A recent meeting of the UN’s Committee on the Peaceful Uses of Outer Space. In this and other international forums, the US has not presented a clear vision of its views on international space security. (credit: United Nations Office for Outer Space Affairs)

Why the US must lead again

<< page 1: US space interests and principles

Principled principles

Examining these two cornerstone US national space interests—the need to be able to defend US security interests in space and against space-enabled attack, and the need to promote entrepreneurial and commercial space activities—it should not be a giant leap to then determine the types of policies and ideas that the United States should be advocating in international forums. In fact, most are simple extensions of laws, rules, or ideas that are widely accepted terrestrially. And while these ideas by their nature are clearly tied to US national interests, that does not mean that they do not also support the interests of all nations, whether those nations currently are major space players, or just space dreamers who will one day join the game. So, to that discussion, and to spur US leadership, I provide the following principled principles:

1) Principles of Indiscriminate Harm: Earlier I suggested that it was not in the interest of the US or any other nation to completely forsake the right to counter an adversary’s space systems and that more than 25 years of fruitless discussions in the UN have shown that to be the case. But that doesn’t mean that there are not some forms of space attack that should be forsaken, in the same manner that we do not try to ban terrestrial warfare, but we do ban certain types on weapons.

Several of the proposals that have been in limbo over the last few decades try to ban ASAT weapons based on their placement (weapons in outer space) as if an ASAT in space is more destabilizing or harmful than one on the ground. It is not. In fact, since every physical object placed in space could conceivably become a weapon (such as a hapless Iridium and Kosmos satellite demonstrated in 2009), the very notion of a ban would argue for a total cessation of placing any satellites in space.¹⁷ Rather than placement, we should be looking at types of weapons, especially those that fall into a category similar to the one we have used to ban types of terrestrial weapons, those that cause indiscriminate harm or would be considered an indiscriminate attack.¹⁸

In terrestrial warfare, we have judged that tactics or weapons such as attack by bombardment, chemical weapons, land mines, and nuclear weapons cause indiscriminate harm and therefore either outright prohibit or substantially limit their use. Similarly, there are types of space attack that can cause indiscriminate harm, and the US should lead the push to prohibit or limit their use.¹⁹ Such is the case for types of ASAT weapons that create large amounts of long-lived space debris, especially in low Earth orbit.

The Chinese 2007 shoot-down of their own weather satellite, and the substantial worldwide outcry that followed, was a demonstration of the clear international consensus that exists on the unacceptability of weapons of this type. The Chinese admitted as much themselves since in subsequent tests, as reported by various sources,²⁰ they decided to test in ways as to not create further debris. The remarkable universal agreement on this point stems from the fact that substantial amounts of long-lived debris can have serious impacts not just to US national security, but to the future use of space for all endeavors: commercial, military, or scientific.

While there are valid arguments that we can tolerate a certain level of debris without a runaway Kessler Syndrome-type²¹ effect, the fact is that any significant use of weapons creating large amounts of debris in low Earth orbit²² would severely damage the near-Earth space environment; damage, destroy, or render useless many non-involved satellites and orbits; and drastically impact all users. Such an effect is the very definition of indiscriminate harm, and as the nation with arguably the most to lose from both a national security and economic standpoint, the US should be leading the charge to prohibit or limit such weapons.

2) Principles of Proportionality and Military Necessity: A kinetic intercept creating large amounts so of debris is not the only type of space attack that can cause indiscriminate harm. Likewise, attacks against global PNT infrastructures—attacks with global rather than local impacts—can also have an indiscriminate impact. More to the point, that impact would likely not be proportional to any military benefit, and thus would not meet those tests as established in customary international law and well-accepted tenets of the Laws of Armed Conflict.

Consider the case of a successful cyber-attack on the GPS system that eliminated the global signal. The impact to international air, sea, and land commerce, communications, and safety would be devastating, not to mention the impact on non-safety-related but still critical PNT uses such as financial transactions, agriculture, and a broad range of terrestrial activities. This contrasts with a limited jamming attack, with local or regional impact.²³ While local or regional jamming can have similar negative effects, the range and duration of such effect is constrained, and could easily be shown to be in accordance with principles of proportionality and military necessity. But the worldwide cessation of a major PNT signal such as GPS (and similarly GLONASS, Beidou, Galileo, and others) would be far harder to justify on that basis.²⁴ Again, it is in the interests of all States to limit such attacks, none more so than the US.

3) Principles of Safe Navigation, Transportation, and Operation: In almost all domains of the commons where individuals, companies, nations, and other entities function together, the world has managed to construct a set of rules about how to coexist safely and profitably in those domains, as well as establish international bodies whose purpose it is to maintain those rules. The oldest of those bodies is in the electromagnetic domain, the International Telecommunication Union (ITU), which originally formed in 1865 as the International Telegraph Union). Since the onset of significant physical international commerce in the 1940s and 1950s, the International Civil Aviation Organization and the International Maritime Organization have promulgated rules for safe navigation and transportation within those non-sovereign international spaces. These bodies have mechanisms for coordinating non-conflicting use, creating normal lanes of transport, defining rights of innocent passage, developing signaling standards, standardizing aides to tracking, and other mechanisms to enhance the safety, efficiency, and profitability of electromagnetic, air and sea commerce—but not for space.²⁵

Historically, that was a consequence of the fact that space was big, the numbers of objects were small, there were only two major players, and many, if not most activities were military related, if not classified. Agreements would have been seen as constraining critical national security interests.

But today’s explosion of players and satellites argue strongly that the current “Wild West” approach to space traffic operation should end. Not only is there clear precedent in other non-sovereign domains, but it is without question in the United States’ interest to advocate and promulgate these rules. Failing to do so puts all US use, whether national security or commercial, at risk of the more poorly supervised activities of the least capable player. The launching of over 100 small satellites at one time recently from a single launch vehicle, many non-maneuverable or difficult to catalog, portends the explosion of like activities,²⁶ the predictable consequence of which is an eventual increase in collisions and the sullying of specific orbital zones.

While such collisions would be random and undirected, the results would not be that different from the kinetic ASAT scenarios discussed above. Further, while “collisions” in the air, on sea, or in the electromagnetic spectrum are limited to the involved parties, and whose effects can be recovered from or reversed, this is not true in space, where the impact will extend well beyond the two parties initially involved and the timeframe of the actual collision. Further, the effects are unrecoverable in terms of the equipment damaged and the resulting debris. It should therefore be clear to all space players that these rules are necessary and desired.

For space, a good start on such a set of rules might include standard aides to identification and tracking, the creation of certain altitudes for non-maneuverable flight, de-orbit standards based on the needs of space rather than the ground,²⁷ and the definition of what might constitute a dangerous approach in space between two objects. Not only would such standards dramatically reduce the likelihood of unintentional collision, but they would also aid in the identification of and attribution of activities that might be considered nominal and non-nominal. By defining, for example, what constitutes a “dangerous approach,” States would be less likely to mistakenly characterize a routine maneuver for a pending attack, substantially reducing the potential for unnecessary escalation or response. Understandably, the US, along with other nations, is hesitant to constrain its own prerogatives in this regard when it comes to its own national security systems. Yet, for decades, similar rules of navigation in the air and sea have existed without any negative national security impact.

4) Principles of Salvage and Resource Extraction: Of all the areas that the US should advance new thinking for space, rights of property and gains from commercial exploitation in space are perhaps the most vexing since international precedent is either internally contradictory, unclear, or arguably counter to US commercial and safety interests. These questions breakdown along two lines: rights of salvage, and rights to resource extraction.

The first of these two, rights of salvage, spans the space between the economic interests in salvage and the safety interests in cleaning space debris, with the safety interest likely predominant. Since almost the dawn of seafaring,²⁸ the right of salvage has been recognized on the sea as a mechanism of preserving an otherwise incapacitated sea vessel from danger or loss—it was not a consequence, normally, of the threat that vessel might pose to others—so the parallel to debris cleanup might be strained. But the fact remains that today there are no protocols for how nations can legally deal with the danger to their space systems posed by the incapacitated remains of another.²⁹

This point was dramatically brought home earlier this year by the close approach of two large, non-maneuverable objects announced by the Joint Space Operations Center (JSpOC) on January 7. The two satellites, reported³⁰ to be an operating but non-maneuverable US Defense Meteorological Satellite (DMSP), and a long-dead Russian Meteor satellite³¹, were predicted to by the JSpOC to have a probability of conjunction as high as 44 percent. Had they collided, the resulting debris cloud would have been in a very long-lived 800-kilometer altitude orbit and would have likely been far larger than the cloud formed by the Iridium-Kosmos collision in 2009.³² .

The danger of large, dead space objects is quite clear, and increases as increasing numbers of large objects continue to orbit at desirable altitudes without any protocol for how they might be cleared. Unlike at sea, there are no norms requiring an owner, or allowing a third party, to salvage those incapacitated remains for either their own economic interests or due to the threat these objects pose to others’ economic activities.

Similarly, the right to ownership for resource extraction in space is muddled. Legal scholars have disagreed whether that the current Outer Space Treaty, which states that “Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means” actually prohibits the extraction of resources by a private company,³³ and the inclusion of a specific prohibition to that effect in the never-adopted Moon Treaty, would at least indicate that the international community recognized the thin legal footing afforded by the Outer Space Treaty.³⁴ .

Again, sea law is the easiest terrestrial analogue, and is a possible, but not thorough, guide. While it is clear under the existing United Nations Convention on the Law of the Sea, the international community (albeit not the United States, since it has not ratified the treaty) views mineral extraction from under the seabed as part of the “common heritage of mankind” and therefore not subject to national appropriation, it does recognize the rights to extract such materials under international supervision, in this case the International Seabed Authority. Additionally, while minerals in international waters cannot be appropriated without permission, living resources, namely fish, can be—a somewhat counterintuitive situation resulting from historical precedence since arguably fisheries, as a resource, are far more limited than minerals. Perhaps if we viewed asteroids more like fish swimming through the cosmos, this would not be such a thorny issue?

The point, however, is that current law for outer space is unsettled at best, and terrestrial laws can said to be conflicted. So, while it goes without saying that the reaction from the international community would likely oppose such a measure, again the US must lead if we are to secure rights that our companies have asked for, and our legislators have told us to work. Otherwise, just as for seabeds, the economic benefits will lay “un-earthed” (pun intended).

In closing

Mr. Executive Secretary, 50 years ago the US actively led a lengthy debate on how to move forward in the then still mostly unexplored expanse called “space.” The resulting Treaty, while neither perfect, nor the principal reason why space remained relatively conflict-free, certainly served as a strong statement of US space interests, and in their turn, of international space principles to which a majority of nations have subscribed. But the uses of space today have gone far beyond the confines of the Treaty, and the promise of future benefit remains a valuable yet uncertain national goal.

History tells us that conflict will eventually come in space, and if current trends continue, that will be sooner than we desire—but the form of that conflict can still be shaped. Likewise, space will become more crowded, and the need to establish rules to allow economic, scientific, and national security benefits to thrive in that crowded, debris-laden environment demands a set of protocols and norms be established that govern that shared use. And while actual resource extraction may be farther away than these first two, its arrival will be hastened by a clear set of protections for those who invest, while still protecting the common heritage that the vastness of space holds. So, I ask you to take on, as one of your first priorities, the establishment of a US position on what comes next—and then direction to our space leaders to “make it so.”

Endnotes

1. Work on the Treaty commenced in earnest in 1958 with the formation of COPUOS as an ad hoc committee (later made permanent). The Treaty was adopted by the UN General Assembly in Dec 1966 by resolution 2222 (XXI) and opened for signature on January 27th, 1967
2. Dembling, Paul G. and Arons, Daniel M., “The Evolution of the Outer Space Treaty” (1967), Documents on Outer Space Law, Paper 3, pg. 433
3. The USSR ground launched co-orbital system was declared operational in February 1973. The U.S. also engaged in ASAT research and famously tested an F-15-launched system from 1984 to 1986, but it was never declared operational. A more complete catalog of ASAT tests, compiled by Mr. Brian Weeden of the Secure World Foundation, can be found here.
4. Worldwide Threat Assessment, U.S. Intelligence Community Senate Armed Services Committee, May 11, 2017 Daniel R. Coats, Director of National Intelligence, pgs. 8-9
5. Op. Cit., Weeden
6. Gertz, Bill, “U.S. Opposes New Draft Treaty from China and Russia Banning Space Weapons”, Washington Free Beacon, June 19, 2014
7. “International Code of Conduct for Outer Space Activities, Version 31 March 2014, Draft”.
8. Rejection of the code was formally attributed to procedural failings and many observers, particularly those who still wanted to find a path forward for it, believed that it remained a valid starting point. But in fact, that was simply a mechanical way for multiple nations to curtail the EU effort, and the code along with it, without officially stating they did not support the basic elements of the measure.
9. Arguably, one can extend this consistency back to the very first (then classified) space policy by the Eisenhower Administration in 1958, although that policy did not foresee the commercial/economic impact of space.
10. These statements are a summary of the full policy document.
11. As one example, Pomerleau, Mark, “Threat from Russian UAV Jamming real, officials say”, C4ISRNET, Dec 20, 2016.
12. In the early 2000s, DoD declassified two US programs, the Counter-Satellite Communications System (CCS) and the Counter Surveillance Reconnaissance System (CSRS). CSRS was subsequently terminated in 2004.
13. “Quadrennial Defense Review, 2014”, March 14, 2014, pg. 37
14. 51 USC §303 as reported in PL 114-90, Nov 25, 2015
15. International discussions on resource extraction are taking place, for example, The Hague Space Resources Governance Working Group. But the US government is not part of those efforts.
16. Hurst, Isaak, “The Law of the Sea and Its Effects on Offshore Mining”, Alaska Business Monthly, Nov 1, 2013, pg. 30
17. Granted that to be an effective kinetic weapon most space objects would require modifications from their basic design—but such modifications are easily accomplished and without clear, telltale observables. Further, if the purpose of a space weapon is to jam or otherwise interfere with another space system, and not kinetically impact it, many existing satellites could be used in their current form.
18. Principles of Indiscriminate Harm are formally recognized in the Geneva Convention under Additional Protocol 1, Article 51(4.c) adopted in 1977. They are also contained in Customary International Humanitarian Law—see for example the treatise on “Customary International Humanitarian Law” as compiled for the International Committee of the Red Cross, by Jean-Marie Henckaerts, and Louise Doswald-Beck, and published in 2005 by the Cambridge University Press, Chapter 3.
19. Note that this says “use” rather than “development”. As already stated, any object in space could be used in the role of kinetic interceptor, albeit perhaps a clumsy one. So, it would not be possible to limit development or placement in a verifiable manner. But use is clear and observable.
20. For Example, in January 2016, Ms. Mallory Stewart, then the State Department Deputy Assistant secretary for Emerging Security Challenges stated that, “There have been subsequent tests by China, but none of them have been debris generating,” as reported by SpaceNews.
21. The Kessler Syndrome is popularly described as a self-propagating creation of space debris by the impact of space objects with other debris from previous events, eventually leading to a runaway chain of collisions.
22. Counter-intuitively, while debris in higher orbits persists for much longer time scales than for debris in low earth orbit (LEO), some studies have shown that generation of debris in geosynchronous (GEO) or medium Earth (MEO) orbits is far less concerning that in LEO. This is because the volume of space as you move away from the Earth increases by the power of three, while the population of objects except in some very select orbits goes down dramatically. However, the short-term collision risk increases dramatically for nearby satellites. LEO debris is a long-term, random-orbit collision risk. GEO and MEO debris is a short-term, specific-orbit risk.
23. It is arguable that selective attacks against global military versus civilian signals could be deemed proportional, but such a precise effect would be extremely difficult for an attacker to limit with any surety or to understand the actual repercussions.
24. The proliferation of PNT systems and signals could limit the harm for the loss of any particular system’s signal—but at least for the near future (likely two or three decades) much if not all global infrastructure will still be linked to basic GPS signals. Other PNT systems may see greater near-term regional or national penetration and use, but will take decades to truly back-up global use.
25. With the exception of the ITU’s management of spectrum interference in space.
26. This is not to imply that India, which provided the launch, is less capable to plan and execute space activities than other nations—in fact, they are among the most advanced. The point is that most of the satellites then launched were owned by other players from other nations, few with the ability to control the full effect of their satellites over their orbital life, and no international norms established to assure such control.
27. It is often not realized that the 25-year deorbit guideline currently subscribed to by most spacefaring nations is designed not to protect other space objects, but to protect humans on the face of the Earth from unpredictable deorbit risk. Historically, our population growth models tended to be reliable only out to 25 years, so calculating the risk of human injury on the ground for a wayward piece of deorbiting space junk could not be confidently done beyond that time frame. But the impact for the object to the space debris environment is generally ignored.
28. Modern-day Laws of the Sea stem back to at least the Byzantine Empire in the 8th century with the publication of Rhodian Sea Law under the first Isaurian Emperor, Leo the III.
29. To be clear, the “Convention on International Liability for Damage Caused by Space Objects” lays out the legal protocols for how claims of damage might be settled, but they do not deal with how to avoid such damage.
30. Spaceflight 101.com.
31. According to the World Meteorological Organization, the Russian Meteor-26 satellite, which weighs about 1,300 kilograms, ceased operation in 1977. The DMSP is still active and the satellite weighs about 1,220 kilograms.
32. The Iridium-33 Satellite weighed about 689 kilograms; the Kosmos-2251 satellite weighed about 950 kilograms, so in total they had about 65 percent of the total mass for the DMSP-Meteor combination. In that case as well, the Kosmos satellite had been long dead. Exact amount of debris for DMSP-Meteor would have depended on the specific dynamics of the collision.
33. Gorove, Stephen, “Interpreting Article II of the Outer Space Treaty”, Fordham Law Review, Volume 37, Issue 3, pg. 349, 1969
34. Simberg, Rand, “Property Rights in Space”, The New Atlantis, Number 37, pg. 23, 2012. See also Smith, Marcia, “State Department Legal Advisor: The Outer Space Treaty—50 Years On”, SpacePolicyOnline.com, December 14, 2016.

Douglas Loverro is the former Deputy Assistant Secretary of Defense for Space Policy.

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