Regular readers may recognize a recurring theme of the Captain’s Blog in examining the ways that nations have abandoned and continue to depart from the spirit, if not the letter, of the foundational Outer Space Treaty of 1967. While other international treaties, notably the Limited Test Ban Treaty of 1963 prohibiting nuclear tests and explosions in outer space, may provide some governance or guidance, the Outer Space Treaty is the principal international law that requires the peaceful use of space by nation states. The Outer Space Treaty of 1967 requires that the use of outer space be “for the benefit and in the interests of all countries” and “in the interest of maintaining international peace and security and promoting international co-operation and understanding,” and it additionally broadly prohibits the weaponization of outer space. Article IV of the Outer Space Treaty states:
States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station weapons in outer space in any other manner.
The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies shall also not be prohibited.
While there could be some academic value to splitting hairs in defining space weapons and the weaponization of space, such pursuits seem to be driven towards weakening the interpretation of the text of the Outer Space Treaty. The simple fact is that the Outer Space Treaty, both by its letter but more importantly by its spirit, requires the peaceful use of space. Now that the reality of the pragmatic use of space approaches, nations are discarding their peaceful aspirations for what they would no doubt argue is a more realistic approach to the weaponization of space. The
author seeks not to judge whether this particular development is positive or negative, but to encourage the reader to consider the implications both to international law – treaties – and to space law.
The United States military has become particularly vocal about its intentions to turn outer space into a battlefield. A draft of the National Defense Authorization Act (NDAA) for fiscal year 2018 classified outer space as a “combat domain,” which is commonly known as a battlefield. The NDAA became law – Public Law No. 115-91 – on December 12, 2017, without a section that had been in an earlier version of the 2018 NDAA that caught the attention of news agencies and apparently stated:
It is the policy of the United States to develop, produce, field, and maintain an integrated system of assets in response to the increasingly contested nature of the space operating domain to [among other things] deter or deny an attack on capabilities at every level of orbit in space, [as well as to] defend the territory of the United States, its allies, and its deployed forces across all operating domains.
The 2018 NDAA, as passed, instead required the Department of Defense to develop a plan to establish a separate military department responsible for the national security space activities of the DoD within 45 days, including recommendations for legislative language. We can thus expect to see a detailed legislative mandate for the militarization of space later this year. As the Secretary of the US Air Force, Heather A. Wilson recently said, “We are moving forward with modernization in space, so we’re increasing our lethality in all of our areas of endeavor. And we are shifting to space as a warfighting domain.”
Regardless of one’s personal stance on the militarization of space, it should be clear that it is an inevitable future unless something radical changes. There are opportunities for space lawyers in setting the parameters of international law and future treaties, in negotiating contracts for the various components of moving materiel into outer space, and in pursuing the inevitable claims arising from the militarization of space, among many other opportunities. The future possibilities are endless for space lawyers. Join the Intergalactic Bar Association and prepare yourself for the future of law.