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United States National Space Policy, 2006 & 2010 UNITED STATES NATIONAL SPACE POLICY, 2006 & 2010 Todd Barnet* I. INTRODUCTION ........................................................................... 277 II. BEGINNING OF THE SPACE RACE & THE OST .............................. 278 III. THE OST & THE MILITARIZATION OF SPACE .............................. 280 IV. U.S. NATIONAL SPACE POLICY, 2006 & 2010 ............................ 282 A. National Space Policy 2006 ................................................. 282 B. National Space Policy 2010 ................................................. 284 V. THREATS IN SPACE, BUT NO IMMEDIATE AGGRESSION .............. 286 VI. SUGGESTION: AMEND THE OST .................................................. 288 VII. CONCLUSION ............................................................................... 291 I. INTRODUCTION In January of 1967, the United States, the United Kingdom, and the Union of Soviet Socialist Republics signed the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies—colloquially the Outer Space Treaty (OST).1 This treaty entered into legal effect in October 1967, and serves as the foundation for the international law of outer space. In fact, the OST is so central to the law of outer space that it has been called the “Magna Carta” of space law.2 It includes certain basic principles to which all the signatory nations agreed to abide, including freedom of exploration, space as the province of all mankind, and restrictions on military use of space. * Associate Professor of Legal Studies, Pace University; J.D., Brooklyn Law School, A.B. University of Southern California. Thanks to Adrian Griffiths for his advice, research and editing assistance. 1. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 [hereinafter Outer Space Treaty]. 2. Major Robert A. Ramey, Armed Conflict on the Final Frontier: The Law of War in Space, 48 A.F. L. REV. 1, 74(2000). The Outer Space Treaty has also been referred to as the “constitution” of space. Ram Jakhu, Legal Issues Relating to the Global Public Interest in Outer Space, 32 J. SPACE L. 31, 33 (2006). 277 278 FLORIDA JOURNAL OF INTERNATIONAL LAW [Vol. 23 Although not part of the construct of international law, the framework of space law in the United States is largely informed by presidential space policy directives. Every U.S. president since Eisenhower has set policy objectives related to the exploration and use of space, encompassing both civilian and military goals. In August 2006, President George W. Bush issued a controversial policy directive that asserted a right for the United States to defend its national interests in space, to exclude any state the United States views as an immediate or potential threat, and implied a right to create a strong military presence. The 2006 space policy directive authorized the United States to unilaterally determine which nations should be barred from space, for what reasons, and when. In June 2010, President Barack Obama issued a new space policy directive that ameliorated many of the problems associated with the 2006 policy. Although the 2010 policy still authorizes the United States to protect its national interests in space, it is less aggressive and calls for cooperation and transparency (principles largely lost in the 2006 space policy). This Article critically examines and compares the 2006 and 2010 U.S. national space policies within the framework of the OST, and provides certain suggestions for enhancing the international law of outer space. It is divided into five parts. Part II briefly outlines the history of the OST and the space race that it was meant to curtail. Part III explores the limitations that the OST has put on the militarization of space and builds a picture of the current militarization of space. Part IV examines the policy differences between the 2006 and 2010 presidential space directives. Part V assesses the potential threats against U.S. military and civilian space systems. Lastly, Part VI proposes amending the OST to accommodate the current technological and political environment. II. BEGINNING OF THE SPACE RACE & THE OST On October 4, 1957, the U.S.S.R. shocked the world by launching the world’s first artificial satellite, “Sputnik 1,” into orbit around the Earth, eclipsing U.S. ambition to do the same.3 The resulting hysteria in the United States propelled American desire to ramp up its own space program, and the ensuing space race pitted the United States against the U.S.S.R. in a competition for the national pride and international prestige associated with dominance in space.4 In 1959, the U.N. General Assembly created the instrumental 3. R. Cargill Hall, National Space Policy and Its Interaction with the U.S. Military Space Program, in MILITARY SPACE AND NATIONAL POLICY: RECORD AND INTERPRETATION 1, 3 (George Marshall Institute, 2006), available at http://www.marshall.org/pdf/materials/419.pdf. 4. Id. at 5. 2011] UNITED STATES NATIONAL SPACE POLICY, 2006 & 2010 279 Committee on the Peaceful Uses of Outer Space (COPUOS) to draft a unified body of international space law.5 The result was five treaties that form the bedrock of space law.6 By far the most important of these treaties was the OST. By 1967, when the OST was signed, the Cold War was in full bloom. Political tension was high, and the United States and the U.S.S.R. each worried that the other would outfit new satellite technology with nuclear missiles with potentially devastating effects.7 In addition, the United States feared that its intelligence satellites might become vulnerable to Soviet attack.8 During the Cold War, the United States relied heavily on intelligence gathered by reconnaissance aircraft such as the high-altitude U-2, but improving Soviet anti-air defenses put American U-2s at risk.9 Intelligence satellites would be beyond the reach of Soviet anti-air defenses, but the United States realized that technological progression would make even satellites vulnerable, unless they were protected by international agreement.10 The OST was designed in large part to protect United States and Soviet assets in space, to curtail the space race that began with the launching of the Sputnik satellite, and to ease the political tensions associated with man’s foray into space.11 In order to stave off an imminent space arms race, the OST established that space—“the province of all mankind”—was to be utilized for “peaceful purposes” and “for the benefit and in the interests of all countries.”12 It also established certain specific restrictions on potential military uses of space: nuclear weapons, and all other weapons of mass destruction were strictly prohibited in space, and military bases were prohibited on celestial bodies, as was the testing of weapons and conduct of military exercises.13 5. Initially formed as an ad hoc committee, COPUOS was formally established in 1959 by a resolution of the U.N. General Assembly. International Co-operation in the Peaceful Uses of Outer Space, G.A. Res. 1472, ¶ 14, U.N. GAOR, Supp. No. 16, U.N. Doc. A/4354 (Dec. 12, 1959). 6. In addition to the Outer Space Treaty, COPUOS drafted the 1968 Rescue Agreement, the 1972 Liability Convention, the 1975 Registration Convention, and the 1979 Moon Treaty. 7. Jacob M. Harper, Development, Technology, Politics, and the New Space Race: The Legality and Desirability of Bush’s National Space Policy under the Public and Customary International Laws of Space, 8 CHI. J. INT’L L. 681, 682-83 (2008). 8. Hall, supra note 3, at 3. 9. Id. at 1-3. 10. Id. at 3. 11. See Ty S. Twibell, Space Law: Legal Restraints on Commercialization & Development of Outer Space, 65 UMKC L. REV. 589, 591-94 (1997). 12. Outer Space Treaty, supra note 1, arts. I, IV. 13. Id. art. IV. 280 FLORIDA JOURNAL OF INTERNATIONAL LAW [Vol. 23 III. THE OST & THE MILITARIZATION OF SPACE Despite the restrictions on military presence in space, however, the OST, on its face, does not prohibit all military space systems.14 Article IV of the OST prohibits any weapons of mass destruction (WMD) in space: “States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.”15 Article IV of the OST prohibits the establishment of military installations, weapons testing, and military exercises on celestial bodies.16 It provides: “The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvers on celestial bodies shall be forbidden.”17 The OST does not, however, prohibit the presence of non-WMD armaments in orbit around Earth.18 Similarly, the OST does not prohibit nations from establishing extra-planetary military bases, although the current utility of such bases is questionable. Perhaps such installations would violate the concept of space as the “province of all mankind” to be used for “peaceful purposes.” However, given that the OST contains specific provisions pertaining to the militarization of space, it is difficult to read these vague concepts as eschewing all forms of military presence in space. Moreover, at the time the OST was signed, the United States already had military intelligence satellites in space. Indeed, protecting those satellites was a major part of the impetus for the United States signing the OST in the first place.19 Since then, many more military and dual-use satellites have been launched. Therefore, it is hard to argue that “peaceful purposes” eschews all military presence, but that does not mean that all military presence in space not specifically disallowed under Article IV is permissible.
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