Avoiding an Arms Race in Outer Space

\\jciprod01\productn\H\HLI\59-2\HLI205.txt unknown Seq: 1 21-JUN-18 12:17 Volume 59, Number 2, Summer 2018 The Fault Is Not in Our Stars: Avoiding an Arms Race in Outer Space David A. Koplow* Men at some time are masters of their fates; The fault, dear Brutus, is not in our stars, But in ourselves, that we are underlings. —William Shakespeare, Julius Caesar, act 1, sc. 2 The world is on the precipice of a new arms race in outer space, as China, Russia, the United States, and others undertake dramatic new initiatives in anti-satellite weaponry. These accelerated competitive efforts at space control are highly destabilizing because developed societies have come to depend so heavily upon satellite services to support the entire civilian economy and the modern military apparatus; any significant threat or disruption in the availability of space assets would be massively, and possibly perma- nently, disruptive. International law regarding outer space developed with remarkable rapidity in the early years of the Space Age, but the process of formulating additional treaties and norms for space has broken down over the past several decades; no additional legal instruments have emerged that could cope with today’s rising threats. This Article therefore proposes three initiatives. Although none of them can suffice to solve the emerging problems, they could, perhaps, provide additional diplomacy, reinvigorating the prospects for rapprochement in space. Importantly, each of these three ideas has deep roots in other sectors of arms control, where they have served both to restore a measure of stability and to catalyze even more ambitious agree- ments in the longer term. The first proposal is for a declaratory regime of “no first use” of specified space weapons; this would do little to directly alter states’ capabilities for space warfare, but could serve as a “confidence-building measure,” to temper their most provocative rhetoric and practices. The second concept is a “limited test ban,” to interdict the most dangerous debris-creating developmental tests of new space weapons. Third is a suggestion for shared “space situational awareness,” which would create an international apparatus ena- bling all participants to enjoy the benefits of greater transparency, reducing the possibilities for secret malign or negligent behavior. In each instance, the Article describes the proposal and its variations, assesses its possible contributions to space security, and displays the key precedents from other arms-control successes. The Article concludes by calling for additional, further-reaching space diplomacy, in the hope that these relatively modest initial measures could provoke more robust subsequent negotiations. * Professor of Law, Georgetown University Law Center. The author is deeply indebted to the follow- ing experts, colleagues, and friends who reviewed earlier drafts of this manuscript and provided invalua- ble critique and suggestions: Allison K. Astorino-Courtois, Arthur E. Baer, Jr., Jack M. Beard, Martin C. Faga, Joanne Irene Gabrynowicz, Mark A. Gubrud, Henry R. Hertzfeld, Peter Hulsroj, Raymond Je- anloz, Barry Kellman, Al Mauroni, Scott Pace, Victoria Samson, James B. (Bart) Wager Jr., and Brian Weeden. Staff members at the Georgetown Law Library provided essential support in research, cite checking, and editing: Mabel Shaw, Jeremy McCabe, Peter Runfola, and Emma Chapman. The author was previously employed by the U.S. Department of Defense, but the views expressed here do not neces- sarily reflect the official policy or position of the Department or the U.S. Government. \\jciprod01\productn\H\HLI\59-2\HLI205.txt unknown Seq: 2 21-JUN-18 12:17 332 Harvard International Law Journal / Vol. 59 Introduction The world today is wobbling on the precipice of a threatening new arms race in outer space, a development that would be simultaneously dangerous and expensive, as well as eminently avoidable. China, Russia, the United States, and others are conducting an expanded array of tests of anti-satellite (“ASAT”) weapons and associated capabilities and technologies; fresh fund- ing is surging into the field; and increasingly bellicose rhetoric emanates from military and civilian authorities. No shots have yet been fired in anger, but the exoatmospheric environment is no longer a sanctuary from predatory arms competition, and unless international legal and political corrective ac- tion is undertaken promptly, the hazards will surely escalate. The stakes are already high here, because the United States and other developed countries have become so heavily dependent upon satellites to support the full range of civilian and military activities. Denial or serious degradation of those space functions could be catastrophic, inflicting immediate and possibly irreversible economic, social, and security losses. Indeed, satellite-enabled services have become so ubiquitous that most people no longer notice them, remaining passively unaware of how thoroughly our daily activities, and our responses to military crises, have become reliant upon a secure, predictable regime of outer space—and how imperiled that stability has now become. Worse yet, the world’s traditional mechanisms for responding to emer- gent security threats have failed here, with the global diplomatic and political institutions and routines proving feckless over a period of decades. Although the early years of the Space Age were remarkably fertile in gener- ating new treaties and international norms for regulating the safe and pro- ductive exploitation of space, that process has ground to a halt, and no fresh concepts have emerged that command the international consensus among spacefaring states to avoid or mitigate the new dangers. This Article seeks to circumvent that impasse, by proposing three modest initiatives for arms control in outer space. None of these schemes is revolutionary or definitive; even in concert, they would not suffice to solve the security problems generated by revolutionary ASAT developments. But they can be useful nonetheless in reenergizing the stultified global diplomatic dialogue, jump-starting a more robust international process. The three proposals assembled here are: a “no first use” pledge; a limited test ban agreement; and a mechanism for shared monitoring of outer space. Importantly, each of these concepts has antecedents elsewhere in arms control, where they have proven successful both in contributing in a modest, immediate way to enhanced security and in catalyzing progress toward more ambitious subsequent measures. Indeed, this is often the way arms control proceeds: via initial baby steps that can lead to something more profound. This Article’s essential proposition is to apply that traditional arms-control \\jciprod01\productn\H\HLI\59-2\HLI205.txt unknown Seq: 3 21-JUN-18 12:17 2018 / Avoiding an Arms Race in Outer Space 333 incrementalism to outer space, restoring a process of sensible, measured responses to urgent security threats. The Article proceeds as follows. After this Introduction, Part I presents the current quagmire of outer space in three dimensions. First, it explores the growing U.S. and global dependence upon space, to make clear how much we have come to derive economic and military value from orbiting resources, and accordingly how vulnerable we have become to perturbations in satellite operations. Second, it describes the threat: the explosion of ASAT and related counter-space activities, especially by the three leading spacefaring countries but now increasingly emulated by others. The past decade has “changed the game” regarding space security in alarming ways. Third, it analyzes the failure of the international law-making institutions to cope with this new adversity, and it concludes that the existing panorama of diplomatic initiatives is wholly inadequate to suppress the erupting problems. Next, the Article presents my three proposals. Part II discusses the idea of an agreement for no first use of ASAT weapons—an undertaking not to be the first to introduce space warfare into any future combat. Part III displays the possibilities for a new limited ASAT test ban regime—an agreement to refrain from explosive testing in space of the most aggravating types of weapons. Part IV explains the idea of shared “space situational awareness” (“SSA”)—a commitment to augment countries’ collective abilities to under- stand what is actually happening in outer space and to respond to distant events. In each Part, the Article describes what the proposal entails, what the various options and sub-elements could consist of, and how the idea would contribute to security. Importantly, each Part also explains the rele- vant precedents, identifying how the concept has previously played out in the realms of the control of nuclear, chemical, biological or other weapons, suggesting analogies for outer space. Finally, the Article offers some concluding thoughts, trying to project how these initial incremental steps might lead to more ambitious and com- prehensive measures of arms control in outer space. That sort of more endur- ing solution is long-distant and hard to conceive at this point, but the urgency of the problem should energize the world to pursue it vigorously. I. The Current Quagmire in Outer Space This Part discusses, in three steps, where the world now stands regarding the deficit of arms control in outer space, how we got into the current pre- dicament, and why the usual spectrum of global responses is so inadequate to deal with

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