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Conference on Disarmament
The UN’s Conference on Disarmament is one forum where countries have used “lawfare” in bids to reduce the advantage of the US in space. (credit: US Mission Geneva)

The art of lawfare and the real war in outer space

by Michael Listner
Monday, September 17, 2018


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A battle for primacy in outer space took place on August 14, 2018, among the Russian Federation, the United States, and, indirectly, the People’s Republic of China. This battle did not involve the exotic technology of science fiction, antisatellite weapons (ASATs), or the incapacitation of satellites; it was not part of a hot war and did not even occur in outer space. Rather, it took place in the halls of the Conference of Disarmament in Geneva, Switzerland, and concerned the interdiction of the hypothetical deployment of instrumentalities of a hot war in outer space. The carefully orchestrated arena for this battle by the proponents of banning so-called space weapons involved methodologies, institutions, and agents of international law but was undermined by a vigorous counterattack by the United States using the same forum and suite of instruments so skillfully levied against it.1 This battle, of course, is not a single instance but the latest skirmish of a much larger conflict involving real war in space.

Lawfare is not a new concept and has been used in many domains, but the tools brought to bear have become more prolific, and the domain of outer space has been and continues to be a theater where it is applied.

There’s been significant attention—and overstatement— about the effect of a proposed Space Force by the United States, including an arms race and dominance as articulated by the United States,2 yet little attention has been given to the contest that continues to be fought over outer space using the tools of international law and policy, both of which are instruments of “lawfare.” Maj. General Charles N. Dunlap, Jr. (retired)3 first defined lawfare in the paper “Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts,” as “a method of warfare where law is used as a means of realizing a military objective.”4 This definition can be expanded to the use of hard law, soft law, and non-governmental organizations and institutions within the international arena to achieve a national objective and geopolitical end that would otherwise require the use of hard power. As observed by General Dunlap, lawfare imputes the teachings of Sun Tzu in particular this teaching: “The supreme art of war is to subdue the enemy without fighting.”5

Lawfare is not a new concept and has been used in many domains, but the tools brought to bear have become more prolific, and the domain of outer space has been and continues to be a theater where it is applied. The earliest example of lawfare (even though the term was not yet coined) in outer space occurred pre-Sputnik with Soviet Union attempting to use customary law to make claims of sovereignty extending beyond the atmosphere to the space above its territory. This claim was preempted by the launch of Sputnik 1 and the act of the satellite flying over the territory of other nations.6 The Eisenhower Administration saw this as an opportunity to meet a national space policy goal and likewise used customary law as an implement of lawfare and successfully created the principle of free access to outer space, which it utilized for photoreconnaissance activities in lieu of overflights of another nation’s sovereign airspace.7 The Soviet Union unsuccessfully attempted to defeat this move using lawfare in the United Nations through a proposal that would have prohibited the use of outer space for the purpose of intelligence gathering.8

Since that setback, the art of lawfare in outer space has settled on the objective ascribed to another teaching of Sun Tzu:

“With regard to precipitous heights, if you proceed your adversary, occupy the raised and sunny spots, and there wait for him to come up. Remember, if the enemy has occupied precipitous heights before you, do not follow him, but retreat and try to entice him away.”9

The second part of this teaching exemplifies the role of lawfare in the present war in outer space: to employ the tools and institutions of international law as a means to legally corner an adversary and gain geopolitical advantage in soft power, with the aim of slowing and eroding the advantage that adversary has attained through preeminence in the domain of outer space, and replace it with their own. This objective is accomplished by two general means: legally-binding measures, most commonly in the form of treaties, and so-called non-binding measures couched as sustainability.

Lawfare in space continued in the intervening years between Sputnik-1 and the signature and ratification of the Outer Space Treaty and afterward. The weapon of choice: disarmament proposals for outer space. Provisions for banning so-called space weapons in the Outer Space Treaty were rejected by the Soviet Union in favor of separate arms control measures.10 These measures included proposals, some of which related to the proscription of ASATs, designed to not only gain an advantage in outer space but to gauge political intent and resolve.11

The lawfare offensive escalated after the proposed Strategic Defense Initiative with an effort curtail space-based missile defense technology through a ban on so-called space weapons and a proverbial arms race in outer space. The Prevention of an Arms Race in Outer Space (PAROS), introduced in 1985, continues to seek a legally binding measure to place any weapon in outer space, including those designed for self-defense. It spawned measures such as the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects (PPWT), co-sponsored by Russia and China. This and other measures have met resistance as unverifiable and certainly are not likely to gain the advice and consent of the US Senate for ratification. The end game of the use of lawfare in the form of efforts like PAROS—the latest attempt at which was defeated in Geneva—is to propose legally binding measures that proponents would ignore to their advantage in any event. The sponsors and advocates of these hard-law measures recognize they will not come to fruition but, in the process of promoting them, will enhance their soft power and moral authority, which can be applied to entice their adversary down.

The crux is that, like space objects used in outer space, international law and its implements are dual-use in that they can be used for proactive ends or weaponized, with those using the appliances of lawfare to encourage cession of the high ground choosing the latter rather than the former.

Non-binding resolutions and measures in the form of political agreements and guidelines are being used concurrently in the lawfare engagement in outer space, where proposals for legally binding measures alone fall short of the goal of creating hard law and challenging dominance in outer space. These resolutions and measures, which emphasize sustainability, are designed to perform an end run around the formalities of a treaty to entice agreement on issues that would otherwise be unacceptable in a hard-law agreement. These measures have the dual effect to create soft-power support on the one hand and hard law on the other. This tool of lawfare, which uses clichés of cooperation and sustainability, is a ploy that applies the ambiguous nature of customary international law to achieve what cannot be done through treaties: to “entice the adversary away” and create legal and political constraints to bind and degrade its use of outer space or prevent it from maintaining its superiority, all the while allowing others to play catchup and replace one form of dominance with another. While lawfare is by nature asymmetric, this indirect approach could be considered a subset an irregular tactic of lawfare, as opposed to the use of formal treaties in lawfare.

The crux is that, like space objects used in outer space, international law and its implements are dual-use in that they can be used for proactive ends or weaponized, with those using the appliances of lawfare to encourage cession of the high ground choosing the latter rather than the former. The decision to weaponize international law and its institutions to prosecute this war in space brings into question the efficacy of new rules or norms. Indeed, the idea of expanding the jurisprudence of outer space through custom, as being suggested by the United States, and more recently gap-filling rules being suggested by academia that could become custom, presents the real chance that, rather than the creation of the ploughshare of sustainability, new and more effective swords for lawfare will be forged.

To paraphrase Sun Tzu, “all war is deception.” In the case of outer space, the pretext in the current war in space is that an arms race and a hot war in outer space is inevitable, and can only be avoided by formal rules or international governance. Conversely, a hot war can be prevented in no small part by using lawfare to engage in the contemporary war in space using the tools of, and the abundant resources found in, the experience of attorneys and litigators in particular to supplement and support diplomats to extend the velvet glove when applicable, and bare knuckles when necessary. If the August 14 statement in Geneva is any indicator, the United States may have just done that and begun the shift from light-touch diplomacy to bringing its legal warriors to bear in full-contact lawfare to engage and win the current war in outer space and help deter a more serious hot war from occurring without sacrificing the superiority it possesses in outer space.

Endnotes

  1. See generally, United States Department of State, Assistant Secretary Poblete Addresses the Conference of Disarmament. Accessed 9/12/2018.
  2. Much commentary has been made regarding dominance, but the policy behind dominance from the perspective of the United States is misunderstood and all too often miscommunicated and misused. See generally, Listner, Michael J, “Thoughts on ‘Being First’, Dominance and Outer Space,” Space Thoughts, August 12, 2018.
  3. A biography of Maj. General Dunlap can be found here.
  4. Dunlap, Charles J, Colonel, 2001, “Law and Military Interventions: Preserving Humanitarian Values in 21st Conflicts”, paper presented to Humanitarian Challenges in Military Intervention Conference, Carr Center for Human Rights Policy, Kennedy School of Government, Harvard University, Washington, D.C, November 29, 2001, viewed September 12, 2018.
  5. Dunlap 2001. See also Sun Tzu, “The Art of War”, edited and with foreword by James Clavell, Chapter II, p. 16.
  6. Listner, M.J., “Reconciling the Past, Present and Future of National Security, Military Activity and Space Law” in Wilman, R.J., and Newman, C.J., Frontiers of Space Risk: Natural Cosmic Hazards & Societal Challenges (CRC Press 2018) 210. See also, Delbert R. Terrill, Jr., “The Air Force Role in Developing International Space Law”, Air University Press, May 1999, p. 4.
  7. See Id.
  8. See United Nations, Committee on the Peaceful Uses of Outer Space, Union of Soviet Socialist Republics: Draft Declaration of the Basic Principles Governing the Activities of States in Pertaining to the Exploration and Use of Outer Space, A/AC. 105/L.2 (Distr. LIMITED) September 10, 1962, p.2, para.8.
  9. Sun Tzu, “The Art of War”, edited and with foreword by James Clavell, Chapter X, pp. 51-52.
  10. See Parkenson, John E. Jr. Maj., International Legal Implications of the Strategic Defense Initiative, 116 MIL. L. REV. 67, 82-83 (Spring 1987).
  11. The Carter Administration issued directives to open negotiations with the Soviets to ban ASATs. Part of this effort was to gauge [the Soviet] response while continuing development and testing of an ASAT. See Listner, M.J., “Reconciling the Past, Present and Future of National Security, Military Activity and Space Law” in Wilman, R.J., and Newman, C.J., Frontiers of Space Risk: Natural Cosmic Hazards & Societal Challenges (CRC Press 2018) 226. See also Carter, J., Presidential Directive/NSC-39, 1978. Instructions to the U.S. Delegation to the ASAT talks with the Soviets Commencing on June 8 in Helsinki. Jimmy Carter Library and Museum. June 6, 1978 and Carter, J., PD/NSC-45, 1979. Instructions to the U.S. Delegation to the ASAT talks with the Soviets Commencing on January 23 in Bern. Jimmy Carter Library and Museum, January 22, 1979.

Michael J. Listner is an attorney, the founder and principal of the legal and policy think-tank/consultation firm Space Law and Policy Solutions, and the author and editor of the subscription space law and policy briefing-letter, The Précis.

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