Reconsidering the Rules for Space Security

<i>Doctrinal and Legal Changes</i>

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Authors
Nancy Gallagher and John David Steinbruner
Project
Reconsidering the Rules of Space

Perhaps the most consequential change since the 1997 release of Vision 2020 is that U.S. space policy no longer has stabilizing deterrence as the primary strategic objective. Nor are space activities to be guided by the political purposes that Admiral Owens had in mind when he proposed using advanced information technology to address emerging global security problems in ways that reduced the need for costly economic and military resources. The 2002 National Security Strategy fundamentally alters the context for all U.S. military uses of space by declaring that the United States will go on the offensive and “make use of every tool in our arsenal” to prevent the emergence of threats before they are fully formed.110 The 2001 Nuclear Posture Review provides a more detailed depiction of a new approach to security based not on the traditional nuclear deterrence triad (land-, sea-, and air-strategic systems) but on a new strategic triad comprising nuclear and nonnuclear offensive strike systems, active and passive defenses, and a responsive infrastructure, bound together by enhanced command and control and intelligence systems—each component of which is intimately connected to space systems.111

The central role of space in this new strategy was institutionalized by merging the U.S. Space Command with the U.S. Strategic Command and assigning to the expanded STRATCOM responsibility for conducting global strike, operating missile defenses, and providing comprehensive command support.112 Some SPACECOM supporters viewed this as a step in the wrong direction because the combined responsibilities diluted the focus on space instead of making SPACECOM into a distinct and unified full-spectrum com- bat command.113 But for anyone whose immediate concern is with the expanded use of space for long-range precision power projection using the full range of capabilities covered by the new strategic triad, the merger has worrisome implications.

With coercive prevention enshrined as the dominant national security strategy and long-range precision conventional strike weapons elevated to the same status as nuclear weapons in the Nuclear Posture Review, SPACECOM supporters had all the top-level cover they needed to reinterpret the vague language from the 1996 National Space Policy to fit their vision of space as a war-fighting command. The Clinton National Space Policy included a passage directing the DOD to “maintain the capability to execute the mission areas of space support, force enhancement, space control, and force application,” but this was originally understood not to include the development and deployment of space weapons.114 Bush administration military space planning documents redefined these mission areas and capabilities to include the various space weapons described above. On offensive anti-satellite weapons, the AFSPC Strategic Master Plan declared that national policy already required the development of “negation” capabilities and authorized their deployment “as needed to ensure freedom of access and operations in space,” with a decision by the president or secretary of defense needed only to approve the actual “employment of force against enemy space assets.” As for space weapons aimed at terrestrial targets, the Strategic Master Plan noted that conventional global strike weapons were now part of the offensive leg of the new strategic triad, asserted that “international laws and treaties do not prohibit the use or presence of conventional weapons in space,” and stated that “our nation’s leadership will decide whether or not to pursue the development and deployment of conventional, space-based systems for global strike to fully exploit the advantages of space.”115

The Bush administration has taken equally decisive action to change the international legal context for its military space activities. In the same month that the new National Security Strategy and the SPACECOM/STRATCOM merger were announced, the United States also withdrew from the ABM Treaty. This was not a necessary condition for taking the next logical steps in research and development but a political move to indicate the Bush administration’s firm intention to deploy a large, layered defense system.116 The administration has rejected all international efforts to consider new legal limits on missile defense or any other military space activities. For years, the United States and Israel abstained while almost every other country in the world voted for a UN General Assembly resolution in support of negotiations on an agenda item known as prevention of an arms race in outer space (PAROS), and in 2005 the United States went one step further by voting against the resolution.117 The United States has also used procedural maneuvers in the Conference on Disarmament (CD) to prevent formal discussions, let alone negotiations, on additional legal limits on military space activities.118 On space debris and other issues where the United States wants more international cooperation, it has backed voluntary guidelines over legal obligations in keeping with the Rumsfeld Commission’s advice to “be cautious of agreements intended for one purpose that, when added to a larger web of treaties or regulations, may have the unintended consequences of restricting future activities in space.”119

The United States has been using a permissive interpretation of the OST and the other remaining rules regulating military space activities. The traditional U.S. interpretation, shared by most other space-faring countries but not universally accepted, was that “nonaggressive” military support activities were consistent with the peaceful-use principle.120 When Bush administration officials or SPACECOM writings mention the OST, though, they typically assert that any military uses of space that are not explicitly prohibited in article IV (WMD in orbit and military activities on celestial bodies) are permitted. That contention ignores article III’s specification that space activities must be in accordance with international law, including UN Charter rules about the threat or use of force.

SPACECOM lawyers maintain that other countries’ failure to object as the United States steadily expands the scope of “peaceful” military space activities indicates tacit acceptance of U.S. behavior. The AFSPC chief of space and inter- national law asserted that “various unopposed military uses of space may as a practical matter enlarge the unofficial definition of ‘peaceful purposes’ to the point that specific arms control agreements may be the only effective limitation on development and deployment of various weapons in space.”121 She noted that U.S. military space activities are constrained in other ways, including the international Law of Armed Conflict (LOAC) and U.S. Armed Forces Standing Rules of Engagement (SROE). But these unilateral constraints are weakened by the controversial U.S. position that “anticipatory self-defense” is consistent with the UN Charter and by the contentious claim that the LOAC principles of discrimination and proportionality might require the use of space assets “to successfully carry out near-surgical strikes with minimum civilian casualties.”122

Other countries have protested the expansion of U.S. military space activities. Chinese CD representatives repeatedly have said that U.S. plans run “counter to the fundamental principle of peaceful use of outer space” and have speculated that the U.S. goal in outer space is to “defy the obligations of international legal instruments and seek unilateral and absolute military and strategic superiority.”123The United States has paid little heed to this diplomatic opposition. Bush officials use the fact that the international consequences of U.S. withdrawal from the ABM treaty seemed relatively minor, at least initially, as evidence that China, Russia, and other countries currently voicing opposition to space weapons will not have much choice but to accept whatever the United States decides to do.

The most striking thing about the new U.S. National Space Policy released in October 2006 is its belligerent, nationalistic tone at a time when the Bush administration is asking China, Russia, and a number of other space-faring nations for help with proliferation crises in North Korea and Iran. The policy contains no substantive surprises for those who have been paying attention to the lower-level military space documents and diplomatic developments. The only concession to domestic and international concerns about U.S. military space ambitions is continued use in the unclassified version of vague language from the Clinton National Space Policy directing the secretary of defense to maintain capabilities to execute the four major space missions. The presidential directive does not explicitly mention anti-satellite or space-to-earth weapons, nor does it clarify whether the administration has officially embraced the “space control” version of the SPACECOM vision or the “high ground,” full-spectrum combat command conception, to use Lupton’s typology.

The new policy opens by framing the primary objective as relative national advantage rather than mutual benefit and by declaring that “freedom of action in space is as important to the United States as air power and sea power.” The principles guiding the 2006 National Space Policy assert a broad array of U.S. rights and vital interests in space but no longer acknowledge that all other countries have the same rights and interests. For example, whereas the 1996 policy “rejects any limitations on the fundamental right of sovereign nations to acquire data from space”—a specific right established and qualified by the corresponding rights of sensed states in the 1986 Principles on Remote Sensing—the comparable 2006 language “rejects any limitations on the fundamental right of the United States to operate in and acquire data from space.”124 In contrast to decades of U.S. policy that considered equitable rules and reciprocal restraint as providing valuable protections for U.S. space activities, the 2006 policy emphasizes that the United States is prepared to take unilateral action to dissuade, deter, defeat, and, if necessary, deny any space-related activities that are hostile to its interests. Moreover, the 2006 policy gives the Rumsfeld Commission’s anti–arms control principle presidential authority:

The United States will oppose the development of new legal regimes or other restrictions that seek to prohibit or limit U.S. access to or use of space. Proposed arms control agreements or restrictions must not impair the rights of the United States to conduct research, development, testing, and operations or other activities in space.125

The 2006 National Space Policy is the culmination of the effort initiated with Vision for 2020 to make SPACECOM’s conception of information-age space security into official U.S. policy. If foreign leaders had any doubts about President Bush’s willingness to endorse SPACECOM’s ambitions for military space dominance, those doubts should be dispelled now. But important questions remain about the basis in reality for this declaratory policy. As the chief foreign commentator for the conservative-leaning British newspaper of record observed:

Space [is] no longer the final frontier but the 51st state of the United States. The new National Space Policy that President Bush has signed is comically proprietary in tone about the U.S.’s right to control access to the rest of the solar system. The document makes a serious point about our growing dependence on satellites, the military threats to them, and ways of protecting them. But America has rejected the desire by 160 other countries to have United Nations talks about banning an arms race in space, an extravagantly unilateral approach whose appeal you might have thought would have been tarnished by its experience in Iraq.126

ENDNOTES

110. The National Security Strategy of the United States of America (September 2002), http:www.whitehouse.gov/nsc/nss.html.

111. The December 2001 Nuclear Posture Review is classified, but excerpts are at

112. In the bureaucratic jargon of the plan, command support is referred to as "C4ISR," an acronym covering most space-based military support activities for command, control, communications, computers, intelligence, surveillance, reconnaissance, and information operations.

113. From this perspective, the merger is explained in terms of a desire to keep the total number of commands the same when NORTHCOM was established to enhance homeland defense after the September 11, 2001 attacks.

114. Theresa Hitchens, "National Space Policy: Has the U.S. Air Force Moved the Goal Posts?" (remarks at the Henry L. Stimson Center, May 20, 2004), http://www.cdi.org/program/document.cfm?DocumentID=2231&from_page=../index.cfm.

115. AFSPC, Strategic Master Plan, 35.

116. Philip Coyle, "The ABM Ambush," The Washington Post, July 13, 2001.

117. By fall 2005, John Bolton, one of Rumsfeld's closest allies in the Bush administration, had moved from being undersecretary of state for arms control and international security to ambassador to the United Nations, giving him more direct control over U.S. voting behavior. The tally for the 2005 PAROS resolution was 180-2-0. In 2006 and 2007, Israel moved back to abstaining on the resolution, leaving the United States as the only country to vote against the resolution even after Bolton had left the government.

118. In 1994 the CD reconvened an ad hoc PAROS discussion group that had been first formed in 1985 after President Reagan's announcement of the SDI sparked fears of a U.S.- Soviet space competition. After the Clinton administration began to look more serious about missile defense and NATO accidentally dropped three precision-guided bombs on the Chinese Embassy in Belgrade during Operation Allied Force, China declared in 1999 that its willingness to accept a CD work plan that included fissile material cutoff treaty (FMCT) negotiations—a U.S. priority for the CD—was contingent on a negotiating mandate for PAROS. To promote consideration of the issue in the CD, China and Russia in 2002 submitted a joint working paper on "Possible Elements for a Future International Legal Agreement in the Prevention of the Deployment of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects," but the United States continued to insist that PAROS negotiations were unnecessary because there was no arms race in outer space. No progress was possible until China reversed itself in July 2003 and accepted a discussion-only mandate for PAROS. The Bush administration then changed its position on FMCT to preclude verification while agreeing only to discuss "issues related to PAROS," a combination that was unacceptable to China and several other CD members. The United States eventually agreed to a compromise in which FMCT negotiations would begin without prejudice to the question of verification and PAROS discussions would start without precluding future negotiations, but whether this compromise will be enough to get consensus on a CD work plan in 2008 is presently unknown. See Michael Hamel-Green, "New Impetus, Old Excuses: Report on the Conference on Disarmament in 2007," Disarmament Diplomacy 86 (Autumn 2007), http://www.acronym.org.uk/dd/dd86/86cd.htm.

119. Rumsfeld Commission, Report, 17–18.

120. Ivan Vlasic, "The Legal Aspects of Peaceful and Non-peaceful Uses of Outer Space," in Peaceful and Non-peaceful Uses of Space, ed. Bhupendra Jasani (New York: Taylor and Francis, 1991), 37–55.

121. Elizabeth Waldrop, "Weaponization of Outer Space: U.S. National Policy," High Frontier, Winter 2005, 36–37.

122. Waldrop, "Weaponization of Outer Space," 40–41. Waldrop does acknowledge some additional practical legal restrictions on U.S. military space activities, such as the SROE requirement for specific authorization before conducting operations against foreign space-based systems and LOAC neutrality rules governing what can be done to stop belligerents from using satellite imagery or communications that belong to third parties.

123. See "Statement by H.E.[His Excellency] Mr. Li Changhe—Chinese Ambassador for Disarmament Affairs, Head of the Chinese Delegation for the Conference on Disarmament—at the Plenary Meeting of the CD," March 12, 1998, www.nti.org/db/china/engdocs/lich0398.htm; Fu Zhigang, "A Chinese View of Star Wars," The Spokesman 72 (c. 2000): 17–18; and "Statement by Ambassador Hu Xiaodi for Disarmament Affairs of China at the Plenary of the Conference on Disarmament," June 7, 2001, http://www.nti.org/db/china/ engdocs/cd060701.htm.

124. White House, National Science and Technology Council, "National Space Policy"; and OSTP, "U.S. National Space Policy"; emphasis added.

125. OSTP, "U.S. National Space Policy."

126. Bronwen Maddox, "America Wants It All—Life, the Universe, and Everything," The Times, October 19, 2006.