should represent all the interested stake holders, military as well as civilian, new government leaders as well as non-government entities. Now is the opportunity for commercial operators, the space industry and experts interested in peaceful uses of outer space to evaluate existing policy and to help establish new policy guidance for international negotiations that will deescalate the arms race in outer space.37 New policymakers will have to consider the legal restrictions of the Outer Space Treaty and other international laws to develop a compromise with the two other major space powers, Russia and China, to end the arms race in outer space. Such a policy review will have to include examination of the military space policies of other interested States and non-governmental entities. 3. Russia’s Proposal to End the Arms Race in Outer Space, Excepting ASATs Russia is a party to all the space law treaties except the Moon Agreement. Russia, like the USA and China, is one of the three superpowers having not only space technology but also significant space military capability. Russian space policy was originally aimed at gaining military supremacy in outer space. Sputnik, launched in 1957, was a military space object. During the cold war Russia developed its Fractional Orbital Bombardment Systems (FOBS). It was an Intercontinental Ballistic Missile System (ICBM) which could be placed in orbit and then used to attack targets from that orbit. However, in the 1970s Russia adopted a policy of international arms control in outer space and concluded the 1979 SALT II treaty which prohibited ‘systems for placing into Earth orbit nuclear weapons or any other kind of weapons of mass destruction, including fractional orbital missiles’. Russia also entered into the Anti-Ballistic Missile (ABM) Agreement with the United States which significantly reduced the threats to the two countries. However, subsequently the USA wanted freedom to engage in a space-based Strategic Defense Initiative (SDI). In 2001 the USA denounced the ABM agreement. Being concerned about assuring access to outer space, Russia began to rebuild and upgrade its outer space military capability. It has now established a separate military branch called the Russian Space Forces. Russia also adopted an official policy favoring peaceful uses of outer space. Today, Russia’s stated current policy objective is to demilitarize outer space and turn it into a weapons-free zone.38 Russia expresses the view that ‘space is a “common heritage of mankind” and should be used for scientific research benefitting development and progress of the globe’.39 In 2004, Russia unilaterally declared that it would not be the first to introduce weapons into outer space. Russia and China have proposed a draft treaty on prevention of an arms race in outer space (PAROS) most recently called the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects (PPWT).40 In its public statements Russia strongly prefers a treaty instrument banning weaponization of outer space. The PAROS proposal was opposed by the USA on the grounds that it is not sufficiently comprehensive because it does not include Earth-based ASAT’s; furthermore that PAROS lacks sufficient means of verification and that PAROS should include sensors located in outer space. Russia was one of the main supporters of the 2015 United Nations General Assembly (UNGA) Resolution on Prevention of an Arms Race in Outer Space; and of a second Resolution called No First Placement of Weapons in Outer Space.41 These proposals would not replace existing limitations. They would be in addition to the existing limitations on military activities in outer space. Both resolutions were adopted by the UNGA with overwhelming majorities, but both were opposed by the USA. On the other hand, Russia has not supported the European Union’s proposed Code of Conduct for Outer Space,42 which is supported by the USA. Russia ‘s preferred strategy is to discuss all issues relating to weaponization of outer space at the Geneva venue of the UN Conference on Disarmament (CD).43 By contrast, other States view the CD as a dead-end for arms control in outer space and have favored shifting all or part of the arms control discussions to COPUOS, which succeeded in negotiating space arms control in the 1967 Outer Space Treaty. Russia and the US stand fast on their basic positions: The US appears determined to retain military dominance, and Russia appears determined to challenge that policy. Currently, a middle ground does not appear to be in sight. They cannot even agree on a venue for meeting to discuss the issues. 4. China’s Growing Competitive Role in the Outer Space Arms Race China is the third major space power possessing significant military capability in space. Its military space capability is increasing and may now exceed that of Russia. China has both intercontinental ballistic missiles as well as anti-satellite capability and its national security stake in outer space is rapidly growing. Despite recent ASAT activity in outer space, Chinese space policy allegedly is committed to the legal principles of the international space law treaties, with the exception of the Moon Agreement. China participates actively in the proceedings of the COPUOS and of the Conference on Disarmament.44 China’s policy on military uses of outer space generally tracks that of Russia. The scope and magnitude of Chinese military space policy is growing commensurate with the escalating US military activities outer space. China aims for balance in international military space relations. Thus it is possible to view Chinese space policy in the context of, and possibly as a product of, advancement in US military deployment. But it is also possible to view China’s growing military space capability as essentially self-motivated. China now considers outer space to be the new strategic high ground and military control of outer space is vital.45 This military policy includes space-related terrestrial activities. All Chinese security-conscious space launch activities are subject to control by the Chinese military (PLA). Space reconnaissance, communication, meteorology, navigation and electronic intelligence are subject to PLA control.46 Lack of Chinese national space law implementing the OST could lead to uncoordinated military decision making by the Chinese military authorities. The origin of China’s space technology is closely linked to Russian space technology and there are continuing aspects of Chinese cooperation with Russia. In the UNGA China and Russia co-sponsored the UNGA resolutions described above.47 China co-sponsored the draft Treaty on the PPWT in the Conference on Disarmament.48 China supports Russian efforts to keep discussion of military space in the UN Conference on Disarmament rather than move the discussion to COPUOS.49 Dominance of space, including both defensive and offensive military capability, is a Chinese policy objective. China’s decision in 2007 to use one of its ASAT missiles to destroy its own defunct weather satellite, thereby placing extensive amounts of space debris into the busy LEO orbit, showed not only that China has space weapons but is determined to use them whenever it chooses. 50 China has also developed a satellite earth observation program capable of reconnaissance. China now supports the COPUOS guidelines limiting increase of space debris in outer space. While China strongly supports Russia’s efforts to establish a treaty preventing an arms race in outer space,51 both China and Russia oppose the European Union’s proposed Code of Conduct52 for outer space activities, which is intended to deescalate prospects and causes of military action in outer space. Other indications of Chinese space policy are that China strongly prefers the treaty approach to preventing an arms race in outer space. China has expressed apprehension of US policy movements towards unilateralist military activities in outer space.53 5. European Union’s Proposed Code of Conduct for Outer Space The original Code of Conduct proposal would establish guidelines for all activities, military and civilian, taking place in outer space.54 Such guidelines would be directed less at the legality of weapons in outer space than insuring transparency so that states can avoid accidental war in outer space. For that purpose all space-faring states would observe agreed rules of behavior.55 The need for the EU proposal for a Code of Conduct for outer space activities may best be illustrated by the consequences of the Chinese destruction of its own disabled weather satellite by their anti-satellite weapon in 2007. The weather satellite was in a low Earth orbit above the surface of the Earth, not very far from the orbital height of the space station. The defunct weather satellite scattered into thousands of space debris all of which pose a great collision hazard for present and future satellites.56 The Code of Conduct would establish ‘Rules of the Road’ for outer space activities. There are essential international Rules of the Road for maritime activities on the high seas and for air traffic in air space, but there are none for activities in outer space. By following pre-established rules, the various actors would know the locations and intentions of other actors permitting them to avoid hazards.57 The proposed International Code of Conduct for Outer Space Activities is thus an attempt to establish rules of behavior for outer space activities. The following discussion will focus on those parts of the code that would most affect military activities in outer space. The latest Code of Conduct draft (2015)58 would seek to limit an arms race in outer space ‘recognizing that it is in the shared interests of all states to reinforce international norms for responsible behavior in outer space’ (Preamble). The following voluntary guidelines would apply: Both governmental and non-governmental activities in outer space would be guided by the Code. States would ‘refrain from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the purpose of the United Nations Charter, and the inherent right of states to individual or collective self-defense as recognized in the Charter of the United Nations’. Furthermore, States would ‘take all appropriate measures to prevent outer space from becoming an arena of conflict’. States would honor their existing outer space commitments States would agree ‘to minimize the risk of accidents in space, collisions between space objects, and any form of harmful interference with another State’s peaceful exploration, and use of outer space’. Furthermore, States would ‘refrain from an action which brings about, directly or indirectly, damage, or destruction, of space objects unless such action is justified under the following circumstances: by imperative safety considerations, in particular if human life or health is at risk; or in order to reduce the creation of space debris; or by the Charter of the United Nations, including the inherent right of individual or collective self-defense’. States would minimize the risk of collision and observe the 2007 COPUOS space debris guidelines as implemented by domestic regulations. States would give other States adequate advance notice of their planned activities in order to avoid surprises. Other States would be informed of planned exercises, as well as launches of new space objects, possible disintegration of satellites, their consequent space debris and other dangerous events. Such notices would be sent to a central communication center established under the Code of Conduct or sent through diplomatic channels States, which accept the guidelines, would share with each other information about security-related policies and strategies, about their major research projects, their rules for avoiding accidents and collisions. Those States, which accept the guidelines and which believe that they would be affected by the space activities of other States, would have the right of consultations in order to avoid the occurrence of dangerous situations in outer space and to minimize possible damages. Other subscribing states would also have rights to participate in such consultations. States, which accept the Code of Conduct, would meet periodically to review the Code and to improve it. Decisions would be made by a consensus of the participating states. Participating States would establish a central meeting point for their first meeting. International organizations, such as ESA, would be eligible to participate in the Code of Conduct. The most recent draft Code of Conduct for Outer Space Activities has been diluted considerably since the original proposal by the Stimson Center.59 For example, Principle 2 of the Stimson proposal that States shall not use directed energy devices, such as lasers, to impair a satellite, and that States shall not use anti-satellite weapons or space weapons to impair a satellite, has been deleted. The 2015 draft guideline would merely minimize the risks of accidents and collisions. States would refrain from harmful interference with other States’ uses of outer space. They would not engage in direct or indirect damage or destruction of space objects of other states, unless justified to do so by unsafe activities, to avoid space debris or in self-defense as permitted by the UN Charter. These are the elements that now appear to be the most important policies relating to military uses of outer space. The EU continues to press for adoption of a Code of Conduct. The USA would support the Code ‘if it protects and enhances the national and economic security of the United States’.60 The US is participating in redrafting the EU draft code, which now incorporates US suggestions including a reference to the right of self defense61 Russia and China have declined support for a Code of Conduct of outer space. They want a more drastic demilitarization of outer space. They favor a treaty that would prohibit weaponization of outer Space; it would be titled a treaty for the PAROS.62 Other countries having space capability, such as India and Brazil have expressed doubts about accepting the EU draft code for the reasons that they were not adequately consulted in the development of the draft.63 It is apparent that an international code of conduct for outer space would be in the interest of all states, but that it could only be successful if all states participate. In view of the strong opposition by two of the major space powers possessing significant military space technology, the current prospects for universal adoption of a meaningful Code of Conduct for outer space activities are dim. It is mainly the Code’s application to military outer space activities that impedes its success. States fear that the Code would confer military advantage on the sponsoring states and would disadvantage other states in the arms race in outer space. 6. The Danger of the Rogue State of North Korea Rogue States such as North Korea have a disruptive role in military outer space activities. Shortly after publication of the Rumsfeld report, North Korea attempted to launch a satellite using a three-stage Taepo Dong-1 launch vehicle. That attempt focused minds on the dangers of war in outer space, particularly as North Korea is not on diplomatic speaking terms with the US, and barely talking with Russia and China and the rest of the world. The North Korean threat to peace in outer space continues. In 2016, North Korea not only tested a nuclear weapon but also launched a satellite into outer space. ‘Both acts further advance North Korea’ quest to acquire the ability to fire a nuclear-armed missile against another country.’64 The military threat of North Korea is a serious challenge because it is irrational and difficult to influence. It is dangerous because it can become a source of satellites and nuclear weapons and space materials for other countries that have similar rogue tendencies. Persuading North Korea to abandon its military ambitions for outer space appears unlikely. However, might North Korea be persuaded to limit its outer space military activities, possibly by its friend and neighbor China? 65 In the meantime North Korea remains a constant danger to other countries as well as presenting a model or an incentive for other countries to engage in rogue military activities in outer space. The mere existence of uncontrollable rogue states constitutes an incentive for the states that are parties to the space law treaties and the United Nations Charter to present a united front against them. The nuclear agreement with Iran sets a good example of united efforts culminating in a reasonable agreement. If other States could agree to place enforcement sanctions on rogue States, then cooperation might be compelled. 7. Non-Governmental Entities Need Peace to Prosper Commitment to growth of the commercial space sector is one of the principles of the 2010 US Space Policy Statement.66 Both NASA and DOD prefer using non-governmental commercial entities over US government space services. NASA has turned most operations in LEO over to the commercial operators. Commercial operators now supply the international space station and are gradually developing technology to reach the Moon and the planets. The policy of the military sector is to rely on commercial space services to the maximum extent possible.67 Consequently DOD is increasingly contracting with commercial entities for military space operations. Examples of commercial services are the large contracts with communication satellite companies to provide services during the wars in Iraq and Afghanistan. The commercial operators need operating accommodations to perform their important services for the government. They need government operating authorizations pursuant to OST, Article VI, which subjects non-governmental entities to government licensing and continuing government oversight. Many of the commercial operators will need to launch from government facilities. They need interference-free radiofrequencies. They are also governed by government contracts for safe and dependable services. Military services will require security clearances. Government entities become dependent on commercial operators once contracts are concluded, because the government will no longer be required to have the requisite space equipment. For example NASA contracted with the private company Space-X for transportation to the international space station after the space shuttle was terminated. While NASA saves the great cost of the space shuttle, it became dependent on Space-X and other launch operators to supply the international space station. Such dependence transfers bargaining leverage from the Government to the commercial operators. Thus the wishes and the needs of the commercial sector have to be considered in deciding whether to interfere with their business operators. Military activities can easily cause interference with commercial operations. For example, the effect on commercial operators of the huge amount of space debris caused by the Chinese ASAT destruction of its Fenyun-1C weather satellite must be considered by the military in deciding whether to launch another ASAT for military purposes. In accordance with the Kessler syndrome68 even less destructive ASATs, using kinetic energy, cause growing space debris. The collision of the commercial Iridium satellite with a defunct COSMOS satellite is another example of interference with commercial operations. Thus the interests of the commercial operators have become a factor in military operations and in military decision-making. Governments may become liable for damages caused by their non-governmental space objects pursuant to the liability regimes of OST, Article VII, and the Liability Convention. While many commercial space objects have private insurance, such insurance often has a cap making the government liable for any damages in excess of that cap. Furthermore, non-governmental entities may engage in illegal activities not permitted under the space law treaties, thus making their launching States responsible and liable for damages. Commercial operators may themselves be attacked by competitors thus requiring their governments to come to their assistance with military forces; indeed they may become the cause of governmental military activities in outer space. Other countries have questioned the legal authority of the USA to authorize private property rights to mining resources the private operators have extracted from celestial bodies pursuant to the 2015 US Commercial Space Launch Competitiveness Act. Thus US space mining companies conceivably may ask the military to protect their mining activities from claims y and originating in other countries.69 Non-governmental entities are becoming an increasingly significant factor in military decision-making. Their commercial activities would become more secure if international curbs were placed on military activities likely to interfere with commercial activities. 8. Importance of Venue for International Negotiations of Arms Controls for Outer Space The 1967 Outer Space Treaty was successfully negotiated in the UN Committee for the Peaceful Uses of Outer Space (COPUOS). President Lyndon Johnson called it ‘the most important arms control development since the Limited Test Ban Treaty of 1963’, because the OST prohibits weapons of mass destruction (WMD) in orbit and demilitarizes all celestial objects including the Moon. The OST left outer space unrestricted, other than WMDs in orbit and celestial bodies, mainly in order to enable the USA and the then Soviet Union to continue satellite reconnaissance, which was an essential part of President Eisenhower’s space for peace policy.70 However, now there is the current need for additional arms control in the uncontrolled space. Due to the OST precedent, COPUOS is one possible forum for discussion of demilitarizing outer space, but the majority of States insist that all disarmament and arms control issues be referred to the UN permanent Disarmament Conference in Geneva. Russia and China introduced the draft PAROS treaty in the Conference on Disarmament. The Disarmament Conference operates by consensus, which means that all committee members have to agree on a draft treaty. The opposition by one state stops further committee action. COPUOS also operates by consensus, and objection by Russia and China similarly stops COPUOS discussion of arms control for outer space. Consequently neither the Commission on Disarmament nor COPUOS are likely to produce arms controls for outer space. An effective arms control regime for outer space by necessity would have to include all the three states that possess significant military arms technology that can be deployed in outer space. It would therefore be most effective if the three States having military space technology were to get together to agree on arms control. A separate understanding among the United States, Russia and China could become the nucleus of new arms control regime in outer space. But that would necessitate these states meeting outside existing UN fora. That is entirely possible if the parties so agree. 9. Conclusion: Prospects of Space Arms Race versus Arms Control President Eisenhower71 was faced with a choice of military policies in outer space when the USSR military satellite, Sputnik, was launched in 1957. The US Air Force at that time favored a policy of dominating the proverbial high grounds and asserting claim to exclusive military control over outer space.72 Eisenhower, being a military man, chose a different approach. He wanted to avoid a surprise ‘space Pearl Harbor’; consequently he wanted the US to be able to observe military activities of all countries from outer space by US reconnaissance satellites. He favored free access to and use of outer space instead of exclusive military control. He rejected the US Air Force position of military control of outer space. Eisenhower presented an international regime for outer space to the United Nations General Assembly in 1960 proposing that outer space be ‘preserved for peaceful use,’ in order not to become the subject of an arms race. He used the 1959 Antarctica Treaty as the model for the international regime for outer space that became the Outer Space Treaty. The 1959 Antarctica treaty had demilitarized Antarctica and he proposed a similar regime for outer space. Thus the Antarctica Treaty became the basis for the COPUOS negotiations of the OST. In the OST the parties preserved the right of military reconnaissance (open skies) which was Eisenhower’s objective in preventing a ‘space Pearl Harbor’. Eisenhower’s quest to preserve outer space for peaceful uses later became incorporated in the 2015 UNGA Resolution on ending the arms race in outer space indicating general support for this principle.73 The choice of military policies in the 1950s is similar to the choice facing the world today: the Space powers can compete for military dominance over non-sovereign outer space. That requires constant reinforcement of military space technology and strategies. It results in a policy of endless escalation. It is costly. The annual US Air Force space programs budget is presently approximately $27 billion, which includes the added $5.5 billion (but does not include the related costs of agencies such as NRO and CIA) and is estimated to cost an additional $60 billion over the next five years from 2016.74 Other competing countries such as Russia and China will, at a minimum, increase their military budgets commensurate with US increases. Military space activities are not only clothed in secrecy; they may be the cause of accidental and mistaken military engagements. Space debris caused by war in outer space will have a detrimental effect. Military engagements will cause a substantial addition to space debris and space will become further degraded and difficult for military operations. The Kessler syndrome75 suggests that access to outer space will be precluded by increasing space debris in future years at the current rate of outer space operations. Debris from military engagements would speed up the predicted foreclosure. Outer space closure would end not only scientific explorations of outer space but will also impede if not foreclose commercial space activities. The alternative military policy is the Antarctica Treaty analogy that President Eisenhower presented to the United Nations and became the basis for the OST, that is, to demilitarize outer space except leave room for satellite reconnaissance. But how can the space powers come to an agreement on arms controls for outer space that will make possible future exploration and use of outer space? At the barest minimum it requires participation by the three space powers having significant military space capability. Those are the USA, Russia and China. Fortunately all three have expressed need for peace in outer space. The US 2010 Policy Statement expresses willingness to expand international cooperation to ‘further the peaceful use of space’. Both China and Russia have emphatically expressed their wish to prevent an arms race in outer space (see above discussion of PAROS). Several UNGA resolutions support an end to the arms race in outer space. UN member states all have interests in exploration and use of outer space and in putting an end to the outer space arms race. If the three space powers can agree on these ultimate objectives then they should be able to agree on stopping the escalating weaponization of outer space. The 2016 Atlantic Council strategy paper advocates a US strategic focus on diplomacy combined with restraint of weaponization: ‘The best case scenario would be for the United States to convince others, particularly China and Russia, to similarly take a step back and re-evaluate their goals, - something that is only going to happen through improved dialogue and/or “signaling”’.76 Lack of progress in both the Disarmament Conference and in COPUOS indicates that these fora are not productive for successful negotiations on military uses of outer space among the USA, Russia and China. The requirement of consensus in these two fora makes negotiations almost impossible. The European Code of Conduct is drifting away from a focus on military space conflicts; negotiations are stymied and have come to a near stalemate.77 This forum is also not productive. That leaves then the option of the three space powers negotiating among themselves outside of the UN umbrella. Included in the general objective of all parties for peace in outer space are the following specifics: (1) some of the new military technologies being developed border on violating the current arms limitation agreements;78 (2) there is increasing danger of cyber-attacks on military satellites in outer space which would constitute yet another escalation;79 (3) the sure consequence of the current arms escalation is disaster for all parties. The three space powers are competing among themselves. One cannot afford to stop for fear of losing competitive leverage vis-à-vis the others. Ironically only the fear of Mutually Assured Destruction (MAD) keeps us from utter and complete world destruction; (4) accidents and mistakes are prone to happen in the degraded space environment; (5) it is in the interest of future exploration and uses of outer space to put a stop to the arms escalation; (6) the competitive arms race is prohibitively expensive. For example, it is estimated to cost the USA an additional $60 billion over the next five years; (7) Commercial uses of outer space require curbs on military activities likely to interfere with commercial activities in outer space; (8) States agree that space debris caused by use of ASATS for military purposes in outer space would be disastrous. The widely agreed COPUOS space debris guidelines80 indicate a peaceful inclination among the states. Many states have now adopted laws and regulations mandating compliance which, in the case of China, ‘implies that China has developed a legal obligation’ to reduce space debris that may be caused by ASATs;81 (9) lastly, the states showed in the 2015 Paris Climate Agreement that they can come to agreement on urgent and ultimate issues.82 Military uses of outer space are a core aspect of the general arms race.83 They are so integrated into other military systems that they become difficult to select out for special arms control. This may be an obstacle that new President’s White House space policy committee will have to resolve when it meets shortly after the new President assumes office in January of 2017. However, many special issues will face the new policy committee. Present policy direction is leading to military conflicts and disaster. Outer space arms control will only become more and more difficult as military capabilities and policies are becoming increasing ingrained. A top down analysis is required to re-evaluate the present policy drift back towards the Rumsfeld Committee’s ‘unilateralist vision of the US role in space’. The new White House space policy committee will need to keep in mind that military policy is interpreted and executed by those whose task is military action and warfighting. But what is currently needed is not a military solution. The people of the Earth require a solution that leads to peace in outer space. Footnotes 1 This article was written as of 2016 before the US change of administration. As of June 2017 there have been no major outer space military policy changes. Developing practices in treaty application are relevant to re-interpretation of existing space law treaties; see the Vienna Convention on the Law of Treaties, art 31, General Rule of Interpretation (1969) UN Doc A/CONF.39/27. Thus a practice may become legal. 2 T Hitchens and J Jonson-Freese, ‘Toward a New National Security Space Strategy, Atlantic Council Strategy Paper no 5, (2016)’ <http://www.atlanticcouncil.org/images/publications/AC_StrategyPapers_No5_Space_WEB1.pdf> accessed October 2016. C Stone, ‘A Not-So-New Strategy’ Space News (17 July 2016) 25. Air Force News, AFSPC Commander announces Space Enterprise vision (12 April 2016) <http://www.afspc.af.mil/news1story_print.asp?id=12347228> accessed 4 April 2016. M Gruss, ‘Satellites in the Crosshairs, Getting Serious about Space Protection; the US plans to spend an additional $60 billion on military space activities during the next 5 years’ Space News (4 January 2016) 15. See also O Lamrani, ‘Avoiding War in Outer Space’ Geopolitical Weekly (17 May 2016) <https://www.stratfor.com/weekly/avoiding-war-space> accessed 17 May 2016. 3 Note that the Outer Space Treaty (OST), 610 UNTS 205, art III, specifically incorporates the UN Charter and other international law in the interest of maintaining peace and security. OST, arts I–VII, are generally accepted by all states thus constituting customary international law applicable to all states, including non-parties. 4 Hitchens and Freese-Johnson (n 2); Stone (n 2). Considering the significant war-fighting role of the Air Force Space Command, see (n 2), it is surprising that the 2015 DOD Law of War Manual has surprisingly little regulation of conduct of war in outer space. 5Commission to Assess the Ballistic Missile Threat to the United States (15 July 1998) Chairman, DH Rumsfeld <http://www.fas.org/irp/threat/bm-threat.htm> accessed June 2008 or <http://www.fas.org/irp/threat/missile/rumsfeld/toc.htm> accessed June 2008. cf Congressional Report, US Senate 31 July 1998: <http://www.fas.org/irp/congress/1998_cr/s980731-rumsfeld.htm> accessed June 2008. 6 The Space Commission: Report of the Commission to Assess United States National Security Space Management and Organization (2001) <http://www.dod.mil/pubs/space20010111.html> accessed 5 December 2016. 7 US National Space Policy (2006–2007) XXXII AASL 475–86; <http://www.ostp.gov/galleries/press_release_files/Unclassified%20National%20Space%20Policy%20–%20FINAL.pdf> accessed 5 December 2016. Note this is the unclassified sections of the text. 8 US Air Force Space Command ‘Strategic Master Plan FY06 and Beyond’ (2003) <http://www.wslfweb.org/docs/Final%2006%20SMP–Signed!v1.pdf>. For the Plan for ‘FY04 and Beyond’ see <http://www.nukewatch.org/importantdocs/resources/Final004SMP.pdf> accessed 15 October 2009. 9 Joint Doctrine for Space Operations (9 August 2002) US Joint Chiefs of Staff, Joint Publication 3–14 <http://www.dtic.mil/doctrine/jel/new_pubs/jp3_14.pdf> accessed 15 October 2009. 10 Counterspace Operations, Air Force Doctrine Document 2-2.1, 2 August 2004 <http://www.dtic.mil/doctrine/jel/service_pubs/afdd2_2_1.pdf> accessed 15 October 2009. 11 For later/updating material try the ‘Joint Doctrine Branch’, in the ‘Joint Electronic Library’ <http://www.dtic.mil/doctrine/doctrine.htm> accessed 15 October 2009. 12 M Bourbonniere and R Lee, ‘Legality of the Deployment of Conventional Weapons in Earth Orbit: Balancing Space Law and the Law of Armed Conflict’ (2007) 18 Eur J Int L 873–901. 13 ibid. 14 2010 National Space Policy of the United States <https://www.whitehouse.gov/sites/default/files/national_space_policy_6-28-10.pdf> accessed 16 May 2016. 15 DOD and Director of National Intelligence, National Security Space Strategy, Unclassified Summary (January 2011). See G Schulte and A Schaffer, ‘Enhancing Security by Promoting Responsible Behavior in Space’; see also General C Kehler, ‘USAF, Implementing the National Security Space Strategy’ (2012) 6 Strategic Studies Quarterly, respectively, 9 and 18. 16 ibid. 17 Outer Space Treaty (n 3); UN Charter, 59 Stat 1031. Note that the inherent right of individual self-defense exists only until the UN Security Council takes measures to main the peace. However, due to the veto powers of the US, Russia and China in the Security Council, the Council may not be readily able to agree on peace keeping measures. 18 National Security Space Strategy (n 15). 19 ibid. 20 See discussion P Larsen, ‘International Regulation of Global Navigation Satellite Systems’ (2015) 80 J Air L & Com 365–422, and P Larsen, ‘The Oso Landslide: Disaster Management Law in the Space Age’ (2016) 40 Wm & Mary Env’tl L & Pol’y Rev 1. 21 Larsen (n 20). 22 National Security Space Strategy (n 15). 23 See discussion of the US International Trade in Arms Regulations (ITARs) in F Lyall and PB Larsen, Space Law a Treatise (Ashgate 2009) Ch 14. The US Government announced in 2014 that commercial communication satellites were no longer considered national defense items. The main impact of the new export regulations is to lower the export barriers to allied countries. The prohibitions on exports to China remain. 24 National Security Space Strategy (n 15). 25 In 2014 Russia launched military satellites that were uncomfortably close to Intelsat commercial satellites thus arousing US concern. 26 National Security Space Strategy (n 15). 27 ibid. 28 Hitchens and Johnson-Freese (n 2) 6. 29 Department of Defense DIRECTIVE, Number 3100.10 (18 October 2012) <http://www.dtic.mil/whs/directives> accessed 16 May 2016; it was issued subsequent to the elaborated political 2010 policy statement. 30 Hitchens and Johnson-Freese (n 2) 3. Also see Stone (n 2). 31 US Air Force Command News (n 2). 32 Hitchens and Johnson-Freese (n 2) 13. The White House Director of Space Policy, speaking in November 2015, is quoted saying ‘The President has expressed concern about the emerging antisatellite capabilities and the possible threat to the U.S. Mission.’ The director spoke of the need to support military deterrents to foreign attacks and said that the White House intends to ‘substantially increase the level of resources needed by an aggressor to successfully interfere with critical US military and intelligence capabilities’. Interestingly, the director of Space Policy referred to the 2001 Rumsfeld Report as the big water mark of US defensive strategy. See Gruss (n 2) 12. 33 Deputy Assistant Secretary of Defense for Space Policy Douglas L Loverro is reported to explain that the 5.5 billion current budget is for the investment program. The 60 billion budget figure includes funds for the Joint Space Operations Center ‘which provides military authorities with a common operating picture of the space environment and supports activities including satellite maneuvers and space launches, and the Space Based Surveillance follow-on satellite which has been in and out of Air Force budget requests but now enjoys an elevated priority’. See Gruss (n 2). See also Lamrani (n 2). 34 ibid. D Loverro, Deputy Assistant Secretary of Defense of Space Policy expressed that ‘adversaries are working on every one of those mechanisms, whether they be direct-asent ASAT, which of course have gotten the most press, lasers, co-orbital threats – all of these threats have been worked on by the folks who want to deny U.S. space capability’. In 2013 China is alleged to have launched an ASAT missile into geostationary orbit. See C Stone, ‘A Not-So-New Strategy’ Space News (19 July 2016) 26. 35 See Wikipedia < https://en.wikipedia.org/wiki/Air_Force_Space_Command> accessed 16 May 2016. 36 Air Force news release, 1 April 2016 (n 2). It should be kept in mind that many Air Force outer space activities are dual use. For example the Air Force tracks daily 1300 active satellites and 23 000 space debris objects and alerts both civilian and military operators of potential collision dangers, see M Gruss, ‘How DOD Confirms a Possible Satellite breakeup’ Space News (9 May 2016) 16. 37 See F Morring, ‘Commentary, Do No Harm, NASA Hunkers Down for Post-Election Changes’ Aviation and Space Technology (11–24 April 2016) 22. 38 Hitchens and Johnson-Freese (n 2) 11. <https://www.un.org/press/en/2014/ga11593.doc.htm> accessed 17 May 2016. 39 Amb Alexander Yakovenko, 2013–15 statements: ‘Why Russia is Against Weapons in Space’ <htps://www.rt.com/op-edge/weapons-russia-space-destruction-282/> accessed 18 May 2016. Also <https:/www.rt.com/nes/239533-russia-treaty-weapons-space> accessed 18 May 2016 and <https://www,rt.com/op-edge/weapons-outer-space-russia> accessed 18 May 2016. See also Wikipedia, ‘Militarisation of Space’ <htps://en.wikipedia.org/wiki/Militarisation_of_space> accessed 18 May 2016. 40 See above nn 38 and 39. 41 ibid. 42 See detailed discussion of the Code of Conduct below. 43 Yakovenko (nn 38 and 39) 44 See Y Zhao, ‘Regulation of Space Activities in the People’s Republic of China’ in RS Jakhu (ed), National Regulation of Space Activities (Springer 2010) 247. 45 D Cheng, ‘China’s Military role in Space’ Strategic Studies Quarterly; see above (n 15) 62. China is particularly worried about US Air Force assertion of space control, see Hitchens and Johnson-Freese (n 2) 11. 46 Y Zhao, National Space Law in China (Brill Nijhoff 2015) 58 and 155. 47 See above nn 38 and 39. See also Statement by the Chinese Delegation of the Thematic Debate on Outer Space at the First Committee of the 62 Session of the UNGA 2007 <http://www/china-un.org/eng/xw1374868.htm> accessed 5 December 2016. 48 ibid. 49 China and Russia have both expressed strong preference for discussion of military uses of outer space in the Conference on Disarmament which is a forum that has been sympathetic to their push for a treaty on prevention of an arms race in outer space. 50 Note also the 2013 launch of an alleged Chinese ASAT into near geostationary altitude (36 000 km), see above n 30. China tested ASATs seven times in the 2005–20014 time period. See Brian Wreden, ‘Anti-Satellite Tests in Space – The Case of China’ <http://swfound.org/media/115643/china _asat_fact_sheet_may2015.pdf> accessed 19 May 2016. See also Cheng (n 45) 64–66. 51 ibid. See also KS Blazejewski, ‘Space Weaponization and US–China Relations’ (2008) Strategic Studies Quarterly 46. 52 ibid. The European proposal for a Code of Conduct for outer space has been discussed in COPUOS and in a special UN forum. There is a precedent for discussing outer space disarmament in COPUOS because the 1967 Outer Space Treaty was negotiated in COPUOS. OST is the major successful space disarmament treaty. Arguably the Conference of Disarmament, although recognized as the established disarmament forum, is not favorably disposed to consider alternative space disarmament proposals such as the Code of Conduct. 53 Blazejewski (n 51). 54 <http://eu.un.europa.eu/documents/en/draft_Space_Code_of_Conduct.pdf> accessed 20 May 2016. 55 ibid. The idea of the EU code of conduct draws on the ‘Model Code of Conduct for the Prevention of Military Incidents and Dangerous Military Practices in Outer Space’, the HL Stimson Center (19 May 2004) <http://www.stimson.org/wos/pdf/codeofconduct.pdf> accessed 21 May 2016 or < http://www.stimson.org/pub.cfm?id=106> accessed 21 May 2016. The Center is a non-profit institution devoted to enhancing international peace and security that seeks to reduce the threats to the peace by recommending solutions to complex problems such as military threats to peaceful uses of outer space. See generally: <www.stimson.org/space>. 56 China destroyed its Fengyun-1C weather satellite with a Chinese ASAT, see Gruss (n 2) 15; see also Lyall and Larsen (n 23) 305. 57 C Johnson, ‘Draft International Code of Conduct for Outer Space Activities Fact Sheet’ (2014), Secure World Foundation <www.swfound.org> accessed 22 May 2016. 58 International Code of Conduct for Outer Space Activities (draft), EEAS <https://eeas.europa.eu/sites/eeas/files/space_code_conduct_draft_vers_31-march-2014_en.pdf> accessed 5 December 2016. 59 Stimson Center (n 55). 60 US State Dept Press Release of 17 January 2012. See also US Backs Efforts to Draft Space Code, Arms Control Today <http://www.armscontrol.org/act/2012_03/US_Backs_Efforts_to_Draft_Space_Code> accessed 23 May 2016. 61 See Foreign Relations—Code of Conduct for Outer Space <http://www.cfr.org/space/code-conduct-outer-space/p26556> accessed 23 May 2016. 62 See above n 39. 63 For a panorama of views on the International Code of Conduct for Outer Space, see RP Rajagopalan and DA Porras, ‘Awaiting Launch: Perspectives on the Draft ICOC for Outer Space Activities’ <www.orfonline.org> accessed 24 May 2016. 64 ‘Time to take North Korea Seriously’, New York Times editorial (14 February 2016) 8 SR. 65 ibid. 66 2010 US National Space Policy Statement (n 14). 67 See US National Security Space Strategy (n 15). 68 <https://en.wikipedia.org/wiki/Kessler_syndrome> accessed 5 December 2016. 69 Hitchens and Johnson-Freese (n 2) 18–19. Convention on International Liability for Damage Caused by Space Objects, 961 UNTS 187. 70 DR Terrill, The Air Force Role in Developing International Outer Space Law (Air Force University 1999) Ch 3. Eisenhower’s peace for space policy should be viewed in the context of his ‘open skies’ policy both of which aimed for maximum transparency to avoid another Pearl Harbor surprise and for ‘national technical means of verification’. 71 US President and commander-in-chief 1953–1961. 72 Terrill (n 71). 73 See above (n 39). 74 Gruss (n 2) and Lamrani (n 2). 75 <https://en.wikipedia.org/wiki/Kessler_syndrome> accessed 5 December 2016. 76 Hitchens and Johnson-Freese (n 2) 4. By more ‘signaling’ the authors mean greater transparency of intentions and movements. In particular they want the US ‘to establish better dialogue with Russia and China in particular about US “bright lines” in space and mutual assurance measures that would reduce risks of misconception and conflict, as well as establish “breakers” to dangerous conflict escalation’. 77 Space Code Process called ‘Unsuccessful’, Arms Control Today (March 2016) <http://www.armscontrol.org/ACT/2016_03/News-Briefs/Space-Code-Process-Called-Unsuccessful> accessed 5 December 2016. 78 W Broad and D Sanger, ‘Race Escalates for Latest Class of Nuclear Arms’ New York Times (17 April 2016) A1. The article suggest that parties to the arms control agreements such as the 2010 START Treaty should not be developing new nuclear technologies. 79 2011 DOD and Director of National Intelligence, National Security Space Strategy statement supra (n 15) indicates that the United States may deploy cyber-based alternatives from space-based platforms. 80 UNGA Res A/62/20 (2007).The COPUOS space debris guidelines have now been adopted by national law and regulations in many countries. 81 Yun Zhao (n 46) 213. Interestingly this lends support for Prof Koplow’s suggestion that customary international law may be developing to reduce the threat of ASATs, see DA Koplow, ‘ASAT-ISFACTION: Customary International Law and Regulation of Anti-Satellite Weapons’ (2009) 30 Mich J Int’l L 1187. 82 2015 Paris Climate Agreement, UN Doc FCCC-INFORMAL/84GE. 05-62220 (E) 200705. 83 See M. Grus, Satellites in the Crosshairs (n 2). © Oxford University Press 2017; all rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Conflict and Security Law Oxford University Press

Outer Space Arms Control: Can the USA, Russia and China Make this Happen

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Abstract This article describes the existing outer space military strategies of the three superpowers. The USA is the predominant military power in outer space. It wants to maintain that posture. It is being challenged by Russia and increasingly by China. In response the USA is increasing its defensive and offensive military capabilities, Russia, and increasingly China, are likewise escalating their capabilities. The sure consequence of the current arms escalation is disaster for all parties and is in nobody’s best interest. Even limited engagements would increase space debris beyond that which is tolerable and would close access to outer space for everybody. Neither the UN Disarmament Conference nor the UN Committee for Peaceful Uses of Outer Space are able to agree how to constrain the escalating weaponization of outer space. The new US President is expected soon to convene a committee to draft new US space policy. This article urges US adoption of a policy of direct diplomatic engagement with Russia and China in order to place constraints on the weaponization of outer space. 1. Introduction: Military Practices and Developing Policies: USA, Russia, China and European Union1 Three states–the USA, Russia and China–possess significant military space technology and have developed policies and attitudes about military uses of outer space. The USA maintains a predominant role,2 seeking to protect against increasing encroachments by Russia and China. The three superpowers are fierce competitors who are willing to do what it takes to remain competitive with each other. The European Union, India and Japan are active participants in military space policy formation. On the fringe is the rogue state of North Korea. On the fringe are also the increasingly active non-governmental entities such as INTELSAT, SES, Eutelsat and Space-X, which depend on peace in outer space to operate commercially. All are subject to the prevailing international space law treaties. Beyond the treaties there is no secure legally binding agreement among the parties.3 Except for North Korea, however, States share a general wish to avoid conflicts in outer space. This article explores not only the history of the world’s current dangerous space arms race. It examines the fora for achieving mutual de-escalation of space weaponry. It concludes that an independent understanding between the US, Russia and China is possible. 2. The United States This section addresses the recent chronology of US military space policy. It explains how US military space policy developed from the Bush–Rumsfeld era of unilateralism to the current base line of international interaction established by the 2010 White House Space Policy Statement. That policy was subsequently implemented by the US Department of Defense (DOD) and the US Intelligence Community in their 2011 National Security Space Strategy and again in the 2012 DOD Space Policy and most recently in the 2016 Air Force Space Command’s Space Enterprise Vision. Military space policy has been actively discussed in the recent space policy news and literature.4 To what extent is military space policy mixed with, or even at odds with political policy? The natural inclination of the military is assertive defense, while in an increasingly weaponized world political policy is leaning toward détente. Given current military–political tensions, what are the prospects for international arms control in outer space? These issues are expected to be reviewed by a White House policy task force as soon as the new US President takes office in 2017. A. Bush–Rumsfeld Era of Unilateralist Policies 1998–2008 The US has in the past issued a number of documents and reports that contemplate and even recommend active military uses of outer space. The 1998 Rumsfeld Commission reported on ballistic missile threats to the US and warned of a ‘space Pearl Harbor’, unless the US made itself ready to defend its space assets.5 In 2001 a second Rumsfeld report considered US requirements in space.6 This bulky document concluded that throughout history land, sea and air have all seen conflict, and space would be no different. It resolved that outer space had to be a top US national security interest and US military power should therefore be extended into it. The Rumsfeld Commission concluded that the US considers its national security to be ‘critically dependent’ on its space capability, and that this dependence would grow.7 Since then the US Air Force Space Command adopted a Strategic Master Plan for a 25-year period which is revised on a two-year cycle.8 These Plans contemplated inter alia the deployment of non-nuclear space-based weaponry. The ‘Joint Doctrine for Space Operations’ of 2002,9 complemented by the Air Force ‘Counterspace Operations’ of 2004,10 show how US military thinking as to potential use of outer space had developed at that time.11 These plans are reflected in section 5 of the 2006 (Bush) Statement on National Space Policy. Bullet point 5 of section 2, ‘Principles’ states: 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 protect its space capabilities; respond to interference; and deny, if necessary, adversaries the use of space capabilities hostile to US national interests. The 2006 US policy is in line with the suggestions of the 2001 Rumsfeld Commission regarding organization and use of military forces in outer space. The 2006 policy favoring unilateral action in outer space may be viewed as a ‘unilateralist vision of the US role in space’ and ‘as a step towards weaponization of space’.12 What the 2006 statement engendered was a debate on ‘the lawfulness of the deployment of conventional weapons in outer space under public international law’.13 B. The Obama Era: Moving from International Cooperation in 2010 toward offensive Capability in 2013–201614 (i) 2010 White House policy statement Review of the unilateralist policy of the 2006 Presidential policy statement led to the 2010 US presidential policy recognizing the inherent international nature of outer space and the need for international cooperation. The 2010 policy stresses the following six principles: (a)The strategic environment: ‘The now-ubiquitous and interconnected nature of space capabilities and the world’s growing dependence on them mean that irresponsible acts in space can have damaging consequences for all [States].’ In the US view15 all outer space stakeholders are struggling to operate in an increasingly degraded environment. There are about 1300 actively operating satellites in orbit; there are hundreds of thousands of man-made debris objects in orbit of which the US is able to track in excess of 23000 large objects. There is strong competition for scarce resources like orbital slots and radio frequencies. The US military must compete for room to operate in this increasingly difficult environment. Thus maximum order and rationality are desirable objectives. (b) International stability: ‘To promote security and stability in space, the US will pursue activities consistent with the inherent right of self-defense, deepen cooperation with allies and friends, and work with all nations toward the responsible and peaceful use of space.’ In the US view16 the UN Charter, Article 51, incorporated into the Outer Space Treaty by its Article III, assures States the right of self-defense in outer space.17 Consistent with the self-defense limitation military activities are permitted, although the US states that it intends to promote peaceful and safe activities in outer space. The US intends to cooperate with other States and with commercial space activities. However, consistent with and subject to Article 51, the US will deter foreign unfriendly activities. The legal right of self-defense is not unlimited; there is a time contingent. The right of self-defense only exists ‘until the Security Council has taken measures necessary to maintain international peace and security’. Actual threats to use force in outer space are subject to UN Security Council jurisdiction pursuant to the UN Charter Chapter VII. However, it may take some time for the Security Council to act in a degraded environment where there are many competing claims. Having the capability to engage in military outer space activities is in itself important, because that is powerful leverage. Ultimately, however, the US preference is to cooperate with other States in establishing order and stability in outer space,18 so as to avoid the chaos that would result from military engagements in outer space. (c) Preference for international cooperation over military intervention: ‘All nations have the right to use and explore space, but with this right also comes responsibility. The United States, therefore, calls on all nations to work together to adopt approaches for responsible activity in space to preserve this right for the benefit of future generations.’ As follow-up policy19 the US supports maximum safety in military, civilian and commercial outer space activities. Thus it is US policy to join both civilian and commercial operators in coordinating outer space operations in international fora such as the UN Committee for the Peaceful Uses of Outer Space (COPUOS), International Committee on Global Navigation Satellite Systems and the UN Platform for Space-based Information for Disaster Management and Emergency Response.20 The US favors ‘common international data standards and data integrity measures’ and will seek other ways to improve space flight safety.21 Importantly the US will consider new arms control measures for international outer space operations ‘if they are equitable, effectively verifiable, and enhance the national security of the United States and its allies’. Furthermore, the US will promote space situational awareness (SSA) and will share data tracking information about outer space objects for the purpose of improving the safety of outer space traffic. (d) Cost effectiveness: ‘[B]eing able to deliver capability cost-effectively when it is needed improves mission effectiveness, provides leadership with flexibility in making investments and precludes gaps in capabilities.’ The US22 has considerable space capability which it intends to provide to military as well as to civilian users. The US will improve interoperability and accuracy of its space services. It will make its space data collection available to the public at the lowest possible security classification. The US has liberalized export controls on space materials.23 By lowering the barriers to accessing US space technology, the US technology becomes more widely available to other countries. Greater availability benefits not only the immediate users of technology; it benefits the entire chain of technology producers from the final assembler down to the second and third tier suppliers. For example, under the liberalized policy, third-tier suppliers will be able to supply foreign manufacturers of space products. The US intellectual and academic partnerships with foreign counterparts will also be easier to arrange, thus encouraging advances in space sciences. The US plans to build capacity and education in space sciences not just domestically, but also abroad and not just among academics but also at the technical and entrepreneurial levels. (e) With greater emphasis on international cooperation, with less emphasis on unilateralism, the US will: ‘explore opportunities to leverage growing international and commercial expertise to enhance U.S. capabilities and reduce vulnerability of space systems and their supporting ground infrastructure’. Consequently,24 it is the US policy to cooperate with other States ‘ensuring global access to the radiofrequency spectrum and related orbital assignments and promoting the responsible peaceful and safe use of outer space’. Furthermore, the US will seek greater interoperability and compatibility of US networks with foreign networks. It is US policy to integrate foreign space technology into US systems. Thus the US global navigation satellite system (GNSS) will be made interoperable with non-US GNSS systems. The US will also make SSA data available to other countries in order to affect greater safety and order in outer space. Furthermore, the US military forces intend to work closely with, and take advantage of, commercial space technology. ‘Strategic partnerships with commercial firms will be pursued in areas that both stabilize costs and improve resilience of space architectures upon which we rely.’ The US military will prefer commercial space services over military services. It will only develop its own space services when adequate commercial services are not available. The US is aware that, to the extent that the US military employs commercial space services, it is also becoming dependent on those services. Such dependence could result in the US being compelled to defend foreign attacks on those commercial services. The line between military and civilian–political concerns is increasingly difficult to discern.25 (f) Preservation of a strong US military deterrence capability: ‘U.S. Forces must be able to deter, defend against, and defeat aggression by potentially hostile nation-states. This capability is fundamental to the nation’s ability to protect its interests and to provide security to key regions.’ It is a priority of the US military26 to improve and share space situational awareness and to gather intelligence about outer space activities. Predicting, characterizing and attributing activities in outer space can diminish the chances of being surprised by a ‘space Pearl Harbor’. The US military especially wants to ensure that it will be capable of operating in a space environment that is degraded by foreign attacks, excessive space debris, scarce radio frequency and orbital resources, and other obstacles. (g) Infrastructure support for civilian partners. The US will: ‘[I]ncrease assurance and resilience of mission-functions enabled by commercial, civil, scientific, and national security spacecraft and supporting infrastructure against disruption, degradation and destruction, whether from environmental mechanical, electronic, or hostile causes.’ The US27 intends to be fully capable of using military force in outer space to support activities of non-governmental entities to the extent permitted by international law. That includes the right of self-defense allowed by Article 51 of the UN Charter. The US may deploy land, sea, air, space and cyber-based alternatives from space-based platforms. In conclusion, the 2010 US policy statement indicated a welcome shift towards international cooperation and away from unilateral military action in outer space.28 The increasing US dependence on commercial space is interesting because it assumes that military and commercial space policies are compatible. However, one can imagine situations where they would conflict. For example suppose a commercial operator on its own initiative acts in violation of the Outer Space Treaty (OST). Such acts would cast responsibility on the USA as the authorizing state under OST Article VI, which in turn could drag the US into confrontation with another state. Thus the interdependence of military and commercial policies easily entails dangers of military conflicts. The US military deterrence will be subject not only to the military rules of proportionality of response. It will also be subject to new policy guidance from the new President that may contain new outer space arms control regulations that are coordinated with other States for implementation by the Department of Defense. Having the technical capability to dominate outer space militarily and considering the past claims of authority to act unilaterally in outer space, the Air Force Space Command has a natural inclination to use military technology despite shifts in policy. It is thus interesting to note the 2012 official US DOD space policy statement.29 The sustainability and stability of the space environment, as well as free access to and use of space, are vital to U.S. national interests. Purposeful interference with U.S. space systems, including their supporting infrastructure, will be considered an infringement of U.S. rights. Such interference, or interference with other space systems upon which the United States relies, is irresponsible in peacetime and escalatory during a crisis. The United States will retain the capabilities to respond at the time and place of our choosing. This DOD policy statement may appear to be a greater assertion of right to unilateral action. However, the same DOD document also states that in order to deter military attacks, DOD will (i) support international safety, stability and security standards for outer space activities; (ii) enforce the international space debris mitigation guidelines; (iii) support an international code on safe traffic management, including coordination, space situational awareness and transparency of operations; (iv) engage in closer cooperation with other states in order to avoid misunderstandings and mistakes; (v) share spaceflight tracking data with the commercial operators; and (f) abide by treaty obligations. (ii) The de facto policy 2013–2016 In 2013, US military space policy clearly shifted away from an emphasis on diplomacy, combined with military enforcement capability, toward an emphasis on military offensive capability. The policy shift was caused by launch of an alleged Chinese anti-satellite missile (ASAT) to near geostationary altitude (36 000 kilometers). At the same time Russia and China also maneuvered similar satellites in low earth orbits (LEO). These maneuvers caused a ‘quiet panic’ among US military intelligence officials which in turn caused a change in priorities involving a hardening of US military attitude with increased US space weaponization. The US policy moved back towards the unilateral Bush era policy.30 In 2016, the US Air Force Space Command is assigned enforcement responsibility for US military activities in outer space. Space Command asserts that it ‘is prepared to fight through and win in a contested, degraded and operationally-limited environment’.31 War fighting is the task and inclination of the Air Force Space Command. That includes its task of protecting the very substantial US outer space assets as well as being prepared to attack the space assets of other countries, including preemptive strikes. The more activist policy is supported by President Obama. The escalating weaponization of outer space is implied in the recent White House statements supporting military deterrence to foreign attacks.32 The DOD plans an additional annual budget of $5.5 billion for outer space military activities and projects spending additionally $60 billion on military outer space programs in the next 5 years.33 Analysis of the 2001 Rumsfeld report and China’s 2007 use of its ASAT to destroy its own satellites as well as subsequent reports of Chinese military activities in outer space are used as justifications for the large DOD budget allocation.34 The objective appears to be to preserve US military predominance in outer space. On 12 April 2016 the military Commander of Air Force Space command, General Hyten, announced the most recent mission of his more than 38 000 ‘warfighters’:35 He stated that although ‘In the recent past, the United States enjoyed unchallenged freedom of action in the space domain’, that is no longer the case. He announced that a new and comprehensive ‘Space Enterprise Vision’ is necessary to oppose new and additional threats. It will coordinate the multiple defensive units of the USA including other DOD units as well as the military and civilian intelligence community.36 The focus of 2016 US policy on military uses of outer space is on fighting wars rather than on arranging peaceful coexistence in outer space by diplomacy. The US outer space military policy is drifting back to the times of the Rumsfeld Commission of 2001. The current space policy situation is ripe for review of national and international priorities by a new White House policy task force to be assembled by the next US president who will assume leadership in January 2017. Whereas the military interests appear to dominate 2016 policy-making, new White House space policy formation should represent all the interested stake holders, military as well as civilian, new government leaders as well as non-government entities. Now is the opportunity for commercial operators, the space industry and experts interested in peaceful uses of outer space to evaluate existing policy and to help establish new policy guidance for international negotiations that will deescalate the arms race in outer space.37 New policymakers will have to consider the legal restrictions of the Outer Space Treaty and other international laws to develop a compromise with the two other major space powers, Russia and China, to end the arms race in outer space. Such a policy review will have to include examination of the military space policies of other interested States and non-governmental entities. 3. Russia’s Proposal to End the Arms Race in Outer Space, Excepting ASATs Russia is a party to all the space law treaties except the Moon Agreement. Russia, like the USA and China, is one of the three superpowers having not only space technology but also significant space military capability. Russian space policy was originally aimed at gaining military supremacy in outer space. Sputnik, launched in 1957, was a military space object. During the cold war Russia developed its Fractional Orbital Bombardment Systems (FOBS). It was an Intercontinental Ballistic Missile System (ICBM) which could be placed in orbit and then used to attack targets from that orbit. However, in the 1970s Russia adopted a policy of international arms control in outer space and concluded the 1979 SALT II treaty which prohibited ‘systems for placing into Earth orbit nuclear weapons or any other kind of weapons of mass destruction, including fractional orbital missiles’. Russia also entered into the Anti-Ballistic Missile (ABM) Agreement with the United States which significantly reduced the threats to the two countries. However, subsequently the USA wanted freedom to engage in a space-based Strategic Defense Initiative (SDI). In 2001 the USA denounced the ABM agreement. Being concerned about assuring access to outer space, Russia began to rebuild and upgrade its outer space military capability. It has now established a separate military branch called the Russian Space Forces. Russia also adopted an official policy favoring peaceful uses of outer space. Today, Russia’s stated current policy objective is to demilitarize outer space and turn it into a weapons-free zone.38 Russia expresses the view that ‘space is a “common heritage of mankind” and should be used for scientific research benefitting development and progress of the globe’.39 In 2004, Russia unilaterally declared that it would not be the first to introduce weapons into outer space. Russia and China have proposed a draft treaty on prevention of an arms race in outer space (PAROS) most recently called the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects (PPWT).40 In its public statements Russia strongly prefers a treaty instrument banning weaponization of outer space. The PAROS proposal was opposed by the USA on the grounds that it is not sufficiently comprehensive because it does not include Earth-based ASAT’s; furthermore that PAROS lacks sufficient means of verification and that PAROS should include sensors located in outer space. Russia was one of the main supporters of the 2015 United Nations General Assembly (UNGA) Resolution on Prevention of an Arms Race in Outer Space; and of a second Resolution called No First Placement of Weapons in Outer Space.41 These proposals would not replace existing limitations. They would be in addition to the existing limitations on military activities in outer space. Both resolutions were adopted by the UNGA with overwhelming majorities, but both were opposed by the USA. On the other hand, Russia has not supported the European Union’s proposed Code of Conduct for Outer Space,42 which is supported by the USA. Russia ‘s preferred strategy is to discuss all issues relating to weaponization of outer space at the Geneva venue of the UN Conference on Disarmament (CD).43 By contrast, other States view the CD as a dead-end for arms control in outer space and have favored shifting all or part of the arms control discussions to COPUOS, which succeeded in negotiating space arms control in the 1967 Outer Space Treaty. Russia and the US stand fast on their basic positions: The US appears determined to retain military dominance, and Russia appears determined to challenge that policy. Currently, a middle ground does not appear to be in sight. They cannot even agree on a venue for meeting to discuss the issues. 4. China’s Growing Competitive Role in the Outer Space Arms Race China is the third major space power possessing significant military capability in space. Its military space capability is increasing and may now exceed that of Russia. China has both intercontinental ballistic missiles as well as anti-satellite capability and its national security stake in outer space is rapidly growing. Despite recent ASAT activity in outer space, Chinese space policy allegedly is committed to the legal principles of the international space law treaties, with the exception of the Moon Agreement. China participates actively in the proceedings of the COPUOS and of the Conference on Disarmament.44 China’s policy on military uses of outer space generally tracks that of Russia. The scope and magnitude of Chinese military space policy is growing commensurate with the escalating US military activities outer space. China aims for balance in international military space relations. Thus it is possible to view Chinese space policy in the context of, and possibly as a product of, advancement in US military deployment. But it is also possible to view China’s growing military space capability as essentially self-motivated. China now considers outer space to be the new strategic high ground and military control of outer space is vital.45 This military policy includes space-related terrestrial activities. All Chinese security-conscious space launch activities are subject to control by the Chinese military (PLA). Space reconnaissance, communication, meteorology, navigation and electronic intelligence are subject to PLA control.46 Lack of Chinese national space law implementing the OST could lead to uncoordinated military decision making by the Chinese military authorities. The origin of China’s space technology is closely linked to Russian space technology and there are continuing aspects of Chinese cooperation with Russia. In the UNGA China and Russia co-sponsored the UNGA resolutions described above.47 China co-sponsored the draft Treaty on the PPWT in the Conference on Disarmament.48 China supports Russian efforts to keep discussion of military space in the UN Conference on Disarmament rather than move the discussion to COPUOS.49 Dominance of space, including both defensive and offensive military capability, is a Chinese policy objective. China’s decision in 2007 to use one of its ASAT missiles to destroy its own defunct weather satellite, thereby placing extensive amounts of space debris into the busy LEO orbit, showed not only that China has space weapons but is determined to use them whenever it chooses. 50 China has also developed a satellite earth observation program capable of reconnaissance. China now supports the COPUOS guidelines limiting increase of space debris in outer space. While China strongly supports Russia’s efforts to establish a treaty preventing an arms race in outer space,51 both China and Russia oppose the European Union’s proposed Code of Conduct52 for outer space activities, which is intended to deescalate prospects and causes of military action in outer space. Other indications of Chinese space policy are that China strongly prefers the treaty approach to preventing an arms race in outer space. China has expressed apprehension of US policy movements towards unilateralist military activities in outer space.53 5. European Union’s Proposed Code of Conduct for Outer Space The original Code of Conduct proposal would establish guidelines for all activities, military and civilian, taking place in outer space.54 Such guidelines would be directed less at the legality of weapons in outer space than insuring transparency so that states can avoid accidental war in outer space. For that purpose all space-faring states would observe agreed rules of behavior.55 The need for the EU proposal for a Code of Conduct for outer space activities may best be illustrated by the consequences of the Chinese destruction of its own disabled weather satellite by their anti-satellite weapon in 2007. The weather satellite was in a low Earth orbit above the surface of the Earth, not very far from the orbital height of the space station. The defunct weather satellite scattered into thousands of space debris all of which pose a great collision hazard for present and future satellites.56 The Code of Conduct would establish ‘Rules of the Road’ for outer space activities. There are essential international Rules of the Road for maritime activities on the high seas and for air traffic in air space, but there are none for activities in outer space. By following pre-established rules, the various actors would know the locations and intentions of other actors permitting them to avoid hazards.57 The proposed International Code of Conduct for Outer Space Activities is thus an attempt to establish rules of behavior for outer space activities. The following discussion will focus on those parts of the code that would most affect military activities in outer space. The latest Code of Conduct draft (2015)58 would seek to limit an arms race in outer space ‘recognizing that it is in the shared interests of all states to reinforce international norms for responsible behavior in outer space’ (Preamble). The following voluntary guidelines would apply: Both governmental and non-governmental activities in outer space would be guided by the Code. States would ‘refrain from the threat or use of force against the territorial integrity or political independence of any state, or in any manner inconsistent with the purpose of the United Nations Charter, and the inherent right of states to individual or collective self-defense as recognized in the Charter of the United Nations’. Furthermore, States would ‘take all appropriate measures to prevent outer space from becoming an arena of conflict’. States would honor their existing outer space commitments States would agree ‘to minimize the risk of accidents in space, collisions between space objects, and any form of harmful interference with another State’s peaceful exploration, and use of outer space’. Furthermore, States would ‘refrain from an action which brings about, directly or indirectly, damage, or destruction, of space objects unless such action is justified under the following circumstances: by imperative safety considerations, in particular if human life or health is at risk; or in order to reduce the creation of space debris; or by the Charter of the United Nations, including the inherent right of individual or collective self-defense’. States would minimize the risk of collision and observe the 2007 COPUOS space debris guidelines as implemented by domestic regulations. States would give other States adequate advance notice of their planned activities in order to avoid surprises. Other States would be informed of planned exercises, as well as launches of new space objects, possible disintegration of satellites, their consequent space debris and other dangerous events. Such notices would be sent to a central communication center established under the Code of Conduct or sent through diplomatic channels States, which accept the guidelines, would share with each other information about security-related policies and strategies, about their major research projects, their rules for avoiding accidents and collisions. Those States, which accept the guidelines and which believe that they would be affected by the space activities of other States, would have the right of consultations in order to avoid the occurrence of dangerous situations in outer space and to minimize possible damages. Other subscribing states would also have rights to participate in such consultations. States, which accept the Code of Conduct, would meet periodically to review the Code and to improve it. Decisions would be made by a consensus of the participating states. Participating States would establish a central meeting point for their first meeting. International organizations, such as ESA, would be eligible to participate in the Code of Conduct. The most recent draft Code of Conduct for Outer Space Activities has been diluted considerably since the original proposal by the Stimson Center.59 For example, Principle 2 of the Stimson proposal that States shall not use directed energy devices, such as lasers, to impair a satellite, and that States shall not use anti-satellite weapons or space weapons to impair a satellite, has been deleted. The 2015 draft guideline would merely minimize the risks of accidents and collisions. States would refrain from harmful interference with other States’ uses of outer space. They would not engage in direct or indirect damage or destruction of space objects of other states, unless justified to do so by unsafe activities, to avoid space debris or in self-defense as permitted by the UN Charter. These are the elements that now appear to be the most important policies relating to military uses of outer space. The EU continues to press for adoption of a Code of Conduct. The USA would support the Code ‘if it protects and enhances the national and economic security of the United States’.60 The US is participating in redrafting the EU draft code, which now incorporates US suggestions including a reference to the right of self defense61 Russia and China have declined support for a Code of Conduct of outer space. They want a more drastic demilitarization of outer space. They favor a treaty that would prohibit weaponization of outer Space; it would be titled a treaty for the PAROS.62 Other countries having space capability, such as India and Brazil have expressed doubts about accepting the EU draft code for the reasons that they were not adequately consulted in the development of the draft.63 It is apparent that an international code of conduct for outer space would be in the interest of all states, but that it could only be successful if all states participate. In view of the strong opposition by two of the major space powers possessing significant military space technology, the current prospects for universal adoption of a meaningful Code of Conduct for outer space activities are dim. It is mainly the Code’s application to military outer space activities that impedes its success. States fear that the Code would confer military advantage on the sponsoring states and would disadvantage other states in the arms race in outer space. 6. The Danger of the Rogue State of North Korea Rogue States such as North Korea have a disruptive role in military outer space activities. Shortly after publication of the Rumsfeld report, North Korea attempted to launch a satellite using a three-stage Taepo Dong-1 launch vehicle. That attempt focused minds on the dangers of war in outer space, particularly as North Korea is not on diplomatic speaking terms with the US, and barely talking with Russia and China and the rest of the world. The North Korean threat to peace in outer space continues. In 2016, North Korea not only tested a nuclear weapon but also launched a satellite into outer space. ‘Both acts further advance North Korea’ quest to acquire the ability to fire a nuclear-armed missile against another country.’64 The military threat of North Korea is a serious challenge because it is irrational and difficult to influence. It is dangerous because it can become a source of satellites and nuclear weapons and space materials for other countries that have similar rogue tendencies. Persuading North Korea to abandon its military ambitions for outer space appears unlikely. However, might North Korea be persuaded to limit its outer space military activities, possibly by its friend and neighbor China? 65 In the meantime North Korea remains a constant danger to other countries as well as presenting a model or an incentive for other countries to engage in rogue military activities in outer space. The mere existence of uncontrollable rogue states constitutes an incentive for the states that are parties to the space law treaties and the United Nations Charter to present a united front against them. The nuclear agreement with Iran sets a good example of united efforts culminating in a reasonable agreement. If other States could agree to place enforcement sanctions on rogue States, then cooperation might be compelled. 7. Non-Governmental Entities Need Peace to Prosper Commitment to growth of the commercial space sector is one of the principles of the 2010 US Space Policy Statement.66 Both NASA and DOD prefer using non-governmental commercial entities over US government space services. NASA has turned most operations in LEO over to the commercial operators. Commercial operators now supply the international space station and are gradually developing technology to reach the Moon and the planets. The policy of the military sector is to rely on commercial space services to the maximum extent possible.67 Consequently DOD is increasingly contracting with commercial entities for military space operations. Examples of commercial services are the large contracts with communication satellite companies to provide services during the wars in Iraq and Afghanistan. The commercial operators need operating accommodations to perform their important services for the government. They need government operating authorizations pursuant to OST, Article VI, which subjects non-governmental entities to government licensing and continuing government oversight. Many of the commercial operators will need to launch from government facilities. They need interference-free radiofrequencies. They are also governed by government contracts for safe and dependable services. Military services will require security clearances. Government entities become dependent on commercial operators once contracts are concluded, because the government will no longer be required to have the requisite space equipment. For example NASA contracted with the private company Space-X for transportation to the international space station after the space shuttle was terminated. While NASA saves the great cost of the space shuttle, it became dependent on Space-X and other launch operators to supply the international space station. Such dependence transfers bargaining leverage from the Government to the commercial operators. Thus the wishes and the needs of the commercial sector have to be considered in deciding whether to interfere with their business operators. Military activities can easily cause interference with commercial operations. For example, the effect on commercial operators of the huge amount of space debris caused by the Chinese ASAT destruction of its Fenyun-1C weather satellite must be considered by the military in deciding whether to launch another ASAT for military purposes. In accordance with the Kessler syndrome68 even less destructive ASATs, using kinetic energy, cause growing space debris. The collision of the commercial Iridium satellite with a defunct COSMOS satellite is another example of interference with commercial operations. Thus the interests of the commercial operators have become a factor in military operations and in military decision-making. Governments may become liable for damages caused by their non-governmental space objects pursuant to the liability regimes of OST, Article VII, and the Liability Convention. While many commercial space objects have private insurance, such insurance often has a cap making the government liable for any damages in excess of that cap. Furthermore, non-governmental entities may engage in illegal activities not permitted under the space law treaties, thus making their launching States responsible and liable for damages. Commercial operators may themselves be attacked by competitors thus requiring their governments to come to their assistance with military forces; indeed they may become the cause of governmental military activities in outer space. Other countries have questioned the legal authority of the USA to authorize private property rights to mining resources the private operators have extracted from celestial bodies pursuant to the 2015 US Commercial Space Launch Competitiveness Act. Thus US space mining companies conceivably may ask the military to protect their mining activities from claims y and originating in other countries.69 Non-governmental entities are becoming an increasingly significant factor in military decision-making. Their commercial activities would become more secure if international curbs were placed on military activities likely to interfere with commercial activities. 8. Importance of Venue for International Negotiations of Arms Controls for Outer Space The 1967 Outer Space Treaty was successfully negotiated in the UN Committee for the Peaceful Uses of Outer Space (COPUOS). President Lyndon Johnson called it ‘the most important arms control development since the Limited Test Ban Treaty of 1963’, because the OST prohibits weapons of mass destruction (WMD) in orbit and demilitarizes all celestial objects including the Moon. The OST left outer space unrestricted, other than WMDs in orbit and celestial bodies, mainly in order to enable the USA and the then Soviet Union to continue satellite reconnaissance, which was an essential part of President Eisenhower’s space for peace policy.70 However, now there is the current need for additional arms control in the uncontrolled space. Due to the OST precedent, COPUOS is one possible forum for discussion of demilitarizing outer space, but the majority of States insist that all disarmament and arms control issues be referred to the UN permanent Disarmament Conference in Geneva. Russia and China introduced the draft PAROS treaty in the Conference on Disarmament. The Disarmament Conference operates by consensus, which means that all committee members have to agree on a draft treaty. The opposition by one state stops further committee action. COPUOS also operates by consensus, and objection by Russia and China similarly stops COPUOS discussion of arms control for outer space. Consequently neither the Commission on Disarmament nor COPUOS are likely to produce arms controls for outer space. An effective arms control regime for outer space by necessity would have to include all the three states that possess significant military arms technology that can be deployed in outer space. It would therefore be most effective if the three States having military space technology were to get together to agree on arms control. A separate understanding among the United States, Russia and China could become the nucleus of new arms control regime in outer space. But that would necessitate these states meeting outside existing UN fora. That is entirely possible if the parties so agree. 9. Conclusion: Prospects of Space Arms Race versus Arms Control President Eisenhower71 was faced with a choice of military policies in outer space when the USSR military satellite, Sputnik, was launched in 1957. The US Air Force at that time favored a policy of dominating the proverbial high grounds and asserting claim to exclusive military control over outer space.72 Eisenhower, being a military man, chose a different approach. He wanted to avoid a surprise ‘space Pearl Harbor’; consequently he wanted the US to be able to observe military activities of all countries from outer space by US reconnaissance satellites. He favored free access to and use of outer space instead of exclusive military control. He rejected the US Air Force position of military control of outer space. Eisenhower presented an international regime for outer space to the United Nations General Assembly in 1960 proposing that outer space be ‘preserved for peaceful use,’ in order not to become the subject of an arms race. He used the 1959 Antarctica Treaty as the model for the international regime for outer space that became the Outer Space Treaty. The 1959 Antarctica treaty had demilitarized Antarctica and he proposed a similar regime for outer space. Thus the Antarctica Treaty became the basis for the COPUOS negotiations of the OST. In the OST the parties preserved the right of military reconnaissance (open skies) which was Eisenhower’s objective in preventing a ‘space Pearl Harbor’. Eisenhower’s quest to preserve outer space for peaceful uses later became incorporated in the 2015 UNGA Resolution on ending the arms race in outer space indicating general support for this principle.73 The choice of military policies in the 1950s is similar to the choice facing the world today: the Space powers can compete for military dominance over non-sovereign outer space. That requires constant reinforcement of military space technology and strategies. It results in a policy of endless escalation. It is costly. The annual US Air Force space programs budget is presently approximately $27 billion, which includes the added $5.5 billion (but does not include the related costs of agencies such as NRO and CIA) and is estimated to cost an additional $60 billion over the next five years from 2016.74 Other competing countries such as Russia and China will, at a minimum, increase their military budgets commensurate with US increases. Military space activities are not only clothed in secrecy; they may be the cause of accidental and mistaken military engagements. Space debris caused by war in outer space will have a detrimental effect. Military engagements will cause a substantial addition to space debris and space will become further degraded and difficult for military operations. The Kessler syndrome75 suggests that access to outer space will be precluded by increasing space debris in future years at the current rate of outer space operations. Debris from military engagements would speed up the predicted foreclosure. Outer space closure would end not only scientific explorations of outer space but will also impede if not foreclose commercial space activities. The alternative military policy is the Antarctica Treaty analogy that President Eisenhower presented to the United Nations and became the basis for the OST, that is, to demilitarize outer space except leave room for satellite reconnaissance. But how can the space powers come to an agreement on arms controls for outer space that will make possible future exploration and use of outer space? At the barest minimum it requires participation by the three space powers having significant military space capability. Those are the USA, Russia and China. Fortunately all three have expressed need for peace in outer space. The US 2010 Policy Statement expresses willingness to expand international cooperation to ‘further the peaceful use of space’. Both China and Russia have emphatically expressed their wish to prevent an arms race in outer space (see above discussion of PAROS). Several UNGA resolutions support an end to the arms race in outer space. UN member states all have interests in exploration and use of outer space and in putting an end to the outer space arms race. If the three space powers can agree on these ultimate objectives then they should be able to agree on stopping the escalating weaponization of outer space. The 2016 Atlantic Council strategy paper advocates a US strategic focus on diplomacy combined with restraint of weaponization: ‘The best case scenario would be for the United States to convince others, particularly China and Russia, to similarly take a step back and re-evaluate their goals, - something that is only going to happen through improved dialogue and/or “signaling”’.76 Lack of progress in both the Disarmament Conference and in COPUOS indicates that these fora are not productive for successful negotiations on military uses of outer space among the USA, Russia and China. The requirement of consensus in these two fora makes negotiations almost impossible. The European Code of Conduct is drifting away from a focus on military space conflicts; negotiations are stymied and have come to a near stalemate.77 This forum is also not productive. That leaves then the option of the three space powers negotiating among themselves outside of the UN umbrella. Included in the general objective of all parties for peace in outer space are the following specifics: (1) some of the new military technologies being developed border on violating the current arms limitation agreements;78 (2) there is increasing danger of cyber-attacks on military satellites in outer space which would constitute yet another escalation;79 (3) the sure consequence of the current arms escalation is disaster for all parties. The three space powers are competing among themselves. One cannot afford to stop for fear of losing competitive leverage vis-à-vis the others. Ironically only the fear of Mutually Assured Destruction (MAD) keeps us from utter and complete world destruction; (4) accidents and mistakes are prone to happen in the degraded space environment; (5) it is in the interest of future exploration and uses of outer space to put a stop to the arms escalation; (6) the competitive arms race is prohibitively expensive. For example, it is estimated to cost the USA an additional $60 billion over the next five years; (7) Commercial uses of outer space require curbs on military activities likely to interfere with commercial activities in outer space; (8) States agree that space debris caused by use of ASATS for military purposes in outer space would be disastrous. The widely agreed COPUOS space debris guidelines80 indicate a peaceful inclination among the states. Many states have now adopted laws and regulations mandating compliance which, in the case of China, ‘implies that China has developed a legal obligation’ to reduce space debris that may be caused by ASATs;81 (9) lastly, the states showed in the 2015 Paris Climate Agreement that they can come to agreement on urgent and ultimate issues.82 Military uses of outer space are a core aspect of the general arms race.83 They are so integrated into other military systems that they become difficult to select out for special arms control. This may be an obstacle that new President’s White House space policy committee will have to resolve when it meets shortly after the new President assumes office in January of 2017. However, many special issues will face the new policy committee. Present policy direction is leading to military conflicts and disaster. Outer space arms control will only become more and more difficult as military capabilities and policies are becoming increasing ingrained. A top down analysis is required to re-evaluate the present policy drift back towards the Rumsfeld Committee’s ‘unilateralist vision of the US role in space’. The new White House space policy committee will need to keep in mind that military policy is interpreted and executed by those whose task is military action and warfighting. But what is currently needed is not a military solution. The people of the Earth require a solution that leads to peace in outer space. Footnotes 1 This article was written as of 2016 before the US change of administration. As of June 2017 there have been no major outer space military policy changes. Developing practices in treaty application are relevant to re-interpretation of existing space law treaties; see the Vienna Convention on the Law of Treaties, art 31, General Rule of Interpretation (1969) UN Doc A/CONF.39/27. Thus a practice may become legal. 2 T Hitchens and J Jonson-Freese, ‘Toward a New National Security Space Strategy, Atlantic Council Strategy Paper no 5, (2016)’ <http://www.atlanticcouncil.org/images/publications/AC_StrategyPapers_No5_Space_WEB1.pdf> accessed October 2016. C Stone, ‘A Not-So-New Strategy’ Space News (17 July 2016) 25. Air Force News, AFSPC Commander announces Space Enterprise vision (12 April 2016) <http://www.afspc.af.mil/news1story_print.asp?id=12347228> accessed 4 April 2016. M Gruss, ‘Satellites in the Crosshairs, Getting Serious about Space Protection; the US plans to spend an additional $60 billion on military space activities during the next 5 years’ Space News (4 January 2016) 15. See also O Lamrani, ‘Avoiding War in Outer Space’ Geopolitical Weekly (17 May 2016) <https://www.stratfor.com/weekly/avoiding-war-space> accessed 17 May 2016. 3 Note that the Outer Space Treaty (OST), 610 UNTS 205, art III, specifically incorporates the UN Charter and other international law in the interest of maintaining peace and security. OST, arts I–VII, are generally accepted by all states thus constituting customary international law applicable to all states, including non-parties. 4 Hitchens and Freese-Johnson (n 2); Stone (n 2). Considering the significant war-fighting role of the Air Force Space Command, see (n 2), it is surprising that the 2015 DOD Law of War Manual has surprisingly little regulation of conduct of war in outer space. 5Commission to Assess the Ballistic Missile Threat to the United States (15 July 1998) Chairman, DH Rumsfeld <http://www.fas.org/irp/threat/bm-threat.htm> accessed June 2008 or <http://www.fas.org/irp/threat/missile/rumsfeld/toc.htm> accessed June 2008. cf Congressional Report, US Senate 31 July 1998: <http://www.fas.org/irp/congress/1998_cr/s980731-rumsfeld.htm> accessed June 2008. 6 The Space Commission: Report of the Commission to Assess United States National Security Space Management and Organization (2001) <http://www.dod.mil/pubs/space20010111.html> accessed 5 December 2016. 7 US National Space Policy (2006–2007) XXXII AASL 475–86; <http://www.ostp.gov/galleries/press_release_files/Unclassified%20National%20Space%20Policy%20–%20FINAL.pdf> accessed 5 December 2016. Note this is the unclassified sections of the text. 8 US Air Force Space Command ‘Strategic Master Plan FY06 and Beyond’ (2003) <http://www.wslfweb.org/docs/Final%2006%20SMP–Signed!v1.pdf>. For the Plan for ‘FY04 and Beyond’ see <http://www.nukewatch.org/importantdocs/resources/Final004SMP.pdf> accessed 15 October 2009. 9 Joint Doctrine for Space Operations (9 August 2002) US Joint Chiefs of Staff, Joint Publication 3–14 <http://www.dtic.mil/doctrine/jel/new_pubs/jp3_14.pdf> accessed 15 October 2009. 10 Counterspace Operations, Air Force Doctrine Document 2-2.1, 2 August 2004 <http://www.dtic.mil/doctrine/jel/service_pubs/afdd2_2_1.pdf> accessed 15 October 2009. 11 For later/updating material try the ‘Joint Doctrine Branch’, in the ‘Joint Electronic Library’ <http://www.dtic.mil/doctrine/doctrine.htm> accessed 15 October 2009. 12 M Bourbonniere and R Lee, ‘Legality of the Deployment of Conventional Weapons in Earth Orbit: Balancing Space Law and the Law of Armed Conflict’ (2007) 18 Eur J Int L 873–901. 13 ibid. 14 2010 National Space Policy of the United States <https://www.whitehouse.gov/sites/default/files/national_space_policy_6-28-10.pdf> accessed 16 May 2016. 15 DOD and Director of National Intelligence, National Security Space Strategy, Unclassified Summary (January 2011). See G Schulte and A Schaffer, ‘Enhancing Security by Promoting Responsible Behavior in Space’; see also General C Kehler, ‘USAF, Implementing the National Security Space Strategy’ (2012) 6 Strategic Studies Quarterly, respectively, 9 and 18. 16 ibid. 17 Outer Space Treaty (n 3); UN Charter, 59 Stat 1031. Note that the inherent right of individual self-defense exists only until the UN Security Council takes measures to main the peace. However, due to the veto powers of the US, Russia and China in the Security Council, the Council may not be readily able to agree on peace keeping measures. 18 National Security Space Strategy (n 15). 19 ibid. 20 See discussion P Larsen, ‘International Regulation of Global Navigation Satellite Systems’ (2015) 80 J Air L & Com 365–422, and P Larsen, ‘The Oso Landslide: Disaster Management Law in the Space Age’ (2016) 40 Wm & Mary Env’tl L & Pol’y Rev 1. 21 Larsen (n 20). 22 National Security Space Strategy (n 15). 23 See discussion of the US International Trade in Arms Regulations (ITARs) in F Lyall and PB Larsen, Space Law a Treatise (Ashgate 2009) Ch 14. The US Government announced in 2014 that commercial communication satellites were no longer considered national defense items. The main impact of the new export regulations is to lower the export barriers to allied countries. The prohibitions on exports to China remain. 24 National Security Space Strategy (n 15). 25 In 2014 Russia launched military satellites that were uncomfortably close to Intelsat commercial satellites thus arousing US concern. 26 National Security Space Strategy (n 15). 27 ibid. 28 Hitchens and Johnson-Freese (n 2) 6. 29 Department of Defense DIRECTIVE, Number 3100.10 (18 October 2012) <http://www.dtic.mil/whs/directives> accessed 16 May 2016; it was issued subsequent to the elaborated political 2010 policy statement. 30 Hitchens and Johnson-Freese (n 2) 3. Also see Stone (n 2). 31 US Air Force Command News (n 2). 32 Hitchens and Johnson-Freese (n 2) 13. The White House Director of Space Policy, speaking in November 2015, is quoted saying ‘The President has expressed concern about the emerging antisatellite capabilities and the possible threat to the U.S. Mission.’ The director spoke of the need to support military deterrents to foreign attacks and said that the White House intends to ‘substantially increase the level of resources needed by an aggressor to successfully interfere with critical US military and intelligence capabilities’. Interestingly, the director of Space Policy referred to the 2001 Rumsfeld Report as the big water mark of US defensive strategy. See Gruss (n 2) 12. 33 Deputy Assistant Secretary of Defense for Space Policy Douglas L Loverro is reported to explain that the 5.5 billion current budget is for the investment program. The 60 billion budget figure includes funds for the Joint Space Operations Center ‘which provides military authorities with a common operating picture of the space environment and supports activities including satellite maneuvers and space launches, and the Space Based Surveillance follow-on satellite which has been in and out of Air Force budget requests but now enjoys an elevated priority’. See Gruss (n 2). See also Lamrani (n 2). 34 ibid. D Loverro, Deputy Assistant Secretary of Defense of Space Policy expressed that ‘adversaries are working on every one of those mechanisms, whether they be direct-asent ASAT, which of course have gotten the most press, lasers, co-orbital threats – all of these threats have been worked on by the folks who want to deny U.S. space capability’. In 2013 China is alleged to have launched an ASAT missile into geostationary orbit. See C Stone, ‘A Not-So-New Strategy’ Space News (19 July 2016) 26. 35 See Wikipedia < https://en.wikipedia.org/wiki/Air_Force_Space_Command> accessed 16 May 2016. 36 Air Force news release, 1 April 2016 (n 2). It should be kept in mind that many Air Force outer space activities are dual use. For example the Air Force tracks daily 1300 active satellites and 23 000 space debris objects and alerts both civilian and military operators of potential collision dangers, see M Gruss, ‘How DOD Confirms a Possible Satellite breakeup’ Space News (9 May 2016) 16. 37 See F Morring, ‘Commentary, Do No Harm, NASA Hunkers Down for Post-Election Changes’ Aviation and Space Technology (11–24 April 2016) 22. 38 Hitchens and Johnson-Freese (n 2) 11. <https://www.un.org/press/en/2014/ga11593.doc.htm> accessed 17 May 2016. 39 Amb Alexander Yakovenko, 2013–15 statements: ‘Why Russia is Against Weapons in Space’ <htps://www.rt.com/op-edge/weapons-russia-space-destruction-282/> accessed 18 May 2016. Also <https:/www.rt.com/nes/239533-russia-treaty-weapons-space> accessed 18 May 2016 and <https://www,rt.com/op-edge/weapons-outer-space-russia> accessed 18 May 2016. See also Wikipedia, ‘Militarisation of Space’ <htps://en.wikipedia.org/wiki/Militarisation_of_space> accessed 18 May 2016. 40 See above nn 38 and 39. 41 ibid. 42 See detailed discussion of the Code of Conduct below. 43 Yakovenko (nn 38 and 39) 44 See Y Zhao, ‘Regulation of Space Activities in the People’s Republic of China’ in RS Jakhu (ed), National Regulation of Space Activities (Springer 2010) 247. 45 D Cheng, ‘China’s Military role in Space’ Strategic Studies Quarterly; see above (n 15) 62. China is particularly worried about US Air Force assertion of space control, see Hitchens and Johnson-Freese (n 2) 11. 46 Y Zhao, National Space Law in China (Brill Nijhoff 2015) 58 and 155. 47 See above nn 38 and 39. See also Statement by the Chinese Delegation of the Thematic Debate on Outer Space at the First Committee of the 62 Session of the UNGA 2007 <http://www/china-un.org/eng/xw1374868.htm> accessed 5 December 2016. 48 ibid. 49 China and Russia have both expressed strong preference for discussion of military uses of outer space in the Conference on Disarmament which is a forum that has been sympathetic to their push for a treaty on prevention of an arms race in outer space. 50 Note also the 2013 launch of an alleged Chinese ASAT into near geostationary altitude (36 000 km), see above n 30. China tested ASATs seven times in the 2005–20014 time period. See Brian Wreden, ‘Anti-Satellite Tests in Space – The Case of China’ <http://swfound.org/media/115643/china _asat_fact_sheet_may2015.pdf> accessed 19 May 2016. See also Cheng (n 45) 64–66. 51 ibid. See also KS Blazejewski, ‘Space Weaponization and US–China Relations’ (2008) Strategic Studies Quarterly 46. 52 ibid. The European proposal for a Code of Conduct for outer space has been discussed in COPUOS and in a special UN forum. There is a precedent for discussing outer space disarmament in COPUOS because the 1967 Outer Space Treaty was negotiated in COPUOS. OST is the major successful space disarmament treaty. Arguably the Conference of Disarmament, although recognized as the established disarmament forum, is not favorably disposed to consider alternative space disarmament proposals such as the Code of Conduct. 53 Blazejewski (n 51). 54 <http://eu.un.europa.eu/documents/en/draft_Space_Code_of_Conduct.pdf> accessed 20 May 2016. 55 ibid. The idea of the EU code of conduct draws on the ‘Model Code of Conduct for the Prevention of Military Incidents and Dangerous Military Practices in Outer Space’, the HL Stimson Center (19 May 2004) <http://www.stimson.org/wos/pdf/codeofconduct.pdf> accessed 21 May 2016 or < http://www.stimson.org/pub.cfm?id=106> accessed 21 May 2016. The Center is a non-profit institution devoted to enhancing international peace and security that seeks to reduce the threats to the peace by recommending solutions to complex problems such as military threats to peaceful uses of outer space. See generally: <www.stimson.org/space>. 56 China destroyed its Fengyun-1C weather satellite with a Chinese ASAT, see Gruss (n 2) 15; see also Lyall and Larsen (n 23) 305. 57 C Johnson, ‘Draft International Code of Conduct for Outer Space Activities Fact Sheet’ (2014), Secure World Foundation <www.swfound.org> accessed 22 May 2016. 58 International Code of Conduct for Outer Space Activities (draft), EEAS <https://eeas.europa.eu/sites/eeas/files/space_code_conduct_draft_vers_31-march-2014_en.pdf> accessed 5 December 2016. 59 Stimson Center (n 55). 60 US State Dept Press Release of 17 January 2012. See also US Backs Efforts to Draft Space Code, Arms Control Today <http://www.armscontrol.org/act/2012_03/US_Backs_Efforts_to_Draft_Space_Code> accessed 23 May 2016. 61 See Foreign Relations—Code of Conduct for Outer Space <http://www.cfr.org/space/code-conduct-outer-space/p26556> accessed 23 May 2016. 62 See above n 39. 63 For a panorama of views on the International Code of Conduct for Outer Space, see RP Rajagopalan and DA Porras, ‘Awaiting Launch: Perspectives on the Draft ICOC for Outer Space Activities’ <www.orfonline.org> accessed 24 May 2016. 64 ‘Time to take North Korea Seriously’, New York Times editorial (14 February 2016) 8 SR. 65 ibid. 66 2010 US National Space Policy Statement (n 14). 67 See US National Security Space Strategy (n 15). 68 <https://en.wikipedia.org/wiki/Kessler_syndrome> accessed 5 December 2016. 69 Hitchens and Johnson-Freese (n 2) 18–19. Convention on International Liability for Damage Caused by Space Objects, 961 UNTS 187. 70 DR Terrill, The Air Force Role in Developing International Outer Space Law (Air Force University 1999) Ch 3. Eisenhower’s peace for space policy should be viewed in the context of his ‘open skies’ policy both of which aimed for maximum transparency to avoid another Pearl Harbor surprise and for ‘national technical means of verification’. 71 US President and commander-in-chief 1953–1961. 72 Terrill (n 71). 73 See above (n 39). 74 Gruss (n 2) and Lamrani (n 2). 75 <https://en.wikipedia.org/wiki/Kessler_syndrome> accessed 5 December 2016. 76 Hitchens and Johnson-Freese (n 2) 4. By more ‘signaling’ the authors mean greater transparency of intentions and movements. In particular they want the US ‘to establish better dialogue with Russia and China in particular about US “bright lines” in space and mutual assurance measures that would reduce risks of misconception and conflict, as well as establish “breakers” to dangerous conflict escalation’. 77 Space Code Process called ‘Unsuccessful’, Arms Control Today (March 2016) <http://www.armscontrol.org/ACT/2016_03/News-Briefs/Space-Code-Process-Called-Unsuccessful> accessed 5 December 2016. 78 W Broad and D Sanger, ‘Race Escalates for Latest Class of Nuclear Arms’ New York Times (17 April 2016) A1. The article suggest that parties to the arms control agreements such as the 2010 START Treaty should not be developing new nuclear technologies. 79 2011 DOD and Director of National Intelligence, National Security Space Strategy statement supra (n 15) indicates that the United States may deploy cyber-based alternatives from space-based platforms. 80 UNGA Res A/62/20 (2007).The COPUOS space debris guidelines have now been adopted by national law and regulations in many countries. 81 Yun Zhao (n 46) 213. Interestingly this lends support for Prof Koplow’s suggestion that customary international law may be developing to reduce the threat of ASATs, see DA Koplow, ‘ASAT-ISFACTION: Customary International Law and Regulation of Anti-Satellite Weapons’ (2009) 30 Mich J Int’l L 1187. 82 2015 Paris Climate Agreement, UN Doc FCCC-INFORMAL/84GE. 05-62220 (E) 200705. 83 See M. Grus, Satellites in the Crosshairs (n 2). © Oxford University Press 2017; all rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Journal of Conflict and Security LawOxford University Press

Published: Jun 20, 2017

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