Space Law

Space law consists of treaties, agreements, and regulations such as the Outer Space Treaty, the whole Moon Treaty, and the Patents in Space Act, to give prominent examples. Much of it is designed to regulate the militarization (i.e., weaponization and nuclearization) of space, with debates existing over whether, for example, the nuclear explosion used to propel a spacecraft is a weapon or not. Another growing area involves space tourism, private ventures, and commercialization of space, where the guiding legal principles appear to be informed consent and assumption of risk. However, the general thrust of space law is oriented toward the same directions as environmental law, in that the peaceful uses of outer space are seen as being of parallel importance to issues such as ozone depletion, climate change, and biological diversity. These two specialty areas of law are closely related for a number of reasons because control of space (and/or environment) not only brings the potential of absolute power, but has civil rights implications (privacy vis-a-vis satellite monitoring, for example).

There are further and somewhat questionable aspects to space law which involve such things as space war (the stuff of science fiction) and what happens when first contact is made with extraterrestrials. Additionally, there are unknown political dynamics about what will happen if and when any of the attempting countries (China, Brazil, Japan, Nigeria, Russia, USA) gets a colony to the moon or another planet first, which is to say, colonization of space is an important issue. The country of China has already gone on record saying they will not surrender andy of their developed lunar resources to any international authority. Back when it was just the USA and the Soviets dominating the space race, things were simple, but space law always held a great deal technological and intellectual fascination. Now that the topic has some psychological momentum, it is on the verge of becoming something that really matters.

As early as 1957, the United Nations addressed the issue of peaceful uses of outer space in the form of the UN Committee on the Peaceful Uses of Outer Space. This organization, more than any other, has shaped the norms and laws governing development of international space law. The most important treaty in this regard is the 1967 Outer Space Treaty. The treaty forbids nuclear weapons and weapons of mass destruction in the earth's orbit or on celestial bodies. In addition, states are not allowed to establish military stations or conduct military maneuvers on the moon or other planetary objects. The treaty does not cover the transit of nuclear weapons, the placement of conventional weapons, nor the launch of nuclear weapons into space. Apart from the Outer Space Treaty, there has only been one other legal instrument concerning weapons in space -- the Anti-Ballistic Missile (ABM) Treaty between the U.S. and the Soviet Union. However, in December 2001, President Bush announced U.S. withdrawal from this treaty.

In parallel to the UN problem with defining terrorism, none of the UN documents, including the Outer Space Treaty, really define what "peaceful use" means. Most interpreters believe that the term "peaceful" means "non-militarized" or "non-aggressive," but again, the problem (like with terrorism) lies in defining "aggressive" and "non-aggressive." There is no bright line in space law between militarized and peaceful use. It remains an area where states are hesitant to relinquish national interest, and efforts by the UN to spark cooperation, as with UN conferences on disarmament, are continually deadlocked.

In terms of actual weapons, the devices of most concern are anti-satellite (ASAT) weapons and ballistic missiles. ASATs are weapons designed to intercept missiles during their mid-course trajectory through space, and ballistic missiles are weapons designed to intercept intercontinental ballistic missiles (ICBMs) while they are on their trajectory through space. In some quarters, there is additional concern about satellite devices which are believed capable of preemptively executing combat operations on their own, but much of this is paranoia over the way the U.S. uses predator drones and satellite-enhance precision targeting. In 2007, China conducted its first ASAT test, shooting down one of their own satellites and joining the U.S. and Russia as the only countries with ASAT weapons. ASAT tests themselves are controversial because they result in a lot of space debris, which is potentially more harmful to Earth than letting the satellites fall on their own. Ballistic missiles are controversial mostly due to Cold War-like debates over U.S. and NATO efforts to station missile defense systems in the Czech Republic, Poland, and elsewhere. Russia, China, and the EU (noting that the European Space Agency has made enormous strides in recent years) have proposed multilateral agreements to prevent an arms race, but for its part, American officials have gone on record (Space Commission 2001) stating the U.S. must avoid a "space Pearl Harbor" and has pretty much taken the position that American dominance of space would lead to greater international security. This policy position is evident from the following sample of U.S. National Space Policy (Unclassified, supersedes PDD/NSC-49/NSTC-8):

Excerpts from Official U.S. National Space Policy

US leadership in space exploration has improved life around the world and enhanced security. Freedom of action in space is as important to the US as air and sea power. In order to increase knowledge, discovery, economic prosperity, and national security, the US must have robust, effective, and efficient space capabilities. The US believes “peaceful purposes” include defense and intelligence-related activities in pursuit of national interests. The US rejects any claims to sovereignty by any nation over outer space or celestial bodies. The US views purposeful interference with its space systems as an infringement on its rights ... and will take whatever 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.

PRINTED RESOURCES
Hui, Z. (2006). Space weaponization and space security: The Chinese perspective. Geneva: ISN Publishing House.
Reynolds, G. & Merges, R. (1998). Outer space: Problems of law and policy, 2e. Boulder, CO: Westview.
Space Commission. (2001). Report of the Commission to Assess United States National Security Space Management and Organization. Washington DC: US GPO.
Wolff, J., Hitchens, T., Nardon, L., Hagen, R., Scheffran, J., Johnson, R., Paris, J., Mott, M., Williams, R. and Adeniji, O. (2003). Making space for security. Geneva: ISN Publishing House.

Last updated: Aug 06, 2008
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