Peaceful Purposes for the Benefit of All Mankind

This chapter argues that the Outer Space Treaty contains, in addition to its legal content, ethical content. The chapter then analyzes the text of the treaty to reveal this ethical content and connect it to the twin goals of the peaceful uses of outer space (found in international space law) and the maintenance of international peace and security (found in general international law). The analysis contends that, while the ethical content of the Outer Space Treaty does not create hard legal obligations, it does inform the nature of the legal content of the norms set out by the treaty. Finally, this chapter will also evaluate how the ethics deployed by the treaty have fared in the contemporary geopolitical context.

ConclusionCooperation, Collaboration, and Communication in Space

The creation of the U.S. Space Force at the end of 2019, France’s steps toward creating a similar dedicated military body, and NATO’s formal recognition of space as a military operational zone integral to international security were all markers of the beginning of a new era as of the second decade of this century. Although space-based technologies have been utilized by world militaries since the beginning of the space age in the 1960s, the militarization of space has not been on the public radar to the extent it now is, and the likelihood of space-based conflict has never been greater. At the same time, popular awareness of civil and commercial uses of space has also increased. In short, we are in a New Space Age, one that is equal parts commercial and political, and one which—arguably even more so than the first Space Age—has national and international security interests at its center. The need for ethically sound policy and law at this time is irrefutable, and it is in answer to this need that our contributing authors have tackled various challenging issues, applying their exceptional expertise. In addition to agreement as to current and future threats to national and global security stemming from the use—and misuse—of the space environment, there are many suggested measures for ameliorating the risk of conflict in space. A central theme in all of the chapters is that the best way to avoid capricious use of the space environment in wartime is to create a set of norms in peacetime, recognizing that shared use, rather than dominance, is the preferred outcome for all spacefaring nations.

The Legal Challenge of Arms Control in Space

The research and development, testing, production, storage, and deployment of antisatellite weapons (ASATs) is limited directly by the law of space arms control and indirectly by the law of environmental protection. The former only prohibits the testing and deployment of ASATs in a partial manner, with conventional space-based ASATs and ground-based ASATs unaddressed. The latter may constrain the right to test and use ASATs, by limiting their exterior impact on the environment and/or their potential interference with others’ activities. While the law of environmental protection is complementary to the law of space arms control in protecting the space environment from damage caused by military activities, to address the core issue of space security lies in the strengthening of space arms control itself.

Diplomacy

A disturbing trend in the contemporary approaches of States to space security has been the decline in diplomacy and the consideration of diplomatic options to achieve national security goals. The official characterization of outer space as “congested, contested and competitive” has ignored the legacy and potential for “cooperation” in this unique if vulnerable realm. The authority of the foundational Outer Space Treaty of 1967, with its stipulation that space is to be used for “peaceful purposes,” is being eroded by neglect and unilateral assertions that space is a domain for “warfighting.” The champions of space peace will have to become as active as the exponents of space war if a benign environment for space operations is to be preserved for future generations.

U.S. Space Dominance

This chapter considers the ethical implications of the United States trying to achieve “space dominance” as part of an increasingly muscular U.S. “space warfare is inevitable” outlook. The methodology used in the analysis is drawn from Santa Clara University’s Markkula Center for Applied Ethics, using utilitarian, rights, fairness, common good, virtue, and technology considerations as ethical decision-making lenses. Additionally, the chapter examines space dominance as a function of time and contractarianism. It concludes that the U.S. pursuit of space dominance appears to stem mostly from fear and self-interest, and that a better approach would be to shift more closely to honor and self-interest by pursuing more balance between military readiness and assiduous diplomacy. There is, however, no evidence that the latter approach is being considered.

The Rule of Law in Outer Space

Different approaches must be adopted in the governance of outer space if the rule of law is to be enforced. As international institutions and committees engage on a variety of international space matters, efforts must be made to forge an international cooperative structure or authority that aims to foster collaboration in the effort to develop the rule of law in space. Effectively, the call to govern outer space and enforce the rule of law through concerted efforts of an Outer Space Authority has been echoing through the years. It may be that the existing political climate and the urgent need for a coherent global strategy for exploration of space and to prevent outer space militarization all mean that we are at an opportune moment to once again put forward proposals for the establishment of an independent Outer Space Authority, fully clothed with powers to make binding decisions.

Introduction

War and Peace in Outer Space examines the legal, policy, and ethical issues animating current concerns regarding the growing weaponization of outer space and the potential for a space-based conflict in the very near future. A collection of diverse voices rather than the product of a single scholarly mind, it builds upon a conference that was held in Philadelphia in April 2018, hosted by the Center for Ethics and the Rule of Law, at the University of Pennsylvania Law School, and designed by co-editor Cassandra Steer. The conference was an exceptionally high-level invitation-only roundtable for the duration of two days, attended by approximately thirty experts on space warfare from Canada, Europe, and the United States. In addition to calling attention to likely current and future threats to national and global security stemming from the use and misuse of the space environment, attendees suggested measures for ameliorating the risk of conflict in space, including international negotiation, transparency, and reporting on the use of space-based assets, and the establishment of clear rules, backed up by sanction regimes, against hostile actions that threaten the peaceful use of space by all nations.

Norm Setting and Transparency and Confidence-Building in Space Governance

Governance of the use of space, both at the national and the international level, is complicated. Because most countries in the world have been reticent over the last thirty years to negotiate new legally binding commitments in space, ongoing multilateral work on space governance has concentrated primarily on voluntary measures. This chapter reviews and compares the two most salient of these initiatives: the normative recommendations of the UN Group of Governmental Experts (GGE) and the Guidelines for the Long-Term Sustainability of Outer Space Activities agreed by the Committee on the Peaceful Uses of Outer Space Working Group. While the GGE was “top-down” focused on transparency and confidence-building to avoid conflict among States, the LTS Working Group was a “bottom-up” approach for safe and sustainable practices with regard to the use of space. The conclusion looks at how States can best implement the recommendations.

A Proposed Transparency Measure as a Step Toward Space Arms Control

This chapter describes a multilateral transparency measure requiring “notification of transfer of kinetic energy to an object in Earth orbit.” This proposed transparency and confidence-building measure would address a number of stumbling blocks in space arms control, such defining weapon in outer space and the challenges of verification, and offers the potential of easing tensions, increasing trust, and achieving a more secure space operating environment. This TCBM is based on behavior and the transparency will assist in differentiating commercial/civil R&D from military activities in the emerging fields of on-orbit servicing and active debris removal. This measure would make it more difficult for States to surreptitiously develop antisatellite weapons, and may also reduce the perceived need for such capability.

The Legality of Keep-Out, Operational, and Safety Zones in Outer Space

This chapter examines situations in which, as an exception to the general principle of the freedom of exploration and use of outer space by all States, a State might legally be permitted to declare a keep-out zone in outer space. It commences with two zones that are likely to be legally recognized: those declared by the UN Security Council acting under Chapter VII of the UN Charter and those declared by belligerents in the immediate area of operations in an armed conflict. It then examines the potential application to outer space of exclusion zones similar to those recognized in naval and air warfare. Finally, it examines two zones applicable in peacetime which may develop in space law in the future: a possible space object identification zone based on the air defense identification zone, and possible safety zones for space resource activities on celestial bodies.