Space and Defense Scholarly Journal of the United States Air Force Academy Eisenhower Center for Space and Defense Studies

Editor-in-Chief Ambassador Roger Harrison, [email protected] Director, Eisenhower Center for Space and Defense Studies

Academic Editor Dr. Eligar Sadeh, [email protected] Principal Scientist, Eisenhower Center for Space and Defense Studies

Associate Academic Editors Dr. Damon Coletta U.S. Air Force Academy, USA Dr. Michael Gleason U.S. Air Force Academy, USA Dr. Peter Hays National Security Space Office, USA Major Deron Jackson U.S. Air Force Academy, USA Colonel Michael Smith U.S. Air Force, USA

Reviewers Andrew Aldrin John Logsdon United Launch Alliance, USA George Washington University, USA James Armor Agnieszka Lukaszczyk ATK, USA Space Generation Advisory Council, Austria William Barry Molly Macauley NASA, France Resources for the Future, USA Frans von der Dunk Scott Pace University of Nebraska, USA George Washington University, USA Paul Eckart Xavier Pasco Boeing, USA Foundation for Strategic Research, France Andrew Erickson Wolfgang Rathbeger Naval War College, USA European Space Policy Institute, Austria Joanne Gabrynowicz Scott Trimboli University of Mississippi, USA University of Colorado, Colorado Springs, USA Dana Johnson James Vedda Northrop Grumman, USA Aerospace Corporation, USA Theresa Hitchens Rick Walker United Nations, Switzerland Digital Consulting Services, USA Wade Huntley Annalisa Weigel Independent Researcher, USA Massachusetts Institute of Technology, USA Jonty Kasku-Jackson David Whalen National Security Space Institute, USA University of North Dakota, USA Ram Jakhu George Whitesides McGill University, Canada NASA Headquarters, USA Roger Launius Ray Williamson National Air and Space Museum, USA Secure Word Foundation, USA Space and Defense Scholarly Journal of the United States Air Force Academy Eisenhower Center for Space and Defense Studies Volume Four ▪ Number One ▪ Winter 2010

Articles

Lawful Response to Attacks on Space Systems 3 James D. Rendleman

The New Space Order: Why Space Power Matters for Europe 53 Nicolas Peter

Europe and Security Issues in Space: The Institutional Setting 71 Frans von der Dunk

Chinese Intentions in Space: A Historical Perspective for Future Cooperation 101 Gregory Kulacki

Eisenhower Center Program Summaries

Space Situational Awareness Workshop 117 Summer Space Seminar 117 Asia, Space, and Strategy Workshop 118 National Space Forum 118 Transatlantic Space Cooperation Workshop 119

Lawful Response to Attacks on Space Systems

James D. Rendleman Colonel, USAF (Ret.), Colorado Springs, Colorado

What means may a nation lawfully employ to and battlespace characterization, missile respond to and to defeat threats and attacks on warning and defense, weather, its space systems? Treaties and customary law communications, intelligence, surveillance, provide a strong incentive to limit space and reconnaissance – enable the U.S. and its activities to non-aggressive “peaceful allies to reach out, shape, support, and control purposes.” They do not, however, proscribe events in any part of the globe. space warfare or preparation for such conflict. Space system components are thus at risk, and Taking down space capabilities offers a means can be attacked, degraded, or destroyed, by which adversaries can degrade the simultaneously or each in detail. The use of significant asymmetric advantages offered. force is allowed only in self-defense against Consequently, the recent 11 January 2007 test an “armed attack” or in accord with of a Chinese ground-based, direct-ascent anti- authorization of the United Nations (UN). satellite (ASAT) interceptor against one of Kinetic, electromagnetic, or information their own defunct Feng Yun-1C weather operation attacks against space systems are satellites generated considerable concern each an “armed attack” to which the use of across the U.S. and international space and force is permitted. The right of self-defense is related defense communities. subject to the Law of Armed Conflict (LOAC) and other treaties and agreements. Even if How should capabilities presented by space lawful means and methods are employed and systems be protected? The U.S. approach to targets engaged, physical, technical, securing and protecting the space domain has environmental, political realities, and their been and will continue to be rooted in rational risks and benefits limit options to defend and policy making and municipal (i.e., domestic, fight space systems. Decades of senior policy- national) and international law. Long-standing makers have recognized the importance of the treaties and policy support the peaceful uses of space domain, assessed the risks in their space for civil, commercial, and military context, and provided measured and calm purposes. Yet, these may fail in times of global leadership to preserve access to it. conflict. Accordingly, the U.S. cannot wholly depend on passive defensive capabilities, or The United States (U.S.) utilizes space more diplomatic engagement and awareness, to than any other nation, not only for national secure itself. security, but in the private sector as well. The complete mix of civil, military, national, and Recognizing the importance of protecting multinational commercial space capabilities satellites as strategic assets, the U.S. has are important enablers for successful 21st employed a comprehensive strategy to Century militaries, economies, information accomplish this objective since the inception transfer, diplomatic communications, and of the Space Age. During the Cold War, collaboration. Space-based capabilities – hardening military satellites against potential precision-navigation-timing (PNT), battlefield destruction was commonplace, though 4 James D. Rendleman/Lawful Response to Attacks on Space Systems

“development of specific weapons to target enables a spacefaring nation with the abilities hostile satellites or threats to U.S. satellites to present agile responses to changes and was politically eschewed. The U.S. desire to threats in the space environment to assure protect its satellites was overridden by viability of systems. Deterrence strategies and wanting to avoid what were considered approaches are important and inhibit potential potentially destabilizing efforts, and what attacks by adversaries; however, they do not seemed as an inevitable arms race in space.”1 fully assure access to space. A variety of Contemporary and emerging capabilities defenses can complement deterrence by giving posed by hostile states and non-state actors tools needed to respond to human-made and now serve as a catalyst for a reappraisal of environmental threats. In sum, employing tools one might employ to achieve deterrence these four pillars have in the past and will in and even defeat such threats. the future enable U.S. and friendly space systems to continue to perform their missions Considering the complexities of the threat for the short and long terms. environment, the strategy to assure the U.S. and its allies have access to space capabilities With the possibility of space conflict and depends on four mutually supportive elements combat, policy-makers and commanders must or pillars:2 balance the benefits with the risks. Decisions to employ this conflict/combat aspect of the • Global Engagement. fourth pillar of space assurance, deterrence • Space Situational Awareness (SSA). and defense, must not be taken lightly. Given • Responsive Infrastructure. their diversity, deterring, defeating, or • Deterrence and Defense. eliminating human-made threats will be difficult to achieve. This is the case even Global engagement leverages long-standing though a myriad of combat tactics can be approaches to securing and protecting the employed against those who attempt to deny space domain through recognized access to space capabilities. international law, policy, and diplomacy. SSA enables the monitoring of environmental When planning to employ space defense factors and prediction of threats essential to strategies and respond to attacks on space decision-making to assure mission success. systems, decision-makers must consider a This allows a policy-maker or commander to particularly important factor – the law. Some differentiate between purposeful attacks and rail against any use of force to protect access natural environmental hazards; to anticipate to space, unmindful of the risk, suggesting space events and clarify intentions; this, in such actions could somehow constitute turn, reduces the potential for misperception violations of treaty, custom, domestic law, or miscalculation. SSA also enhances policy, or LOAC. Granted, those who argue opportunities to avoid disruptive or destructive against “any use of force” are in a minority, events. A robust and responsive infrastructure but many do make earnest arguments for significant limitations to space warfare. In

1 contrast, in the military space field only a Joan Johnson-Freese, “The Viability of U.S. Anti-Satellite (ASAT) Policy: Moving Toward Space Control, INSS decade or so ago people talked about Space Occasional Paper 30, U.S. Air Force Institute for National Control. In fact, Space Control is still one of Security Studies (INSS), January 2000, p. 1. the four space mission areas discussed in Joint 2The four pillars of space assurance are more fully discussed in James Rendleman, “Space Assurance for the 21st Century,” Publication 3-14, Space Operations (6 January High Frontier 5: 2 (February 2009): 46-53. 2009), and Counterspace Operations, Air Space and Defense, Winter 2010 5

Force Doctrine Document 2-2 (2 August Space Capabilities and Threats 2004). Proponents have been arguing that the U.S. should prepare for winning in a contested Because the complexities of space combat space domain, a concept described as “space pose significant legal issues, the technical, dominance;” this objective has been historical, and policy taxonomies of potential broadened by advocates to “full spectrum threats and attacks on space systems that could dominance.”3 The current 2006 U.S. National initiate such conflict must be fully understood. Space Policy precepts and space control A satellite system consists not only of doctrine suggest the U.S. should proactively spacecraft, but supporting infrastructure, control the environment – to assure access by including ground stations, tracking and control U.S. and allied systems, defeat threats, and links – commonly referred to as the tracking, deny adversaries access to their own space telemetry, and control (TT&C) – and data capabilities if required.4 There must be a links; launch facilities, supporting proper balance of all these divergent interests. infrastructures and the industrial base are also vital. These components are all at risk to Assuming the U.S. or any other nation threats of physical and cyber attack and believes it is compelled to use force to sabotage, and can be attacked, disrupted, respond to threats or attacks on its space degraded, or destroyed, simultaneously or systems and/or those of its allies, the each in detail. proposition to be surveyed and examined in this paper is: what means may a nation Space-based threats to satellites are lawfully employ to respond to and defeat proliferating as a result of the ever-growing threats to and attacks on its space systems? global availability of space technology; states can reach out to space and “touch” satellite This paper will examine how relevant treaties, payloads and their supporting buses through a customary law, LOAC, and other legal variety of kinetic and non-kinetic means; even principles substantially restrict space warfare non-state actors could potentially access some options, but also reduce the potential for of these technologies and space systems and conflict among law-abiding spacefaring cause problems. It takes little imagination to nations. We will identify legal principles envision multiple means by which a satellite supporting the right to defend a national or payload and/or its bus can be disrupted, allied space system. Following this, we will degraded, destroyed, or otherwise disabled.5 apply these principles with a dose of Spacecraft are vulnerable to direct ascent engineering and policy concerns to discuss weapons as demonstrated by the Chinese lawful and unlawful means and methods to ASAT test and also to a variety of other prosecute the right of self-defense and to ground-based, airborne, and space-based defeat threats to space systems. ASAT systems. These require sophisticated boosters, launch facilities, and high-tech terminal guidance capabilities; this is not an easy system to generate and field without state sponsorship. Direct-ascent launched or orbit-

3 Dwayne Day, “Space Policy 101,” The Space Review 15 5Every satellite has a “payload” and a “bus.” The payload June 2009, http://www.thespacereview.com/article/1397/1 contains all the equipment a satellite needs to perform its (accessed January 2010). mission functions. The bus supports the payload and provides 4Fact Sheet on U.S. National Space Policy, National Security electrical power, computers, and propulsion for the entire Presidential Directive 49, 31 August 2006. spacecraft.

6 James D. Rendleman/Lawful Response to Attacks on Space Systems

based nuclear devices can be detonated, satellites inoperable or unavailable. A variety generating energetic electrons and other of jammers emit signals that mask or prevent particles, radiation belts, and other effects that reception of desired signals; these methods can fry unshielded satellite circuitry over a can disrupt unprotected uplinks, downlinks, wide lethal range. Space mines can be and even cross-links. Electromagnetic deployed in close proximity to satellites or be deception and spoofing techniques can be employed to generate debris clouds that employed to confuse unprepared and destructively engage whole classes of low unprotected systems; this could include Earth orbit (LEO) satellites in the same orbital sending false, but deceptively plausible, plane or in crossing orbits, or to create commands that cause spacecraft to perform problems among satellites in geosynchronous damaging or wasteful maneuvers, modify orbits (GEO). Ground, space-based, or databases or configuration changes, or airborne lasers could wreak havoc upon otherwise destroy it. Similarly, supporting satellite components. Blinding operations terrestrial ground stations, computer networks, could be employed and achieve a variety of and links are vulnerable to information effects from a temporary “dazzling” with a operation attacks. This could involve laser to permanent burnout of optical or other executing denial of service tasks, injection of sensors with an otherwise intense energy fake commands, malicious software and burst. viruses, unauthorized monitoring and disclosure of sensitive information (data Vital command and control and interception), and unauthorized modification communications stations, and their links to or deliberate corruption of network satellites and each other are also at risk.6 At a information, services, and databases. fundamental level, they are vulnerable to classically accepted terrestrial land, sea, or air While achieving success would be difficult to kinetic attacks, including sabotage.7 Some achieve and is unlikely, offensive information unprotected stations, links, and user segments operations can be undertaken against on-orbit are susceptible to electronic attack that can satellites seeking to effect shutdown degrade, neutralize, or destroy their operations, where an adversary gains access to capabilities. These threats and attacks a satellite’s control program and directs it to encompass jamming and electromagnetic cease functioning for some length of time. deception techniques. Jammers disable the This could be orchestrated to coincide during means of command and control and data the initial critical moments of a simultaneous communications, and in this manner render and parallel terrestrial attack, or involve a permanent command to never resume 6Control stations track and control satellites to ensure they operations. While not physically damaging the remain in proper orbits and properly perform their missions. satellite, the result would be the same. It Communications ground stations process satellite mission would deprive the owner/operator of its use data and link that data to ground-based networks and users. TT&C links exchange commands and status information precisely when the system is most needed. between control ground stations and satellites. Data links Directing a permanent shutdown could cause exchange mission data between communications ground total loss of for any owner not able to reaccess stations and satellites. These links may pass through ground stations or satellites and relayed as appropriate. the platform and override the command. 7Ground stations are often located in remote and hard to get to Similarly, an attitude movement could be places. Orchestrating an attack on them is feasible, though directed by accessing the satellite’s control perhaps impractical. Most sites are well protected and the logistics needed to achieve a successful attack could be program, ordering the satellite platform to difficult to assemble. rotate on its axis, or pointing the mission Space and Defense, Winter 2010 7

sensor, communications antennae, receiver, among various parts of the Chinese solar cells, or any other directionally- government, with the People’s Liberation Army (PLA) carrying out dependant system in the wrong direction. Such the test without the knowledge of the an attack would be effective against a satellite Chinese Foreign Ministry or other whose effectiveness depends on payload and parts of the governmnt. “Put bluntly, commucication systems pointing at precise Beijing’s right hand may not have transponder and receiver targets, or sensors known what its left hand was doing,” writes Bates Gill and Martin aimed at a particular area of interest. Kleiber… “This may be a more troubling prospect than anything the A translation movement attack involves test might have revealed about directing the activation of a satellite’s China’s military ambitions or arms 9 thrusters and sending the platform into a new control objectives.” orbit. This could also cause loss of the satellite or require the system to expend vital on-orbit Moreover, Chinese military strategist, Wang resources to correct its position; the Fa’an, has proposed the PLA set up its own space forces in the future to protect China’s expenditure of resources to correct the 10 satellite’s orbit or orientation could growing space assets. However, Chinese significantly limit the system’s life. The capabilities do not pose the only concerns. destruction of the satellite could be There have been attacks on space systems by accomplished by issuing damaging commands other actors and the U.S. and the global space to its control program, e.g., to mismanage community have had good reason to take propellant temperature controls to the point of notice. Given the proliferation and diversity of tank or propellant line rupture. other global threats, China’s ASAT test only served to provide an important exclamation Lastly, an appropriation or impressment attack point on the specter of space conflict. As involves transfer of control of the satellite observed by retired Congressman Terry system to an adversary. The satellite’s control Everett in his Fall 2007 article written for program is accessed and altered, denying the Strategic Studies Quarterly: launching state use of its own platform. Worse …In the past few years, we have seen than mere destruction, the satellite’s a handful of global positioning capabilities are then placed at the disposal of system (GPS) and increasing numbers 8 an attacking state. of satellite communications (SATCOM) jamming incidents. In Given these threats, the 2007 Chinese ASAT the early stages of Operation Iraqi Freedom, U.S. forces encountered a test stoked the fires of a long-running debate GPS jamming situation. In this case, over whether and how the U.S. and its allies precision munitions were used to hit should prepare for space conflict. More these jamming sources, which terrifying: allowed our forces to quickly resume operations. We have seen several Some have argued that the test is SATCOM jamming incidents, evidence of a lack of communication including Iranian jamming of a U.S.

9 8For a worthwhile overview of potential attacks on space Jeff Foust, “The Chinese ASAT enigma, The Space Review 7 systems, see Thomas C. Wingfield, Legal Aspects of Offensive May 2007, http://www.thespacereview.com/article/864/1 Information Operations in Space, 23 March 2000, pp. 3-4 (accessed June 2009). [unpublished manuscript], http://www.au.af.mil/au/awc/ 10Peng Kuang and Cui Xiaohuo, “PLA Should Play Role in awcgate/dod-io-legal/wingfield.doc (accessed January 2010). Space: Strategist,” China Daily, 16 June 2009.

8 James D. Rendleman/Lawful Response to Attacks on Space Systems

satellite from Cuba in July 2003; In sum, the contemporary, emerging threats to ongoing jamming by Iran against space systems posed by hostile states and non- PanAmSat Corporation, Asia Satellite Telecommunications Co. Ltd., Arab state actors are fundamentally different from Satellite Communications that experienced during the Cold War. Organization, and Eutelsat S.A. from Vulnerabilities span the whole of the space June 1997 to July 2005; and Libyan community, and these weaknesses have been jamming of two international studied by adversaries to the U.S. and its SATCOM systems in December 2005. Last fall it was reported that a allies. These adversaries are now much more Chinese ground-based laser diverse, sophisticated, and technologically illuminated a National competent; they are equipped and able to Reconnaissance Office intelligence- disrupt space activities. Defending space gathering satellite. What is most assets demands new tools as deterring or troubling is that these attacks are coming during a period of widespread eliminating evolving threats will be difficult. use of GPS, satellite communications, and space-based imagery. …There is a spectrum of Securing the High Frontier of Space potential threat capabilities looming on the horizon to include electronic jamming, low-power laser blinding, U.S. law and policy place great emphasis on high-energy lasers, microsatellites, diplomacy and international engagement; it is direct-ascent ASATs, cyber attacks, a centuries-old practice that has secured physical attacks to ground stations, borders, enhanced commerce, and brokered and possibly even a nuclear and resolved disputes. Assuming adversaries, explosion. These threats can target satellites in orbit; their and friends, pay heed to customary and treaty- communications links to and from the based provisions of international law, the ground; and their ground-based global engagement pillar of space assurance command, control, and receive affords the space community a respectable stations. All produce the same general measure of confidence they can all have result – they render our space capabilities temporarily or assured access to space. Even so, given the permanently useless. Many of these present minimal international law restrictions anti-satellite technologies exist today, on space activities, smart decision-making is and many are dual-use in nature, also vital to operate safely and securely. The including a microsatellite that could complete span of international legal, policy, be used as an experimental spacecraft or, with a simple command, could diplomacy, and engagement implications shadow or collide with another should therefore be fully considered when satellite. planning for and executing space assurance Space is no longer a sanctuary. activities. The U.S. has done this for decades; Those who wish to challenge it has applied significant experience and America’s role in the world increasingly recognized the strategic importance of space and are more willing to deny us freedom of action March 2003; Major General William L. Shelton, commander, in space by employing a wide range 14th Air Force, “Update on Space Operations,” Air Force of methods.11 Association National Symposium on Space, Beverly Hills, California, 17 November 2006; Warren Ferster and Colin Clark, “NRO Confirms Chinese Laser Test Illuminated U.S. 11Terry Everett, “Arguing for a Comprehensive Space Spacecraft,” Space News 2 October 2006; and Office of the Protection Strategy,” Strategic Studies Quarterly (Fall 2007): Secretary of Defense, Military Power of the People’s 23-24, citing Jim Garamone, “CENTCOM Charts Operation Republic of China 2007, Annual Report to Congress Iraqi Freedom Progress,” American Forces Press Service, 25 (Washington, DC: Department of Defense, 2007).

Space and Defense, Winter 2010 9

wisdom to prepare for and take care of threats importance, and the document reflects this. posed by ASAT and other systems for the The Constitution, Article I § 8, Clause 10 sets entirety of the Space Age. out in pertinent part: Congress has the power “to define and punish offenses… against the What are the applicable foundations of Law of Nations.” Treaties are concluded under international law? First, treaties and other the authority of the Constitution, Article II § bilateral agreements to which sovereign states 2, Clause 2 , which declares the President are signatories, and which govern issues of “shall have Power, by and with the Advice interest; and second, multinational agreements and Consent of the Senate, to make treaties, among sovereigns. International agreements provided that two-thirds of the Senators are governed, not by contract law, but by the present concur.”14 Article VI, Clause 2 Vienna Convention on the Law of Treaties.12 provides: “…all Treaties made, or which shall Under the Vienna Convention, states can do be made, under the Authority of the U.S. the anything they want and agree to, unless what name of the U.S., shall be the supreme Law of is contemplated violates a peremptory norm the Land.”15 Generally, treaty terms take (i.e., a fundamental principle of international precedence over conflicting U.S. statute law that is accepted by the international terms.16 community of states as a norm from which no derogation is permitted). While the U.S. has With relatively few treaty restrictions not ratified the Vienna Convention, it treats governing activities in space for military or the bulk of its rules as compelling under other purposes, some might think the U.S. is customary international law, which is a third faced with a dilemma – should it only abide foundation of international law. The fourth by a permissive “letter of the law” standard or foundation deals with general principles the “spirit of the law”? If only the letter of the common to mature legal systems. And the law, what approach should it want to see fifth, deals with the subsidiary “municipal” adopted by current or fledging space nations? determinations of law (e.g., national decisions, Actually, the choice is not between the letter such as those rendered by the U.S. Supreme and spirit of the law; on the whole, the U.S. Court).13 abides by both standards. Decades of senior policy-makers within the Executive and International law is an integral part of the U.S. Congressional branches of the U.S. legal system. Its founding fathers convened at Government have recognized the importance the 1787 Philadelphia Constitutional Convention to revise the unwieldy and 14Under international law, the terms “treaty” and moribund Articles of Confederation; the “international agreement” are synonymous, although the impetuses for their meeting were intractable terms do have different meanings within the U.S. Department commercial, trade and defense issues, also of Defense (DOD). DOD Document 5530.3, International Agreements, 11 June 1987, Enclosure 2, defines “international important in the international arena. The agreement” more broadly, to include agreements between framers knew international law existed, its lower levels of nations’ governments (e.g., the U.S. Departments of Defense) that are under the umbrella of a treaty, but have not themselves been ratified (“advice and 12See Vienna Convention on the Law of Treaties, 23 May consent”) by the U.S. Senate. 1969. 15Customary law is not part of the “supreme Law of the 13Article 38 of the Statute of the International Court of Justice Land” though some U.S. Supreme Court Justices are now defines its sources. See Nathaniel Burney, “International Law: making some rather disconcerting noises about incorporating A brief primer for information purposes only,” portions of such law into the U.S. constitutional system. http://www.burneylawfirm.com/international_law_primer.htm 16The major exception to this is when Congress intends for a (accessed January 2010). later statute to override the conflicting treaty provision.

10 James D. Rendleman/Lawful Response to Attacks on Space Systems

of the domain; assessed risks associated with have been agreed to and these have improved not providing measured and calm global opportunities for transparency between leadership to preserve access to it; and made potential adversaries, perhaps improving decisions in accord with those assessments.17 dialogue to prevent any dispute from In turn, the U.S. encourages comparable devolving or escalating into armed conflict or policy-making by other states of the global to a nuclear catastrophe. Other treaties and community. conventions, such as those involving the International Telecommunications Union As it executes global engagement activities, (ITU) address vexing spectrum management the U.S. has been and will be on the receiving issues, which have profound impacts on end of criticisms and exhortations that it does military, civil, and commercial space systems. not follow the spirit of the law when refusing The ITU presently attempts to equitably to accede to new agreements, standards, rules, reconcile the explosion of information and practices affecting space activities. But technologies, exponential user growth and this refusal involves instruments whose terms needs, all within nature’s limited useable lack precision, are unverifiable, fail to bandwidth in the electromagnetic spectrum. comprehensively address issues, or place the U.S. and its allies’ defense and economic The Treaty on Principles Governing the security interests at risk. These critiques must Activities of States in the Exploration and Use be expected in the rough and tumble of the of Outer Space, Including the Moon and Other global stage, where each state jockeys for its Celestial Bodies of 1967, or the Outer Space own national or regional advantage. Treaty (OST) as the treaty is informally known, forms the basis for much of Treaties, conventions, and agreements already international space law, including its in force regularize space activities despite important legal principles and prohibitions. their minimalist nature. As such, they help Under the treaty, all nations share the global protect capabilities of systems that have been space commons; notably, it is also an or are about to be placed on orbit. Bilateral important foundation of the entire U.S. and multilateral arms control treaties also military, civil, and commercial space preserve some of the sanctuary aspects of programs. The treaty was consummated at a space by prohibiting “interference” with time when U.S. policy-makers concluded “national technical means” (NTMs), which space offered unique benefits for the military can include missile warning and and political dimensions of the Cold War reconnaissance satellites used to verify treaty national security strategy. They hoped to compliance. Confidence-building procedures fashion an agreement to preserve access to the domain, and these motivations and the document have endured and continue to serve 17 While diplomatic engagement has been helpful, there is an the U.S. and its allies’ national interests. element of risk in relying solely on it to assure access to space capabilities. Enforcement mechanisms for violating treaties Assuming the mantel of the world’s leading and agreements relating to space are rather limited. There are spacefaring nation, the U.S. helped lead the no specific enforcement mechanisms in place to address way on discussions relating to the treaty’s violations of space related treaties, and this increases the risk of depending on such documents and handshakes to protect or formation, crafting the treaty instruments, and assure access to space. Violations of treaties and other forging a global consensus to set a tone and agreements should nominally be responded to through worldview that space activities should be economic means and diplomatic consultation, and if necessary, other sanctions, assuming a nation or some part of prosecuted for peace and the benefit of the global community agree to them. mankind. Space and Defense, Winter 2010 11

As a signatory to the OST, the U.S. supports signatories can be found in international freedom of access to space by all spacefaring customary law. Customary international law powers, agreeing to treaty language that “...consists of rules of law derived from the provides: “Outer space …shall be free for consistent conduct of States acting out of the exploration and use by all States without belief that the law required them to act that discrimination of any kind…”18 The treaty way.”20 OST signatories also declares nations should have “freedom of …the U.S. can look to both treaty scientific investigation in outer space.” supports and customary law Addressing topics that affect the potential for sources, as customary space conflict, the OST provides that freedom of law may be applied international law applies. “…Article III [of the access to whether or not a state is OST] incorporates the application of space by all a treaty party. The vast international law, and specifically the Charter spacefaring majority of the world, of the UN, in outer space, making it a vital powers… including the U.S., part of the corpus juris spatialis.”19 This accepts in principle the incorporation of international law, not just the existence of customary UN Charter, is important and guiding. international law even though there are often differing opinions as to what rules are Every major spacefaring nation is a signatory contained in it. Article 38(1)(b) of the Statute to the OST. Rights and obligations of non- of the International Court of Justice (ICJ) acknowledges the existence of customary international law, and the ICJ rules are 18 See Treaty on Principles Governing the Activities of States incorporated into the UN Charter by Article in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty). 92, which sets out in pertinent part: “The Article I – “The exploration and use of outer space, Court, whose function is to decide in including the moon and other celestial bodies, shall be carried accordance with international law such out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific disputes as are submitted to it, shall development, and shall be the province of all mankind. Outer apply...international custom, as evidence of a space, including the moon and other celestial bodies, shall be general practice accepted as law.”21 free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free Customary international law is something access to all areas of celestial bodies. There shall be freedom done as a general practice – not because it is of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and expedient or convenient, but because it is encourage international co-operation in such investigation.” considered law, arising out of a sense of legal Article III – “States Parties to the Treaty shall carry on requirement. According to Shabtai Rosenne, activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with there are three elements that must be satisfied international law, including the Charter of the UN, in the before one can conclude a rule is part of interest of maintaining international peace and security and customary international law. First, a rule can promoting international co-operation and understanding.” Article IV – “States Parties to the Treaty undertake not to be discerned by a widespread repetition by place in orbit around the earth any objects carrying nuclear states of similar international acts over time weapons or any other kinds of weapons of mass destruction, (state practice); second, the acts by states install such weapons on celestial bodies, or station such weapons in outer space in any other manner…” related to the rule must occur out of a sense of 19P.J. Blount, “Limits on Space Weapons: Incorporating the Law of War into the Corpus Juris Spatialis,” IAC-08-E8.3.5, 20 Presented to the International Institute of Space Law Shabtai Rosenne, Practice and Methods of International Colloquium, International Astronautics Congress, Glasgow, Law (Oceana Publications, July 1984), p. 55. UK, October 2008. 21UN Charter, Article 92.

12 James D. Rendleman/Lawful Response to Attacks on Space Systems

legal obligation; and third, these acts must be Three concepts apply to the formulation of taken by a significant number of states and not customary law – recognition, acquiescence, be rejected by a significant number of states. and estoppel. According to Malcolm Shaw: A marker of customary international law is consensus among states exhibited by Recognition is a positive act by a widespread conduct together with a state accepting a particular situation, 22 and even though it may be implied discernible sense of obligation. from all the relevant circumstances, it is nevertheless an affirmation of the Under customary international law, what is existence of a specific factual state of done, written, or said can establish legal affairs even if that accepted situation precedent. But not always as such matters do is inconsistent with the term in a treaty. Acquiescence, on the other not usually undergo examination in a hand, occurs in circumstances where courtroom setting. This a protest is called for and does not presents an opportunity Under happen, or does not happen in time in for mischief, even if customary the circumstances. In other words, a only in a diplomatic situation arises, which would seem to international require a response denoting drama. This explains law, what is disagreement, and since this does not why U.S. policy-makers done, written, transpire, the state making no feel compelled from objection is understood to have time-to-time to rein-in or said can accepted the new situation. The idea senior officers and establish of estoppel in general is that a party, which has made or consented to a officials who speak out legal particular statement upon which on topics or matters precedent. another relies in subsequent activity related to space to its detriment or the other’s benefit, security, space conflict, or other important cannot thereupon change its 23 issues before a decision has been made by the position. entire U.S. national security policy community. Uncoordinated speeches, Provocative or unintentional jamming or doctrine, concepts of operations, and other dazzling incidents involving space systems instruments can have a corrosive effect on the may require immediate response and even formation of space policy. They can, protest, or a state may risk a determination in unwittingly, establish policy and potentially customary law that it has acquiesced to the legal precedent in advance of a comprehensive events. interagency consensus. While fundamental principles of good faith and equity apply in Estoppel involves a legal concept “whereby international law, no seemingly innocuous states deemed to have consented to a state of comment goes unpunished. Actions and words affairs cannot afterwards alter their 24 can have a legal, policy, and diplomatic effect position.” As an example, State Party A – even where no specific legal document or states something to induce an expectation, other agreement memorializes them. stating: “Party A will monitor the space environment and warn all spacefaring nations of potential space collision threats.” Though

23Malcolm Nathan Shaw, International Law (Cambridge 22Shabtai Rosenne, Practice and Methods of International University Press, 5th Edition, 2003), p. 437. Law (Oceana Publications, July 1984). 24Ibid., p. 439. Space and Defense, Winter 2010 13

no specific agreement is made with Party A Soviet response options would be for the provision of such services, State Party limited to legal and diplomatic protests, attacks on ground stations, B justifiably believes Party A’s statements or total war. If the U.S. paid careful that Party A will employ its SSA capabilities attention to political and as stated. Party B refrains from securing such psychological issues associated with tools, and relies on Party A in operating its space technology, the RAND report space systems. Assuming a Party B satellite is argued, it could constrain the Soviet counter reaction, strengthen damaged by a collision to which Party A had deterrence, reduce Politburo the sufficient resources and specific resistance to international inspections information to warn of the problem, then the of atomic installations, and possibly doctrine of estoppel could offer Party B some elicit a radical reorientation of Soviet possible legal or diplomatic recourse. behavior along more cooperative lines. To establish a favorable political The classic example of actions having legal context and set a precedent that could effect or precedent in the space context is the be used to legitimize future launch of the Sputnik satellite system over a reconnaissance satellites, the half-century ago. This launch established the Eisenhower administration decided to start by launching a scientific satellite legal precedence and customary international even though military alternatives law for free passage of space systems and would have been ready sooner. The over-flight rights while on-orbit. Some launch coincided with the suggest that President Dwight Eisenhower International Geophysical Year, and directed a slowing of pending U.S. space the satellite, launched using a modified research rocket, was placed launch activities so the Soviets could in an orbit that would not traverse the successfully launch first, allowing their Soviet Union. The U.S. decision to actions to establish customary over-flight wait until it could launch a scientific rights. According to Nancy Gallagher and satellite allowed the USSR to create a John D. Steinbruner: public sensation by being the first country to launch a man-made satellite, but one of Eisenhower’s A 1950 RAND report that has been military advisors remarked that the called “the birth certificate of Soviets “had done us a good turn, American space policy” underscored unintentionally, in establishing the the practical importance of legal concept of freedom of international justification. The report emphasized space.” That judgment reflected an the “vital necessity” of improved appreciation that space could not be intelligence about the closed Soviet physically controlled by military Union, but cautioned that because the force in the manner that territory on existence of spy satellites could not Earth or the airspace over it is and should not be kept secret for controlled. long, creating a favorable context in Some accommodation in space for which to use the new technology mutual benefit would be necessary would be just as important as even in the context of global developing the capability itself. The confrontation. Khrushchev appeared authors recognized that to have recognized this logic, as well. reconnaissance satellites would pose After the Soviets shot down an a dilemma for Soviet leaders, who American U-2 reconnaissance plane would see the loss of secrecy as a in May 1960, Charles de Gaulle major violation of sovereignty and a asked about cameras in the Sputnik quasi-permanent threat to security. orbiting over France, and Khrushchev But U.S. satellites would be too high said that he objected to airplane to shoot down, at least initially, so

14 James D. Rendleman/Lawful Response to Attacks on Space Systems

overflights, not satellite-based development activities. It has launched long- 25 surveillance. range ballistic missiles over the Japanese Islands, but claims its launches are part of The Eisenhower Administration’s objective to developing a new satellite system. The North obtain universal acceptance of the concept of Korean April 2009 launch has contributed to satellite free passage and overflight rights was the controversy. more fully achieved years later when these customary law principles were included in the North Korea claims that the mission OST. In the meantime, statements of such was a peaceful attempt to launch a principles were presented and discussed communications satellite into orbit, within various global community and UN but the image suggests otherwise, according to Geoffrey Forden, a forums, and can be found in a number of physicist and arms-control analyst at disparate documents including the 1958 the Massachusetts Institute of National Aeronautics and Space Act, and UN Technology. Forden triangulated the General Assembly resolutions. trajectory of the rocket using the contrail in the image, the position of the satellite taking the picture, and Free passage and overflight rights continue to North Korea’s declared ’splashdown be matters that warrant interest. This is an zones’ for the first and second stages. important issue as air space is subject to Based on his analysis, the TD-2’s sovereignty rules; in contrast, signatories to [Taepodong 2] course appears to be the OST make no such claims on outer space. too shallow to be a space launch. To reach orbit, Forden says, the rocket If violated, this may justify self-defense or should have been travelling almost reprisal responses by objecting states, vertically in an attempt to gain especially with regard to spacecraft and altitude early on in its flight. Instead, related equipment transiting what would it appears to be pitching horizontally, traditionally be considered air space during sacrificing height for distance in a trajectory that would allow it to sling spacelift or de-orbit mission phases. Current a warhead as far as possible. Such a international community treaty and customary trajectory could be consistent with law treatments of free passage and overflight that of an intercontinental ballistic rights have been pushed to the limits by the missile (ICBM).26 rogue North Korea bogeyman. North Korea arguably exploits the rules to facilitate and Presenting a threat to peace, the North Korean prosecute provocative ballistic missile ballistic missile and nuclear proliferation activities have been deemed violations of UN 25Nancy Gallagher and John D. Steinbruner, Reconsidering Security Council Resolution 1718, which the Rules for Space Security, American Academy of Arts and demands the country not conduct new nuclear Sciences, Reconsidering the Rules of Space Project, tests nor launch a ballistic missile.27 Cambridge, Massachusetts, 2008, pp. 7-8. The adviser was Donald Quarles, Eisenhower’s assistant secretary of defense Nevertheless, North Korea, who only recently for research and development. See A. J. Goodpaster, acceded to the OST on 3 May 2009, insists its “Memorandum of Conference with the President,” 8 October April 2009 rocket launch is part of an effort to 1957, Dwight D. Eisenhower Presidential Library. Also, see Dwight D. Eisenhower, Waging Peace (Doubleday, 1965), p. 556; and George B. Kistiakowsky, A Scientist at the White 26 House (Harvard University Press, 1976), p. 334. “In other Geoff Brumfiel, “Analysts spar over launch image”, settings, the Soviets did not initially distinguish between Naturenews 8 April 2009. satellite and aerial overflights and denounced both as an 27Joanne Irene Gabrynowicz, “Satellite spots activity at North illegal infringement on national sovereignty.” See Gerald Korean missile site, officials say,” Res Communis 29 March Steinberg, Satellite Reconnaissance: The Role of Informal 2009, http://rescommunis.wordpress.com (accessed March Bargaining (Praeger, 1983), pp. 26–29. 2009). Space and Defense, Winter 2010 15

put a satellite in orbit; it argues this activity follow all necessary international procedures falls under the treaty’s allowances that outer for launching a satellite: space “shall be free for exploration and use by all states without discrimination of any The Radio Regulations of the kind.”28 The argument has gained traction in International Telecommunication Union (ITU), to which North Korea parts of the global community. China has also belongs, stipulates that the refused to condemn the launches asserting launch of a communications satellite North Korea has the right to peaceful use of needs to be announced in advance. space.29 Even Japan agrees North Korea has a The regulations also require member right to a space program, “but only after it states to give prior notice of a 30 satellite’s operating frequency, its denuclearized and no longer posed a threat.” orbital location and other information to the ITU two to seven years before “The Korean communist regime has been a satellite goes into use. However, careful to follow the spirit of the treaty, North Korea did not give such prior 34 keeping the world appraised of its plans, notice to the ITU, the sources said. unlike its unannounced missile launches in 1998 and 2006.”31 In asserting its rights to The North Koreans protest that they are only launch a satellite, North Korea notified the engaged in peaceful space activities. Yet they International Civil Aviation Organization and make bellicose threats of dire consequences International Maritime Organization that it for any one attempting to interfere with them intended to launch an “experimental or other state activities. These mixed signals communication satellite.”32 It also made a complicate planning for potential missile notification of the launch in accord with the defense intercepts of these launched systems, Registration Convention.33 Despite these since the U.S., its allies, and most nations efforts, and underscoring the potential for an subscribe to the free passage rules for space. underlying deception, North Korea did not The U.S. does not want to be seen as denying that right even if the complaining nation is involved in a ruse.

28Joanne Irene Gabrynowicz, “North Korea launch a test for Beside the North Korean launches, other international law”, Res Communis 2 April 2009, proposals related to free passage remain in http://rescommunis.wordpress.com (accessed April 2009). controversy, and could also be sources of 29“China says North Korea has right to peaceful use of space,” The China Post 8 April 2009. conflict involving space systems. For 30“Japan Says North Korea Space Program OK after example, some argue for a new legal Denuclearization,” Space War 7 April 2009, definition for the demarcation between a http://www.spacewar.com/reports/Japan_Says_NKorea_Spac e_Program_OK_After_Denuclearisation_999.html (accessed country’s air space (Earth’s atmosphere) and April 2009). outer space. The U.S. does not officially 31Joanne Irene Gabrynowicz, “North Korea launch a test for accept a specific “boundary;” instead, it international law” Res Communis 2 April 2009, employs a functional approach to assert space- http://rescommunis.wordpress.com (accessed April 2009). 32Joanne Irene Gabrynowicz, “North Koreans have notified related free passage and transit rights. several UN agencies that they plan on launching”, Res Unfortunately, if boundaries for the definition Communis 12 March 2009, http://rescommunis. of space are strictly defined sometime in the wordpress.com, quoting, Robert Wood, U.S. Department of State, Daily Press Briefing – March 12 (accessed March 2009). 34Joanne Irene Gabrynowicz, “North Korea ‘ignored satellite 33Joanne Irene Gabrynowicz, “North Korea Accedes to procedures’”, Res Communis 8 April 2009, Registration Convention”, Res Communis 11 March 2009, http://rescommunis.wordpress.com, citing The Daily http://rescommunis.wordpress.com (accessed March 2009). Yomiyuri (accessed April 2009).

16 James D. Rendleman/Lawful Response to Attacks on Space Systems

future by action of treaty or through careful to carry them out from their customary international law development, this own territories, and no protests have ever been recorded in respect of any could dangerously affect necessary space- launchings, wherever they took place. related rights. The development of customary However, as Wassenbergh observes, law on the subject of free passage and transit ‘There is not a right of instant rights has been described by Isabella customary international law that Diederiks-Verschoor: space objects can “freely” transit through foreign airspace. The fact that in practice so far no objections Some seem to accept silent have been raised against foreign acquiescence as sufficient ground for space objects transiting a State’s the existence of a rule of custom, airspace is no reason to refer to a others feel that explicit recognition is customary right of transit, as too few an essential requirement… Clearly, States are considered to be confronted the crux of the matter centers around with such transit (and none have the element of ‘recognition’ as been), and no opinion juris with evidence of acceptance of a specific respect to such practice has been practice, and the form such pronounced as yet. recognition can take. Even if a right of transit for space …Van Bogaert considers it an objects through the airspace of essential necessity that states show foreign countries is universally ‘by diplomatic intercourse’ that they agreed upon it will always have to be recognize a certain norm as legally subject to guarantees of safety and binding. Custom inevitably implies a security. certain period of time, but Van All this leads you to conclude that Bogaert feels that there is no need for customary law is already playing a a practice to be long-lasting, provided significant role in space law, and that recognition is properly signaled. He states have evidently found it also notes that it might be logical to necessary, if not expedient, to abide consider approval by the UN General by its rules.35 Assembly as an expression of such recognition. As regard to the time factor, Judge Some proponents argue space should be Lachs of the International Court of defined as beginning at 100 kilometers (km) Justice agrees that that a short period above sea level. This is known as the Kármán of time is not in itself a bar to the Line, calculated by and named for Theodore formation of a new rule of customary law. He suggests that a kind of ‘right von Kármán. This demarcation has been of innocent passage’ has evolved on accepted by the Fédération Aéronautique the basis of reciprocity, pointing out Internationale (FAI).36 However, if adopted by that on a number of occasions states action of treaty or customary law, returns of engaged in space activities, which did U.S. and allied spacecraft could be threatened. not inform other states of their plans to launch space objects or ask The threat would not be limited to just purely permission to pass through the military systems, as civil and commercial airspace of other states, did not meet systems would be put at risk. The Soviet objections from the states concerned, nor did those states reserve for themselves the right to object to such 35See Isabella Henrietta Philepina Diederiks-Verschoor, An flights. Introduction to Space Law (Kluwer Law International, 1999), The debate on this matter has pp. 11-12. 36 hitherto remained entirely academic: See “The 100 km Boundary for Astronautics,” Fédération both the USA and the former USSR, Aéronautique Internationale Press Release, 24 June 2004, responsible as they are for most space http://www.fai.org/press_releases/2004/documents/1204_100 object launchings, have always been km_astronautics.doc (accessed June 2009). Space and Defense, Winter 2010 17

Union reserved the right to shoot or bring These norms have arisen out of case law and down aircraft in its airspace, and did so with changing political policy-making attitudes, alarming and tragic deadly effect for Korean and can be found where there is a clear Air Lines 007 during the early 1980s, and with international disapproval of specific practices other highly publicized commercial aircraft or acts. incidents. Given the risks, the U.S. and its allies might be forced to employ deterrence There is some disagreement over how strategies and/or prepare for conflict if a state peremptory norms should be acknowledged wanting adoption of the Kármán Line also and put into force. The relatively new concept threatens spacecraft that cross below it above conflicts with the traditional consensual nature their territory. Given these complications, the of treaty and customary international law that U.S. has not agreed to the definition. ensures state sovereignty. According to Rafael Nieto-Navia, there are three pre-requisites Another important legal concept, the (some a bit tautological in nature) for a norm peremptory norm (also called jus cogens, to be “elevated” to the status of a norm of jus Latin for “compelling law”), affects state and cogens.40 First, the peremptory norm must be non-state actor obligations with regard to a norm of general international law. General space conflict. The concept is related to, but international law is international law binding differs, from customary law. The peremptory on most, if not all, states; however, not all norm is a principle of law from which no facets of general international law have the violation is permitted, even by treaty. “Unlike character of jus cogens. The rules do not exist ordinary customary law that has traditionally “to satisfy the need of the individual states, required consent and allows the alteration of but the higher interest of the whole its obligations between states through treaties, international community…”41 This need can peremptory norms cannot be violated by any be seen in rules created to achieve state.”37 Under the Vienna Convention, any humanitarian purposes. treaty that conflicts with a peremptory norm is void.38 New peremptory norms can develop Second, the norm must be “accepted and under the Convention,39 but the document recognized by the international community of does not itself specify any specific norms or States as a whole.”42 Accepting and how they are developed or created. recognizing a norm within the international community can be either express or implied. Peremptory norms have not been fully Ascertaining the minimum breadth necessary itemized, but they include injunctions against for acceptance is subject to debate; the waging aggressive war, crimes against international community tries to avoid humanity, war crimes, maritime piracy, situations whereby one or a few rogue states genocide, apartheid, slavery, and torture. can effectively negate any decision to designate a norm as peremptory. Thus, a norm can be considered as jus cogens if it is 37U.S. Legal Definitions, “Peremptory Law & Legal accepted and recognized by the international Definition,” http://definitions.uslegal.com/p/peremptory (accessed January 2010). 40 38Vienna Convention on the Law of Treaties, Article 53. Rafael Nieto-Navia, “International Peremptory Norms (Jus 39“Emergence of a new peremptory norm of general Cogens) and International Humanitarian Law,” 2003, international law (jus cogens): If a new peremptory norm of http://www.iccnow.org/documents/WritingColombiaEng.pdf, general international law emerges, any existing treaty which (accessed June 2009), p. 10. 41 is in conflict with that norm becomes void and terminates.” Ibid. See Vienna Convention on the Law of Treaties, Article 64. 42Ibid.

18 James D. Rendleman/Lawful Response to Attacks on Space Systems

community of States as a whole; consent of all whole and from which no derogation is states is not required (similar in the way in permitted at all; norms which are necessary which principles of general customary for the stability of the international juridical international law are formed). In this way, order; norms having humanitarian objects and norms of jus cogens can be drawn from the purposes including certain principles of traditional sources of international law – human rights and international humanitarian treaties, international custom, and the like.43 law; norms of general interest to the international community as a whole or to It is a well-accepted principle that treaties do international public order; and norms, which not bind non-parties without their consent. are binding on all new states even without Nieto-Navia contends that exceptions to this their consent as being established rules of the principle are those conventions or treaties international community.46 whose objects and purposes render them more important. Ultimately, Without question, international law undergoes if provisions of treaties Without continuous change and is constantly evolving. or conventions satisfy question, This means new norms of jus cogens should at the more important international least in theory continue to develop with criteria to be recognized law respect to the law of space systems, their as jus cogens, states not operations, and space warfare. Examples of party to them will also undergoes acts being contrary to the norms of jus cogens be bound by their continuous would appear to include interfering with some provisions. Of course, a change and important space systems, especially those large portion of is constantly presenting NTM, missile warning, emergency international law evolving. communications, and even PNT capabilities. remains customary in nature and treaties often only codify the Space-borne NTMs serve an important role: existing customary law rules, and do not assuring adversaries that they have complied establish peremptory norms.44 with arms control treaty terms; providing transparency, enhancing confidence in actions As a third prerequisite, the norm must be one of others, and diffusing tensions; and helping from which no derogation is permitted. It can stem the potential of a nuclear holocaust, be modified only by a subsequent norm of which would produce a catastrophe whose general international law of the same damaging effects would be global in nature. character. This “is in fact the main identifying Reserving access to such NTM systems by feature and “essence” of a norm of jus antagonists would therefore appear to be a cogens.”45 peremptory norm; hence, this would proscribe any attacks on such systems to destroy, Nieto-Navia suggests it is possible to classify disable, or otherwise interfere with them. norms that are not subject to derogation by Proscribing such attacks would satisfy the treaties or otherwise. These are: norms that higher needs and general interest of the whole have a fundamental bearing on the behavior of international community. the international community of states as a Interestingly, the term “National Technical

43Ibid., pp. 10-11. Means” (NTMs) was not specifically defined 44Ibid., p. 11. 45Ibid., p. 12. 46Ibid., pp. 12-13. Space and Defense, Winter 2010 19

and detailed in the original Anti-Ballistic Indeed, this point was raised in a formerly Missile (ABM) Treaty, nor in subsequent arms classified document, where the late Secretary control treaties. Some argue this could lead to of Defense Melvin R. Laird argued the U.S. a finding that if satellite systems were not should acknowledge: specified and described fully in the treaty they should somehow not warrant the treaty’s …the fact that national technical protection.47 While not specific, the “NTM” means of verification for the U.S. and the USSR include satellite based term references the variety of land, air, sea, reconnaissance. We should further and space technologies and systems that can state that all our legitimate national be used to monitor and verify treaty technical means, including satellite compliance. If the treaty’s language could be based reconnaissance, taken together, interpreted to disallow classifying of any give us confidence that we can verify compliance with the provisions of system as an NTM, even a space system, then these agreements within satisfactory the provision barring interference would limits… the fact of U.S. satellite appear to have no meaning or effect. Nothing reconnaissance is widely known. I in the record supports such a result as the believe that acknowledging this fact intent of the signatories. The Vienna in connection with the strategic arms limitation agreements has the Convention holds that treaties are to be important advantage of muting 48 interpreted “in good faith” and “ordinary possible adverse reaction…50 meaning given to the terms of the treaty in their context and in the light of its object and The Russian and the U.S. positions on limiting purpose.”49 Consent may be implied if the interference with NTMs have been set out in other parties fail to explicitly disavow an treaty and agreement. China, Canada, the initial unilateral interpretation, particularly if United Kingdom, France, and other significant that state has acted upon its view of the treaty spacefaring powers have made without complaint. For the purposes of this pronouncements condemning interference discussion, satellite systems can be employed with such systems, and supporting the to monitor treaty compliance and thus can be transparency efforts. A norm that favors classified as NTMs. protection of spaceborne NTMs should be supported at least by global spacefaring nations, if not the international community of states as a whole; no overarching alternate norm, stripping these protections, has been 47 Peter L. Hays suggests that the language of the ABM Treaty proposed. “clearly stops well short of being a blanket anti-satellite (ASAT) weapons ban or even a clear approval of all spying from space.” He argues: “it is questionable just how much Similar arguments can be made with regard to protection or legitimization it provides for NTM or satellites spaceborne missile warning and emergency more generally.” See Peter L. Hays, “U.S. Military Space: Into the Twenty-First Century,” INSS Occasional Paper 42 communication capabilities that these should (U.S. Air Force Institute for National Security Studies (INSS) not be attacked or interfered with. These and Air University Press, 2002), p. 58. systems would help adversaries to understand, 48“Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” See Vienna Convention on the Law of Treaties, Article 26. 50See Melvin R. Laird, “Memorandum for Assistant to the 49“A treaty shall be interpreted in good faith in accordance President for National Security Affairs, Subject: Revelation of with the ordinary meaning to be given to the terms of the the Fact of Satellite Reconnaissance in Connection with the treaty in their context and in the light of its object and Submission of Arms Limitation Agreements to Congress,” 8 purpose.” See Vienna Convention on the Law of Treaties, June 1972, http://www.gwu.edu/~nsarchiv/NSAEBB/ Article 31.1. NSAEBB231/doc02.pdf (accessed January 2010).

20 James D. Rendleman/Lawful Response to Attacks on Space Systems

manage, and limit the extent of damage How are the parties to judge whether associated with exchanges of weapons of mass space-based NTM are engaged in legitimate treaty compliance destruction, all to the benefit of the global verification or in general espionage community. Arguments that peremptory and how much noninterference norms proscribe attacks on space-based PNT should they be given in either case? capabilities could also be made. Proponents An ASAT attack on space-based for this position would be bolstered by NTM attempting to verify compliance with the treaty would surely demonstrating the dimensions of the effects constitute “interference,” but how and global chaos that could occur in the about lesser levels of nondestructive commercial and civil communities as a result interference such as laser “dazzling?” of the destruction of these capabilities. While What about interference that takes these arguments are less compelling from ones place in portions of the orbit that do not pass over the territory of the tied to preventing conflict with weapons of treaty signatories? Based on these mass destruction, they could be made just the questions and despite the NTM same and, perhaps, accepted. protection these provisions were often alleged to provide in the heyday of No matter their importance, it would seem détente, the provisions in the ABMT [ABM Treaty] should not be seen as NTMs and/or other systems would warrant constituting an ASAT prohibition or less protection if their mission payloads as granting a strong and specific level become blended with other more active, non- of legal protection for NTM at all protected warfighting functions (e.g., times. Even more importantly, the supporting integrated fire control and targeting amount of “protection” this language provides for all other civil, functions for missile defense, or deploying commercial, and military space spacecraft platforms or collocating command systems – including commercial and control stations that involve a myriad of remote sensing systems that might or payloads, not just protected missions and might not be performing NTM missions – would seem to be even payloads, but other militarily important 51 payloads). If a peremptory norm applies, this more tenuous. could complicate national security space system acquisition and operational strategies, Treaties and Customary Law limiting how systems could be configured, in order to preserve any jus cogens protection Article III of the OST declares that states rights. Since NTMs and other systems are parties must conduct their space activities “in usually employed to support a wide variety of the interest of maintaining international peace warfighting missions, this reality could and security.” The treaty’s preamble also swallow whole the concept of a peremptory recognizes “the common interest of all norm protecting them, unless their mission mankind in the progress of exploration and attributes and operations are carefully use of outer space for peaceful purposes.”52 restricted. Protections for such blended systems would need to be found elsewhere in treaty or customary law. 51 Peter L. Hays, “U.S. Military Space: Into the Twenty-First Century,” INSS Occasional Paper 42 (U.S. Air Force Institute Peter Hays spotted this problem when he for National Security Studies (INSS) Air University Press, posed the following questions and suggested 2002), pp. 58-59. 52Article IV places the “peaceful purposes” restriction on the the ABM Treaty might not provide protected Moon and other bodies; it suggests that States may engage in status to some spy satellite activities: non-peaceful activity in space as long as it does not occur on a

Space and Defense, Winter 2010 21

Though crafted before the space era, a careful security, and justice, are not endangered.”55 reading of the UN Charter shows its terms are Article 2(4) of the Charter presents another fully consistent with and encourage peaceful significant rule: “States shall refrain from the space activities. The first purpose of the UN is threat of or use of force against the territorial to “maintain international peace and security, integrity or political independence of any and to that end: to take effective collective state.56 The phrase “international peace and measures for the prevention and removal of security” contained in Article 2(3) is echoed in threats to the peace, and for the suppression of the later agreed-to OST. The repetition of the acts of aggression or other breaches of the words “international peace and security” in peace, and to bring about by peaceful means, the OST links “peaceful purposes” back to and in conformity with the principles of norms of “peaceful means” enunciated in the justice and international law, adjustment or UN Charter.57 settlement of international disputes or situations which might lead to a breach of the Some believe that under the UN Charter, war peace.”53 was outlawed.58 While not entirely correct, the Charter firmly establishes the general The UN and its 1945 Charter arose out of the principle that armed conflict is neither proper ashes of the League of Nations and failures of nor inevitable, irrespective of the political the international community that led to World purposes or merits. This new view replaced War II. Despite its inadequacies, the League the ancient Augustinian “just war” helped establish the groundbreaking Kellogg- formulation.59 Still, despite its imperative for Briand Pact of 1928, also known as the Pact preserving international peace and security, of Paris – this treaty is continues in force the Charter does not ban all use of force. The today. In Kellogg-Briand, the signatories document outlaws the aggressive use of force, condemned recourse to war as a solution to and the aggressive use of force has become an international controversies, and renounced it international crime.60 as an instrument of national policy in their relations among each other. It proscribed the “Acts of aggression” are not defined within threat and use of force in contravention of the Charter. Indeed, the definition for “act of international law, and territorial acquisitions aggression” has been debated over the resulting from such actions.54 decades. Some argue the term was left undefined on purpose, that if a list of acts The UN Charter’s language expands on the were specifically set out as “aggression.” then terms set out in Kellogg-Briand Pact. Article anything not making the list might not count; 2(3) provides: “All members shall settle their international disputes by peaceful means in 55UN Charter, Article 2(3). such a manner that international peace and 56 UN Charter, Article 2(4). 57J.P. Blount, “Limits on Space Weapons: Incorporating the Law of War into the Corpus Juris Spatialis,” IAC-08-E8.3.5, Presented to the International Institute of Space Law Colloquium, International Astronautics Congress, Glasgow, celestial body. Indeed, some argue this is how the U.S. UK, October 2008, p.3. officially interprets this article. 58Oscar Schachter, “The Right of States to Use Armed 53UN Charter, Article 1(1). Force,” Michigan Law Review 1620 (1984). 59 54The Pact was concluded outside the League of Nations and Saint Augustine believes that a war was just when it was remains a binding treaty. Importantly, the Kellogg-Briand waged in order to redress a wrong or unjust enrichment. Pact was used as a foundation for the post World War II 60See UN Charter 1(1), and, generally, Antonio Cassesse, prosecutions at Nuremburg. International Criminal Law (2003), pp. 110-125.

22 James D. Rendleman/Lawful Response to Attacks on Space Systems

the signatories did not want to leave an official statements of numerous States dealing with their respective space opening for unseemly argument by 64 aggressors.61 Even so, insight into the term’s programs.

meaning can be found in UN General While the principle of “peaceful purposes” has Assembly Resolution 3314 (1974).62 “This most likely entered customary international resolution defines aggression as ‘the use of law and now applies to space activities, the force by a State against the sovereignty, meaning of that term is even now a bit territorial integrity or political independence uncertain – uncertain in part because the of another State, or in any other manner phrase is undefined and because nations apply inconsistent with the Charter of the UN.’ it in different ways.65 Some argue the phrase Since one of the UN Charter’s purposes is to means any military use of space violates the maintain international peace and security, treaty.66 This is a decided minority view. States may not use force in a way that disturbs Though there are limits, the alternate U.S. international peace and security.”63 view is military space activities are presumed

to be allowed unless specifically prohibited by Given the over-half century of rule-making law. Naturally, the permissive U.S. position and statecraft just discussed, P.J. Blount generates consternation within peace elements argues the OST’s principles of peaceful of the international community, who argue the purposes for outer space can now be found in U.S. seeks to preserve its hegemony in and international customary law. According to dominance of the space domain. Nevertheless, Blount: the U.S. view is compelling, convincing, and

The principle of the peaceful uses of clarifying – longstanding customary practice outer space can be found throughout and law permits military use of space. As the literature on space law; however, noted by Adam Frey: the Outer Space Treaty only uses the term “peaceful purposes” to refer to Military use of space in support of outer space in the preamble of the operations – such as communications, treaty. It is used in the body of the intelligence gathering, and precision treaty to refer to the Moon and other targeting – is commonly considered celestial bodies, but not to outer space peaceful if it does not violate other in general. There is, however, strong international law. In other words, support for the term applying to outer space operations are considered space via customary international law peaceful, provided they are not from the term’s use in the preambles “aggressive.” Space may still be used to both the Declaration of Legal as a medium of warfare: the treaty Principles Governing the Activities of does not prohibit anti-satellite States in the Exploration and Use of (ASAT) weapons or even nuclear Outer Space and in the Outer Space weapons that merely transit space. Treaty to its use in laws, policies, and Other weapons may be deployed in

61“Indirect aggression,” however, has not found favor as an 64Ibid., p. 2. “act of aggression.” 65Ibid., p. 2. 62 See Definition of Aggression, UN General Assembly 66Adam E. Frey, “Defense of U.S. Space Assets: A Legal Resolution 3314, UN GAOR, 29th Session, Supplement No. Perspective,” Air & Space Power Journal (Winter 2008), 31, UN Doc. A/9631 (1974). http://www.airpower.maxwell.af.mil/airchronicales/apj/apj08/ 63 P.J. Blount, “Limits on Space Weapons: Incorporating the win08/frey.html (accessed June 2009). Also, see Joan Law of War into the Corpus Juris Spatialis,” IAC-08-E8.3.5, Johnson-Freese, “The Viability of U.S. Anti-Satellite (ASAT) Presented to the International Institute of Space Law Policy: Moving Toward Space Control,” INSS Occasional Colloquium, International Astronautics Congress, Glasgow, Paper 30 (U.S. Air Force Institute for National Security UK, October 2008. Studies (INSS), January 2000), p. 10. Space and Defense, Winter 2010 23

space so long as they are neither militarization of space by the global powers.71 nuclear weapons nor weapons of The intent of the OST’s framers and an mass destruction. Furthermore, self- defensive acts in space are also interpretation of its terms allowing military permissible, provided they do not activities in space can readily be ascertained violate other treaty restrictions.67 by looking to the practices of major spacefaring powers. They continue to use As touched on above, the “U.S. employs a space for military purposes following permissive interpretation of the OST and the endorsement of the OST. other rules regulating military activities in space.”68 The traditional U.S. interpretation, When U.S defense officials’ writings mention shared by most other spacefaring countries, is the OST, they typically insist U.S. policy and “nonaggressive” military support activities are military uses of space not explicitly prohibited not inconsistent with the peaceful-use in Article IV (i.e., no weapons of mass principle.69 But what are “aggressive acts” in destruction in orbit and military activities on space? How should they be defined? Should celestial bodies) are permitted.72 Some suggest such acts be defined and limited to effects this posture ignores Article III’s declaration produced on just spacecraft, or should effects that space activities must be performed in to the entirety of space systems be considered accord with international law, including the (e.g., spacecraft, their constellations, links, UN Charter’s rules about the threat or use of footprints for sensor and communications force.73 Nonetheless, and consistent with its activity, ground control stations, or even views, the U.S. has steadily expanded the sustainment and acquisition activities)? Some scope of its “peaceful” non-aggressive suggest the definition of “aggressive acts” should encompass actions, such as the use of 71 force from space or in space when not According to Thomas C. Wingfield, “Legal Aspects of Offensive Information Operations in Space,” 23 March 2000, consistent with exceptions found within the p. 6, http://www.au.af.mil/au/awc/awcgate/dod-io-legal/ UN Charter. Others argue the “peaceful wingfield.doc (accessed January 2010): “Nowhere in the purposes” clause should be interpreted to Outer Space Treaty is the term [“Peaceful purposes”] defined, and two opposing views have developed. The majority mean states cannot use outer space for full- opinion, certainly among spacefaring nations, is that 70 scale warfare, particularly nuclear war. “peaceful” means “nonaggressive,” a relatively high standard allowing for considerable military operations in space. The minority view, more common among the less advanced, non- Those who continue to argue any military use spacefaring nations, is that “peaceful” means “nonmilitary,” of space violates peaceful use principles setting such a low threshold that even routine, peacetime ignore reality of the long-standing military business, such as communications and weather observation, would be prohibited.” 72Interestingly, during hearings on the ratification of the Outer Space Treaty, it was noted that “Secretary of State Dean Rusk 67 asserted that while the U.S. was confident in its ability to Ibid. adequately verify the OST prohibition on nuclear weapons 68 Nancy Gallagher and John D. Steinbruner, Reconsidering and weapons of mass destruction, that ‘the treaty does not the Rules for Space Security, American Academy of Arts and inhibit, of course, the development of an anti-satellite Sciences, Reconsidering the Rules of Space Project, capability in the event that should become necessary.” See Cambridge, Massachusetts, 2008, p. 42. Peter L. Hays, “U.S. Military Space: Into the Twenty-First 69Ivan Vlasic, “The Legal Aspects of Peaceful and Non- Century,” INSS Occasional Paper 42 (U.S. Air Force Institute peaceful Uses of Outer Space,” in Peaceful and Non-peaceful for National Security Studies (INSS), Air University Press, Uses of Space, Bhupendra Jasani, ed., (Taylor and Francis, 2002), p. 70. 1991), pp. 37–55. 73Nancy Gallagher and John D. Steinbruner, Reconsidering 70Christopher M. Petras, “Space Force Alpha: Military Use of the Rules for Space Security, American Academy of Arts and the International Space Station and the Concept of ‘Peaceful Sciences, Reconsidering the Rules of Space Project, Purposes,’” Air Force Law Review 53 (2002): 157-61. Cambridge, Massachusetts, 2008.

24 James D. Rendleman/Lawful Response to Attacks on Space Systems

military space activities, often for the orbit, and restricts such weapons and military betterment of the global community and bases on celestial objects. In parallel, the benefiting potential adversaries. GPS (Global Limited Test Ban Treaty restricts nuclear Positioning System) PNT, SSA, missile explosions in space.76 Even so, the UN warning, and communication services Charter and OST do “not prohibit States from operated by U.S. military systems have been placing weapons of a defensive nature in used and exploited by global military, civil, space (unless some further meaning can be and commercial communities. attributed to the term peaceful purposes) or from placing weapons required by order of the A tacit acceptance of the U.S. behavior has UN Security Council in order to maintain emerged; indeed, all of the major spacefaring international peace and security. Probably the nations have expanded their military activities difference between an aggressive weapon and in space. Also, performing military activities a defensive weapon can almost always be in space may have inherently humane ends, found in its use.”77 Or, the difference can be even in support of destructive or deadly found in the politics or diplomacy of its use. military operations. Elizabeth Waldrop correctly notes LOAC principles of What is a “space weapon?” The devil is in the discrimination and proportionality are details, especially given the variety of ways enhanced by the use of space assets “to we discussed above in which space systems successfully carry out near-surgical strike with can be attacked and degraded. Should the minimum civilian casualties.”74 In the end, definition of space weapon include systems or however, the “various unopposed military combat operations that attack terrestrial uses of space may as a practical matter enlarge components of space systems, or jam or the unofficial definition of ‘peaceful purposes’ interfere with system command and control? to the point that specific arms control Should it encompass seemingly innocuous agreements may be the only effective civil satellites or microsatellites that can be limitation on development and deployment of vectored to kinetically engage adversary various weapons in space.”75 systems; or systems left dead in orbits, without executing end-of-life super-sync or other operations to reduce chances of Space Warfare collisions with other satellites. Perhaps, the definition of “space weapon” should be broad: Despite the histrionics of the peace and an instrument or instrumentality of attack or disarmament community, the conduct of defense used to fight space systems or from military space activities is an accepted the space domain. practice and consistent with the OST and other agreements. Plainly, the OST, conventions, 76 and international agreements do not foreclose Article IV of the Outer Space Treaty restricts military activity and prohibits placing “nuclear weapons or any other space warfare or preparation for such conflict. kinds of weapons of mass destruction” into orbit or There are caveats to this point, however. The permanently affixing them to a celestial body. Also, the Moon OST expressly limits placement of nuclear and other celestial bodies may be used only for “peaceful purposes,” and they cannot be used for military bases or weapons and weapons of mass destruction on weapons testing. 77P.J. Blount, “Limits on Space Weapons: Incorporating the Law of War into the Corpus Juris Spatialis,” IAC-08-E8.3.5, 74 Elizabeth Waldrop, “Weaponization of Outer Space: U.S. Presented to the International Institute of Space Law National Policy,” High Frontier (Winter 2005): 40–41. Colloquium, International Astronautics Congress, Glasgow, 75Ibid., 36–37. UK, October 2008, p.4. Space and Defense, Winter 2010 25

U.S. Congressman Terry Everett argues: built with destructive intent to be used in a terrestrial-to-space, space- Some believe a space weapon is to-space, or space-to-terrestrial purely a weapons system based in capacity” …I recognize that space that collides with another space alternatives exist, usually depending object or intercepts a missile traveling on which side of the debate the through space. However, I would definer sits. Contention focuses on argue, the damage caused by a whether ground-based weapons ground-based high energy laser is just should be included… Some as severe for a target satellite as the definitions include as a space weapon damage caused by a physical on-orbit a defensive interceptor such as collision. The key difference is the THAAD or Aegis SM-3 when the latter may create unacceptable debris planned interception is OUTSIDE the field, posing further risks to satellites. atmosphere, but exclude the use of It is the ambiguity in definition Patriot PAC-3 and THAAD when the that makes arms-control measures, planned interception is WITHIN the which ban space weapons difficult to atmosphere. This is a particular issue implement and nearly impossible to for THAAD which has both an exo- enforce. This is compounded by the and an endo-atmospheric capability. There is no consensus [on the fact that satellites have tremendous 79 dual-use value, making it very definition]. difficult to distinguish a non-weapon space system from a weapon space Michael Krepon and Michael Katz-Hyman system. Any satellite could be believe their definition: maneuvered in such a way as to collide with a target satellite. Any …respects the distinction between ballistic missile, with sufficient capability and actuality. It excludes orbital ephemeris data and software residual or latent space warfare changes, could be used to target a 78 capabilities, such as ballistic missiles. satellite. Also excluded in this working definition are satellites that provide Dr. Michael Rance, a United Kingdom missile essential military functions, but do defense and space policy expert and leader not serve as weapon platforms. In proffers: other words, the definition used here clarifies the essential distinction between the current military uses of There is no formal definition of space and the flight-testing and “weaponization of space” or “space deployment of space weapons that weapons,” but some have tried. some wish to pursue in the future. Michael Krepon and Michael Katz- This definition also excludes Hyman propose this (citation activities that are specifically omitted): “terrestrially based devices designed to interfere with the uplinks specifically designed and flight-tested or downlinks of satellites. Jamming is to physically attack, impair, or treated separately from direct, destroy objects in space, or space- physical attacks against satellites based devices designed and flight- because jamming has long been tested to attack, impair, or destroy considered a part of warfare, whereas objects in space or on Earth.” Bruce direct attacks in or from space would DeBlois suggests something similar: “A space weapon is that which is

78Terry Everett, “Arguing for a Comprehensive Space 79Michael Katz-Hyman and Michael Krepon, “Viewpoint: Protection Strategy,” Strategic Studies Quarterly (Fall 2007): Space Weapons and Proliferation,” Non Proliferation Review 32-33. 12: 2 (July 2005): 325-326.

26 James D. Rendleman/Lawful Response to Attacks on Space Systems

be consequential firsts in the history Bruce Hurwitz argues in The Legality of Space 80 of warfare. Militarization, “Considering the spirit of the law, the conclusion appears to be that anti- The challenge of identifying space weapons in satellite weapons are legal, de lege late, but terms of just exactly where and under what should be illegal, de lege ferenda.”83 The conditions they exist is highly complex. principle of non-aggression places an Robert A. Ramey opines: affirmative duty on States not to station weapons of an aggressive nature in outer (The) basic term space weapon lacks definition in international law. As a space; examples of such provocative result, the concept it represents, aggressive acts could be the deployment of a which broadly speaking includes any co-orbital mine in the vicinity of a implements of warfare in space, is competitor’s military space asset, performing difficult to isolate. Without this “intercepts,” or creating conditions for or foundational definition, one cannot define phrases on which it might rely. causing conjunctions between satellites and The difficulty comes into particular objects on orbit. focus by observing that any comprehensive definition of space Despite the steady expansion in military use of weapons will include space systems space by global space powers, considerable equally used for nonmilitary, nondestructive, and nonaggressive mutual restraint has been exercised with purposes. Though space weapons respect to deployment of space-based may seem to include only a discrete weapons. No space-based weapon, that is, an class of armaments with easily instrument or instrumentality of attack or definable characteristics, a closer defense used to fight space systems or from examination “reveals a less obvious and more inclusive set of systems.”81 the space domain, is deployed on-orbit today. This reality has occurred because global Despite the challenges in the definition, no policy-makers have come to appreciate the treaty bans conventional space weapon terrifying practical consequences of space systems, so it can be concluded that weaponization and resulting conflict: the “nonnuclear ASAT weaponry is… legal.”82 debilitating problems and physics of resulting Yet a conclusion that ASAT weapons are legal space debris if the weapon systems are used; does not give state parties license or authority the indiscriminate nature and consequences of to use or station conventional weapons in employing nuclear weapons in space as borne outer space (on orbit or otherwise); such out by the Starfish Prime experiment activities must be conducted within the conducted by the U.S. in the early 1960s; the framework offered under treaties and stakes space-dependent nations risk if they customary international law, which encourage plan for such conflict; and the loss of stability the non-aggressive “peaceful use” of space. In in the space domain, which is increasingly the end, these activities and interests must be globalized in an interdependent world. balanced against the other. Keeping in line with this thinking, proscribing interference with NTM monitoring capabilities was a rather pragmatic choice to 80Ibid. enable the super powers to advance nuclear 81Independent Working Group on Missile Defense, the Space weapons reductions over the past four Relationship, and the Twenty-First Century, 2007 Report decades. (Institute for Foreign Policy Analysis, 28 August 2006), p. 73. 82See Bruce A. Hurwitz, The Legality of Space Militarization (North-Holland, 1986), p. 127. 83Ibid., p. 128. Space and Defense, Winter 2010 27

Some states protest the continuing expansion The “threat of the use of force” is defined as: of some U.S. military space activities, believe more should be done to limit them, and have Any hostile actions against outer pushed for adoption of proposed treaties, such space objects including, inter alia, actions aimed at destroying them, as the Treaty on the Prevention of the damaging them, temporarily or Placement of Weapons in Outer Space, the permanently disrupting their normal Threat or Use of Force against Outer Space functioning or deliberately changing Objects (PPWT), presented as part of the UN their orbit parameters or the threat of 86 Conference on Disarmament’s (CD) such actions. discussion on the Prevention of an Arms Race in Outer Space (PAROS). The proponents However, as conceded by Russians and suggest the progress of science and Chinese, verification of such a PPWT treaty technology make it necessary to strengthen would be extremely difficult. Also, the PPWT international principles relating to reducing does not ban development and testing of potential threats. The Chinese argued that a Earth-based ASATs. Even disarmament peaceful and tranquil outer space free from groups, like Project Ploughshares, concede the weaponization and arms race serves the “the PPWT lacks precision, has potential 87 common interests of all countries, and the loopholes, or is subject to interpretation.” Russians argued that the security of outer This is a sad state of affairs for a major arms space is facing serious challenges.”84 The control proposal. Given these defects, the PPWT seeks to ban two interrelated conducts: Russians and others suggest agreements on the placement of weapons in outer space; and Transparency and Confidence Building the threat or use of force against outer space Measures could be implemented to objects. compensate for them and move the process along. The proposed PPWT treaty defines “weapon in outer space” as: For its part, the U.S. has pushed back, first abstaining, then voting “no” to reject the Any device placed in outer space, PAROS proposals. Under the George W. Bush based on any physical principle, administration, it argued the existing which has been specifically produced multilateral arms control agreement regime is or converted to destroy, damage, or “sufficient,” there is no present “problem in disrupt the normal functioning of objects in outer space, on the Earth or outer space for arms control to solve, and the in the Earth’s atmosphere, or to proposed treaty does adequately dispose of eliminate a population or components threats posed by ground based systems.”88 of the biosphere, which are important to human existence or to inflict 85 Despite its own issues associated with damage on them. complying with space-related treaty

obligations, especially with its 2007 ASAT

86 84“China and Russia jointly submitted the draft Treaty on Ibid, Article 1E. PPWT to the UN Conference on Disarmament,” Ministry of 87Cesar Jaramillo, “In defense of the PPWT Treaty: Toward a Foreign Affairs of the People’s Republic of China, 12 space weapons ban,” The Ploughshares Monitor 30: 4 February 2002, http://www.fmprc.gov.cn/eng/wjb/zzjg/jks/ (Winter 2009): 4. jkxw/t408634.htm (accessed January 2010). 88See Government space arms control proposals, Secure 85Proposed Treaty on the Prevention of the Placement of World Foundation, http://www.secureworldfoundation.org/ Weapons in Outer Space, the Threat or Use of Force against index.php?id=151&page=Governmental_Proposals (accessed Outer Space Objects, Article 1C. June 2009).

28 James D. Rendleman/Lawful Response to Attacks on Space Systems

test, China’s representatives disingenuously For years, the U.S. has acknowledged the charge recent U.S. space activities “run diplomatic posturing relating to space counter to the fundamental principle of weaponization, summarizing only the points peaceful use of outer space” and contend the made, but not conceding them. Furthermore, U.S. goal in outer space is to “defy the though it has tinkered with the technologies obligations of international legal instruments and possibilities from time-to-time, the U.S. and seek unilateral and absolute military and has yet to deploy any space-based weapon strategic superiority.”89 These specious claims system. The Obama Administration and its do not reflect the domestic allies propose to negotiate a ban on totality and reality …”peaceful space weapons, however defined, and even of U.S. space purposes” in though there is uncertainty about exactly what efforts, which span space should would be considered acceptable or workable. a spectrum of civil, be construed to Interestingly, but not lost on the arms control commercial, and and space policy community, while references military activities mean “non- to negotiating such a ban were first posted in and missions. No aggressive;”… January 2009 on the White House website, doubt the Chinese they were removed only a few months later.91 actions and attendant diplomatic overtures are This more than likely transpired due to the part of a strategic messaging campaign to realities of interagency process, which require champion the internal, regional, and global measured and thoughtful policy making. Still, interests of its government. Some could the Obama Administration has now endorsed characterize the Chinese actions as a form of the PAROS-based discussions within the UN “lawfare.” “The term lawfare describes the CD. growing use of international law claims, usually factually or legally meritless, as a tool Despite the difficulties, the U.S. should strive of war. The goal is to gain a moral advantage to sort through the intractable issues presented over your enemy in the court of world by space weapons and weaponization and help opinion, and potentially a legal advantage in establish normative space community national and international tribunals.”90 behaviors relating to them. It has assumed similar leadership roles for the entirety of the Space Age, serving as a rule-setter and guide

89 to achieve best space practices. It has Nancy Gallagher and John D. Steinbruner, Reconsidering the Rules for Space Security, American Academy of Arts and leveraged its position as the preeminent space Sciences, Reconsidering the Rules of Space Project, Cambridge, Massachusetts, 2008, p. 42, citing the “Statement by H.E. [His Excellency] Mr. Li Changhe – Chinese 91After Obama was sworn into office, the official White Ambassador for Disarmament Affairs, Head of the Chinese House Web site was updated with a set of policy guidelines Delegation for the Conference on Disarmament – at the including one on restoring U.S. leadership in space. Under the Plenary Meeting of the CD,” 12 March 1998, heading “Ensure Freedom of Space,” the statement said the www.nti.org/db/china/engdocs/ lich0398.htm (accessed June White House would seek a ban on weapons that “interfere 2009); Fu Zhigang, “A Chinese View of Star Wars,” The with military and commercial satellites.” See Turner Brinton, Spokesman 72 (2000): 17–18; and “Statement by Ambassador “Obama’s Proposed Space Weapon Ban Draws Mixed Hu Xiaodi for Disarmament Affairs of China at the Plenary of Response,” Space.com, 4 February 2009, the Conference on Disarmament,” 7 June 2001, http://www.space.com/news/090204-obama-space-weapons- http://www.nti.org/db/china/engdocs/cd060701.htm (accessed response.html (accessed January 2010). According to John June 2009). Logsdon, former director of the George Washington 90David B. Rivkin, Jr. and Lee A. Casey, “Lawfare,” Wall University Space Policy Institute, the text originated from an Street Journal 23 February 2007, A11, Obama campaign white paper that was transferred verbatim to http://online.wsj.com/article/SB117220137149816987.html the White House website without input from any of the (accessed December 2009). government bodies that manage national policy.. Space and Defense, Winter 2010 29

power and used its bully pulpit to influence responsibility to determine the existence of the global space-airing community. The U.S. any “threat to the peace” or acts of aggression. assumed such a leadership role on space The Council can then recommend and lead an debris and end-of-life operations back in the appropriate response; however, because 1980s when analysis showed an alarming Security Council actions are subject to expansion in space debris arising from space international political negotiation, any operations.92 response would not likely be quick or a significant deterrent to an aggressor.94

Self-Defense and International In Nicaragua v. U.S. (1986), the ICJ offered Peace and Security insight into the meaning of the Article 51 right of self defense against armed attack.95 In that As noted above, “peaceful purposes” in space case, the Soviet Union and Cuba were accused should be construed to mean “nonaggressive;” of assisting the Nicaraguan Sandinistas, who hence, any use of a weapon in space or any were alleged to have committed acts of attack on a space system would have to destruction and atrocities against Honduras conform to the exceptions to the ban on the and Costa Rica. On the other side, the use of force found in the UN Charter.93 The Nicaraguan Contras were fighting the first exception applies if the use of force is Sandinistas, and the U.S. was assisting in their authorized by the Security Council in order to counter-revolution against the Soviet- maintain international peace and security. As a sponsored Marxist regime. The U.S. was second exception, Article 51 reaffirms that accused by the Sandinistas of unauthorized nothing in the Charter should be construed to overflights, mining a harbor, and training impair the inherent right of self defense rebels at an alleged CIA training camp. against armed attack. This right of self- defense has always been recognized, whether In its ruling, the ICJ held it is no longer in municipal or international law, and existed acceptable to settle disputes with force, what well before the advent of the UN Charter. had been customary law for millenniums. Importantly, the court held the use of force Thus, under Article 51, if a state is subject to could now only be justified in one of three an armed attack, it may use force to repel the ways: (1) self-defense activities recognized as attackers and stop the attack. Alternatively, if rights under Article 51 of the UN Charter; (2) it is unclear whether an action constitutes such enforcement actions under Chapter 7 of the an attack, Chapter VII of the UN Charter gives UN Charter; and (3) possibly through the UN Security Council the authority and application of pre-UN anticipatory defense rules of necessity and proportionality.96 The

92See Fact Sheet on Presidential Directive on National Space 94 Policy, 11 February 1988, which provides in pertinent part: Jia Huang, “New Challenges to the Traditional Principles of “The directive further states that all space sectors will seek to the Law of War Presented by Information Operations in Outer minimize the creation of space debris. Design and operations Space,” Journal of Politics and Law 2: 1 (2009): 40. of space tests, experiments and systems will strive to 95As was its right, the U.S. did not agree to subject itself to minimize or reduce accumulation of space debris consistent jurisdiction by the ICJ, which then proceeded and based its with mission requirements and cost effectiveness.” finding of fact based on the presentations made by the 93P.J. Blount, “Limits on Space Weapons: Incorporating the Sandinistas. The U.S. still disputes facts in the case, as well as Law of War into the Corpus Juris Spatialis,” IAC-08-E8.3.5, the actual outcome, but it does endorse substantial portions of Presented to the International Institute of Space Law the ruling and cites it in other cases. Colloquium, International Astronautics Congress, Glasgow, 96The U.S. and a few other countries assert this third principle UK, October 2008, p.3. of anticipatory defense from time to time; they are the rules

30 James D. Rendleman/Lawful Response to Attacks on Space Systems

court held states have a right of collective self- defense. According to the ICJ, even though defense only if they are under armed attack. Nicaragua may have been guilty of odious Finally, in making an armed response in self- violations of international law, absent an defense under Article 51, a state must also armed attack there was no right of collective immediately report the fact of the armed self-defense that could be invoked by U.S. or attack to the UN Security Council, and the its allies and friends. According to the court, state must also promptly report its own actions the words “an armed attack occurs” speak of in response. the actual commencement of physical violence by armed forces. As we will see, the ICJ According to the ICJ, the sole justification for ruling on this point is somewhat unrealistic if U.S. actions in Nicaragua v. U.S. was applied to attacks on space systems. collective self-defense under Article 51. However, the court found none of the states involved the purported collective self-defense Use of Force and Self-Defense reported to the UN that they were subject to armed attacks. In addition, nobody reportedly Must space systems be subject to some sort of asked the U.S. to help, nor did the U.S. report physical violence before a response, armed or an attack to the UN. Hence, the ICJ otherwise, can be initiated? Should non- concluded, the right of collective self-defense kinetic types of attacks against space systems could not be invoked. qualify as armed attacks? In short, the answers are “No” and “Yes,” respectively. The ICJ ruled self-defense rights could not be invoked if the threshold of actual armed attack Threats are no longer presented just in the was not reached.97 The UN’ definition of terrestrial ground, sea, and air environment, or aggression provided the court a foundation to just with classically recognized kinetic establish the threshold for an armed attack. weapons. They are now manifested in space, According to the Court, an “armed attack” is through new and exotic electromagnetic not the same as an act of aggression. A mere means or information operations. Since the threat of force is not an armed attack, nor venues and mechanisms for attack are would all acts of aggression count. Hence, an evolving, so too must the vague definition of opposing state may engage in an illegal use of “armed attack” at least with respect to space force, yet that may not constitute an armed systems. attack allowing for the use of force in self- According to Jia Hueng:

from The Caroline Affair discussed later. In Nicaragua v. …the current international laws have U.S., the ICJ held that the UN Charter did not supersede not given any definite definition of custom, but exists alongside it. The U.S. position is that the term “use of force” and the anticipatory self-defense is inherent in the right of self- information operations in outer space defense. The ICJ, however, expressly held that it did not have brand-new features, which are address the legality of anticipatory self-defense because the apparently different from those of issue had not been raised. See Joshua E. Kastenberg, “The traditional armed conflicts Use of Conventional International Law in Combating characterized by the mass of troops Terrorism: A Maginot Line for Modern Civilization and armaments and the invasion of Employing the Principles of Anticipatory Self-Defense and Preemption,” Air Force Law Review 55 (Spring 2004): 114. territory. So, we have to consider 97The ICJ also held there is no such thing as a right of what actions by or against objects in “collective” armed response to acts, which do not constitute space will be considered to be uses of an “armed attack.” force. The international community would probably not hesitate to regard Space and Defense, Winter 2010 31

as a use of force the destruction of a systems free from interference; to do so a state satellite by a missile or a laser. It must have the right to defend them against would probably react similarly if it could be proven that one nation took attack. Limiting the right of self-defense in over control of another nation’s response to attacks on these capabilities would satellite by electronic means and be illogical, especially since they can be caused it to fire its retro rockets and essential to the survival of a state. Such a fall out of orbit. In such a case, the holding – that there is no such right – would consequences will probably matter more than the mechanism used. The mean the rights of free passage of space reaction of the international systems codified in the OST and found community to lesser kinds of elsewhere within customary law and treaty interference is hard to predict. For would be just empty words and mean little. example, if one nation were able by “The maintenance of the right of self-defense electronic means to suspend the operations of another nation’s is critical for protection of the space network, satellite for a brief period, after which but recent attempts by international bodies to it returned to service undamaged, it is limit this right signal an apparent trend toward likely that the international the devolution of the inherent right of self- community would consider such an defense.”99 action as a breach of the launching nation’s sovereign rights, but not as a use of armed force.98 Defining intentional and also damaging electromagnetic and information operations as To hold intentional dazzling, electromagnetic, armed attacks are consistent with a necessary or information operation activities that target, expansive reading of Article 51’s right of self- seek to damage, and actually disable, destroy, defense. Two divergent views have developed degrade, or interfere with space systems as not concerning Article 51’s right of self-defense. “armed attacks” would render the word The expansive view maintains the word “attack” meaningless. International law must “inherent” in Article 51’s right of self-defense preserve peace and security and, by extension, provides the customary international law protect space systems from a wide variety of rights of self-defense remained intact and threats and in venues not contemplated within Article 51 simply confirmed the right of self- the UN when it was founded in 1945. In our defense in the particular situation of an armed modern world, a state secures and defends its attack, but did not deny it in others. This is the territory, political independence, and elements U.S. view – states retain their rights under of national power (diplomatic, information, international law, especially self-defense military, and economic) with space and space- principles of necessity and proportionality, enabled information systems. They provide except those specifically surrendered under the state a myriad of essential services – the UN Charter. communications, warning, intelligence, weather, PNT, and missile and space defense. The 2006 U.S. National Space Policy is in A state must assure itself of the right to accord with the expansive interpretation. It exercise jurisdiction and control over these frames the primary objective of the Policy as preserving a relative national U.S. advantage,

98Jia Huang, “New Challenges to the Traditional Principles of 99See Gregory E. Maggs, “The Campaign to Restrict the the Law of War Presented by Information Operations in Outer Right to Respond to Terrorist Attacks in Self-Defense Under Space,” Journal of Politics and Law 2: 1 (2009): 40, citing Article 51 of the UN Charter and What the U.S. Can Do DOD General Counsel, An Assessment of International Legal About It,” Regent Journal of International Law 4:149 (2006): Issues in Information Operations (May 1999), p. 27. 155-167.

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rather than establishing a mutual benefit, by attacks on those activities. The jurisdiction declaring that freedom of action in space is as and control element is quasi-territorial important to the U.S. as air power and sea according to Bin Cheng, and this provides power. The 2006 National Space Policy accord for a state asserting rights of self asserts a broad array of U.S. rights and vital defense for space systems as a defense of interests in space. It rejects any limitations on national sovereignty, territorial integrity, or the fundamental right of the U.S. to operate in political independence.101 and acquire data from space. The policy also emphasizes that the U.S. is prepared to take Those that argue for narrow, and limiting unilateral action to dissuade, deter, defeat, interpretation, only provoke resort to self-help and, if necessary, deny space-related activities by states outside the bounds of the Charter. “A hostile to its interests. legal system which merely prohibits the use of force and does not make adequate provision The alternate restrictive view asserts that the for the peaceful settlement of disputes invites UN Charter allows only for a narrow right of failure.”102 Though a bit counter-intuitive, the self-defense – a right to respond only in the use of force in self-defense, in turn, enables specific situation of a prior armed attack. attainment of the overarching objectives of international peace and security. [The restrictive] view has considerable support and is consistent Some suggest the restrictive view of self- with a number of resolutions passed by the Security Council. Proponents defense is more analytically sound and widely of this view see Article 51 as a accepted than the other view. They argue an partner to Article 2(3), which requires expansive reading of Article 51 conflicts with peaceful settlement of disputes, and the letter and spirit of the UN Charter. Article 2(4), which outlaws the use of Scholars arguing for a restrictive interpretation force. They consider “the permission in Article 51 [to be] exceptional in fail to adequately address the practicalities of the context of the UN Charter and modern warfare; a narrow interpretation and exclusive of any customary right of definition of attacks and permissible self- self-defense.” This restrictive defense is simply unworkable as there does approach addresses the fear that not appear to be a happy medium, which expansive interpretations of Article 51 create a loophole through various actually preserves and protects the spacefaring countries could rationalize military rights of nations. The covert nature of modern adventurism.100 forms of diplomatic, information, military, and economic conflict and the potential for Aggression not formally amounting to “armed crippling destruction and damage continues to attack” can also be just as threatening to the evolve with a potential for catastrophic sovereignty and the existence of a state as full military hostilities. Spacefaring states defend 101 “…since territorial sovereignty has been banned from outer their political independence within the space and, with it, territorial jurisdiction, the overriding confines of the UN Charter. They exercise jurisdiction in outer space is quasi-territorial jurisdiction. Bin jurisdiction and control over their space Cheng, “The Commercial Development of Space: The Need for New Treaties,” Journal of Space Law 19: 1 (1997). systems, and by preventing and defeating 102Norman Menachem Feder, “Reading the UN Charter Connotatively: Toward a New Definition of Armed Attack,” NYU Journal of International Law & Policy 395 (1987), 100Norman Menachem Feder, “Reading the UN Charter citing Waldcock, “The Regulation of the Use of Force by Connotatively: Toward a New Definition of Armed Attack,” Individual States in International Law,” Recueil Des Cours 81 NYU Journal of International Law & Policy 395 (1987): 404. (1952): 455-456. Space and Defense, Winter 2010 33

consequences.103 Kinetic, electromagnetic, and characterized as an “armed attack,” cyber attacks intentionally targeting, then a conventional response may not be warranted. A conventional damaging, and interfering with satellites and response, in this case, may in fact be their supporting terrestrial systems would considered the “armed attack” under appear logically and realistically to satisfy Article 51. A response alike would conceptions of armed attack that would not constitute an “armed attack,” but warrant and allow a proportionate response (as there are still at least three obstacles for the retaliation side as follows. provided in the LOAC, described in more Firstly, it is difficult to identify the detail below) in accord with the UN Charter attacker. Information attack in outer and customary law of self-defense exceptions. space has the characteristics of long- Such attacks should therefore trigger a right of range and anonymity and the attacker self-defense. can conduct information attack against space assets in or through foreign countries. Information can Concluding there is a right of self-defense for flow across international borders attacks on space systems requires an analysis while a nation’s military, judicial, and to assess whether an actual attack has taken security agencies cannot carry out place. As will be discussed later in this paper’s investigations in a foreign country at will and this kind of investigation discussion of the ICJ Case Concerning Oil may be considered as spy so it cannot Platforms, there are considerable challenges to gain cooperation from related U.S. abilities to identify, classify, characterize, countries. Secondly, it is difficult to and attribute space threats and events. Within produce evidence. Space assets are in the hostile physical environment, varied an abominable environment characterized by intensive radiation, energetic and kinetic events affecting space extreme temperature, and micro- systems occur on a recurring basis; moreover, gravity. Occasionally, they may be satellite electronic, sensor, or other glitches stricken by small meteors or space could exhibit attributes of an attack until debris, which runs at high speed. So analysis has resolved the issue. Ultimately, they may be damaged by the natural cause. A space asset usually consists even if one concludes there has been an attack, of many complex systems and there attributing the source of the event to a are frequent malfunctions and particular state or non-state actor could prove program errors. Because of these to be extremely difficult. factors, the offended state cannot produce sufficient evidence that it has suffered from intentional attack. The challenge to resolving information attacks Finally, even though the attacker can would be similar. According to Jia Huang: be identified and proven to be supported by a foreign government, …if an aggressor uses information this foreign country may lack the techniques to conduct the operation space information infrastructure that and inflicts little or no physical would make it vulnerable to a destruction, whether this kind of response alike.104 attack can be regarded as “armed attack” is disputable. If an information attack cannot be

103The increasingly covert nature of modern form of aggression and their greater potential for devastation have made both scholars and states dissatisfied with the limited 104Jia Huang, “New Challenges to the Traditional Principles legal availability of the justification of self-defense. Ibid., p. of the Law of War Presented by Information Operations in 418. Outer Space,” Journal of Politics and Law 2: 1 (2009).

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Anticipatory Self-defense shortfalls exacerbate the time lag and analysis for Space Systems challenges.

Some states maintain that within the right of Assuming they have been identified as a self-defense is a right to prevent an armed lawful target, terrestrial components of space attack from occurring by using anticipatory and ASAT systems can be struck within days, self-defense.105 The U.S. is one such state. The hours, or minutes depending upon the Caroline Affair dispute with the United proximity of military forces to the target. The Kingdom in 1837 gave rise to a formal U.S. Strategic Command and Air Force Space interpretation in international law setting out Command have toyed with the idea of a the elements of lawful anticipatory self- conventional strike missile from time to time, defense. The case stands for the proposition though that system is subject to a number of that the use of force in anticipatory defense limitations, and developing workable rules of may be justified and employed only in matters engagement for its employment should prove in which the “necessity of that self-defense is difficult. As to potential space-based targets, instant, overwhelming, and leaving no choice systems could be deployed to engage such of means, and no moment for deliberation.” targets, but the delay could be hours, days, The use of such force must also be weeks, months, or even more; the timing for proportional. The criterion of immediacy and strikes with kinetic or particle beams, or other necessity must be based upon the very fact systems would be dependent on the that there is no other course available to prospective target’s orbit, intercept physics, prevent the threatened attack from being and readiness of the sensor, shooter, and executed. By nature, this excludes execution command and control systems employed. of pre-planned attacks. The case for using force for anticipatory Can an anticipatory defense be presented in defense of space systems can be compared to response to an imminent threat to U.S. space performing anticipatory defense in the event systems? Physics and engineering realities of a potential nuclear strike. The signs of make the immediacy criterion rather difficult preparedness for employing nuclear weapons to achieve. There will always be time lag and would have to be so overwhelming that only a latency associated with detecting and definite intention to use them would logically analyzing an event, ascertaining the source explain the actions being undertaken. Since and potential for damage, determining that a the risks of inaction could be catastrophic, party intended to cause the damage, and then they would demand immediate action. mobilizing weapons in response to perform However, Louis-Philippe Rouillard suggests space or terrestrial-based combat. the fueling of one missile or even of a region’s Complicating these problems, U.S. SSA assets missiles might not be enough to justify an are underfunded and overtaxed though they attack based on anticipatory self-defense, have been described repeatedly by U.S. since some might think no country would use Department of Defense (DOD) and U.S. Air a limited amount of nuclear weapons on a first Force space officials as a top priority; the strike as this would leave it open to utter destruction upon a retaliatory strike.106 Would

105Some argue the drafters of the UN Charter intended to restrict the right of self-defense under the Charter and 106See Louis-Philippe Rouillard, “The Caroline Case: customary international law and state practice involving Anticipatory Self-Defense in Contemporary International anticipatory defense measures was not accepted. Law,” Miskolc Journal of International Law 1: 2 (2004): 117. Space and Defense, Winter 2010 35

an analogous circumstance apply to a potential prisoners of war. Its fundamental targeting attack on a space system? Probably not. The rules are very relevant to concepts of space loss or potential loss of a single satellite or warfare. The overarching LOAC redundant ground node of a space system considerations are: necessity, distinction or should not present a serious enough threat that discrimination, proportionality, humanity, and a state should not first attempt to resolve the chivalry. developing dispute through diplomatic, economic, or global engagement means. Law Space warfare possibilities present policy and on the use of force only “allows States to law challenges, but rules for them can be respond with force when a peaceful settlement derived and applied through analogy from of the dispute cannot be negotiated.”107 terrestrial venues. As one might expect, the traditions, principles, and rules that might apply in space arenas were initially developed Law of Armed Conflict to apply in traditional terrestrial venues – land, sea, and air. Important components of space “States may use force to defend themselves or systems are terrestrially based; LOAC to defend others, however, there are accepted targeting considerations for targeting and also limitations to this exception.”108 Before using defending terrestrial components are better force, one must evaluate not only space law, understood and established. Even so, not all but also assess use of force and LOAC rules are directly translatable to the space humanitarian law considerations. The LOAC environment. Some even believe LOAC is a body of international law that sets principles are inapplicable to unmanned boundaries on the use of force during armed space-based components of satellite systems, conflicts through application of fundamental but that is, however, a rather limited principles or rules.109 LOAC principles and viewpoint. In the end, each LOAC rules combine elements of treaty and considerations must be considered before customary international and municipal law. prosecuting military conflict in space or The LOAC sets limits on when and to what against terrestrially-based space system degree force may be used, targeting, and support, command and control, and user treatment of noncombatants, civilians, and components.

107 P.J. Blount, “Limits on Space Weapons: Incorporating the The first LOAC principle to consider, Law of War into the Corpus Juris Spatialis,” IAC-08-E8.3.5, “military necessity,” provides “a person or Presented to the International Institute of Space Law object should not be targeted unless doing so Colloquium, International Astronautics Congress, Glasgow, 110 UK, October 2008, p. 4. gives an attacker some real advantage.” 108Ibid. Military necessity requires combat forces 109DOD policy is to comply with the Law of War “in the engage in only those acts necessary to conduct of military operations and related activities in armed conflict, however such conflicts are characterized.” See DOD Law of War Program, DOD Directive 5100.77, 9 December 110Adam E. Frey, “Defense of U.S. Space Assets: A Legal 1998. Chairman, Joint Chief of Staff Instruction (CJCSI) Perspective,” Air & Space Power Journal (Winter 2008), provides that the U.S. “will apply law of war principles during http://www.airpower.maxwell.af.mil/airchronicales/apj/apj08/ all operations that are categorized as Military Operations win08/frey.html (accessed June 2009). According to Frey, Other Than War.” See Implementation of the DOD Law of “The principle has four elements: the user of force must be War Program, CJCSI 5810.01, 27 August 1999. Under the capable of regulating it; force must be necessary to achieve, U.S. military’s Standing Rules of Engagement (SROE), “U.S. as quickly as possible, the enemy’s partial or complete forces will comply with the Law of War during military submission; it must be no greater in effect on the enemy’s operations involving armed conflict, no matter how the personnel or property than needed to achieve victor; and it conflict may be characterized under international law.” must not otherwise be illegal.”

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accomplish a legitimate military objective. Related to necessity, the central idea of “The U.S. formally acknowledged this distinction is one may only engage valid principle when it signed the 1907 Hague military targets. Military objectives must be Convention, which prohibits any action to separated and distinguished from protected destroy or seize the enemy’s property, unless civilian objects to the maximum extent such destruction or seizure is imperatively possible. An indiscriminate attack is one that demanded by the necessities of war. The strikes military objectives and civilians or Nuremberg trials also explained that civilian objects without an attempt to destruction as an end-in-itself is a violation of distinguish between military and nonmilitary international law. There must be some targets. Additional Protocol 1 to the Geneva reasonable connection between the destruction Conventions limits targets “strictly to …those of property and the overcoming of the enemy objects which by their nature, location, forces.”111 purpose, or use make an effective contribution to military action and whose total or partial Military necessity only allows that degree of destruction, capture or neutralization, in the force required to defeat an enemy. In addition, circumstances ruling at the time, offers a attacks must be limited to military objectives definite military advantage.”113 Civilians and whose “nature, purpose, or use makes an civilian property are prohibited targets.114 effective contribution to military action and whose total or partial destruction, capture, or Distinction also requires defenders to separate neutralization at the time offers a definite military objects from civilian objects to the military advantage.”112 In applying military maximum extent feasible.115 If system is to be necessity to targeting, the rule generally civilian in nature, it needs to be separated allows targeting those facilities, equipment, from military systems. This is difficult and and forces which, if destroyed, would lead as complex to achieve with some spaceborne quickly as possible to the enemy’s partial or systems – communications, PNT, weather, or complete submission. classically constituted imagery systems have dual civilian and military applications. For Applying the rule of necessity in engaging example, the global PNT resource, GPS, is space systems, warfighters must take into operated by the U.S. Air Force, and it account the nexus between the adversaries’ produces vital effects for the civil and war effort and the space system. Importantly, commercial communities. Important weather targeting on-orbit spaceborne assets may be satellites relied on by the U.S. military and its unnecessary if the same military necessary allies, but also global civil and commercial result can be obtained by targeting communities, are operated by the U.S. terrestrially-based components, or jamming up Department of Commerce; the U.S. Air Force and down links. provides a back-up command and control center for the Defense Meteorological Satellite 111See “Convention (IV) Respecting the Laws and Customs of Program (DMSP). The U.S. obtains large War on Land and Its Annex: Regulations Concerning the portions of its satellite communications Laws and Customs of War on Land, the Hague, 18 October 1907,” Article 23(g), International Committee of the Red Cross (ICRC) International Humanitarian Law Database, 113 http://www.icrc.org/ihl.nsf/385ec082b509e76c41256739003e See Ibid., Article 52(2). 636d/1d1726425f6955aec125641e0038bfd6 (accessed June 114See Ibid., Articles 51-54. 2009). 115In a space context, it would be inappropriate to locate a 112See Protocol Additional to the Geneva Conventions, 12 civil space habitat for spacecraft personnel next to an October 1949, Articles 51-54. adjoining space weapon or military system. Space and Defense, Winter 2010 37

capability by leasing international commercial Given the prevalent global understanding of transponders, as do other militaries, civil, and the problems of space debris and their physics, commercial users. Similarly, significant a spacefaring state cannot reasonably contend portions of remote sensing and supporting it could not foresee the damage that would launch capabilities are produced by occur as a consequence of initiating a kinetic commercial providers, consistent with U.S. or other destructive ASAT event. If so remote sensing and commercial space launch employed, it could be reasonable to conclude policies that encourage such relationships. the attacking state executed an indiscriminate Attacking such objects may hinder an enemy, attack, one where the means of attack but civilians would suffer tremendously as an “employs a method or means of combat the outgrowth of this mixed civil and military use effects of which cannot be limited as of space systems. required.”118 For this reason, employing ASAT weapons would appear to be unlawful Under Additional Protocol 1 to the Geneva if they create space debris that damages Conventions, limits are imposed on attacks on civilian space systems, regardless of whether civilian objects116 and attacks that cause or not the damage occurs during or after the “widespread, long-term, and severe damage” time of conflict. to the environment.117 Consequently, a weapon must be targeted with discrimination. Would deploying or exploding space mines be What then should be done to address the lawful? Probably not, but this assumes the tricky issue of space debris? The creation of mine is designed to explode, fragment, and space debris must be expected and considered riddle space with debris.119 What if the mine is if kinetic or otherwise destructive weapons are kept on orbit for an extended period? In such about to be employed. Substantial debris fields event, P.J. Blount opines we should look by should be reasonably foreseen to cause analogy to the restrictions placed on damage to other civilian space assets. Since unsecured naval mines:120 kinetic or otherwise destructive engagements could break the threshold of “widespread, According to the Hague Convention long-term, and severe damage” to the VIII, these mines must be disabled within an hour of release due to the environment, the focus should be on assessing way in which they might move and the number and size of pieces of expected destroy nonmilitary objectives. While space debris, their orbits, the length of time on the ban is not directly translatable to orbit, the ability to track the debris, and space due to physics, the principle potential damage. The 2007 Chinese ASAT behind this ban is. So placing a weapon in space that engages targets left thousands of pieces of space debris on at random would also be unlawful. orbit, at altitudes where they will remain on The principle could be extended by orbit for hundreds to thousands of years, an analogy to torpedoes, which must presenting long-term threats to imagery, be disabled if they miss their targets. environmental, and communication systems. 118Ibid. and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1), 8 June 1977, Article 51(4). 116See Protocol Additional to the Geneva Conventions, 119It might be possible to develop and field space mines Article 52. designed to minimize space debris or other long-term 117See Ibid., Article 55. Protocol Additional restrictions’ problems. apply to land, sea, and air combat and these limitations are 120“These would be contact mines that are not secured by a echoed elsewhere in other treaties and in customary mooring or anchor and have the ability to be swept away in a international law. current.”

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A weapon in space that misses its This requires a balancing test between the target and continues to poses a threat substantial, actual, and direct military due to its capabilities might also be illegal (e.g., a warhead being used as advantage anticipated by attacking a an ASAT that misses its mark).121 legitimate military target and the expected incidental and unfortunate civilian injury or Another distinction relates to a potential for damage. Under this test, excessive incidental causing damage or injury to humans in space. losses are prohibited. This principle Civilians may not be made the object of a encourages combat forces to minimize direct attack; however, the LOAC recognizes collateral damage – the incidental, unintended a military target need not be spared because its destruction that occurs as a result of a lawful destruction may cause collateral damage that attack against a legitimate military target, and results in unintended death or injury to leverages the rules relating to necessity and civilians or damage to their property. discrimination. This principle is also reflected Commanders and their planners must take into in Additional Protocol 1, which prohibits “an consideration the extent of unintended indirect attack, which may be expected to cause civilian collateral destruction and probable incidental loss of civilian life, injury to casualties that will result from a direct attack civilians, damage to civilian objects, or a on a military objective and, to an extent combination thereof, which would be consistent with military necessity, seek to excessive in relation to the concrete and direct avoid or minimize civilian casualties and military advantage anticipated.”123 destruction. Anticipated civilian losses must be proportionate to the military advantages An action causing excessive or catastrophic sought. In the end, it could be difficult to damage to civilians or property should be justify some losses without compelling illegal. Since Additional Protocol 1’s test is “survival of the State” rationales. It would subjective, commanders could reasonably appear to be illegal to conduct activities that disagree on whether attacking these objects might cause damage to the International Space truly “offers a definite military advantage.”124 Station, or other manned civil space systems, The principle of proportionality offers some or injury to their space personnel, whether on guidance with regard to using force against orbit, or during lift and return operations. space systems: since collateral damage to civilians is considered a natural consequence Proportionality prohibits the use of any kind of combat, the proportionality test should be or degree of force exceeding that needed to applied to determine if an attack on a dual-use accomplish a military objective. An attacker object warrants the consequences to the must therefore balance the expected damage 122 against the military advantage to be gained.

121P.J. Blount, “Limits on Space Weapons: Incorporating the of determining whether a target is a permissible one. The U.S. Law of War into the Corpus Juris Spatialis,” IAC-08-E8.3.5, has declined to sign certain treaties, or portions thereof, that Presented to the International Institute of Space Law prohibit certain targets without any balancing test.” Colloquium, International Astronautics Congress, Glasgow, 123Protocol Additional to the Geneva Conventions and UK, October 2008. Kinetic ASATs are typically launched on Relating to the Protection of Victims of International Armed sub-orbital trajectories so if they miss they come right back Conflicts (Protocol 1), Article 51(5)(b), ICRC International down, like an ICBM warhead. Co-orbital ASATs generally Humanitarian Law Database, http://www.icrc.org/ih1.nsf/ require larger boosters to achieve their mission objectives. FULL/470 (accessed June 2009). 122Robert A. Ramey, “Armed Conflict on the Final Frontier: 124J. Ricou Heaton, “Civilians at War: Reexamining the The Law of War in Space,” Air Force Law Review 48 (2000): Status of Civilians Accompanying the Armed Forces,” Air 79-82. “The proportionality test is the U.S.’ preferred method Force Law Review 57 (2005): 182-183.

Space and Defense, Winter 2010 39

innocent.125 Hence, attacking and destroying on first blush, be completely foreclosed. vital PNT systems, such as GPS, may be held However, according to Blount: illegal since global society at large relies upon the use of these systems.126 The same …the International Court of Justice’s conclusion may apply to attacks on (ICJ) Advisory Opinion on Legality of the Threat or Use of Nuclear environmental monitoring systems, especially Weapons might have created an if used to protect civilians from weather, exception to this rule. The ICJ ruled natural disaster or other environmental threats. that in general the use of nuclear If necessary to engage these systems, then it weapons would be “contrary to the may be more acceptable, and lawful, if the rules of international law applicable in armed conflict, and in particular damaging effects are reversible or temporary the principles and rules of during specific periods of military activity. humanitarian law.” However, the court states that a State may use a What of nuclear weapons? The OST bans the nuclear weapon when the “very stationing of nuclear weapons and weapons of survival of a State would be at stake.” Since the court treats this as a mass destruction in space. Also, “the Nuclear moment of necessity in which both Test Ban treaty prohibits states from causing customary and treaty law can be nuclear explosions in outer space.”127 Such suspended, it is feasible that the Outer weapons present significant Space Treaty and the Limited Test distinction/discrimination challenges. As Ban Treaty could also be suspended and that a State may, during “an noted, the space and defense communities extreme circumstance of self- learned of these issues during the 1960s defense” use a nuclear weapon in Starfish Prime and other upper atmospheric space.128 nuclear weapons experiments. So the use of nuclear weapons in space, aside from transit Under what circumstances employment of a of a nuclear warhead that most concede can be nuclear weapon in space could be legally legally executed in certain conflicts, should, envisioned? Perhaps to defeat on-orbit weapons of mass destruction or nuclear

125The expression “definite military advantage” is derived weapon system posing a serious violation of from the Hague Rules of Air Warfare. The idea conveyed is the Outer Space and Limited Test Ban treaties that of “a concrete and perceptible military advantage rather or an otherwise serious provocation. Such use than a hypothetical and speculative one. The advantage must be military and not purely political, and involve an evaluation would require balancing the risks to the space of the long-term military benefits of any action contemplated. environment and other space systems, and See Yoram Dinstein, The Conduct of Hostilities under the considering peace and security options Law of International Armed Conflict (Cambridge University Press, 2004), pp. 83-86. associated with failure against possibilities of 126The U.S. GPS system is a free global utility, but until defeating the threat. Could using the same recently the U.S. reserved the right to control and degrade its argument allow use of nuclear weapons signal. Current U.S. policy is to distribute the system’s PNT against pure space assets presenting signal without any control or degradation. In September 2007, the U.S. announced its decision to procure the future communications, PNT, warning and other generation of GPS satellites, GPS III, without the selective capabilities that enable 21st Century militaries availability (signal degradation) technical feature. “DOD operations by adversaries? Probably not, but Permanently Discontinues Procurement of Global Positioning System Selective Availability,” DOD News Release 1126-07, 18 September 2007. Russia, China, Europe, Japan, and India 128P.J. Blount, “Limits on Space Weapons: Incorporating the have deployed, or plan to deploy, their own spaceborne PNT Law of War into the Corpus Juris Spatialis,” IAC-08-E8.3.5, systems. Presented to the International Institute of Space Law 127Treaty Banning Nuclear Weapon Tests in the Atmosphere, Colloquium, International Astronautics Congress, Glasgow, in Outer Space and Under Water, 10 October 1963, Article 1. UK, October 2008, p. 8.

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approving that argument would create an communications systems, even in self- exception that would negate arms-control and defense. Articles 8 and 9 of the Hague peacekeeping aspects and limitations imposed Convention V, which was concluded in 1907, by the Outer Space and Limited Test Ban decades before satellite communications treaties, the UN Charter, and other bilateral systems were even envisioned, provide a agreements. neutral state is not required to restrict a belligerent’s use of “telegraph or telephone A state must do “everything feasible to verify cables or of wireless telegraph apparatus that the objectives to be attacked are military belonging to it or to companies or private objectives.”129 However, operations in this individuals” as long as these facilities are context, requires use of the panoply of space provided impartially to both belligerents. It capabilities – satellite imagery, satellite PNT appears these Articles would apply to modern systems, satellite communication systems, and day satellite communications, though some even meteorological data. Denying an think this remains an open question. adversary access to space systems may relieve him of some portion of this important Another issue that must be addressed is how obligation to mitigate civilian casualties by to treat neutrality rights in time of conflict. employing such techniques and Since space law accords states the technologies.130 Furthermore, a weapon that responsibility over their private entities could be used in a nondiscriminatory manner involved in space operations, an argument can or in such a way it would cause unnecessary be made to hold a neutral state responsible for suffering is only banned if it can also be used the actions of its private entities. According to in a discriminatory manner and cause limited Elizabeth Waldrop: suffering. “In such a case it is the illicit use of the weapon that is outlawed and not the …when a State issues a license weapon itself.”131 authorizing a private entity to provide certain services, there can be little argument that the State should be War must be waged in accordance with widely held responsible for subsequent accepted formalities, and avoid unlawful conduct of the private entity. treachery. These principles impose an Accordingly, if a neutral State obligation to reduce noncombatant civilian permits its space systems to be used by a belligerent military, the opposing casualties and damage, but this can be difficult belligerent would have the right to to achieve as military and civilian space demand that the neutral State stop systems become more and more intertwined. doing so. If the neutral State is The concept of “neutrality” may also limit unwilling or unable to prevent such military space conflict activities. Belligerents use by one belligerent, it would seem reasonable to authorize the other should have no right to attack neutral satellite belligerent to prevent the offending use. In the context of space systems 129Protocol Additional to the Geneva Conventions, Article used in time of conflict, before 57(2)(a)(i). resorting to force a belligerent could 130Of course, denying an adversary access to space assets (or should) demand a neutral nation might save lives if the adversary is using them to target not to provide satellite imagery, innocent civilians. navigation services, or weather 131 P.J. Blount, “Limits on Space Weapons: Incorporating the information to its adversary.132 Law of War into the Corpus Juris Spatialis,” IAC-08-E8.3.5, Presented to the International Institute of Space Law Colloquium, International Astronautics Congress, Glasgow, 132Elizabeth S. Waldrop, “Integration of military and civilian UK, October 2008, p. 6. space assets: legal and national security implications”, Air

Space and Defense, Winter 2010 41

Law on the Use of Force exercise self-defense under international law. In disposing of the U.S. position, the Court Given the realities of operating in space, its expressed interest and concern with where the global nature, and the fact threats are vessels were attacked, especially since they manifested nearly always outside the territory were not located in U.S. territorial waters. The of a state, self-defense measures invariably ICJ concluded the U.S. could not assert a right require military activities conducted outside of self-defense in defense of third parties the confines of that state. Some suggest the unless those parties requested “collective self ICJ objected to such extra-territorial self- defense,” and mere ownership of a vessel was defense measures in its 6 November 2003 not sufficient to assert the right. The ICJ ruling in the Case Concerning Oil Platforms placed the burden on the U.S. to show the (Islamic Republic of Iran v. United States of attacks on its vessels were of such a nature as America), a dispute involved issues arising out to be qualified as armed attacks within the of the Tanker War of 1984-1988 and meaning of that expression in Article 51 of the analogous to space conflict. UN Charter, and as understood in customary law on the use of force.134 The ICJ concluded The term Tanker War was first the right of self-defense can be asserted only if applied to a series of naval battles and it can detect, and attribute, and conclusively incidents in the Persian Gulf from 135 1984-1988 that was part of the larger prove, an attack by the hostile actor. Iran-Iraq War that spanned most of the decade. For two years, the U.S. Confirming the applicability of the was involved in the Tanker War to international law criteria of necessity and counter the hostile actions of military proportionality in relation to the use of force and paramilitary forces of the Islamic Republic of Iran. These forces in self-defense, the ICJ ruled it was not engaged in a broad pattern of low- satisfied the U.S. attacks were necessary to level, yet unlawful, uses of force, respond to the shipping incidents in the Gulf targeting not only U.S. forces, but and constituted a proportionate use of force in also U.S.-owned and flagged self-defense. Some suggest this formulation commercial shipping, foreign commercial activities, and the could have strict and adverse implications for strategically important Persian Gulf future claims of a right of anticipatory or pre- waterway itself in the form of mine- emptive self-defense insofar as it holds that an laying in international waters.133 armed attack is a prerequisite to the right of self-defense under Article 51 of the UN In arriving at its ruling, the ICJ addressed Charter and under customary international issues associated with the “inherent right of law.136 Darren Huskisson has written a critique self-defense.” It held the facts presented with of the ICJ Oil Platforms decision and its regard to missile attacks on U.S.-flagged potential importance.137 The case presents tankers and mining incidents and attacks on U.S. warships in the Gulf were not sufficient to support an invocation of an inherent right to 134Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America). 135Ibid. Force Law Review, Spring 2004, 157-231, citing DOD 136The Court was not faced with an issue of anticipatory or General Counsel, An Assessment of International Legal Issues pre-emptive self-defense since the alleged attacks against U.S. in Information Operations (May 1999). flagged and owned shipping had already occurred. 133Darren Huskisson, “Protecting the Space Network and the 137See Darren Huskisson, “Protecting the Space Network and Future of Self-Defense,” Astropolitics 5 (2007): 123-143. the Future of Self-Defense,” Astropolitics 5 (2007): 123-143.

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substantial implications for space conflict “armed attack.” At best, the ICJ ruling can be issues: viewed as a political verdict,139 perhaps mischaracterizing the evidence on a shooting A Space War would have factual war that took place nearly two decades earlier similarities to the 1987-1988 phase of during the Reagan Administration, then the Tanker War. One could envision a regional conflict, even one in which shaping its decision to telegraph displeasure the U.S. is not directly involved, that with the George W. Bush Administration’s would have spill-over effects on the campaign to develop and employ a coalition to U.S. space networks as the remove the murderous Sadaam Hussein belligerents attempted to deny the regime from power in Iraq, and battle Al other the use of space services, just as Iran and Iraq tried to deny each other Qaeda proxies in Afghanistan and globally. the commercial use of the Persian Despite these faults, the Court’s reasoning Gulf during the Tanker War. The cannot be dismissed as wholly in error. Yet U.S. would likely use force in careful analysis shows the ruling does not response to any severe instances of impose new or unreasonable burdens on those, harmful interference, such as attacks against U.S.-owned and registered such as the U.S. and its allies, who seek to space systems and foreign defend their space systems. commercial systems and even potentially in response to the The Court was clearly troubled the U.S. had emplacement of space mines. Due to reflagged U.S. and non-U.S. owned vessels limited space situational awareness (SSA), the U.S. could expect a space and inserted itself into the controversy and adversary to conduct its operations shooting war between Iran and Iraq and under an even stealthier cloak of between other states in the region of the deniability than existed in the Tanker Persian Gulf/Gulf of Arabia. The ICJ looked War. for and apparently required a stronger nexus The specter of a Space War raises many questions… May the U.S. and compelling interest for self-defense defend portions of the space network between the Tankers being attacked and their located outside the U.S. territory? relationship with the U.S. The ICJ was Would it be permissible to use force looking to see if sovereigns having significant to defend non-U.S. territory? Would local territorial interests in protecting the it be permissible to use force to defend non-U.S. registered space tankers invoked collective self-defense assets? What is the standard of proof obligations with the U.S. That had not for establishing an “armed attack” on happened, nor was there any general the space network, thus triggering the invocation by the parties of the right of right of self-defense? Must the U.S. collective defense. ascertain the intent of the attacker before initiating an armed response? Is the gravity of the attack on the Given the foundational defects in the Oil space network relevant to the Platforms ruling, Huskisson’s analogy triggering of the right of self- between the tankers and space systems being 138 defense? attacked is incomplete. Contrary to the situation involving tankers in Oil Platforms, No doubt, the ICJ was unwilling at any level to conclude the myriad of actions taken by the 139The Court found no evidence of intent by Iran to Iranians arose to any level constituting an specifically target U.S. ships with either a missile strike or mining operations, even if they were fired; thus the court concluded no “armed attack” occurred which could give rise 138Ibid. to self-defense measures. Space and Defense, Winter 2010 43

U.S. space systems present clear and specified hostile actor. With regard to LOAC compelling capabilities vital to insuring the issues, a military action must be necessary and extensive and instant U.S. global diplomatic, distinguish between combatants and informational, military, and economic noncombatants. Huskisson dismisses these interests. This is in accord with the OST, evidentiary requirements of ascertaining the which provides spacefaring powers retain hostile actor as unreasonably difficult to jurisdiction and control over their space achieve given the current state of SSA objects and operations even if no signatory capabilities; he correctly spots SSA challenges shall assert rights of sovereignty to portions of as its capabilities are best equipped to provide outer space. A state must be able to defend a forensic understanding of recent events such jurisdiction and control rights. rather than real-time feedback on on-going events. Huskisson wrongly infers the By his complaint, Huskisson presents the very evidentiary requirement should be partly solution necessary to perfect the right of self- ignored or accommodated because it could be defense for a U.S. owned space asset, or overly difficult to satisfy. defending a foreign registered system. U.S.- owned space systems need only be registered Current SSA tools and overall capabilities by the U.S. If the U.S. proposes to invoke self- need to be improved given the ICJ’s opinion defense rights for a foreign registered space in the Oil Platforms. This is a correct result, system that must involve and be performed in and encourages appropriate planning and accord with an invocation of collective resource development. It would be far more defense rights by the registering State. destabilizing to encourage commanders or Although the current version of the national leaders to authorize or engage in Registration Convention does not direct re- military actions based on “hunches” that an registration of space objects launched into attack has or is about to happen, and space upon transfers of ownership, control, “hunches” as to who made the attack. and operation (this is a subject for a future modification of the Convention or a treaty Huskisson also complains about the Court’s affecting the use of force and LOAC).140 requirement that a state ascertain the intent of Pending such changes, perfecting self-defense the attacker before initiating an armed rights for transferred systems could be response. Again, Huskisson misses the Court’s achieved by invocating the rights with an important point. Not all events causing Article 51 submission to the UN Security damage to space systems are the result of an Council. attack. To find otherwise would ignore a half century of space physics, engineering, and Huskisson worries the Court’s opinion operational experiences. This would risk establishes a burdensome requirement to peace and security over accidents or other identify the hostile actor attacking a U.S. non-hostile events. Space systems are space system. He rightly concedes an continually battered with a variety of important point of international law relating to environmental events – space debris, electrical the use of force that a nation asserting a right charging, cosmic rays and energetic particles, of self-defense must attribute an attack to a and others. Assuming an event can be traced to some state or actor, a strong factual determination must nonetheless be made as to 140Convention on the Registration of Objects Launched into Outer Space, 15 September 1979, also known as the whether the interference or damage occurred Registration Convention, at Article II. inappropriately or by accident. For example,

44 James D. Rendleman/Lawful Response to Attacks on Space Systems

jamming incidents affecting space systems caused to another space object in outer space, occur in many venues, most inadvertent, some liability is based on fault. On the other hand, if not. An assessment and inquiries must be damage is caused by a space object on earth or made to determine the true context of the to an aircraft in flight, liability is absolute. event to satisfy LOAC requirements of necessity, distinction, and proportionality. Notably, there can be more than one launching State – a launching state is any state that Finally, Huskisson complains about whether launches an object, procures the launch of an the gravity of an attack on a space system is object, or from whose territory or facility an relevant to the triggering of the right of self- object is launched. If there is more than one defense. Huskisson again missed the ICJ’s launching State, joint and several liability point. The ICJ ruling encourages application rules would apply. States may make of classic necessity and proportionality rules indemnification agreements and apportion when executing purported self-defense liability among themselves. Since allied actions. Peace and security interests can best nations supporting space conflict activities be achieved and preserved if necessary and could be construed as launching states, proportionate responses are presented in liability issues and allocation of liability issues response to armed attacks. should be resolved before engaging in such activities.

Attacks on Space Systems Does the Liability Convention offer an exclusive remedy for rights of a state in event Conflict in outer space or affecting the domain of an attack on its space systems? No – the is also limited by a myriad of space Liability Convention does not exclude or limit governance, environmental, disarmament, and the right of self-defense affirmed in Article 51 arms control agreements. There are and such a reading cannot be found in its boundaries on these limits. For example, negotiation or record of the U.S. Senate under the Vienna Convention during time of ratification. The Liability Convention presents conflict, treaty terms inconsistent with a state other challenges, however, and does not offer of armed conflict may not apply between a satisfactory disposition to attacks. According belligerents, unless the terms of the treaty to Adam Frey: itself are specifically intended to apply during conflict. Although it clarifies some of the Outer Space Treaty’s ambiguity, the 141 Liability Convention still faces The Liability Convention expands on a criticism. First, its definition of an topic noted in the Outer Space Treaty that “object” as including “component “launching states” are liable to other states for parts” does not specify whether this damage caused by space objects, including includes debris, so some suggest a debris. States are liable only for direct damage launching state might not be liable for debris-based damage. Second, caused by a space object (i.e., loss of life, although the convention imposes a personal injury or other impairment of health, “fault” standard for damages, it does or loss of or damage to property). If damage is not define how much care should be exercised during a launch. In other words, if two space objects collide, 141See Convention on International Liability for Damage one state could argue that it took all Caused by Space Objects, September 1972, known as the reasonable precautions, while the Liability Convention. injured state could argue that it did Space and Defense, Winter 2010 45

not. Third, fault may be difficult to harm, it must undertake “appropriate prove since specific pieces of debris international consultations” before can be difficult to identify and track, proceeding. Conversely, if a state and the cause of a collision can prove believes it could be harmed by equally elusive… the mere fact of a another’s actions, it “may request collision does not automatically put consultation concerning the activity the state that created the debris at or experiment.” Article [X] further fault. Finally, there is no established allows states to request observation of system for processing claims or for each other’s launches, and Article interpreting or enforcing the [XII] requires any space facilities and convention’s terms. The convention’s equipment to be open for observation. litigation mechanisms have never However, the treaty provides no right been used, so their effectiveness of appeal if two states cannot resolve remains unknown.142 these issues themselves.143

Similar to the Liability Convention, the OST In the end, the Liability Convention’s real does not set out substantive remedies for a limitations on space conflict activities arise state that has had its space assets attacked by out of its provision for liability associated with another state or non-state party. Nonetheless, causing damage to third-parties. These some, including Frey, suggest the OST may liability issues must be evaluated, addressed, provide “an appropriate response” if a state and/or mitigated by law-abiding states before interferes with another’s space activities. It is performing self-defense military activities that based on consultation: could cause damage to third-party space systems. Planners must account for payment Articles [VI] and [VII] hold states of damages or plan to limit such problems. liable for damage caused by their space activities and launches, whether such activity is conducted “by The 1963 Treaty Banning Nuclear Weapon governmental agencies or by non- Test in the Atmosphere, in Outer Space, and governmental entities” within the Under Water, also known as the Partial (or state. Further, Article [IX] requires Limited) Test Ban Treaty (PTBT), prohibited states to avoid the “harmful “any nuclear weapon test explosion, or any contamination” of outer space and celestial bodies. If a state believes that its activities could cause such 143Adam E. Frey, “Defense of U.S. Space Assets: A Legal Perspective,” Air & Space Power Journal (Winter 2008), http://www.airpower.maxwell.af.mil/airchronicales/apj/apj08/ 142Adam E. Frey, “Defense of U.S. Space Assets: A Legal win08/frey.html (accessed June 2009). On the matter of Perspective,” Air & Space Power Journal (Winter 2008), consultation, while it appears the Chinese did not offer to http://www.airpower.maxwell.af.mil/airchronicales/apj/apj08/ engage in such discussions, it appears from news reports of win08/frey.html (accessed June 2009). The statement by Frey the incident the U.S. knew the ASAT test was pending. “The that “fault may be difficult to prove since specific pieces of events show that the [U.S.] Administration felt constrained in debris can be difficult to identify and track, and the cause of a its dealings with China because of its view that it had little collision can prove equally elusive… the mere fact of a leverage to stop an important Chinese military program, and collision does not automatically put the state that created the because it did not want to let Beijing know how much the debris at fault” has been forced to the forefront by the 10 U.S. knew about its space launching activities.” Further, the February 2009 collision between the Iridium 33 and Cosmos U.S. did not request consultation even though the Outer Space 2251 communications satellites. The impact between the Treaty states this was its right. Had the U.S. been willing to Iridium Satellite LLC-owned satellite and the 16-year-old discuss the military use of space with the Chinese that might defunct Russian military satellite occurred at 780 kilometers, have been enough to dissuade them from going through with a low Earth orbit (LEO) altitude used by satellites that it. See Michael R. Gordon and David S. Cloud, “U.S. Knew monitor weather and carry telephone communications. It is of China’s Missile Test, but Kept Silent,” The New York considered the most crowded area of space. See “When Times 23 April 2007, http://www.nytimes.com/2007/04/23/ Satellites Collide: Iridium 33 Strikes Defunct Russian Sat in washington/23satellite.html?_r=2&hp=&pagewanted=print& Unprecedented Accident,” GPS World, 12 February 2009. oref=slogin (accessed June 2009).

46 James D. Rendleman/Lawful Response to Attacks on Space Systems

other nuclear explosion” in the atmosphere, compliance. Since they provide transparency, underwater, or in outer space.144 PTBT is NTM systems are thought to help reduce the superseded by the Comprehensive Test Ban risk of nuclear war. The earliest of these Treaty (CBTB) that bans all nuclear testing in provisions was contained in the 1972 ABM all mediums, though the CTBT has not as of Treaty between the Soviet Union and the yet entered in force.145 The OST does not U.S.146 specifically prohibit testing weapons in outer space itself, as opposed to on celestial bodies, While the U.S. has withdrawn from the ABM instead it proscribes the stationing of nuclear Treaty, other treaties in force today contain weapons on orbit. With PTBT and CBTB, this same prohibition, including the 1987 testing and subsequent use of nuclear weapons Intermediate-Range Nuclear Forces Treaty in response to attacks on space systems appear (INF), 1992 Strategic Arms Reduction Treaty to be banned, unless employed in a possible (START I), and 1990 Treaty on Conventional narrow exception that allows such devices to Armed Forces in Europe (CFE). Recognition be employed to preserve the “survival of a of the important role played by NTMs has State.” Employing nuclear weapon systems been made evident. Given the importance of against conventional space systems probably spaceborne NTMs role in stemming the could not be shown to support such a survival potential of a nuclear holocaust, non- objective. interference rules that preserve and allow adversary access to their systems would A series of bilateral agreements between the appear to be taking on the trappings of a U.S. and the former Soviet Union, now held to peremptory norm that nations may want be binding on Russia by protocol, prohibit treaties to perfect. interference with early warning systems and NTMs. As noted earlier, NTMs include a The Environmental Modification Convention variety of technologies and systems. The of 1978147 prohibits all military or hostile definition should include space (e.g., photo- environmental modification techniques that reconnaissance satellites) and terrestrial assets might cause long-lasting, severe, or (e.g., land-based radars, seismographs, radar widespread environmental changes in Earth’s and intelligence systems on ships and aircraft, atmosphere or outer space. “Each State Party etc.) that can verify arms control treaty to this Convention undertakes not to engage in military or any other hostile use of 144Nuclear powers France and China did not sign or ratify the environmental modification techniques having PTBT. Also, the PTBT did not ban underground nuclear widespread, long-lasting, or severe effects as testing. 145 the means of destruction, damage, or injury to Nuclear powers China, Israel, and the U.S. signed, but have 148 not ratified the CTBT. As of October 2009, 151 States have any other State Party.” “Widespread” is ratified the CTBT. Thus, one could argue that the norms of defined as “encompassing an area on the scale the Treaty to ban all nuclear testing in all mediums is of several hundred square kilometers;” “long- emerging as a universal norm binding upon states that have not ratified the Treaty. Entry into force of the CTBT is an 146 achievable goal. The CTBT is entering “the most defining See Treaty between the U.S. of America and the Union of period of its existence,” as there has been a “paradigm shift” Soviet Socialist Republics on the Limitation of Anti-Ballistic in support for the Treaty since U.S. President Obama set out Missile Systems, 3 October 1972, but no longer in effect as of the U.S. agenda for non-proliferation and arms control in 13 June 2002 due to U.S. withdrawal. April 2009 followed by his agreement with Russian President 147Convention on the Prohibition of Military or Any Other Medvedev in London in 2009 to seek entry into force of Hostile Use of Environmental Modification Techniques, 5 CTBT, http://www.ctbto.org/press-centre/press-releases/2009/ October 1978, known as the Environmental Modification after-ten-year-hiatus-entry-into-forceof-comprehensive-test- Convention. ban-treaty-an-achievable-goal (accessed January 2010). 148Ibid., Article I(1). Space and Defense, Winter 2010 47

lasting” is defined as “lasting for a period of What should be concluded if a party protests months, or approximately a season;” and the effects and damage were unintended? “severe” is defined as “involving serious or Some suggest a state that creates orbital debris significant disruption or harm to human life, while targeting specific adversary targets natural and economic resources, or other would not violate the Convention, but that act assets.”149 The Environmental Modification would instead only constitute a violation of Convention focuses on proscribing military the Geneva Additional Protocol 1. However, weapons, tactics, and techniques that as to the space environment, the science and deliberately change natural processes.150 danger of orbital debris is now very much acknowledged, notwithstanding denials and Would the use of nuclear weapons in space protests of any potential offending state. violate the Environmental Modification Perhaps the requisite hostile intent and Convention? Perhaps, yes, but only if used deliberate manipulation elements could be with hostile intent, to deliberately manipulate deduced from the willful and wanton space environmental processes, with disregard for the damage that occurs and the widespread, long-lasting, or severe effects, recklessness of the act. This same reasoning causing damage or destruction to space-based could also be made to prohibit the use of systems, and directed against another party to nuclear weapons in defense of space systems. the treaty. Agreements, such as the 1971 Accidental Would employing systems attacks that create Measures Agreement (updated in 2004), the widespread, long-lasting, or severe space- 1988 Ballistic Missile Launch Notification based debris fields, be unlawful? Again, yes, Agreement, and the 1990 Dangerous Military if the essential elements of the Convention are Activities Agreement address dangerous laser violated. A state that creates debris use and dangerous interference with nuclear intentionally in order to ruin the environment weapons command and control systems, and for use by its adversary would violate the so potentially limit possible space warfare Convention. activities.151 They are intended to prevent outbreak of nuclear war due to misunderstanding, accidental launch, or 149Ibid. misinterpretation of unidentified objects 150 The U.S. Delegation Statement provides: “The detected by early warning systems, and are Environmental Modification Convention is not an Environmental Protection Treaty; it is not a treaty to prohibit primarily focused on the topic of damage to the environment resulting from armed conflict. intercontinental ballistic missiles (ICBMs). Rather, the Environmental Modification Convention fills a These agreements basically seek to prevent special, but important niche reflecting the international community's consensus that the environment itself should not miscalculation by requiring parties to provide be used as an instrument of war.” The U.S. position on notice whenever there is an accidental launch “criteria that have been established for determining what of a ballistic missile in the direction of the constitutes a prohibited action under the convention: first, the convention specifies military or any other hostile use. The U.S. understanding is that hostile intent is a precondition for a violation; second, it must meet the definition of an 151See Agreement on Measures to Reduce the Risk of environmental modification technique, that is the deliberate Outbreak of Nuclear War Between the U.S. of America and manipulation of a natural process; third, effects must be the Union of Soviet Socialists Republics, 30 September 1971; widespread, long-lasting or severe as defined in Article II and Ballistic Missile Launch Notification Agreement, 31 May related understandings; fourth, these effects must be the 1988; and Agreement between the Government of the U.S. of means of destruction, damage or injury; and fifth, it must be American and the Government of the Union of Soviet Socialist directed against another state party. Only if all of these Republics on the Prevention of Dangerous Military Activities, criteria are met is an action prohibited by the convention.” 12 June 1989.

48 James D. Rendleman/Lawful Response to Attacks on Space Systems

other party, or when a party’s early warning several long-standing allies limited their system detects an unidentified object. cooperation with the U.S. on missile defense related activities, not wishing to participate, These agreements affect the prosecution of support, or cause a potential violation of the self-defense in response to attacks on space ABM Treaty, even though they were not systems. For example, the Accidentals signatories to that agreement. These positions Measures Agreement with Russia requires the have evolved as perceptions of threats to parties to take measures to guard against an national interests changed and the U.S accidental or unauthorized use of nuclear withdrew from the ABM Treaty in 2002. The weapons. It requires a party to notify the other existence of such agreements and potential immediately if an accidental or unauthorized limitations on space activities should not be incident occurs, if an early warning system ignored in a discussion of the law relating to detects an unidentified object, or if there is space conflict activities. any other unexplained event involving possible detonation of nuclear weapons. Citing a changed global environment, the U.S. withdrew from the ABM Treaty in 2002. Importantly, the Accidental Measures Assuming a new ABM Treaty is negotiated on Agreement requires a party to provide the same or similar terms, where would such a advance notice of any planned missile treaty leave ASATs from a legal perspective? launches beyond the territory of the launching There is, not surprisingly, more than one party and in the direction of the other party. answer. Some analysts suggest that it may be The Launch Notification Agreement requires a impossible to distinguish between ABM party to provide at least 24-hour advance directed-energy space vehicles and those notice of the date, launch location, and deployed exclusively for anti-satellite estimated impact area for any ballistic missile purposes.152 launch. These notification requirements could require potentially disruptive or compromising Hurwitz argues that “all extraterrestrial information exchanges with Russia before autonomous weapons are illegal. However, prosecuting military space activities, non-nuclear weapons, which are not especially if space launches are required. Such autonomous, may be stationed and, in exchanges could limit the ability of the U.S. to accordance with generally accepted principles prosecute space-related military/conflict- of international law, used in Earth orbit.”153 In related activities. short, while the ABM Treaty appears to prohibit the use of directed-energy weapons in Although not traditional space “arms control” an ABM mode, “the same technology when agreements, the U.S. is party to numerous used in the development/testing/deployment bilateral or multilateral agreements that may of ASATs is not prohibited. restrict and limit “space activities” from being performed in or from the territory of another Given the overlap of technologies, careful state party. For example, in the U.S. pursuit of consideration must be given to whether a global ballistic missile defense system, it is entirely foreseeable that states where key 152Joan Johnson-Freese, “The Viability of U.S. Anti-Satellite components are located could impose (ASAT) Policy: Moving Toward Space Control, INSS restrictions on U.S. space or other activities in Occasional Paper 30, U.S. Air Force Institute for National Security Studies (INSS), January 2000, p. 16. exchange for the U.S. right to base ground- or 153Bruce A. Hurwitz, The Legality of Space Militarization link- segments in that state. In the recent past, (North-Holland, 1986), p. 135. Space and Defense, Winter 2010 49

systems might be favored in one case as an asymmetric advantages space capabilities ABM system, but not as an ASAT, or vice provide the U.S. and its allies. Adversaries can versa. This issue generated considerable easily see the tremendous leverage they can political debates in the 1980s, when debates obtain by disrupting space systems. Given involving the SDI were also fought over these pressures, space presents a feasible arena ASAT technologies, options, opportunities, for conflict activities. and related programs.154 U.S. ASAT technology development efforts have Policy, law, and resulting strategy formulation continued on and off for decades. Peace and for defense of space systems requires more disarmament advocates now attack U.S. sophistication. Provocateurs advocating and missile defense systems as fledgling ASAT planning for unconstrained space warfare have systems, a topic brought to the forefront by the been marginalized over the decades as 2008 interception of the disabled USA 193 seasoned and knowledgeable leaders in the intelligence satellite by a modified Aegis executive and military departments, cruiser and missile defense missile over the congressional delegations, and international Pacific. community approach such options with extreme caution. If performing self-defense activities, lawful options must be considered Conclusions and selected by a state in event an adversary or entity threatens or attacks its space “Arming the heavens” might seem a most systems? Employing space systems in accord tempting option to respond to threats to U.S. with international law is vital to ensure space systems. continued access to space capabilities and that Regardless of the “Arming the the space domain remains a peaceful wisdom of such heavens” might environment as envisioned by the OST action, the facts Regime. By doing this, the U.S. will maintain remain that the U.S. seem a most not only an ultimate strategic high ground, but is dependent on use tempting option also a moral one. of space systems for to respond to military operations threats to U.S. We know that under treaty and customary law, and security; that space systems. the U.S., as well as member states of the UN these systems are and states that have ratified OST, must use vulnerable to disruption, attack, and even space for peaceful purposes, refrain from destruction; and that at stake are the using space aggressively, take care to preserve the space environment, and be prepared to 154Once the Strategic Defense Initiative was politicized during indemnify if it damages another non- the 1980s, debates ran the gamut of the defense and policy belligerent state’s assets. Applicable communities. Opponents posed objections, most technical, to international treaties, conventions, customary missile defense claiming – the Soviet ABM radars complexes were not violations of the ABM treaty; propulsion, sensor, law, and LOAC principles do not specifically and targeting systems could not be miniaturized for a kinetic describe what the U.S. should or can do in kill vehicle; kinetic kill technologies could not be integrated preparation for or in response to an attack on on the battlefield; command and control systems could not be developed to engage ballistic missiles; software programs space systems. Rather, as some contend, they needed to manage an effective ABM system requires too highlight what cannot be done. many lines of code; lasers cannot engage and defeat missile targets; withdrawal from the ABM treaty would lead the U.S. straight into World War III; and the like. Each of the technical The right to respond to attacks against space objections has been defeated by “smart” technical programs. systems is limited. Relevant treaties,

50 James D. Rendleman/Lawful Response to Attacks on Space Systems

customary law, the LOAC, and other legal some attacks and threats as a mere distraction. principles substantially restrict space warfare Satellite vulnerabilities can be reduced by options and the potential for such conflict using anti-jamming measures; hardening to among law-abiding nations. The use of force protect against electromagnetic pulses, is allowed only in self-defense or in accord radiation, or explosions; improving with authorization of maneuverability to actively avoid attacks. Yet the UN to maintain The right to as we have seen with developments in North international peace respond to Korea, developing states and terrorist groups and security. Kinetic, can gain access to space system and propose electromagnetic or attacks to engage in serious mischief. Attacks could information operation against space range the span of space systems – terrestrial, attacks against space systems is link, and on-orbit assets. There is no assurance systems are each an limited. a self-restraint option will protect orbital “armed attack” to assets. which the use of force is permitted in accord with the self-defense exception. The right to If deterrence fails, a lawful self-defense conduct conflict and space warfare activities “punishment strategy” can be employed. involving space systems is constrained by the Absolute flexibility should be maintained by LOAC, and the right of anticipatory self- the U.S. and its allies in the way they wield defense may lawfully be employed in defense such deterrence, if they choose to wield it at of space systems only in limited all. The lawful range of diplomatic, circumstances. information, military, and economic instruments of national power should be If engaged in space-based warfare, a state considered and employed. These instruments must comply with the legal obligations set out are not limited to just offensive or defensive in the OST, Registration Convention, Liability counterspace or space control activities, Convention, PTBT/CTBT, Environment though preparing for destructive space-based Modification Convention, and other treaties. combat activities must be carefully considered Certain satellite systems and their supporting and generally deferred given the risks such ground-based, and command and control conflict presents to the very space systems should not be attacked; this could environment the U.S. wishes to protect. include spaceborne components of NTMs, Nevertheless, preparing to employ a complete especially if they are necessary and important suite of these instruments “would signal to any to reduce chances of a full-fledge nuclear adversary considering U.S. space systems as a conflagration, or resolution of such a conflict. legitimate target that the U.S. has the means Even if lawful means and methods are and resolve to respond if it so chooses.”155 employed and targets engaged, physical, Preparing for the lawful use of U.S. and allied technical, environmental, and political retaliatory measures can encourage or, if realities, and their risks and benefits, still limit necessary, compel offender reconsideration of options to defend and fight space systems; its course of action and compliance to specifically, they limit the when, where, and international morays or legal obligations if how adversary space systems can, or should engagement cannot succeed. not, be engaged.

155See John B. Sheldon, “Space Power and Deterrence: Are The U.S. can lawfully take a passive approach We Serious,” Marshall Institute Policy Outlook (November to defend its space systems, allowing it to treat 2008): 3-4. Space and Defense, Winter 2010 51

Important, but lost on many who seek to and not contaminate the environment. SSA contest the space domain, a retaliatory and other sensor systems, command and deterrence strategy for the U.S. has little control, and shooter capabilities may not be credibility if directed at adversary space assets powerful and nuanced enough over the near- since the U.S. “…is the most space-reliant term to achieve all the results needed and country today. Threatening to attack adversary desired. That may change as space control satellites in response to attacks on U.S. technologies evolve. systems may prove fruitless if the adversary in question does not leverage significant In the event of war, the U.S. and its allies may military, diplomatic, and economic power defend components of their space systems that through such systems…”156 Presently, the U.S. are subject to jamming and cyber attack since is the only globally space-enabled power, so such attacks can be considered armed attacks adversary spaceborne components probably in a modern context. In doing so, they must should not be engaged tit-for-tat.157 Such accurately determine the source of the attack would only be a pyrrhic act. This may change and confirm adversary state or non-state actors as other nations gain the wherewithal, intended to target the system at issue and experience, and access to space capabilities cause destructive effects. The U.S. should be and fully exploit them for military purposes. able to treat certain adversary satellites and supporting systems as legitimate targets only Non-aggressive weaponization of space is after ensuring that satellite’s loss would not legal as is the use of force in self-defense excessively harm civilians or the space against space systems components whether in environment, or violate other peremptory space or the terrestrial environment. Treaty norms. The U.S. response must be necessary and U.S. policy allows developing and and proportional; not more than that amount deploying systems designed to protect necessary to accomplish military objectives to satellites, or defeat ASAT and strategic threats defeat adversary forces and to achieve the (e.g., ICBMs). Employing a weapon system in enemy’s partial or complete submission. self-defense to engage targets, whether ground, air, or space-based, if accomplished in Attacks against adversary NTMs capabilities such a way the combat event does not create should be avoided as attacking them could space debris, and is targeted in accord with violate peremptory norms to take all actions LOAC principles, appear to be lawful under necessary to prevent nuclear war, ensure current treaty and customary law. Jamming compliance with nuclear weapons arms technologies can be employed to deny control agreements, and prevent attacks by adversary access to space and protect weapons of mass destruction. On the other spacecraft, and their effects may be reversible hand, the U.S may lawfully respond to attacks against its own national NTMs and nuclear

156 command and control capabilities under rules Ibid. 157Joint Publication 3-14, 6 January 2009, p. II-5. Negation relating to self-defense and, if necessary, includes “Active and offensive measures to deceive, disrupt, reprisal.158 deny, degrade, or destroy an adversary’s space capabilities. Negation includes actions against ground, data link, user, and/or space segment(s) of an adversary’s space systems and 158Reprisals are acts taken in response to LOAC violations. services, or any other space system or service used by an Such an act of reprisal would be otherwise forbidden if it was adversary that is hostile to U.S. national interests.” Also, see not for the prior unlawful act of the enemy. A lawful act of the 2006 U.S. National Space Policy which states: “…the reprisal cannot be the basis for a counter-reprisal. To be U.S. will …deny, if necessary, adversaries the use of space lawful, a reprisal must: timely respond to grave and capabilities hostile to U.S. national interests.” manifestly (clearly) unlawful acts; be for the purpose of

52 James D. Rendleman/Lawful Response to Attacks on Space Systems

Conflict involving space systems need not be environment for extended periods may be space-based. In defending its systems, the impermissible; hence, the U.S. must observe U.S. could lawfully use existing terrestrially- the obligation to avoid and minimize the based military systems to defeat and/or creation of debris when operating defensive prevent adversary weapons from entering space weapons. “Soft-kill weapons that space, or from being successfully operated disable are clearly acceptable and favored if there. Adversary ground control stations could weapons need to be employed against space be engaged and command and control based components. Explosive weapons, such linkages interrupted, reduced, or destroyed. as space mines surrounding satellites, are not, especially since they can create significant If facts establishing conditions of immediacy space debris.”159 Given the potential for and necessity to U.S and allied systems are resulting debris, taking action to destroy or satisfied, anticipatory self-defense actions damage adversary space systems “may violate could be undertaken. The goal of such the duty to avoid the harmful contamination of anticipatory self-defense actions could involve space” except in the most pressing targeting the enemy’s systems before and circumstance.160 during launch. Jammers could also be located, degraded, and destroyed; e.g., GPS jammers The U.S. is the global leader in space and has were engaged and destroyed during Operation filled this role for half a century. Its systems Iraqi Freedom by GPS-aided Joint Direct work and have been revolutionary in Attack Munitions described as precision presenting new capabilities in the civil, guided munitions or “smart bombs.” Spacelift commercial, and military arenas. As it has facilities could also be engaged to disable done for decades, the U.S. enjoys a unique adversary launch capabilities. position to shape the direction of global space activities for this new century. With this The U.S. is obligated to protect the space position comes great responsibility – to forge environment. Obligations imposed by the behaviors to mitigate space debris, prevent Outer Space and Environment Modification armed conflict, and enhance the peace, treaties, Liability Convention, and other security, and prosperity of spacefaring nations agreements, and physical reality, make it and the rest of the world. Space capabilities politically wise, and immensely practical to are at risk to a myriad of threats, but continued keep space safe and usable. As the nation that efforts to improve space governance by exploits space capabilities to their maximum international treaties, customary law, best extent, the U.S. has the most to lose if the practices, policy, strategy, and overarching domain is compromised and lost to unwise global behaviors will secure the high frontier. operations or conflict. Self-defense acts that seek to or actually damage the space

compelling the adversary to observe the LOAC and not for revenge, spite, or punishment; give reasonable notice that reprisals will be taken; have had other reasonable means attempted to secure compliance; be directed against the personnel or property of an adversary; be proportional to the original violation; be publicized; be authorized by national 159 authorities at the highest political level. Only the President of Adam E. Frey, “Defense of U.S. Space Assets: A Legal the U.S., as Commander-in-Chief, may authorize U.S. forces Perspective,” Air & Space Power Journal (Winter 2008). to take such actions. 160Ibid.

The New Space Order: Why Space Power Matters for Europe

Nicolas Peter Research Fellow, European Space Policy Institute

More than fifty years since the dawn of the prowess is one of the key elements of this Space Age and twenty years since the end of emerging flat/spiky system of competitive the Cold War, space affairs and politics multipolarity. Governments are fully engaged remain interlinked. Space activities are in improving their national economies and increasingly tied to national power for major overall competitiveness, but also because they world powers, and political objectives are still realize that it represents for them a means, the driving force for most space activities. Yet among others, for achieving national in an ever more globalized and competitive objectives, including foreign policy motives, multipolar world, status and power that arise especially in the domain of “S&T politics,” from the employment and access to the most such as nuclear energy, but also in the area of advanced technologies are now widely space affairs. perceived as key to the powers and standings of states. The importance of space activities is In the early years of the Space Age, the increasing, transitioning in terms of perception performances of the United States (U.S) and by today’s world leaders from a “nice to have” Soviet Union in space activities came to be to a “need to have” status. A sound interpreted as a understanding of the nature and exploitation The world is measure of their of space power is critical for Europe as it becoming at relative military, provides tangible and intangible benefits back economic, and on Earth that allow Europe to maintain its the same time scientific strength position in the global “space hierarchy” in the both “flat” and on the world 21st Century. “spiky.” stage. During the Cold War, human The world, since the end of the Cold War, is and robotic space accomplishments became on increasingly interlinked and interdependent at the geopolitical level an element of a many levels. At the same time, the balance of country’s power and influence. Space, since powers across the world is changing and the 1950s, is a key attribute of a state’s power. shifting with emerging world powers rising, However, since the 1990s, the space context is particularly in Asia. This is complicated by dramatically evolving. Similar to the process the fact that there exists a renewed emphasis of internationalization of innovation, space and importance accorded by states on spheres activities are expanding beyond the traditional of influence based on geography or on topical issues. In particular, a greater importance is placed on a country’s ability to innovate as a source of competitive advantage. The world is Brief History of the Twenty-First Century (Farrar, Straus and becoming at the same time both “flat” and Giroux, 2005). A “spiky” world suggests that by almost any “spiky.”1 Science and Technology (S&T) measure the international landscape is not at all flat. On the contrary, the world is spiky with concentrated centers of power, influence, economic horsepower and cutting-edge 1A “flat” world implies that the world is more globalized and innovation. See Richard Florida, “The World is Spiky,” The interconnected. See Thomas Friedman, The World Is Flat: A Atlantic Monthly, October 2005.

54 Nicolas Peter/The New Space Order: Why Space Power Matters for Europe

spacefaring countries2 to new global players, elements of the Cold War rivalry between the such as China and India, as well as other U.S. and the Soviet Union, principally as a emerging countries, with changing patterns of substitute for armed conflict.5 During this international space relations leading to a new phase, space activities were limited to a small space order. number of other countries, primarily in Europe and Asia, but with In this evolving geopolitical context, the …the more limited importance of space power is increasing as importance of capabilities than the space remains a proxy demonstrating power space power is two superpowers. and because more actors are using space. increasing as Indeed, the technical Although there is a great deal of rhetoric about space remains difficulties and the impact of S&T on international affairs, a proxy financial burdens there is relatively little analytical work on the associated with the link between space and national power, as demonstrating full range of space well as between space power and international power... activities remained affairs. This paper aims to provide a prohibitive for most preliminary overview of a complex and wide- countries; only a limited number of countries ranging subject that brings together the were able to benefit from the use of space important issue of space power and European technologies and activities due to the inherent influence in international relations. technical complexity, high costs associated with space activities, and the necessity for a high-skilled workforce. Towards a New Space Order The current space phase, Space 2.0, which Since the pioneering of space activities, the started at the beginning of the 1990s as a geopolitical context of space affairs changed result of the changing geopolitical context dramatically.3 The history of space activities linked to the end of the Cold War, is can be structured into three phases, each characterized by a multipolar world and the having distinct features and characteristics: (1) rise of many new actors with increasing “proto-space age” (pre-World War II); (2) technical capabilities, advancing an “Space 1.0” (Cold War); and (3) “Space 2.0” internationalization of space.6 In particular, a (post-Cold War).4 technological revolution linked to the development of small satellite technology, the Space 1.0 took place from the late 1950s to increasing reliability and accessibility of the late 1980s. For more than three decades, commercial-off-the-shelf (COTS) technology, space was viewed as one of the emblematic and the multiplication of commercial services leading to a reduction of the price of access to

2The term spacefaring country defines a country capable of space facilitate the involvement of non- 7 developing, launching, and operating satellites in space traditional actors in the space arena. autonomously. This implies the state possesses a fairly robust Countries previously unable to pursue space launch infrastructure and indigenous capabilities to manufacture and operate space systems. activities now have a greater opportunity to 3Nicolas Peter, “The Changing Geopolitics of Space Activities,” Space Policy 22 (2006): 100-109. 5 4Nicolas Peter, “Space Power and Europe in the Need for a Nicolas Peter, “The Changing Geopolitics of Space Conceptual Framework,” paper presented at the 59th Activities,” Space Policy 22 (2006): 100-109. 6 International Astronautical Congress, Glasgow, Scotland, 29 Ibid. September - 3 October 2008. 7Ibid. Space and Defense, Winter 2010 55

enter the space arena; the space environment The multiplication of actors in the post Cold is no longer the exclusive province of a War context is accompanied by an emerging handful number of countries as it was during globalization of space activities with actors the Cold War. now scattered all over the world and no longer limited to the “North.”10 The multipolar space Spacefaring powers are joined by other environment and the resulting new space order countries that have some degree of space is characterized by the rapid integration of involvement. An increasing number of China and India as new space powers, and the countries have acquired over the years space entry of countries capabilities for national reasons (e.g., support …a successful particularly from the national economy and overall space program “South,” like competitiveness, public services, and ensure brings Malaysia, Thailand, national security), as well as international heightened and Indonesia.11 reasons (e.g., regional influence and prestige). global prestige New ambitions to They recognize the advantages of space and increased create dedicated activities from the tangible aspects of space agencies are positioning-navigation-timing (PNT), remote domestic surfacing on all sensing, and telecommunications to the more credibility and continents and more abstract aspects of political influence and prowess. countries are prestige. There are tangible benefits that result formulating space from investing in space, such as job creation; policy to guide their domestic and stimulation of national interest in Science, international space activities with the principal Technology, Engineering, and Mathematics aim being to improve their capabilities and (STEM); and spin-off technologies resulting competitiveness.12 from research and development (R&D). There

are intangible benefits as well – a successful 10It is important to note that national organization of space space program brings heightened global activities and the weight of national budgets differ greatly prestige and increased domestic credibility among countries around the world. Not all countries involved in space activities do posses a national space agency, and the and prowess. national authorities responsible for space matters vary widely. A first category is composed of countries with their own While few countries have independent launch agencies devoted more or less exclusively to space. In a second category, space affairs are directly handled by a capability (nine total), and even less have ministry (education, research and technology, industry or human spaceflight capabilities (three total), trade, defense, etc.) or by an inter-ministerial entity. See the number of players controlling their own Nicolas Peter, “The Changing Geopolitics of Space Activities,” Space Policy 22 (2006): 100-109. communications systems have doubled since 11 8 The use of the term “South” refers to all developing the end of the 1980s. There are, as of countries, as well as all Least Developed Countries (LDCs). It December 2009, 27 countries with satellite- rests on the fact that the entire world’s industrially developed based Earth observation resources compared countries (with the exception of Australia and New Zealand) lie to the North of developing countries. However, the with three in 1980, not to mention the diversity of countries in the South must be kept in mind. numerous countries that have their own image Some countries, such as Argentina, Brazil, China, India, receiving stations for remote sensing systems.9 Mexico, South Africa, and South Korea have enviable records of technical and scientific achievements compared to others in the South and even the North. 12Nicolas Peter, “Space Power and Europe in the 21st 8 Bertrand de Montluc, “The New International Political and Century,” European Space Policy Institute Perspectives 21, Strategic Context for Space Policies,” Space Policy 25 May 2009, http://www.espi.or.at/images/stories/dokumente/ (2009): 20-28. Perspectives/espi%20perspectives%2021%20.pdf (accessed 9Ibid. January 2010).

56 Nicolas Peter/The New Space Order: Why Space Power Matters for Europe

As a reflection of the international system, the Soviet Union/Russia. Roles and relationships current space environment is characterized by in space are being redefined in the new space a growing number of countries with varying order. The U.S. and Russia are no longer the ranges of space capabilities (e.g., technical only players that can lead cooperative and scientific). This, in turn, is leading to projects. There are now numerous actors with more options for international cooperation in varying degrees of capabilities allowing them the second space to lead cooperative ventures as well. phase as there is a There is a growing pool of mushrooming The patterns of relations in space are potential partners to of bilateral and fundamentally changing. There is now a take part in space multilateral variety of cooperation possibilities leading to 13 activities. States cooperation…. new relations evolving beyond the traditional around the world are “North-North” cooperation and the unilateral now looking to a variety of partners as they “North-South” axes of cooperation of the first plan their future endeavors since partnerships space phase. The new axes of “South-South” are helpful to transfer technologies and cooperation has been growing in recent years explicit and tacit knowledge. Those in many fields, such as in energy, and space is partnerships are driven by scientific and no exception as they are now more countries technical motives, often with “high politics” from the South with mature technical as objectives. There is a mushrooming of capabilities that are using space to reach out to bilateral and multilateral cooperation, new partners. This leads to the development of including regional cooperation, and there is new networks of cooperation as there are the development of a complex and cooperation possibilities with new hubs and multidimensional web of relations in the space centers of gravity arena.14 …being involved appearing in Asia in space affairs is and centered on A bipolar space world has been replaced by a increasingly being China and India. pluralistic space context marked by a plethora seen… as a New axes of of complex relationships. The early years of necessary cooperation are international space cooperation were arising; some are characterized by power asymmetries in the element to being, deepening, while two superpower’s favor vis-à-vis their partners at a minimum, a others are as illustrated with U.S.-European space regional or weakening.15 The relations. However, the traditional asymmetry continental power. multiplication of in space activities, while still existing in term space actors and of resources, tends to disappear in regard to the new relations among institutional entities capabilities with the emergence of spacefaring are leading to the emergence of a new space countries with similar capabilities to the order that was unforeseeable twenty years ago. historical two space powers, the U.S. and In the current phase of space activities, there is

13 also a growing diversity in the types of actors International cooperation in space can be defined as any sharing of knowledge or technology between two, or more, involved in space affairs that influences the states within the context of mutually acceptable conventions overall space context. The involvement of for the exchange of that knowledge or technology. It can take non-governmental organizations (NGOs) and many forms, but in general both parties can derive benefits. 14Nicolas Peter, “The Changing Geopolitics of Space Activities,” Space Policy 22 (2006): 100-109. 15Ibid. Space and Defense, Winter 2010 57

other non-state actors, like private enterprises, by partnering with other states or commercial are leading to a multiplicity of actors and entities, receive certain kinds of space support. stakeholders in the space environment. Dozens of companies offer services in open The space context is evolving towards a new global markets and states can now meet much space order where space activities are of their need for space benefits in the market becoming more widespread. However, space place due to the wide array of activities are prioritized differently depending communications, navigation, reconnaissance, on the country, and consequently the weather satellite, and launch services objectives of space programs differ commercially available. Commercial accordingly. A growing number of states are technology and know-how transfers have using space programs for political and made possible the global distribution of space symbolic objectives, such as demonstrating technologies. The declining price, widening and increasing national pride and to achieve availability of satellite construction, and space national independence, regional influence, and launch capabilities allow an ever growing technological maturity.16 In the current space number of states to establish a presence in phase, being involved in space affairs is space. While to date only a few states have increasingly being seen, even by newcomers mastered the full range of space capabilities, to the space arena, as a necessary element to the proliferation of space products and being, at a minimum, a regional or continental services are allowing states, and non-state power. For world powers, space is actors, to benefit from the advantages increasingly perceived as an indispensable provided by space activities without element of national power. The importance of developing, launching, and operating being involved in space affairs is growing in indigenous space systems. Private companies the unfolding new space order, and no country of traditional space powers are the main can now be regarded as a world power, or drivers in this process. Also, new and remain one, unless it possess cutting-edge and emerging actors, as they climb the global diversified space capabilities. “space hierarchy,” are providing new sources of technologies and fostering the proliferation of space technologies worldwide. The Growing Importance of Space Power While the internationalization of space is not entirely new, it is now taking place at a much In recent years, with the aforementioned faster pace. The space system is now more evolution of the geopolitical context, open and dynamic than during the Cold War. traditional bases of national power have been Space is spreading more widely, including to fundamentally transformed. Military and developing countries, and involves more than economic metrics are no longer the sole simply purchasing technologies. This trend is indicators of national power.17 Other variables likely to progress even more rapidly over the are increasingly important, such as S&T coming years. This means that a country does prowess, and in the 21st Century the overall not have to be a technologically advanced political, economic, and technological country to acquire space capabilities and this makes all countries potential space players. 16Bertrand de Montluc, “The New International Political and The asymmetric advantage the superpowers Strategic Context for Space Policies,” Space Policy 25 (2009): 20-28 once enjoyed because of their space prowess 17Herein, national power is defined as the capacity of a is eroding because many countries can now, country to pursue strategic goals through purposeful action.

58 Nicolas Peter/The New Space Order: Why Space Power Matters for Europe

leadership of a country must be shown in power.20 According to Colin Gray, “space many areas, space being one of them. power suffers from an unusual malady: an acute shortage of space-focused strategic Having now passed its 50th anniversary, the theory and the lack of Space Age has attained a great degree of Space power a binding organizing maturity.18 Space activities are indispensable is not simply concept to aid tools for modern society that have proliferated satellites and understanding of what globally. When a state seeks to garner more it is all about.”21 power, it is increasingly being involved in access to Nevertheless, there is space affairs as this is a symbol of technology space; it is no void of space progress. The range and pervasiveness of anything and power theory. There activities in space resulted in these activities everything a are numerous becoming tied, over the years, to national country can proposed space power power. Space activities represent a definitive achieve theories, but none has measuring device for the relative status of achieved consensus in countries and an indicator of a state’s weight through the space community; and influence on the global scene. space. more than five decades since the first Concomitantly, the proliferation of space steps into space, there is no definitive work on capabilities in recent years has not elevated space theory comparable to the writings of every country into the spacefaring category. Clausewitz, Mahan, and Mitchell among Only a certain number of attributes confer this others in their respective fields.22 Space power status: access to space and the ability to still lacks a holistic approach and its elements pursue activities autonomously. Nonetheless, remain disjointed and embryonic in a sound understanding of the nature and comparison to other domains of land, sea, and exploitation of space power is necessary air. because it has consequences and profound implications, both domestically and One of the most pervasive elements internationally, and gives additional overall confronting the space community is the lack national power to a state as space provides for of common vocabulary. The need for a solid soft power projection.19 definitional construct is of pivotal importance to develop a better understanding of the The body of space power literature lacks a practice of space power, including its potential single comprehensive theory that thoughtfully and its implications. While different defines, explains, and predicts the nature, definitions emphasize different aspects, no significance, and functioning of space definition covers all aspects of the actors, capabilities, functions, and purposes of space

20Nicolas Peter, “Space Power and Europe, in the Need for a 18Nicolas Peter, “Space Power and Europe, in the Need for a Conceptual Framework,” paper presented at the 59th Conceptual Framework,” paper presented at the 59th International Astronautical Congress, Glasgow, Scotland, 29 International Astronautical Congress, Glasgow, Scotland, 29 September - 3 October 2008. September - 3 October 2008. 21Colin Gray, “The Influence of Space Power Upon History,” 19Nicolas Peter, “Space Power and Europe in the 21st Comparative Strategy 15 (1996): 293-308. Century,” European Space Policy Institute Perspectives 21, 22Nicolas Peter, “Space Power and Europe, in the Need for a May 2009, http://www.espi.or.at/images/stories/dokumente/ Conceptual Framework,” paper presented at the 59th Perspectives/espi%20perspectives%2021%20.pdf (accessed International Astronautical Congress, Glasgow, Scotland, 29 January 2010). September - 3 October 2008. Space and Defense, Winter 2010 59

power. The most common definition is one of others. In other words, space power is the from the work of Lupton. He defines space pursuit of national objectives through the use power as the “the ability of a nation to exploit of space affairs.25 the space environment in pursuit of national goals and purposes, and includes the entire Space power has the potential to provide astronautical capabilities of the nation.”23 significant contributions to the political and strategic objectives of governments that Yet this definition does not capture some undertake space activities. It can, for instance, important realities of the emerging space support a country’s overall national power and order. Space power can be defined herein as international standing. Space power alone, the “total strength and however, cannot ensure the attainment of ability of a state to …as long as terrestrial political objectives; it must be conduct and influence there is not combined with other power elements. activities to, in, major conflict, Nonetheless, space power is a major element through, and from the most of national power, and it is becoming a space to achieve its important form strategic concern for many countries. Space goals and objectives of space power is not simply satellites and access to (security, economic, space; it is anything and everything a country and political) to affect power is non- can achieve through space.26 desired outcomes in military. the presence of other The foundations of space power range from actors on the world stage, and if necessary, to obvious hardware elements (e.g., launch sites; change the behavior of others by exploiting launch vehicles, telemetry, tracking, and space systems and associated ground communications sites; on-orbit satellites; and infrastructure as well as political leverage it other spacecraft), to socioeconomic elements has garnered.”24 (e.g., human capital), and to political and regulatory elements (e.g., number of seats in This definition is inclusive of the essential international organizations and other relevant elements for any definition of space power. It bodies).27 Spacefaring countries possess focuses on states as the main space actors, on inherent attributes of space power. Any state’s national objectives, the use of space as a approach to space power depends on its medium distinct from other media, and the use perception of the strategic environment and its of capabilities that are required by the space position relative to other space actors, and the medium. Space power is about the inherent value of space power depends on exploitation of the space environment, and the what it allows you to do. Moreover, a purpose of that exploitation is to achieve some spacefaring country can be a major actor in national objectives or purposes. It is the ability domains linked with space activities (e.g., to use space to get desired outcomes by influencing the environment and the behavior 25Ibid. 26Nicolas Peter, “Space Power and Europe, in the Need for a Conceptual Framework,” paper presented at the 59th 23David Lupton, On Space Warfare: A Space Power Doctrine International Astronautical Congress, Glasgow, Scotland, 29 (Air University Press, 1988). September - 3 October 2008. 24Nicolas Peter, “Space Power and Europe in the 21st 27Nicolas Peter, “Space Power and Europe in the 21st Century,” European Space Policy Institute Perspectives 21, Century,” European Space Policy Institute Perspectives 21, May 2009, http://www.espi.or.at/images/stories/dokumente/ May 2009, http://www.espi.or.at/images/stories/dokumente/ Perspectives/espi%20perspectives%2021%20.pdf (accessed Perspectives/espi%20perspectives%2021%20.pdf (accessed January 2010). January 2010).

60 Nicolas Peter/The New Space Order: Why Space Power Matters for Europe

technical and scientific activities), but this global position that allows influence in the does not necessarily imply that this actor international context. possesses the complete spectrum of space 2. Space power allows for the development activities or that this actor can exercise space of a highly skilled technological workforce power to its maximum.28 and a dynamic industrial base that are both critical for a country’s economic Not all states have developed similar space competitiveness. capabilities (space is also spiky) and there 3. Space power can be used as a pressure exist gradations of advantage. It is necessary point to support political decisions since it that a country fully demonstrate “political can be an element to dissuade targeted will” and develop the attendant national policy players of hostile actions and can also be and strategy to exploit the elements of space used to apply force. power. Space policies and programs when 4. Space power can help to promote well conceived, linked, and executed provide awareness of a common identity among tangible and intangible space power benefits. citizens and demonstrate increased confidence in future capabilities. There are different elements in the space power continuum with a complex interaction There is no general hierarchy of these between civilian, economic, and military attributes since they do not exist in isolation programs and assets, as well as soft, from one another and various traits are tied economic, and hard powers.29 Space power is together.31 Space power leverages different multidimensional and demarcated by elements and is a foundation for a state’s total scientific, political, economic, and geopolitical power capability and, by its very nature, dimensions. Exercising space power conveys enables the exercise of influence over a broad a variety of benefits to space actors, such as spectrum of areas. The relative value of space national and international prestige, military power depends on how much an actor uses advantage, economic competitiveness, and them and for what. Space power can be scientific and technical prowess. It also applied in different ways. It can provide direct demonstrates the willingness of a state to benefits to the owner of space assets, but it increase its standing in the global “space can also be used to encourage and reward hierarchy.” others, dissuade targeted players, and ultimately, it can be used to apply force. All of Using the traditional four effects of national these demonstrate the flexibility and power, the impacts of space power can be versatility of space power.32 categorized as: (1) diplomatic; (2) economic; (3) military; and (4) cultural.30 While the arguments over possible theories of space power continue, space power is being 1. Space power is a means of impressing the exercised by all spacefaring countries, world through the possession of elaborate purposefully or not. Today, space power is space capabilities illustrating an assertive inseparable from all other forms of power due

28 Ibid. 31Ibid. 29 Nicolas Peter, “Space Power and Europe, in the Need for a 32Nicolas Peter, “Space Power and Europe in the 21st Conceptual Framework,” paper presented at the 59th Century,” European Space Policy Institute Perspectives 21, International Astronautical Congress, Glasgow, Scotland, 29 May 2009, http://www.espi.or.at/images/stories/dokumente/ September - 3 October 2008. Perspectives/espi%20perspectives%2021%20.pdf (accessed 30Ibid. January 2010). Space and Defense, Winter 2010 61

to the ubiquitous and pervasive nature of and raises the attractiveness of a country for space activities. There are, however, only a partnerships. few historical examples of the utilization of space power to date. This short history of Governments initiate or participate in space exploitation limits the evidentiary base international S&T cooperative ventures for a from which cogent conclusions can be drawn. number of scientific or technological reasons For example, only since the first U.S.-led Gulf that have been well documented. International War are there examples of the utilization of S&T agreements are also used by policy- space power to support hard power (e.g., crisis makers to serve foreign policy purposes; the in Yugoslavia, and the current conflicts in Iraq signing of an international S&T agreement and Afghanistan). Despite this limited set of between governments or international historical evidence, space power is an organizations can indicate a willingness to important reality. Also, as long as there is not improve relations among countries, leading to major conflict, the most important form of broader cooperation. S&T activities are often space power is non-military. For space power, used to establish a network of international soft power and economic power are just as partnerships to attract other countries in important as hard power. Space power has someone’s sphere of influence or reinforce profound implications both domestically and existing relations as there are diplomatic gains around the world in terms of the credibility of to be made through partnerships. Many a country’s capabilities, and it provides both countries are using S&T as a political tool to symbolic and political advantages that are reach non-traditional partners to build trusting beyond quantifiable material benefits. relationships across political borders as international cooperation in S&T allows countries to engage in a public diplomacy of Space Power deeds/actions and not just words. and International Relations S&T diplomacy – defined here as scientific The competition for status and global and technological cooperation and influence in many different domains remains a engagement with the explicit intent of key feature of today’s multipolar and building positive relationships with foreign heterogeneous international scene. With the governments – has played an important, often recognition in recent decades of the increasing underappreciated, role in the foreign policy of role played by S&T for innovation and world powers over the past fifty years. economic development, more dedicated International cooperation in S&T has been policies are implemented throughout the world growing steadily since World War II and can to reinforce, protect, and enhance national now be considered the biggest contemporary technological capabilities. Governments from axis of civilian governmental cooperation.33 all over the world recognize the importance of Eugene Skolnikoff notes that these two S&T as a critical element contributing towards systems, foreign policy and S&T, operate in the development and implementation of strong an international environment that is economic, political, national, security, and increasingly overlapping and this aspect of the social future of any country. They also relationship continues to converge in recent recognize that S&T can provide external advantages at the international level as S&T prowess contributes to diplomatic leadership, 33Nicolas Peter, “Towards the Emergence of EU Space creates respect in the international community, Diplomacy,” Space Policy 23 (2007): 97-107.

62 Nicolas Peter/The New Space Order: Why Space Power Matters for Europe

years.34 Increasingly, foreign policy contains governments to influence outcomes. Space issues with a scientific component and science activities enable states to wield other grows more international in space.35 Large- instruments of national power with greater scale space projects are emblematic domains precision, timeliness, and effectiveness. Space in which S&T is mobilized to serve foreign activities blur the lines between domestic and policy. international affairs due to their very international nature and due to the fact that While S&T cooperation developed, until domestic policies impact the global scene. recently, largely independently of formal Space affairs are an extension of the terrestrial foreign policy objectives, for space this is a political environment. different. Space activities, since the beginning of the Space Age, are a tool for foreign policy From a political point of view, space is rich used to directly with complex political and strategic achieve diplomatic Space assets relationships. Space affairs are an instrument objectives and to are not only the of superpower status since the launch of gather information eyes & ears of Sputnik in 1957, and space power during the on geopolitical governments… Cold War was a key aspect of the international events of concern they also allow system where countries jockeyed for position (e.g., monitoring a and global influence. Space power enhanced, crisis). There is also governments to for example, the Soviet Union’s prestige by an element of soft influence being first to launch an artificial satellite or power to reach out outcomes. the prestige of the United States by being the to partners and to first to land humans on the Moon. Those impress others.36 With the exception of achievements suggested that success in space scientific research or technology development were the luxuries of an advanced state – the missions, activities in space are no longer an product of the intellectual, engineering, and end in-and-of-themselves, but a means for manufacturing elite of the country – and they accomplishing other national objectives.37 became landmarks in the Cold War race for prestige and power demonstration. The role of “space in foreign policy” and of “foreign policy in space” is intricate. Space Space put forward a new criterion to assets are not only the eyes and ears of determine the global hierarchy along with governments and allow monitoring events nuclear power status. Space affairs, from the around the world, but they also allow dawn of the Space Age, represent a measure of national prestige and are an indicator of a 34Eugene Skolnikoff, The Elusive Transformation: Science, county’s influence on the global scene. The Technology and the Evolution of International Politics spread of space capabilities and the rise of (Princeton University Press, 1994). 35Caroline Wagner, “The Elusive Partnership: Science and new spacefaring countries are now factors Foreign Policy,” Science and Public Policy 29 (2002): 409- woven into existing patterns of international 417. affairs. Geography is one of the bedrocks of 36 Space assets have the potential to affect the behavior of an international politics, like the board of a chess international actor by prestige projection, technology partnerships, access to space services, industry services, game. Space is bringing a novel redistribution information exchange, and legal development among other of power, which reduces the importance of factors. proximity and endows non-state actors with 37While space agencies are not responsible for making foreign policy, they play an important role in foreign policy’s high levels of power. It is hard to imagine a st execution through international engagement. strategic actor performing well in the 21 Space and Defense, Winter 2010 63

Century without being engaged in space and Europe in the Unfolding understanding and taking into account space New Space Order power. At the same time, the utilization of the space environment presents new There is a wide range of reasons why vulnerabilities, as well as the opportunities governments engage in space activities. The discussed herein, for actors on the basic justifications are different among international scene. countries at different times. For instance, the “space race” between the U.S. and the Soviet Given the growing diversity and heterogeneity Union was mainly driven by the willingness to of the international system, one of the demonstrate technological capability for currencies of international relations is national security reasons and to promote legitimacy in the eyes of both governments national prestige. In contrast to the two and citizens across the world. In this context, superpowers’ space activities, European space emblematic and ambitious space activities are activities were initially driven by scientific an indispensable tool as it projects a high level common endeavors and motives. of S&T capabilities and prowess used to demonstrate national power at home and In Europe, space was originally dealt with by abroad. With the on-going internationalization individual countries. But as early as 1959, the and globalization of space affairs, no country results of Europe’s nuclear research facility will be regarded as a world power, or remain a (The European Organization for Nuclear world power, unless it possesses cutting-edge Research, know as CERN) introduced a new and diversified space capabilities. model for space activities in Europe.38 Subsequent discussions among European Space affairs are a currency to judge the stakeholders led to the creation of the standing of a state vis-à-vis neighbors and European Launcher Development peers, and this is expected to remain so for the Organization (ELDO) in 1964, the European foreseeable future. Consequently, the ability to Space Research Organization (ESRO) in exercise space power will grow in importance. 1964, and the European Space Agency (ESA) Space power alone cannot, however, ensure in 1975 by combining the two aforementioned the attainment of political objectives. In organizations. Since then, ESA is the conjunction with other forms of conventional intergovernmental agency responsible for power, space power can be of strategic value coordinating the collective, multinational and benefit. Space power is a significant European space program.39 dimension of power in international Space is ESA’s contribution to the development of a relations and it is an bringing a collective European space capability is important reality. novel fundamental. The European space sector is Exercising space redistribution now entering a new institutional evolution power on the with the emergence of the European Union international scene of power... gives the ability to 38 Kazuto Suzuki, Policy Logics and Institutions of European build international consensus by bringing Space Collaboration (Ashgate Publishing, 2003). recognition, by primacy and authority, on the 39There are several other organizations with limited part of other members of the international responsibilities for specific collective activity, including, for example, the European Organization for the Exploitation of space community. Meteorological Satellites (Eumetsat) for operational meteorology.

64 Nicolas Peter/The New Space Order: Why Space Power Matters for Europe

(EU) as a space actor.40 The EU realized in the resolutions and endorsed by the European 1990s that space can provide support for a Parliament. host of its activities, and that space activities serve policy objectives and deliver substantial For Europe as a whole, independent access to strategic, social, economic, and commercial space, space applications for the benefit of benefits to the EU, its member states, and its citizens and governments, and space science citizens.41 European space activities are are the traditional reasons for engaging in mainly conducted within a framework of space activities. But as the EU has become collaborative space endeavors, as well as in aware of the importance of space activities for the context of national space programs serving achieving a wide range of policy objectives, particular political, economic, and security and as the international political significance purposes. of space has grown, space is now taking a high profile in the Union’s dialogues with There is a complex intertwining of national major partners.42 The international dimension interests together with a growing of civilian space activities is increasingly consciousness of the need for greater becoming a major element of the EU’s cooperation at a continental level. The relations with third parties both to reinforce European space landscape is split into three existing relations and to establish new distinct levels: (1) the overall European level partnerships through its programs that include: with the EU; (2) intergovernmental Galileo and Global Monitoring for organizations, like ESA and the European Environment and Security (GMES); the Organization for the Exploitation of Framework Program (FP); and space Meteorological Satellites (Eumetsat); and (3) dialogues with the United States and Russia national space agencies. The recent entry and other international fora (e.g., International (December 2009) Code of Conduct for Outer Space Activities). into force of the The rise of The space context in which Europe will Treaty on the new space continue to operate is likely to evolve because Functioning of the actors is of the emergence of new space actors being European Union both users and sources of space technology. (TFEU), known as reshaping the This does not necessarily posit a threat to the Lisbon Treaty, space Europe, but it needs to be reckoned with for enshrines space landscape. the specific purpose of managing change in a policy as an EU balanced and effective way. “shared policy.” It gives a clear mandate to the European Commission to exercise its right of Since the end of the Cold War, under the reinforcing the momentum of the European influence of the overall process of Space Policy embodied in Space Council globalization, sources and distributions of power are being transformed in a profound way, and multipolarity is expected to grow in the future making the space context even more 40 Nicolas Peter, “Towards the Emergence of EU Space heterogeneous. Consequently, the relative Diplomacy,” Space Policy 23 (2007): 97-107. 41In the late 1990s, the EU started its first two major space power of various emerging space actors will programs: the global navigation satellite system, Galileo, and grow as these actors influence other countries. the Earth observation system for Global Monitoring for Environment and Security (GMES). These two flagship programs are the cornerstones of the current EU space 42Nicolas Peter, “Towards the Emergence of EU Space activities. Diplomacy,” Space Policy 23 (2007): 97-107. Space and Defense, Winter 2010 65

This evolution will not radically alter the system), and consequently, space power is space context as did China and India recently. essential for Europe now and in the future. Emerging space actors will, however, have higher degrees of freedom to shape their space The rise of new space actors is reshaping the ties, rather than working only with the current space landscape. The U.S., Russia, and spacefaring countries. New networks will Europe’s preeminence cannot be taken for form among states to pursue convergent goals granted. The center-of-gravity for space and interests, and in some cases the nucleus activities is already starting to shift from West will not be the traditional space powers. and East to the South, and the expected rise of Emerging space powers will also seek greater new space actors will inevitably challenge leeway and autonomy to exert regional Europe’s position in the global “space influence. Space has always included both hierarchy.” Those global developments will competition and cooperation among states. entail fundamental changes to the distribution This will not change and certain areas will not of resources and influence with the emergence remain conducive to international cooperation. of new players forging closer ties at the But an increasingly multipolar space order regional level, leading to a shift of power and suggests a greater number of actors with influence. The role and position of Europe in whom Europe and others will have to contend this emergent space context will evolve. with. Consequently, traditional spacefaring Europe will still have a great impact on space countries will probably find it much harder to affairs, but it might have less power in such a set the space agenda and shape outcomes to multipolar space context than it has enjoyed in their desired preferences. the last decades.

The new space order is becoming genuinely There is nothing preordained in the future global and multipolar with growing strength in shape of the space context and in Europe’s emerging economies and a growing place therein. It is a matter of political specialization in various parts of the world decision, drawing on Europe’s comparative leading to greater overall system complexity. strengths and ambitions, and the ability to Legitimacy is expected to remain in the nurture and use space power more efficiently. foreseeable future the hard currency of A scenario of relative decline in the global international space relations, possibly the most “space hierarchy” will lead Europe to lose its important asset to ensure long-term success of flexibility in choosing between cooperative specific initiatives. Needless to say, unilateral options and autonomy for cooperation, as well action will always be an option for as remain the preferred option for partnerships spacefarers, notably in the context of national among other states. Today, given the objectives. Yet spacefaring countries do not, benchmark of Europe’s S&T prowess, Europe by and large, work in isolation. But the search continues to be viewed as the space partner of for agreement in defining the international choice by existing and emerging space space agenda might prove more complicated, powers, as well as by new entrants in the and thus, in the new space order, partnerships space sector. For this to persist, and cooperation will become more important multilateralism for Europe may prove as much in confronting many of the challenges of the a necessity as a choice. Working with partners international system. International leadership needs, nonetheless, to be turned more and cooperation will be necessary to face explicitly and consistently into a vehicle for global challenges (e.g., climate change and to achieving effective multilateral solutions for engage in long-term exploration of the solar giving Europe more visibility and clout.

66 Nicolas Peter/The New Space Order: Why Space Power Matters for Europe

The management of international cooperation European space programs are successful to must change as the geography of space date and European citizens embraced space- develops new peaks around the globe; if based services and support into many aspects Europe is not positioned to exploit potential of their everyday lives. Europe has achieved a links with emerging space actors, it will face number of impressive results (e.g., world class significant opportunity costs. But to enable launch services and telecommunications Europe to best exploit its partnerships and industry, and numerous scientific opportunities, a better realization of the achievements, such as the farthest landing on benefits of space power and clear policy an object in our Solar System). Space is now commitments will be needed to be able to enabling many activities of the European shape the directions of those partnerships in economy and is a critical building block of the directions of its own preferences. Europe’s information infrastructure. It could therefore be concluded that because of this relevance and the pervasiveness of space Space Power and Europe activities a clear understanding of space power exists in Europe. Europe is now the second largest civilian power in space in terms of its consolidated They are enormous shortcomings in Europe’s budget. Collectively, it maintains launcher, ability to understand, develop, and exercise satellite manufacturing, and research facilities space power.45 There is no mention of space in the whole spectrum of space activities power in policy or strategy documents. A except for human spaceflight. The sound understanding of the nature and combination of European capabilities coming exploitation of space power is, however, from different European actors – European critical for Europe in the unfolding new space members states, ESA, and the EU – provide order as Europe’s technical lead could be Europe with the status of a major space rendered less important, even where it does actor.43 Europe possesses collectively critical not shrink, and because of the expected technical assets (e.g., independent launch site, dilution of its voice in international fora due to versatile launch vehicle fleet, diversified the changing space context. If Europe wishes spacecraft, solid industry, and dynamic to retain its space power now and in the universities) and non-technical assets, such as future, it must better protect its interests in high visibility in international organizations, space. like in the United Nations Committee on the Peaceful Uses of Outer Space (UNCOPUOS), Europe currently enjoys a leading position in International Telecommunication Union the global “space hierarchy,” but this might (ITU), and United Nations Conference on not last, and Europe’s ability to exercise space Disarmament (CD), which are all necessary power could decrease over time. To maintain elements to exercise space power.44 a leading space role and to be able to exercise space power, Europe must foster more 43Nicolas Peter, “Space Power and Europe in the 21st “political will” and develop associated Century,” European Space Policy Institute Perspectives 21, policies and strategies. This further needs to May 2009, http://www.espi.or.at/images/stories/dokumente/ Perspectives/espi%20perspectives%2021%20.pdf (accessed be complemented by a series of programmatic January 2010). elements facilitating policy implementation. 44 Nicolas Peter, “Space Power and Europe, in the Need for a Access to space, a competitive industrial and Conceptual Framework,” paper presented at the 59th International Astronautical Congress, Glasgow, Scotland, 29 September - 3 October 2008. 45Ibid. Space and Defense, Winter 2010 67

space services base, global navigation satellite advantage, particularly as a projection of soft systems (GNSS), space exploration, utilitarian power. Exercising space power could, for space activities, space science, Space instance, allow Europe to influence the Situational Awareness (SSA), and Space drafting of international regulations, and take Traffic Management (STM) are important the lead in strategic areas, such as building-blocks covering the whole spectrum environmental research and space exploration; of space activities as underlined in the it could affect as well European Space Policy that will allow to Space affairs the development of improve Europe’s ability to translate its space are a highly global standards and clout into greater global influence.46 These symbolic norms.47 A formalized programmatic elements in combination representation utilization of space provide Europe with greater diplomatic, power could also allow economic, military, and cultural tools that of power and Europe to remain a enable Europe to face the challenges presented … national center-of-gravity in by the evolving new space order. standing… international relations by attracting the best So far in Europe, space activities are justified partners to cooperate not only in space, but in from the point of view of their use for other domains, therefore increasing the scientific research, technological advance, and capabilities and possibilities of European economic gains. The time is ripe for a change projects. in the thinking on space and Europe needs to become more aware of the political Space will play a growing role in determining dimensions of the use of space. Decisions influence, prosperity, technological should not be based only on costs and benefits achievements, and security in the global in financial, technological, and economic environment of the 21st Century. If Europe dimensions, but should also include the does not contribute significantly to space, it political dimension of space, including space abdicates a role as a major actor in world power. Space power is also an increasingly politics. Influence on the future of space, such important component to Europe’s national as in the area of space governance, will be powers, but often unnoticed. While the uses of wielded only by those who have real space space assets as military enablers are assets and ambitions. The challenge of space recognized in Europe, relatively no attention is can be met only with a common European given on how space assets can be used as effort. Space affairs should also be raised to elements of foreign policy and as tools of the highest political level in Europe – heads of diplomacy. State and Government – to initiate major breakthroughs. European space assets are underestimated and untapped for diplomatic use, and space power Quantitative and qualitative jumps in in Europe is often an underappreciated factor. European space efforts are required to respond Europe needs to better appreciate how its to the challenges outlined herein and harness space assets and activities can be used to the benefits that lie ahead. Exercising greater directly support its diplomatic goals. Space affairs should be better used by policy-makers 47Nicolas Peter, “Space Power and Europe in the 21st in Europe to achieve greater diplomatic Century,” European Space Policy Institute Perspectives 21, May 2009, http://www.espi.or.at/images/stories/dokumente/ Perspectives/espi%20perspectives%2021%20.pdf (accessed 46Ibid. January 2010).

68 Nicolas Peter/The New Space Order: Why Space Power Matters for Europe

space power allows Europe to protect its own making use of space activities to maintain, and interests and strengths, while meeting the even advance, its position in the global “space challenges of the multipolar space order hierarchy.” Europe should not create the currently emerging. Europe’s presence in impression that it is only a follower and lose space should translate into comparable its credibility as a reliable partner in space. influence, which has not always been the case. Space affairs are a highly symbolic Europe has thus to realize that space power representation of power and will undoubtedly can provide support for a host of its activities continue to be a persuasive method of and is a tool to serve its interests, including in demonstrating national power to the rest of the the domain of foreign policy and soft power world. projection. The emerging space order will help to determine the structures and functions of the Conclusions international system in the next decades. Space power will thus be key and it is very The unprecedented changes in the last decades important that this is understood, so that it have made the world an integrated and may be taken advantage of in the most complex system in which space is an integral desirable and feasible way. The broader element. From its inception during the Cold geopolitical implications of the space domain War, space activities are driven by are directly dependent on how effective can opportunities to serve national interests in the space power be in the “means-ends” world of global context. With the changing geopolitics international relations. Europe needs to realize of space and the unfolding new space order, and develop its space linked in particular to the internationalization Europe power potential and globalization of space activities, it is currently because what is at perceived that capacity in space technology stake is the future has faded as a geopolitical factor as well as an enjoys a agenda-setting power element of national power, especially as space leading of Europe in the systems are more common and widespread. position in the overall international global “space system beyond space Nonetheless, competencies in space activities hierarchy” but affairs, its ability to are not becoming irrelevant to a country’s this might not shape the priorities international political position. On the and timing of events, contrary, almost all developed countries, and last… and its ability to an increasing number of developing countries, attract the best feel it necessary to participate in space partners to be able to fully benefit from activities and develop for economic, military, opportunities wherever these support or prestige reasons independent space European space objectives and wider capabilities. Space assets can help to directly European policy goals. achieve national objectives, and because of the close relationship between space assets and European governments must accept the fact national power many states seek to improve that Europe’s future role and influence in and advance their space capabilities. world politics and in global markets may largely depend on Europe’s capacity and In this context, Europe should avoid being willingness to use space to develop the surpassed in the emerging new space order by necessary technology and to build the required Space and Defense, Winter 2010 69

industrial infrastructure. Europe cannot afford to remain vague about its objectives in the new space order. A strategic reflection on the values, interests, and goals of Europe’s space power in the context of its relations with other countries is needed.

There are many impediments the European space community must overcome to create an environment where space power is valued, accepted, and institutionalized. In particular, European space stakeholders have not, up-to- now, addressed the task of developing an integrated strategy for harnessing the benefits of space power on the international scene. The nexus between common values and common interest must be better articulated and in Europe they are all too often disjointed. In order for space power to reach its full potential in Europe and provide greater benefits, space must be recognized as a domain with direct and indirect implications for Europe, particularly at the foreign policy level, which is in a strategic sense no different from land, sea, and air mediums.

Europe and Security Issues in Space: The Institutional Setting

Frans von der Dunk Professor of Space Law, Space and Telecommunications Law Program, University of Nebraska-Lincoln

In the current timeframe, the relevance of the security perspective rather than from the discussions on the existing use of space for space perspective.3 national security purposes and the potential of it to be used for non-peaceful purposes are Even the European Community, as the most clearly increasing.1 As a consequence, it tightly developed “pillar” of the EU, could not becomes more important to address the role of be considered a supranational entity let alone a Europe as a geopolitical, albeit far from federal state. In all cases therefore, the monolithic, entity in this context. individual member states of those organizations are still relevant as players in From this perspective, the present paper their own right. These states continue to be analyzes some of the fundamental institutional essential to determining the shape of European parameters shaping the European presence in actions and approaches in the field of space the space security domain, focusing on the issues, and this is even truer for the security two key players in space, which are truly domain. European, the European Space Agency (ESA) and the European Union (EU).2 Interestingly, The resulting complicated institutional the starting point for both entities was that the landscape represents the backdrop against security domain was a “no-go” area, a starting which, as well as a set of crucial parameters point that only over the last two decades has within which, European policies in the area of begun to erode. That is why, in addition the space are developed. This applies to the space Western European Union (WEU), Europe has security domain, whether one takes a broad a certain role in this context, precisely from approach as with Space Situational Awareness (SSA) and the handling of space debris, or a more limited one, focusing on international terrorism or the handling of export controls over dual-use sensitive goods.4 1Note that the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (hereafter, Outer Space Treaty or OST) only requires states to refrain from orbiting or otherwise placing weapons of mass destruction in orbit, as well as to undertake activities in exploring and using outer space “for the benefit and in the interests of all countries.” The phrase of “peaceful purposes” is only applied explicitly 3The Western European Union was established by means of to the Moon and other celestial bodies. the Treaty of Economic, Social, and Cultural Collaboration 2ESA was established by means of the Convention for the and Collective Self-Defense, Brussels, entered into force 25 Establishment of a European Space Agency (hereafter, ESA August 1948. Convention); and the EU, as an overarching institutional 4See Frans von der Dunk, “A European “Equivalent” to structure encompassing in particular the European United States Export Controls: European Law on the Control Community, was established by the Treaty on European of International Trade in Dual-Use Space Technologies,” Union. Astropolitics 7 (2009): 110. 72 Frans von der Dunk/Europe and Security Issues in Space: The Institutional Setting

The European Space Agency political commitment to develop a coordinated policy, not for establishing legal obligations The starting point for understanding the between the two parties regarding cooperation present and potential role of ESA in the wider activities, either in general or in particular, and context of European space security the high-level space policy group plays its role discussions is provided by the general in exactly that context. institutional structure of the Agency. ESA, headquartered in Paris, France, but with The Framework Agreement increased additional establishments in a handful of other coordination and cooperation in policy matters European countries, currently counts eighteen and may well lead to the establishment of member states.5 Thus, it clearly constitutes an proper legal commitments of one party to the intergovernmental organization in the classical other, and/or official resignation of certain public international legal sense of the word. legal competences in deference to the other’s competences at some point in the future. Given the complexities of European Presently, however, ESA is neither an agency integration, ESA has, as of yet, no formal of the EU nor legally subject to the extended relationship with the EU beyond a number of legal regime developed on the basis of the cooperative agreements, of which the European Community (EC) Treaty – and it Framework Agreement is the most generic does not even count the same European states and broad one.6 The Framework Agreement as members – e.g., ESA member states does establish a joint EU-ESA Space Council, Norway and Switzerland are not members of but this Council’s competences remain the EU and eleven EU member states as of yet confined to “the coordination and facilitation are not member states of ESA. of cooperative activities” under the Agreement, and thus present a forum for ESA has two main organs. First, there is the consultation and coordination of joint Council, consisting of representatives of the activities, not a means to impose such joint sovereign member states, often at Ministerial activities upon one or the other party.7 From level, and acting as the supreme body of the the same perspective, the joint EU-ESA organization. The Council is tasked to lead: European Space Policy of April 2007 is a the annual work plans of the Agency; the annual general budget of the Agency; each

5The list of member states comprises: Austria, Belgium, the program budget; the financial regulations and Czech Republic, Denmark, Finland, France, Germany, all other financial arrangements of the Greece, Ireland, Italy, Luxembourg, the Netherlands, Norway, Agency; decisions on the admission of new Portugal, Spain, Sweden, Switzerland, and the United Kingdom. In addition, non-European Canada is a long- member states; and all other measures standing cooperating partner under a special agreement, necessary for the fulfillment of the purpose of whereas Hungary, Romania, and Poland qualify as European the Agency within the framework of the ESA Cooperating States under another special agreement. 8 6 Convention. In other words, the Council, and Framework Agreement Between the European Community and the European Space Agency (hereafter Framework thereby ESA, has not, at the highest level, the Agreement), entered into force 28 May 2004. See further formal competence to draft space policies – it Stephen Hobe, et al, A New Chapter for Europe in Space,” is only charged with “elaborating and Zeitschrift für Luft- und Weltraumrecht I: 54 (2005): 342-344. 7Article 8(1), Framework Agreement. See also Article 2(1), implementing a long-term European space providing for cooperation to take place “with due regard to policy” by means of the exercise amongst their respective tasks and responsibilities;” Article 4(1), calling for “compliance with its own prerogatives, legal instruments, and procedures” of each party; and Article 5, detailing the way joint initiatives could be undertaken. 8See Article XI(5), ESA Convention. Space and Defense, Winter 2010 73

others of such competencies as enumerated The key to further understanding the proper above.9 role of ESA in the shaping of European policies and regulations relevant to space Second, the ESA Director General (DG) security therefore lies in the way in which together with other ESA staff does not ESA space programs are developed. Program constitute a policy-making organ formally development, generally speaking, can be one speaking. The DG is tasked to manage the of three kinds. Agency and execute any such programs “in accordance with the directives issued by the Firstly, there are the “mandatory activities,” in Council” as well as being entitled to submit which all ESA member states are obligated to proposals for future programs and projects.10 participate in. To approve a relevant proposal, As to that latter competence, the actual impact to undertake an ESA program, and to establish the DG may have on the formulation of it as a mandatory activity, a simple majority of programs and projects, and perhaps informally the member states is required. However, the and/or indirectly of policies, depends upon a level of resources to be made available for that number of interlocking factors of a non-legal program requires unanimity, which allows nature. Yet that impact would be subject to individual states to exert considerable power confirmation and a form of high-level control on the overall process of making a program by the Council as enshrined in the latter’s happen or not.12 competencies and thus by ESA member states jointly. Mandatory activities concern the execution of basic activities, such as education, ESA’s general aims and purposes are documentation, studies of future projects, summarized by the ESA Convention “to research work, and scientific programs provide for and to promote, for exclusively including satellites and other space systems. peaceful purposes, cooperation among To the extent follow-up activities on the European States in space research and ground are concerned, ESA should “collect technology and their space applications, with a relevant information and disseminate it to view to their being used for scientific purposes Member States, draw attention to gaps and and for operational space applications duplication, and provide advice and assistance systems.”11 For good reason, ESA has often for the harmonization of international and been described as a vehicle for member states national programs.”13 Further to the to both serve their individual space policy mandatory character of the participation of all needs, where applicable, and try and establish member states in these scientific, non-space a European space policy. Formally speaking, activities, the financing of such activities once as discussed, the Council in using its properly agreed is taking place through a pre- competencies decides more on programs and determined scale of respective contributions.14 projects, even if at a high-level, and thus gives substance and shape to policies largely emanating at the member state level.

12See Ibid., Article XI(5.a), sub-paragraphs (i), (ii) and (iii). 13Ibid., Article V(1.a), sub-paragraphs (i), (ii) and (iii). See further Kevin Madders, A New Force at a New Frontier: Europe’s Development in the Space Field of Its Main Actors, 9 Ibid., Article II(a). Policies, Law and Activities from its Beginnings up to the 10See Ibid., Article XII(1.b). Present (Cambridge University Press, 1997), 189, 223-235. 11Ibid., Article II. 14See Ibid., Article XIII(1).

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Secondly, ESA member states may agree on monetary terms, programs with an optional “optional activities” – again by a simple character have made up 80% to 85% of the majority.15 The optional character then activities developed by ESA itself, as opposed manifests itself by way of an opt-out clause, as to 15% to 20% being mandatory in nature.19 it is provided that “all Member States participate apart from those that formally Many of the details of how programs are declare themselves not interested in developed and executed follow from what is participating therein.”16 This results in the labeled “the industrial policy which the clear possibility for a member state, if it Agency is to elaborate and apply” as part of considers it not to be in its own interests, the broader aims and objectives under Article including security interests, to abstain from II of the ESA Convention, and Annex V, participation in ESA optional activities. which elaborates that generic industrial policy.20 Optional activities also result in a different schedule for financing. Whereas the formula These cornerstones of ESA industrial policy here is an opt-out from the standard rule of are implemented by means of the financing in proportion to the average national “geographical distribution” approach, to income over the most recent three years for “ensure that all Member States participate in mandatory programs,17 in actual practice an equitable manner, having regard to their things turn out to work differently. Normally, financial contribution.”21 The result of that individual member state contributions are approach, further elaborated in Annex V to the decided from the ground up, i.e., each state ESA Convention, is often labeled “fair promises as following from its own particular return,” “industrial return,” or “juste retour.” measure of interests in such activities to Under juste retour, each member state should contribute a certain percentage to the proposed roughly see its investment in a particular budget of a certain program. Once the program “returned” in the form of contracts proposed optional program reaches a certain for its space industry, preferably for the very threshold in terms of promised financing it is program at issue, in the alternative as formally accepted as an ESA optional compensated by contracts in other programs.22 program.

Optional activities concern in particular the space programs, as opposed to preparation for them and their after-mission interpretation and Beginnings up to the Present (Cambridge University Press, 1997), 189-195, 235. usage: “the design, development, construction, 19See Kevin Madders cited above, 189. launching, placing in orbit, and control of 20Ibid., Article VII(1). satellites and other space systems; and the 21Ibid., Article VII(1.c). 22 design, development, construction, and See Ibid., Articles II, IV, and Annex V. While the ideal “overall return coefficient” [Article IV(3)] implies that every operation of launch facilities and space Euro contributed by a member state should be matched transport systems.”18 Over the years, in exactly by a Euro’s worth of contract value for a company from that member state under a contract by the Agency, there are a number of complicated arrangements in place to allow 15See Ibid., Article XI(5.c), sub-paragraph (i). 16 for considerable flexibility. See further Madders, 384-8. Ibid, Article V(1). Moreover, due to pressure from the EU in recent years, which 17 See Ibid., Article XIII(2). views this system with some suspicion, as it may easily have 18Ibid., Article V(1.b). See further Kevin Madders, A New anti-competitive effects within the European market, the Force at a New Frontier: Europe’s Development in the Space general application of the concept has become more relaxed Field of Its Main Actors, Policies, Law and Activities from its still.

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The dichotomy between mandatory and ESA Involvement optional activities has, throughout the decades in Space Security Issues of ESA operations, been shown to work as a remarkably pragmatic and workable While as of yet not addressing to any specific compromise. It allows at the same time extent the actual or possible role of ESA in respect for the need for states to maintain their shaping European space security issues, in sovereign independence in choosing to general terms, the possibility to become so contribute to and participate in actual space involved at various levels depends on the programs – on an á la carte-basis as it were – interest of individual ESA member states. In and serving the need for some coherence in particular, the major investors in ESA and ESA programs, in order for ESA to provide ESA programs – France, Germany, Italy, the any added value in terms of real cooperation United Kingdom, and Spain – need to possess and an efficient pooling of resources. the political will and wherewithal in having ESA become so involved. The ESA Convention mentions a third category of activities, one not as such Article II of the ESA Convention underscores conjured up by or within the framework of the this point, stressing that ESA activities should Agency itself, but undertaken upon the be for “exclusively peaceful purposes.” To specific request of third parties, namely start with, the general discussion during the “operational activities.”23 As a consequence, Cold War on the precise meaning of “peaceful these activities are not financed by the normal purposes” is important to consider as this budget of ESA, but paid for, in principle on a phrase was – with the same addition of full-cost, not-for-profit basis,24 by the state, “exclusively” – found in the outer space organization, or entity requesting such treaties.26 Here, European states were inclined services.25 to occupy the middle ground between the liberal United States (U.S.) interpretation that peaceful purposes included military purposes

23 as long as of a defensive nature and the stricter See Ibid., Article V(2). Soviet interpretation that any military use of 24Such a monetary reimbursement could of course be (partially or completely) waived to the extent ESA considers outer space was prohibited under that concept. other interests to merit the provision of such service without (full) reimbursement, and/or ESA considers itself de facto The word “exclusively” constitutes an reimbursed by in-kind compensation. For example in the context of the International Space Station (ISS), it is common interesting addition here; prima facie it practice that the partners exchange services and goods as suggests that without that addition ESA would much as possible on a closed-purse, no-exchange-of-funds also be entitled to act not for peaceful basis. See Article 15(5), Agreement among the Government of Canada, Governments of Member States of the European purposes. If that were to be true, however, the Space Agency, the Government of Japan, the Government of phrase “peaceful purposes” without that the Russian Federation, and the Government of the United addition would be devoid of any meaning – States of America concerning Cooperation on the Civil International Space Station, Washington, entered into force essentially stating that ESA would be entitled 27 March 2001. to conduct activities for peaceful purposes 25 In the past, ESA has provided such services for individual whilst leaving it open to also conduct non- states, other international organizations, such as the European Organization for the Exploitation of Meteorological Satellites (EUMETSAT), established by the Convention for the 26See Article IV, Outer Space Treaty, also Article XI referring Establishment of a European Organization for the to “peaceful exploration and use;” and Article 3(1), Exploitation of Meteorological Satellites entered into force 19 Agreement Governing the Activities of States on the Moon June 1986, as amended 14 July 1994, and entered into force and Other Celestial Bodies (hereafter Moon Agreement), 27 July 1994, and private companies, such as Arianespace. entered into force 11 July 1984.

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peaceful activities, since the addition of following a majority vote by the member “exclusive” would be considered necessary to states in the ESA Council on the program plus close the door on the latter option. unanimity on the financing, and this would ensure that no ESA project would see the light In other words: the addition of “exclusively” of day unless member states were satisfied it does not effectively add anything to the legal would not unduly interfere with their obligation, and should rather be understood as sovereign security concerns, including a politically-driven confirmation of an compliance with their own understanding of obligation already existing as regard to “peaceful purposes.” Only with the projects of “peaceful obligations,” to make sure no Galileo and Global Monitoring for misunderstanding would arise on the scope of Environment and Security (GMES) to be ESA’s activities. ESA did not wish to discussed below, that started to change antagonize the U.S. by contradicting its liberal fundamentally, due as well to the role of the interpretation, yet at the same time was not EU with these projects – and then still only so willing to allow any uncertainty regarding the far as those member states allowed. legal inability of ESA to get involved in military and security-related space projects. Further to that, ESA from the beginning could Copying the adverb “exclusively” from the not completely escape from the inevitable space treaties and inserting it in the ESA relationship between space activities and the Convention precisely achieved both results issue of security. Satellite-based Earth simultaneously. observation can without difficulty encompass “spying,” the difference between launching a Following the Framework Agreement, even as missile and launching a payload is often this agreement did not refer in any manner to negligible from the technical perspective and space activities with a security, defense, the high-technology character and global and/or military component, ESA has gradually scope of much of human spaceflight adopted a more liberal interpretation.27 At endeavors inevitably causes it to have least the word “security” is no longer taboo important security angles. As such, the ESA now: an ESA Security Agreement, ESA framework has had to deal with security- Security regulations, and an ESA Security sensitive aspects of its “exclusively peaceful” office were established, as was an ESA mandate. security classification system with an “ESA Secret” label where handling of relevant For example, in deviation from the normal classified information was moved from the requirement to exchange data on programs, member states to ESA itself. until the aforementioned recent establishment of an ESA Secret label, ESA member states But as ESA re-interpreted “peaceful purposes” were not required “to communicate any in 2003 to mean it could unambiguously be information obtained outside the Agency” if involved in military and defense related such communication would present a threat to security activities, the aforementioned its national security, would be inconsistent institutional structure remains in operation. with its agreements with third parties, such as ESA programs could only become a reality non-ESA partners in space cooperation ventures, or would be inconsistent with the terms and conditions under which it had 27See European Space Agency Council, “Position Paper on ESA and the Defense Sector,” ESA/C 153 (1 December 2003): 7-8. Space and Defense, Winter 2010 77

obtained the information at issue in the first very thin lines among a vehicle for launching, place.28 an explosive payload against a terrestrial target, and a vehicle for delivering a peaceful Along similar lines, a fundamental payload in orbit. Not accidentally, this area technology-transfer control limitation was was the first to be subject to international, built into the ESA Convention. If technology albeit largely voluntary, arrangements – the or products developed in the context of ESA Missile Technology Control Regime activities are to be transferred to non-ESA (MTCR)33 – to try and curb the proliferation member states, a special authorization regime of relevant technologies outside the circle of to be adopted by a two-thirds majority of former Western allies. member states in the ESA Council is required, ensuring that such authorization will not be As long as the Ariane launcher development lightly provided.29 project was an (optional) ESA program, the exclusively peaceful requirement of Article II In more general terms, not only the of the ESA Convention precluded any Ariane implementation of new programs, but also the vehicle being used for military or other admission of new member states to the security-related missions, under the European Agency requires a unanimous vote in favor by interpretation discussed before. Once the the incumbent member states in the ESA Ariane vehicle, however, had achieved Council.30 This is a common provision in the operational status, i.e., could start to be used charters of intergovernmental organizations, for regular flights on a commercial basis, ESA but in the present context it serves to had to outsource operational and marketing scrutinize any potential new member from the activities, as ESA was also limited by its perspective of security risks, since once such a Convention to research and development state becomes a member it would be entitled (R&D), even if those terms were sometimes to the default paradigm of free flow and stretched considerably.34 exchange of relevant information on ESA programs, technology, and products.31 For In the case of Ariane, a separate private and similar reasons, unanimity in the ESA Council commercial entity was established in 1980 is required before ESA may cooperate and called Arianespace.35 Arianespace is a French conclude relevant agreements with other company with international shareholding as intergovernmental organizations, non-EU well as ties with ESA and the ESA member governments, and other non-ESA member states, but nevertheless operating on its own state institutions.32 behalf in the emerging global commercial

A final example of ESA’s involvement in security issues concerns the development of 33Agreement on Guidelines for the Transfer of Equipment and Technology Related to Missiles (hereafter MTCR), done 16 the Ariane launcher. The single-most security- April 1987. Also, See Elisabeth S. Waldrop, “Integration of sensitive space sector is the production and Military and Civilian Space Assets: Legal and National operation of launch vehicles, in view of the Security Implications,” Air Force Law Review 55 (2004): 189-90; and Frans von der Dunk, “A European “Equivalent” to United States Export Controls: European Law on the 28 Control of International Trade in Dual-Use Space Article III(1), ESA Convention. Technologies,” Astropolitics 7 (2009). All current 18 ESA 29 See Ibid., Article XI(5.j). member states are among the 34 state parties of the MTCR. 30 See Ibid., Articles XI(5.k), XXII. 34Article II, ESA Convention. 31 See Ibid., Article III in extenso. 35Statuts de la Société Arianespace (Arianespace Statute), 26 32See Ibid., Article XIV(1). March 1980.

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launch services market. Its operations, Treaty Organization (NATO) regime41 for however, from the international space law controlling security-sensitive exports, perspective, remained under control of the Arianespace fell under French governmental ESA member states, by way of a complicated control. international legal structure with three documents at the core: the Arianespace Thus, even the areas where the exclusively Declaration,36 the Arianespace Convention,37 peaceful mandate for ESA could not as such and the Centre Spatial Guyanais (CSG) avoid a possible entanglement in security or Agreement.38 Under the first two documents, military issues, control mechanisms and Arianespace is obliged to operate strictly for procedures were in place. These mechanisms peaceful purposes.39 and procedures ensure that the potential threats to the security of individual member Yet as a private French company, Arianespace states emanating from such entanglement remained under French governmental control. continue to be addressed without substantially For example, prior to the MTCR, for the infringing their sovereignty. purpose of adhering to the Coordinating Committee on Multilateral Export Controls (CoCom) rules,40 i.e., the North Atlantic The European Union

The involvement in space and space policy issues, including space security, of the EU, as

36 the successor at a political, if not completely Declaration by Certain European Governments Relating to the Ariane Launcher Production Phase (hereafter at the legal level, of the European Community, Arianespace Declaration), entered into force 15 October 1981, stems from a completely different background renewal as of 4 October 1990, entered into force 21 May compared to that of ESA. The Community, 1992. 37Convention between the European Space Agency and then Union became involved in European Arianespace (hereafter Arianespace Convention), signed 24 space activities and related policy issues September 1992. primarily as a regulator, and has only recently 38Agreement between the French government and the European Space Agency with respect to the Centre Spatial become a player in its own right, even a Guyanais (CSG) (hereinafter CSG Agreement). See excerpts policy-maker – but this remains a secondary of French version in ESA Bulletin 80 (November 1994): 67. role. 39 See Articles I.1.2(a), I.1.6(a), Arianespace Declaration, ESA/C(80)8, 11 January 1980; Articles 6.1, 6.2, and 6.3, Arianespace Convention, ESA/C(80)WP/8, rev.4, 18 In spite of efforts to arrive at a European space November 1980; further see John Kriger, Arturo Russo, and policy,42 driven by the European Lorenza Sebesta, A History of the European Space Agency Commission’s perception that space is a key 1958-1987: Volume II: The Story of ESA, 1973 to 1987, ESA History Study Reports, SP-1235 (ESA Publications, 2000); sector to the future of Europe, in this area (as and Gabriel Lafferranderie and Harry Tuinder, “The Role of ESA in the Evolution of Space Law,” Journal of Space Law 22 (1994): 103. 41NATO was established by the North Atlantic Treaty, 40CoCom was established in 1949 as a joint organization of entered into force 24 August 1949. the member states of NATO, Japan, and Australia, to prevent 42See White paper: Space: a new European frontier for an the sale of weapons and technology to the Soviet Union and expanding Union – An action plan for implementing the its communist allies. CoCom was disbanded in 1994, European Space policy, COM(2003) 673 final, of 11 following the dissolution of the Soviet Union in 1991 and the November 2003; Communication from the Commission to the concurring de facto end of the Cold War, which inter alia Council and the European Parliament – European Space resulted in the opening up in principle of Russian and Eastern Policy – Preliminary Elements, COM(2005) 208 final, of 23 European markets. See Michael Lipson, “The Reincarnation May 2005. See further Stephen Hobe, et al, “A New Chapter of CoCom: Explaining Post-Cold War Export Controls,” The for Europe in Space,” Zeitschrift für Luft- und Weltraumrecht Non-Proliferation Review 6 (1999): 33-51. I: 54 (2005): 340. Space and Defense, Winter 2010 79

in many others) the ultimate prerogative of follow-on legislative measures.47 The treaties giving substantial shape to space policies by also provided these organs with extensive implementing actual programs and projects legal competences, which they then used to rests with the individual, sovereign member jointly extend the scope of EU law immensely states. As referred to earlier, a joint Space – by drafting and enunciating what is Policy has been accepted recently, in 2007. commonly called “secondary EU law.”

This is clearly only a first step for the EU, Secondary EU law is composed of whereas the second, more important step of Regulations, Directives, and Decisions.48 being in charge of implementing such a space Regulations are essentially laws on a policy, of being able to force unwilling or European level: they are phrased in general conflicting national authorities in terms of terms and apply comprehensively, at least as their own space policies, and of developing its far as indicated or expressly provided for by own space projects on its own behalf, is only the Regulations themselves. The same beginning to be undertaken with Galileo. qualification as law applies to Directives to Currently, the first contracts for building of some extent, namely as far as the required end the Galileo satellites and deployment of the result is concerned: each state is free, system have been signed. however, to reach that end result in whatever way it sees fit, prior to a given deadline. A distinct and partly supranational legal order Finally, Decisions also provide binding law, has by now emerged, where in many instances but only upon those entities to which they are the EU can in law override the interests, explicitly or implicitly directed. In each case, policies, and even legislation of individual they would override, wherever applicable, member states, yet in the last resort all that is national law or regulation to the contrary. still based on a number of treaties between sovereign states. Together these treaties form At the same time, they are strictly legal a body of primary EU law, inter alia creating instruments, designed and only to be used to the main Union organs, officially referred to implement and enforce higher-level policies, as: the Council (of Ministers),43 the European policy interests, and approaches as agreed by Commission,44 the European Parliament,45 the the EU with the Council, representing the European Court of Justice,46 and most recently interests of the individual member states, augmented by a European Council comprised generally in a key role, not to develop and of heads of state and government entitled to determine them. Not even the Treaty of develop policies – but based on consensus, Lisbon, the successor of the ill-fated effort to and without being formally entitled to guide achieve a Constitution for Europe,49 which had been hailed as the first document providing the EU with formal competence in matters of space and space activities, was to 43See Articles 227-243, Treaty Establishing the European fundamentally change this situation. In Community as Amended by the Treaty of Lisbon Amending consequence, the Union still pools together the the Treaty on European Union and the Treaty Establishing the European Community (hereafter Treaty on the Functioning of the European Union), entered into force 1 December 2009. 44See Articles 244-250, Treaty on the Functioning of the 47Ibid., Articles 235-236: see Articles 13(1), 15, Treaty on European Union. European Union as amended by the Treaty of Lisbon. 45See Ibid., Articles 223-234. 48See Ibid., Article 288. 46See Ibid., Articles 251-281: meanwhile renamed Court of 49Treaty Establishing a Constitution for Europe, Rome, done Justice of the European Union. 29 October 2004 and not entered into force.

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regulatory efforts of the member states for the Treaty of Nice of 2001,57 and the Treaty of specific purposes indicated in the relevant Lisbon of 2007. Of these, as we shall see for treaties and essentially limited to those – even our space related topic, the Treaty on as it established its own distinct legal order; a European Union and the Treaty of Lisbon are sui generis-construction, which may be the most important. referred to as a supranational “half-way house” between an international organization and a federation-like structure. At present, The European Union Legal Framework, twenty-seven European states50 have thus Economic Activities, and Outer Space subjected themselves to a very extensive set of rights and obligations towards each other in The essential elements of the Union’s legal the framework of the EU. As pointed out, this order referred to above present the EU with its concerned a group of European states different own measure of competencies and jurisdiction from those interested in space and investing – over a wide range of economic or economy- therein to become member of ESA. related activities. Depending upon certain circumstances and legal preconditions, they The European legal framework was initially can be directly applied not only to the member built through signature and ratification of the states themselves, but also to private persons European Coal and Steel Community (ECSC) and entities resorting under the domestic Treaty,51 the European Atomic Energy jurisdictions of these member states. In Community (EAEC) or Euratom Treaty,52 and addition, in a number of cases the rights and the European Economic Community (EEC) obligations directly applicable to individual Treaty53 all in the 1950s, as duly amended by citizens and legal entities can also be claimed subsequent treaties in later years. Such treaties directly by those entities. Bypassing domestic included, in addition to the various accession jurisdictions of member states, the Court of treaties allowing for new member states to Justice can be called upon in a number of join the EC, then Union, the Single European instances by those concerned to judge upon Act of 1986,54 the Treaty on European Union the legality of EU as well as national actions. of 1992,55 the Treaty of Amsterdam of 1997,56 The existence of this body central to the EU legal order represents an essential measure of

50The list of member states comprises: Austria, Belgium, supranational adjudication. Bulgaria, the Czech Republic, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, As such, to what extent do the Union and its Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, legal framework affect the space sector? Sweden, and the United Kingdom. Special as space is and distinct from and 51Treaty Establishing the European Coal and Steel outside specific member state involvement, Community, entered into force 23 July 1952. how would or could the EU expand such 52Treaty Establishing the European Atomic Energy Community, entered into force 1 January 1958. 53Treaty of Rome, or Treaty Establishing the European Economic Community (hereafter EEC Treaty), entered into force 1 January 1958. 56Treaty of Amsterdam Amending the Treaty on European 54Single European Act, entered into force 1 July 1987. One Union, the Treaties Establishing the European Communities major result of the Single European Act was the integration of and Certain Related Acts (hereafter Treaty of Amsterdam), the main institutions of the Communities concerned, in entered into force 1 May 1999. particular the European Commission and the Council of 57Treaty of Nice Amending the Treaty on European Union, Ministers. the Treaties Establishing the European Communities and 55Treaty on European Union, entered into force 1 November Certain Related Acts (hereafter Treaty of Nice), entered into 1993. force 1 February 2003. Space and Defense, Winter 2010 81

impact to the extent considered necessary for EU competencies and jurisdiction have been the European greater common good? generally acknowledged in the economic domain, applying to all economic activities The answers to these questions lie in proper, i.e., without overriding public understanding how the aforementioned interests, such as those relating to military, competencies and jurisdictions are applied to social, or cultural issues being behind those concrete issues – the application has to be economic activities. Consequently, space made by explicit primary EU law, secondary activities do at least fall within the EU legal EU law (much more common), or from EU order to the extent that they may be law no other conclusion can be drawn other considered economic activities. than such applicability was implied. This is captured by the notion of “subsidiarity,”58 From such a perspective, the general which means that unless the competence to application of EU law to economic activities is legislate on a certain issue has unequivocally, the main instrument for Union involvement in even if only implicitly, been transferred to the the space sector so far. Here, the central and Union’s organs the relevant power should still most comprehensive aim of EU economic be deemed to rest with the national integration is the creation and maintenance of governmental authorities. If doubt arises a common market.60 Effectively, the Internal whether an issue could be regulated more Market, being one side of the common market, effectively and logically at the European level was established as of 1993 following the entry or at the national level, the presumption under into force of the Treaty on European Union.61 subsidiarity is that the national level should This regime, in turn, is based upon several prevail. freedoms: the freedoms of movement of goods, persons, services, and capital;62 an anti- In practice, only to the extent that space- trust regime combating anti-competitive related activities are unequivocally covered by behavior of governments (state aid) and provisions in primary or secondary EU law, companies (collusive conduct and abuses of can any competence to legislate with respect dominant positions) alike;63 and to them be exercised by EU organs. Space harmonization of relevant national activities, however, only constitute one among legislation.64 many topics from the Union’s perspective. Hence, they were hardly mentioned explicitly Turning back to space activities from the in primary EU law and not in any appreciable perspective of how policies take shape within detail in secondary law. As we shall see, space the EU, the Union’s organs, in particular the has only recently achieved some presence and Commission, have over time obtained some prominence in that context.59 Concomitantly, freedom to draft, or at least prepare, European

58Articles 5(1) and 5(3), Treaty on European Union as Europe’s Development in the Space Field of Its Main Actors, Amended by the Treaty of Lisbon. The latter thus extended the Policies, Law and Activities from its Beginnings up to the scope of application of the subsidiarity principle from the Present (Cambridge University Press, 1997), 566-584. Community’s actions (where it applied since 1993 under 60 Article 5, EC Treaty as amended by the Treaty on European See Articles 3, 4(2.a), Treaty on the Functioning of the European Union. Union) to all actions taken in the name of the Union. 61 59 Articles 13-19, Single European Act. For an excellent recent account of EU involvement in 62 European space activities, see Imgard Marboe, “National See Articles 28-37, 45-66, Treaty on the Functioning of the Space Legislation: The European Perspective,” Nationales European Union. 63 Weltraumrecht – National Space Law (2008), 31-46; Further, See Ibid., Articles 101-109. see Kevin Madders, A New Force at a New Frontier: 64See Ibid., Articles 114-118.

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policies, through such varying non-binding completely different context and for rather instruments as Resolutions, White Papers, and different purposes than ESA, essentially the Green Papers.65 Yet, even with the 2007 EU- same limitations to EC/EU action in the field ESA Space Policy the boundaries of that of security followed from the established aims freedom are always those provided by the of its activities and institutional structure. As body of EU law, and the political will of the to the former, the aims of the EC were totality of EU member states to use their summed up exhaustively in the prerogatives, in particular through the aforementioned Article 2 of the EC Treaty, Council, to allow any such policy initiative, to which throughout history has been updated to condition or control it, or even to obstruct it. take into account new developments requiring Certainly, once a policy initiative is translated a European-level competence – and so far had into new EU law, the Council of Ministers in always excluded a reference to military, its interplay with the Commission, the defense, and security issues. The only European Parliament, and the Court of Justice conclusion can be that this domain as a are able to control such a process to a large generic area has not yet been included within extent.66 the EU competence.67 Only with the Treaty of Lisbon that has changed to some extent, as we shall see. European Union Involvement in Security Issues Even though the European Commission as a truly European organ has in principle the right It should not be a surprise that as a to initiate policy and legislative developments, consequence of the above discussion, at least and the European Parliament as another truly until as recently as two decades ago, the European organ has considerable competence European organs were given very little room in both as well, at to address military, defense, and security Cooperation on the end of the day issues, whether specifically in terms of space military and this supranational or more generally speaking. Although the EC, security competence only then Union, as indicated originated in a issues…does extends precisely to those domains take place, but falling within the 65 The earliest such document relevant for space activities was ultimately, EU sphere as “Towards Europe-wide systems and services” – Green Paper on a common approach in the field of satellite Europe states determined, until communications in the European Community, still preferred to very recently, by Communication from the Commission, COM(90) 490 final, Article 2 of the EC of 20 November 1990. For further discussion of the rely on development of an EU-driven space policy, see Gunther themselves for Treaty. Extending Verheugen, “Europe’s space plans and opportunities for the scope of that cooperation,” Space Policy 21 (2005), 93-95; Thomas Reuter, national sphere in any “The Framework Agreement between the European Space security. Agency and the European Community: A Significant Step formal sense Forward?,” Zeitschrift für Luft- und Weltraumrecht 53 (2004), requires the consent 56-65; Kevin Madders and Walter Thiebaut, “Carpe diem: of the Council of Ministers representing the Europe must make a genuine space policy now,” Space Policy 23 (2007): 7-12; and Nicolas Peter, “The EU’s emergent space diplomacy,” Space Policy 23 (2007): 97-107. 67Note that the aforementioned subsidiarity principle 66See Articles 293-294, Treaty on the Functioning of the specifically calls for either explicit or implicit (but then from European Union, providing the basis for the complicated a logical perspective irrefutable) transfer of competence to the decision-making processes formally applicable to the EC/EU level, as argued on the basis of subsidiarity before development of EC law. such competence may be assumed. Space and Defense, Winter 2010 83

member states, or in cases of fundamental carefully into that direction, and as it turned enlargement of EU competence even new out in some respects taking ESA along to the treaties. extent these ambitions involved, or were focusing on, outer space and space activities. From the perspective of security issues, the Essentially, the EC took a three-pronged, point of departure for European entities was staged approach: firstly, by transforming itself the fundamental lack of reference to formally into a EU; secondly, by starting to competencies in that area until fairly recently. address in earnest the issue of international Security being so closely related to questions trade in security-sensitive goods and of state sovereignty, the fact remains that in technology; and thirdly, by undertaking space the last resort the sheer survival of the state as projects jointly with ESA that inevitably a relevant entity is at stake, and in spite of the touched upon the security domain. long history of political, economic, social, and cultural integration since the Second World War European member states have not been European Union Entrance willing to subject themselves in any into the Space Security Arena fundamental sense to a supranational entity. Cooperation on military and security issues, The renaming of the Community as the Union and the conduct of joint military exercises in-and-of-itself was an expression of the does take place, but ultimately, Europe states ambition of the member states, and of the still preferred to rely on themselves for European institutions, most prominently the national security. Commission, to broaden European integration beyond the more economically-oriented Over the last two decades, however, partly as domains. More to the point, the Treaty on a consequence of the end of the Cold War, the European Union effectively did extend the demise of the Soviet Union, and the scope of European integration as it had arisen fundamental reshaping of the geopolitical on the basis of the three treaties of the 1950s, landscape, the perspective on European re-christening the EEC Treaty as the EC security started to change. The undeniable Treaty, and by adding two more “pillars” of success of the EU in economic terms –500 the EU to the three Communities that had million inhabitants constituting the largest been merged into one Community (those single economic block in the world – pillars of the Common Foreign and Security strengthened European self-consciousness Policy (CFSP) and of Police and Judicial about a major role for Europe also in the Cooperation in Criminal Matters (PJCCM) geopolitical arena. At the same time, the lack respectively).68 of political and security-related coherence has become painfully clear, in particular in the Of course, it is the CFSP pillar, which context of the demise of Yugoslavia and the concerns us here, established by means of ensuing civil wars, where only NATO and the Articles 10A through 28 of the Treaty on U.S. turned out to be able to restore some measure of peace, and essentially by sheer 68The first pillar was now that of the European Community, military force. based not only the EC Treaty (Title II, Treaty on European Union), but also on the ECSC and EAEC Treaties (Titles III, The ambitions of the EC thus started to resp. IV, Treaty on European Union). For the second, CFSP pillar, see Title V, Treaty on European Union; for the third, address the involvement of Europe in such PJCCM pillar (originally labeled Justice and Home Affairs security domains, and it started to move (JHA)), see Title VI, Treaty on European Union.

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European Union.69 This is where, with the Treaty on the Functioning of the European entry into force of the Treaty on European Union; it was not changed fundamentally.72 Union in 1993, for the first time as far as the Yet in principle, “Decisions under this Title EC/EU framework was concerned, issues of shall be taken by the Council acting security – the use of the words “defense” and unanimously” and there is no formal “military” were still judiciously avoided – entitlement for the Commission to anything could be addressed. At least the word other than being kept informed and allowed to “security” is prominently present in the text offer its opinion.73 now. As a result, there also was no role for the The CFSP, however, is a straightforward elaborate legislative, adjudicative, and intergovernmental construction and operates enforcement jurisdiction of the European completely outside Parliament or the Court of Justice, which was the established legal …gradually, the developed in the context of the EC Treaty. structure of the European The European Parliament, for instance, can Union with its institutions…as make itself heard on similar terms as the supranational compared to the Commission, but does not have any formal features. There is at group of say in the outcome of whatever legally best a marginal role binding decisions would result from the for the European sovereign states deliberation process. Even post-Lisbon, the Commission in its making up EU cooperation under the CFSP is essentially context as supposed membership, are cooperation between the member states with guardian of the involving the Commission in an unofficial mediating overarching themselves in role except where the existing acquis European interest. issues of communautaire (the total body of EU law For example, the accumulated thus far) is threatened. Those Commission “may security… issues remain exclusively reserved for national refer to the Council governments to deal with as they see fit to the any question relating to the common foreign extent beyond having allowed for such and security policy and may submit proposals concepts as the European Security and to the Council” as well as request the Defense Policy (ESDP), now Common convening of an extraordinary Council Security and Defense Policy (CSDP), and EU meeting.70 As a consequence of the Treaty of Battle Groups to be developed.74 Lisbon, the role of the Commission to “give its opinion particularly on whether the As referred to before, security at the European enhanced cooperation proposed [by EU level has had distinct historical roots. To start, member states] is consistent with Union international cooperation in the areas of policies”71 may have been relocated to the defense and security had always been dealt

69Note that the Treaty of Lisbon amended also the Treaty on 72See Article 329(2), Treaty on the Functioning of the European Union, so that in the consolidated version of the European Union. latter as per 1 December 2009, Title V now comprises 73Article 31(1), Treaty on European Union as Amended by Articles 21-46. the Treaty of Lisbon. 70 Article 30(1), see also (2), Treaty on European Union as 74See Articles 326-334, Treaty on the Functioning of the amended by the Treaty of Lisbon. European Union. For example, the CSDP is the domain of the 71Article 27c, Treaty on European Union, as inserted by the Council of the European Union, representing the member Treaty of Nice. states under the Lisbon Treaty, not the European Commission. Space and Defense, Winter 2010 85

with in the context of NATO or the WEU. As the specific military domain, the erstwhile a consequence of the shifting paradigms, the main focus of the WEU.77 WEU is now being integrated into the EU structures as part of the intergovernmental In short, in this institutional domain of CFSP. That integration turns out to be a slow European involvement in space security, process. It started in 1999 with a first level of slowly but gradually, the European institutions integration of WEU functions into the EU properly speaking, as compared to the group framework, and has meanwhile led to the of sovereign states making up EU handing over of the WEU satellite center at membership, are involving themselves in Torrejon, Spain to become the EU Satellite issues of security in a broad sense. It seems Center, jointly with a European Institute of inevitable that this process increasingly will Security Studies in 2002. Yet these transfers also involve more clearly outlined military have not been finalized – and some doubt and defense issues. whether such integration will be ever complete.75 The integration described here does not ipso facto subsume the WEU within The European Union the EU’s institutional structures. and the Trade Aspects of Security

Prior to the Treaty of Lisbon, the Treaty on The second inroad the Union started to make European Union referred to the role of the into the realm of security concerns the risks WEU in somewhat ambiguous terms. Security inherent in today’s voluminous global trade policies in the context of the CFSP pillar relations. These risks deal with proliferation of “shall not prevent the development of closer security-sensitive dual-use goods, technology, cooperation between two or more Member and know-how to states or non-state entities States on a bilateral level, in the framework of that would result in harming European the Western European Union (WEU) and interests. NATO, provided such cooperation does not run counter to or impede that provided for” In a sense, this was the most logical and through the CFSP.76 The clauses that have obvious starting point for the replaced this one as per the Treaty of Lisbon Community/Union to get involved with the do not mention the WEU in any specific terms security domain, as international trade and the and as a consequence of dealing with potentially trade-distorting impact thereof on essentially the same subject matter might be the EC Internal Market had belonged to the argued to have effectively emptied the WEU EC’s competencies for a considerable time. of all meaning. Yet any implementation And indeed, already long before the thereof still hinges crucially on member state establishment of the EU and the CFSP pillar, agreement to any substantive implementation the Community had drafted a first legislative of the common and foreign security policy in document on export controls, the 1969 Regulation 2603/69.78

75See Ralph Folsom, Principles of European Union Law (2005), 25. Formally, the WEU still is its own 77See Articles 42 and forward, Treaty on European Union as intergovernmental self, though now essentially dormant; the Amended by the Treaty of Lisbon, inter alia also providing entry into force of the Treaty of Lisbon has not yet led to for an (in legal terms equally limited) role of the European decisions to disband the WEU. Defense Agency. 76Article 17, Treaty on European Union as Amended by the 78Regulation of the Council establishing common rules for Treaty of Nice. exports, (EEC) No. 2603/69, of 20 December 1969.

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These developments were given a from the formally non-binding MTCR and considerable boost by several developments in Wassenaar regimes, while working towards a the 1990s. First, there was the aforementioned harmonization of the ways and means by creation of the Union and the CFSP – leading which individual member states would to such further EC law as Regulation implement and apply those international 3381/9479 and Decision 94/942/CFSP80 obligations and guidelines.84 As the drafted under the Treaty on European Union, Regulation itself phrases it: its aims are to even as these documents were far from develop an “effective common system of comprehensive in scope. Second, the changing export controls on dual-use items [which] is geopolitical landscape caused the necessary to ensure... the international aforementioned CoCom/MTCR-regime81 to be commitments and responsibilities of the widened in scope, most notably leading to the Member States, especially regarding non- establishment of the Wassenaar proliferation, and of the European Union,” Arrangement82 encompassing all dual-use through “a common control system and sensitive technologies and related products harmonized policies for enforcement and and know-how in the mid-1990s. Third, the monitoring” as “a prerequisite for establishing limited progress, as compared to the ambitions the free movement of dual-use items inside the of the then-Commission, of development of Community” – the most fundamental European security policy, including but not justification for EU institutions to address the limited to space, in terms of a European Space issue of international trade in dual-use Strategy on the basis of the CFSP made the goods.85 European institutions more aware of the limited areas where progress could more The Regulation itself has been amended on easily and readily be expected, namely average almost once a year since by later international security and international trade. instruments of EC law,86 but still remains the

The result was of all this was Regulation 84An extended analysis of Regulation 1334/2000 and the 1334/200083 providing a baseline framework framework built upon it can be found in Frans von der Dunk, “A European “Equivalent” to United States Export Controls: for implementing in a binding European European Law on the Control of International Trade in Dual- context the international obligations resulting Use Space Technologies,” Astropolitics 7 (2009): 110-124. 85 See Paragraphs (2), (3), Preamble, Regulation 1334/2000, 79 and Article 1. Council Regulation setting up a Community regime for the 86 This concerns Council Regulation amending Regulation control of exports of dual-use goods, No. 3381/94/EC, of 19 (EC) No. 1334/2000 with regard to intra-Community transfers December 1994. 80 and exports of dual-use items and technology, No. Council Decision on the joint action adopted by the Council 2889/2000/EC, of 22 December 2000; Council Regulation of the basis of Article J.3 of the Treaty on European Union amending Regulation (EC) No. 1334/2000 with regard to the concerning the control of exports of dual-use goods, list of controlled dual-use items and technology when 94/942/CFSP, of 19 December 1994. 81 exported, No. 458/2001/EC, of 6 March 2001; Council Currently, 19 out of the 27 EU member states – Cyprus, Regulation amending and updating Regulation (EC) No. Estonia, Latvia, Lithuania, Malta, Romania, Slovakia and 1334/2000 setting up a Community regime for the control of Slovenia are missing – are participating in the MTCR. exports of dual-use items and technology, No. 2432/2001/EC, 82 Wassenaar Arrangement on Export Controls for of 20 November 2001; Council Regulation amending Conventional Arms and Dual-Use Goods and Technologies Regulation (EC) No 1334/2000 setting up a Community (hereafter Wassenaar Arrangement), effective 12 July 1996. regime for the control of exports of dual-use items and Currently, 26 out of the 27 EU member states – only Cyprus technology, No. 880/2002/EC, of 27 May 2002; Council is missing – as well as all 18 ESA member states are Regulation amending and updating Regulation (EC) No participating in the Arrangement. 1334/2000 setting up a Community regime for the control of 83Council Regulation setting up a Community regime for the exports of dual-use items and technology, No. 149/2003/EC, control of exports of dual-use items and technology, No. of 27 January 2003; Council Regulation amending and 1334/2000/EC, of 22 June 2000. updating Regulation (EC) No 1334/2000 setting up a

Space and Defense, Winter 2010 87

key document in the present context. Its main Technology itself is also defined in such broad body provides for the basic regime whereas terms, albeit not in the main body of the the Annexes, through their regular updates, Regulation itself, but by Annex I: “specific take account of new developments regarding information necessary for the ‘development,’ the subject matter itself as following inter alia ‘production,’ or ‘use’ of goods” further from the Wassenaar Arrangement updates. In elaborated in that “this information takes the particular, Annex I entitled “List of Dual-Use form of ‘technical data’ or ‘technical Items and Technology,” and thereby listing all assistance,’” whereby the latter “may take items subject to the regime created by the forms, such as instructions, skills, training, Regulation, was amended time and again to working knowledge, and consulting services keep track of ongoing technical, practical, and and may involve the transfer of ‘technical political developments.87 data,’” and these may in turn “take forms, such as blueprints, plans, diagrams, models, Dual-use items as covered by the Regulation’s formulae, tables, engineering designs and regime are broadly defined as all “items, specifications, manuals and instructions including software and technology, which can written or recorded on other media, or devices, be used for both civil and military purposes,”88 such as disk, tape, read-only memories.”91 whereas export comprises normal export of goods, but extends to “transmission of The core element of the regime developed on software or technology by electronic media, the basis of the Regulation concerns the fax, or telephone to a destination outside the authorization process and procedures, which Community,”89 and “exporter” is equally remains a prerogative of the EU member broadly defined.90 Since such a definition of states, but should conform to the parameters dual-use items clearly could encompass more as provided by the Regulation’s regime. The or less all space technology, the broad sweep point of departure, in any event, still is ratione materiae of the European regime in national authorization. terms of space activities becomes clear immediately. Firstly, such an authorization is required for export of the dual-use items as defined and 92 listed in Annex I. Secondly, the obligations of a prospective exporter are not limited to Community regime for the control of exports of dual-use screening an exhaustive list and then abiding items and technology, No. 1504/2004/EC, of 19 July 2004; by its terms, as there are scenarios under Council Regulation amending and updating Regulation (EC) which an exporter would be obliged to comply No 1334/2000 setting up a Community regime for the control of exports of dual-use items and technology, No. with the control and authorization mechanisms 394/2006/EC, of 27 February 2006; Council Regulation provided by the Regulation, also where the amending and updating Regulation (EC) No 1334/2000 items concerned as such are not listed in setting up a Community regime for the control of exports of 93 dual-use items and technology, No. 1183/2007/EC, of 18 Annex I. September 2007; and Council Regulation amending and updating Regulation (EC) No 1334/2000 setting up a Community regime for the control of exports of dual-use 91Annex I, Regulation 1167/2008. items and technology, No. 1167/2008/EC, of 24 October 92See Article 3(1), Regulation 1334/2000; and introductory 2008. 87 paragraph, Annex I – List of Dual-Use Items and Technology, Annex I, Regulation 1167/2008; further see Article 3, Regulation 1167/2008. Regulation 1334/2000. 93 88 The three scenarios concern: (1) potential involvement of Article 2(a), Regulation 1334/2000. the item concerned in the context of weapons of mass 89 Ibid., Article 2(b), sub-paragraph (iii). destruction; (2) export to a state subject to an arms embargo 90See Ibid., Article 2(c). imposed by the European Union, the Organization for

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As national sovereignty of member states is shall be granted – or refused – by the member still the baseline, the Regulation does not take state where the exporter is located.99 away the possibility for a prospective exporter to be confronted with requirements for The CGEA’s scope is essentially limited in authorizations imposed by member states three ways. One, ratione materiae only items under national laws and regulations outside of as defined by Annex II – with the exception the system of the Regulation properly moreover of those mentioned in Part 2 thereof speaking.94 In such cases, the Regulation only – require a CGEA as opposed to a national imposes upon the member state adopting or authorization, which still covers the bulk of maintaining relevant legislation a duty to items listed in Annex I.100 Two, however, inform other member states as well as the ratione personae the CGEA covers such Commission.95 exports only to the extent the target destination is Australia, Canada, Japan, New With regard to these national authorization Zealand, Norway, Switzerland, or the U.S.101 regimes, the Regulation only further imposes Three, further exceptions to applicability of the requirement that they should allow for the CGEA occur in more limited scenarios.102 three types of authorizations: individual, global, or general, with the latter being valid Thus, Regulation 1334/2000 in conjunction throughout the Community.96 While leaving with follow-up Regulations created a complex the choice to the national member state interlocking system of European-wide and authorities regarding which type of national authorizations. That system required authorization to use in a certain case, a few European-wide authorizations instead of specific limits are imposed by the Regulation national ones in varying measures for the in that regard.97 export of the items listed in a few interlocking Annexes to other EU member states, a limited Next to that, as the cornerstone of actual set of close political allies of other states and harmonization, the Regulation introduces the destinations, otherwise leaving the individual concept of the Community General Export sovereign discretion of the member states Authorization (CGEA).98 The CGEA intact. explicitly constitutes an exception to the sovereign discretion of member states as for Nevertheless, presenting a kind of European all items not covered by it; any authorization equivalent to U.S. export controls, the Regulation and the regime built upon it

99 Ibid., Article 6(2). 100See Annex II, Regulation 1167/2008; Part 1 of Annex II simply provides in full “This export authorization covers the Security and Cooperation in Europe (OSCE) or the United following items: All dual-use specified in any entry in Annex Nations Security Council; and (3) export without national I of the present Regulation except those listed in Part 2 authorization or in violation of a national authorization; see below.” Articles 3(2), 4(1), (2), (3), and (4), Regulation 1334/2000. 101 94 See Ibid., Part 3. Article 4(5), Regulation 1334/2000. 102 See Ibid., Articles 1, 2, and 3, Annex II. These three 95See Ibid., Article 4(6). 96 scenarios concern: (1) (once again): potential involvement of See Ibid., Article 6(2). the item concerned in the context of weapons of mass 97 See further Frans von der Dunk, “A European “Equivalent” destruction; (2) (once again) export to a state subject to an to United States Export Controls: European Law on the arms embargo imposed by the European Union, the OSCE, or Control of International Trade in Dual-Use Space the United National Security Council; and (3) where the Technologies,” Astropolitics 7 (2009): 122-4. relevant items are to be exported to a destination within a 98See Article 6(1), Regulation 1334/2000. customs free zone or free warehouse. Space and Defense, Winter 2010 89

represents a careful, detailed, and politically development of two European “flagship noteworthy foray of the EU into the security projects,” Galileo and GMES. Both concerned domain, including space security in view of major programs aiming at launching and the inherent dual-use of most space activities, operating a system of satellites as the core part hardware, and technology. The establishment of an infrastructure to be used for practical of the European Defence Agency (EDA) in downstream terrestrial applications. It may be 2004103 may also turn out to contribute to added that perhaps soon a third project is to further fundamental EU inroads in legal and follow, i.e., the joint development of European political terms in the European security SSA capabilities, which will also have a domain, albeit that Agency falls under the substantial, and probably even more profound competencies specifically of the Council of impact on security issues in space for Europe. the European Union, not of the Commission. Galileo, initiated by the European As with the development of the CFSP pillar, Commission, is the second-generation, this development took place without the European-owned and European-operated involvement of ESA – although ESA’s role in global satellite navigation system currently the European space endeavour under the being developed to be operational by 2013.105 Regulation’s regime was recognized to the Its key features, as compared with the extent that export controls on launchers and currently operational satellite navigation launch-related items otherwise applicable systems, the U.S. Global Positioning System would essentially be waived for items “that (GPS) and the Russian GLONASS (Global are transferred on the basis of orders pursuant Navigation Satellite System), have been listed to a contractual relationship placed by the as being an internationally-operated system European Space Agency (ESA) or that are controlled by civilians and providing for 27, transferred by ESA to accomplish its official plus three spare, satellites in medium Earth tasks” or “that are transferred to a State- orbits (MEO). The satellite signals should be controlled space launching site in the territory augmented world-wide and should be of a Member State, unless that Member State controls such transfers within the terms of this 105Council Resolution on the European Contribution to the Regulation” – noting here that European Development of a Global Navigation Satellite System launches usually take place from Kourou, (GNSS), of 19 December 1994; Communication from the French Guyana, which is French territory.104 Commission to the Council and the European Parliament – Towards a Trans-European Positioning and Navigation Network: including A European Strategy for Global Navigation Satellite Systems (GNSS), COM(1998) 29 final, European Union - European Space of 21 January 1998; Galileo – Involving Europe in a New Generation of Satellite Navigation Services, of 10 February Agency Cooperation 1999, COM(1999) 54 final; Council Resolution on the involvement of Europe in a new generation of satellite The most recent angle from which the EU, this navigation services – Galileo-Definition phase, of 19 July 1999; Commission Communication to the European time in close cooperation with ESA, was Parliament and the Council – On GALILEO, of 22 November venturing into the space domain, was the 2000, COM(2000) 750 final; Council Regulation setting up the Galileo Joint Undertaking, No. 876/2002/EC, of 21 May 2002; Council Regulation on the establishment of structures 103 See Council Joint Action 2004/551/CFSP of 12 July 2004 for the management of the European satellite radio-navigation on the establishment of the European Defense Agency; also, programs, No. 1321/2004/EC, of 12 July 2004; and see Article 42(3), Treaty on European Union as Amended by Regulation of the European Parliament and of the Council on the Treaty of Lisbon. the further implementation of the European satellite 104Part I, Annex IV, Regulation 1167/2008, sub-paragraph (1) navigation programs (EGNOS and Galileo); No. resp. (4). 683/2008/EC, of 9 July 2008.

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available in principle for usage by many has been Regulation 683/2008 on the further transport as well as non-transport applications. implementation of EGNOS (the regional These satellites should furthermore provide, forerunner to Galileo currently operational) apart from an Open Service similar to GPS and Galileo itself. By now, two test satellites and GLONASS Open Services, three types of are operational: the GIOVE-A, built by Surrey enhanced services, for which users one way or Satellite Technology, launched December another would have to pay, of which the 2005, and the GIOVE-B, built by Galileo Public Regulated Service (PRS) is of Industries and launched April 2008.109 importance for the current discussion, plus search and rescue services additional to the From several perspectives, including the existing COSPAS-SARSAT Program geopolitical one, Galileo is a major success [International Satellite System for Search and already prior to its proper deployment. Ever Rescue].106 since the People’s Republic of China (PRC) became the first non-European partner to join Galileo has undergone various delays and a the project at the highest level,110 many such number of changes of direction over the last states have expressed their interest in doing so years, most notably discarding for the time and some concluded similar agreements.111 being the Public Private Partnership (PPP) Though, with the transition from the Galileo approach in financing, building, and operating Joint Undertaking (GJU) to the European the system. The EU Council of Ministers by GNSS [Global Navigation Satellite System] means of a Resolution of 8 June 2007 Supervisory Authority, as well as the funding unequivocally concludes in this regard “that problems, these cooperative developments the current concession negotiations have failed have largely stalled, in the case of the PRC and should be ended.”107 However, the even leading to a severe curtailing of the Resolution, as well as ensuing political actual level of cooperation.112 discussions within Europe at the highest level, left little doubt that the European stakeholders Such involvement of non-EU, largely non- are determined to make Galileo happen and to European, countries had for the first time replace the private investments that are now raised major issues related to European no longer expected with public investments security issues, which the Commission had to one way or another; indeed, public investment cope with. Notably, the Cooperation has been achieved through the transfer of Agreement with the PRC specifically did not unused Common Agricultural Funds.108 The most recent result of that determination so far

109 106The COSPAS-SARSAT currently is a four-state satellite The first four in-orbit validation phase satellites for Galileo system available to aircraft, ships, other vehicles, and persons are planned for launch by November 2010. in distress for the purpose of sending emergency signals and 110By becoming a member of the Galileo Joint Undertaking alerting rescue services; see International COSPAS-SARSAT (GJU), the precursor to the European GNSS Supervisory Program Agreement, entered into force on 30 August 1988. Authority (GSA); see Cooperation Agreement on a Civil 107Item 2, Council Resolution on GALILEO, 2805th Transport, Global Navigation Satellite System (GNSS) – Galileo Telecommunications, and Energy Council Meeting, between the European Community and its Member States and Luxembourg, 6-8 June 2007. the People’s Republic of China, of 30 October 2003; Doc. 108Items 4-7, Council Resolution on GALILEO, 2805th Council of the European Union, 13324/03. 111 Transport, Telecommunications and Energy Council Meeting, For example; see Cooperation Agreement on a Civil Global Luxembourg, 6-8 June 2007; respectively Council of the Navigation Satellite System (GNSS) between the European European Union, 2828th Council Meeting, Economic, and Community and its Member States and the State of Israel, of 2 Financial Affairs, Brussels, 13 November 2007, 14534/07 June 2005. (Presse 251), at 18. 112Space News 12 June 2006. Space and Defense, Winter 2010 91

include access by the PRC to the PRS.113 The Regulation further outlines the envisaged PRS is the Galileo-service most akin to the approach to Galileo, including the system of GPS Precise Positioning Signal. PRS will be governance that should apply to the encrypted and physically protected, and only operational phase. Important for our current accessible to a limited group of users – in topic is that the European GNSS Supervisory principle all governmental organs, some Authority, established by Regulation hybrid service providers in areas key to 1321/2004, is to fulfill the key role inter alia modern society, and also in terms of security, in security accreditation and operation of the such as energy and telecommunications Galileo security center.117 In this respect, the networks. Supervisory Authority will operate under the umbrella of the Commission, which takes it Also, the Agreement with the PRC touched upon itself to “manage all questions relating to upon the issue of export control of security- the security of the systems, duly taking into sensitive space hardware and technology in account the need for oversight and integration the context of Galileo cooperation. It notably of security requirements in the overall provided that “Exports by China to third programs.”118 countries of sensitive items related to the Galileo program will have to be submitted for As already has become clear, and in spite of prior authorization by the competent Galileo the civil governance structure to be developed security authority, if the authority has for Galileo, security issues will have to be recommended to the EU Member States that faced. Firstly, the possibility of potential these items be subject to export adversary use of its signals would still have to authorization.”114 In any event, parties be dealt with; someone has to take decisions, reserved the right to apply applicable laws and in the worst case, to effectively shut down regulations in the context of EU-PRC parts of the system, when Galileo signals cooperation on Galileo as a safety precaution threaten to be used by states or non-state in case key security issues would be perceived actors against the security interests of Europe to be at stake.115 Regulation 683/2008, the and European states.119 currently ruling legal document on Galileo, provides on this issue that any additional Secondly, as referred to before, the envisaged contributions by member states, third states, or PRS, while painstakingly avoiding any intergovernmental organizations can only be reference to military or defense, was modeled arranged subject to dedicated agreements, in many respects on the GPS Precise allowing a similar degree of control over Positioning Signal. Whilst the PRS is security matters.116 officially to be made accessible to all

Being developed under EU leadership, with 117See Article 16, Regulation 683/2008. ESA as developer and procuring agency, the 118 Ibid., Article 13(1). See further Article 13(2)-(5), as well as Article 14 on the general governance of Galileo for security 113 purposes. On the other hand, see Article 4(2), Cooperation 119This was essentially taken care of by involving a “Galileo Agreement on a Civil Global Navigation Satellite System security center” in the overall governance scheme for the (GNSS) – Galileo between the European Community and its Galileo system, as well as specific security-related Member States and the People’s Republic of China. th 114 regulations; see 16 preamble paragraph, Articles 7, 13, 14, Ibid., Article 8(4). and 16, Regulation 683/2008; also see Council Joint Action 115 Ibid., Article 5(1). on aspects of the operation of the European satellite radio- 116See Articles 4(4), (5), and 6(3) and (4), Regulation navigation system affecting the security of the European 683/2008. Union, 2004/552/CFSP, of 12 July 2004.

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governmental services, debate has already before the latter part was changed to arisen about whether such governmental uses Environment and Security. Security as should not also include the use by the military understood here gradually came to be of respective member states. To those familiar interpreted beyond the concept of “civil with Western political history over the last security” so as to encompass more half century, it will come as no surprise that “traditional” military and defense issues of France is most adamant in seeing no obstacle security.121 to such use, whereas the United Kingdom, at least until recently, was most adamant in GMES, being tasked to provide Europe with emphasizing that such military uses were its own independent and comprehensive never contemplated, and should not be satellite Earth observation infrastructure for contemplated, or at least be vigorously generation of data and information on a pursued, now. comprehensive range of subjects, will bring the inclusion of defense, security, and military The other flagship project, GMES, is of more matters into the broader civil European recent date, and consequently has not yet governance structures. Like Galileo, this evolved to such an extent as Galileo, in impacts both the EU and ESA in terms of their particular, as relevant to the present traditional domain having explicitly excluded discussion, in terms of an attendant legal and military, defense, and security issues. governance framework to handle to security Establishment of a coherent SSA flagship aspects.120 At the same time, it now seems project will no doubt move such developments certain, with the launch of the Sentinel 1 one step further again. satellite for GMES scheduled for 2011 (the first Earth observation satellite for GMES) that it will actually precede an operational The Treaty of Lisbon Galileo system to space. GMES is to become the pan-European contribution to the Global The developments regarding the increasing Earth Observation System of Systems involvement of the EU in the space security (GEOSS), representing a global effort to domain are converging with the latest enhance environmental protection with the European achievement, which is the entry into help of satellite technology. force of the Treaty of Lisbon as of 1 December 2009. The increasing growth of the Nonetheless, GMES represents the next step Union – adding twelve new member states in for space security issues in Europe since this the time span of a mere three years (2004- project for the first time did prominently refer 2007) – was calling for a further to the concept of security – interestingly, in rationalization of the governance structure, the process extending its scope, as GMES was where a Commission having at least one originally meant to stand for Global Commissioner of every member state and the Monitoring for Environmental Security, possibilities for small numbers of member states to block legislative development in the Council were threatening to make further 120See further Council Resolution on the launch of the initial period of global monitoring for environment and security (GMES), of 13 November 2001; Communication from the Commission to the European Parliament and the Council – 121See further on this Frans von der Dunk, “A European Global Monitoring for Environment and Security (GMES): “Equivalent” to United States Export Controls: European Law Establishing a GMES capacity by 2008, COM(2004) 65 final, on the Control of International Trade in Dual-Use Space of 3 February 2004. Technologies,” Astropolitics 7 (2009). Space and Defense, Winter 2010 93

progress of the Union as a whole increasingly underlying the European Union. Among many difficult. Also, the calls for more involvement other things, it also tried to further enhance the at a European level in global issues of position of Europe as an entity in its own right sustainable development, poverty, climate in space and security, and consequently the change, and last, but not least, the new space security domain. security issues and a consequent revival of ideas to extend the scope of supranational policy-making and law-making did not go The Treaty of Lisbon and Security unheard. As far as the security-side to the equation is As mentioned, the first effort after the Treaty concerned, at least the principle of “security” of Nice of 2001 to take a step forward in was partially transferred from the Treaty on European integration was the Treaty European Union to the Treaty on the establishing a Constitution for Europe agreed Functioning of the European Union, and upon in Rome in 2004 – but this effort failed. included a reference to “defense” at the same This was not in the least because the inclusion time. The first treaty was the one document of the word “Constitution,” and its presumed part of the Treaty of Lisbon where the EC corollaries of a “European anthem” and an legal order and the key roles of Commission, official “European flag” as symbols of the Parliament, and Court were not engaged; the perceived ambition to create a European other, effectively the old EC Treaty as “super-state” with certain democratic lacunae, amended by the Treaty of Lisbon, was the triggered nationalist sentiments sufficiently to second such document where EC law and make the treaty fail in the referenda held in Commission, Parliament, and Court France and the Netherlands. An additional competencies did apply. factor blocking the required EU-wide acceptance was the rather unwieldy and So, in matters of security, now “The Union “juridical-technical” nature of the document shall have competence, in accordance with the that the combination of the various updating provisions of the Treaty on European Union, treaties with particular the original EC Treaty to define and implement a common foreign had become. and security policy, including the progressive framing of a common defense policy.”123 While the Treaty of Lisbon, to many a scaled- However, the actual implementation of such down and more realistic version of the Treaty policies refers back to the Treaty on European establishing a Constitution for Europe, took Union, to wit its second pillar where the close to two years between acceptance of the intergovernmental structures reside. Also, final text and entry into force,122 in the end it Article 4 of the Treaty on the Functioning of did succeed in becoming the key document the European Union makes reference to shared competence between the Union and EU 122The Treaty of Lisbon was voted down in Ireland by a member states in the “area of freedom, referendum the first time around, and managed a favorable security, and justice.”124 Note, that “security” vote the second time only after considerable wheeling and is inserted in the text between “freedom” and dealing and a number of cosmetic changes; and even after the Treaty had passed that hurdle, in particular Poland and the “justice,” whereby the term “security” may Czech Republic were serious candidates to block the entry into force of the Treaty – acceptance of the Treaty of Lisbon, 123 as of any other fundamental treaty in the EC and EU context, Article 2(4), Treaty on the Functioning of the European had to be unanimous as between the twenty-seven member Union. states in order to lead to entry into force. 124Ibid., Article 4(2.j).

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arguably be somewhat confined to civil without actual follow-on juridical or security. legislative action, may be disputed, but in principle these would not be subject to the What the actual effect will be of this partial democratic controls of the European “transfer” of the security domain into the Parliament, and therefore remain within the Treaty on the Functioning of the European exclusive domain of democratic controls of Union, will depend on the future usage that relevant national parliaments, and by the same the Union’s institutions may seek to make of token would fall outside the jurisdiction of the these clauses. On one hand, the shared Court of Justice. competence of Article 4(2) essentially means that “the member states can in principle only Furthermore, it is the European Council, a exercise their competences to the extent that special version of the Council of Ministers the Union has not exercised its competence,125 comprising the Heads of State of the member which in turn means the Union’s institutions states, hence still first and foremost can, following Article 288 of the Treaty on the representing their individual member states’ Functioning of the European Union, adopt interests,127 which shall now, further to Article Regulations, Directives, and Decisions. 21 of the consolidated Treaty on European Union, identify the On the other hand, Article 2(4) ensures that …at least the strategic interests and any action of the Union in this domain will principle of objectives of the have to follow the rules of the Treaty on “security” was Union and take European Union in its version as consolidated partially relevant decisions by by the Treaty of Lisbon. Here, the Union may unanimity, inter alia now “define and pursue common policies and transferred from in the area of actions” among others to “safeguard its the Treaty on common foreign and values, fundamental interests, security, European security policy.128 independence and integrity; … preserve Union to the The role of the peace, prevent conflicts, and strengthen Treaty on the Commission is international security in accordance with the Functioning of limited to the right to purposes and principles of the United Nations propose external Charter, with the principles of the Helsinki the European actions other than Final Act, and with the aims of the Charter of Union… those for the area of Paris, including those relating to external common foreign and borders,” objects clearly at least potentially security policy, which is the domain of the involving security, including military occupant of the newly created High decisions.126 To what extent such policies and Representative for Foreign Affairs and actions may comprise juridical or legislative Security Policy, a special official which is, action, and also to what extent such policies although Vice-President of the Commission, would essentially remain an empty shell directly appointed by the European Council.129

125Stephen Hobe, et al, A New Chapter for Europe in Space,” 127 Zeitschrift für Luft- und Weltraumrecht I: 54 (2005), 347. See further Articles 235-236, Treaty on the Functioning of 126Article 21(2), Treaty on European Union as amended by the European Union. 128 the Treaty of Lisbon amending the Treaty on European Union See Article 22(1), Consolidated Version of the Treaty on and the Treaty Establishing the European Community European Union. (hereafter Consolidated Version of the Treaty on European 129See Ibid., Articles 18(1) and (2), and 22(2); further Article Union), Lisbon, entered into force 1 December 2009. 30. Space and Defense, Winter 2010 95

Article 24(1) of the consolidated version of the It remains to be seen how the political Treaty on European Union echoes the landscape, both within the European Union aforementioned provision of Article 2(4) of itself and from a more geopolitical the Treaty on the Functioning of the European perspective, will evolve and whether this Union, in allotting to the Union “all areas of might, under certain circumstances, allow for foreign policy and all questions relating to the an increasingly larger role for the EU Union’s security, including the progressive institutions in security issues. framing of a common defense policy.” This common foreign security policy, however, is subject to specific rules and procedures, The Treaty of Lisbon and Space requiring unanimous agreement by the European Council and alternatively the In regard to outer space, the Treaty of Lisbon Council of Ministers, but “the adoption of was hoped for to present at least a courageous legislative acts shall be excluded” and (with step forward. When its failed predecessor, the one exception not relevant here) “the Court of Treaty Establishing a Constitution for Europe, Justice of the European Union shall not have was being negotiated and drafted, it had jurisdiction with respect to these included two novel provisions offering a key provisions.”130 to considerably enlarging Europe’s role in space. In sum, in all of Title V of the consolidated version of the Treaty on European Union, Firstly, that Treaty provided in Article I-14 entitled “General Provisions on the Union’s that “In the areas of research, technological External Action and Specific Provisions on development, and space, the Union shall have the Common Foreign and Security Policy” competence to carry out activities, in and comprising Articles 21 through 46, the particular to define and implement programs; Commission is referred to no more than eight however, the exercise of that competence shall times, in a manner that can be described as not result in Member States being prevented being on the fringe of the actual decision- from exercising theirs.”131 This clause was making processes. From the same perspective, part of the Article providing for the scope of the European Parliament is referred to a mere shared competence between the Union and its seven times, the Court of Justice of the member states, but the last part has led European Union exactly once. By contrast, the commentators to conclude that this was not so European Council has been mentioned 19 much a normal shared competence, but rather times, the Council of Ministers as such no less a “parallel competence.”132 In other words, than 74 times, and the term “Member States” individual member states would retain occurs 58 times in this Title. There is no better sovereign discretion to draft and implement way to directly visualize the different roles of their own national policies and legislation in the first three, the “truly European this area. institutions,” as compared with the latter two institutions where the individual member states’ interests are most prominently defended, in the context of security under the Common Foreign and Security Policy. 131Article I-14(3), Treaty Establishing a Constitution for Europe. 132Stephen Hobe, et al, “A New Chapter for Europe in Space,” Zeitschrift für Luft- und Weltraumrecht I: 54 (2005), 130Ibid., Article 24(1). See further Articles 28 and 31. 346-347.

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Secondly, specifically on space it was had handed down Decisions enforcing the provided: general competition regime in the sector.136 It also overlooked a similar regulatory 1. To promote scientific and technical involvement in the satellite navigation area, progress, industrial competitiveness, beginning with the Regulation setting up the and the implementation of its 137 policies, the Union shall draw up a Galileo Joint Undertaking in 2002. European space policy. To this end, it may promote joint initiatives, support More precisely, therefore, entry into force of research and technological the Treaty Establishing a Constitution for development, and coordinate the Europe would have meant a first efforts needed for the exploration and exploitation of space. comprehensive competence in terms of scope, 2. To contribute to attaining the not being indirectly deduced from objectives referred to in paragraph 1, competencies in telecommunication and European laws or framework laws transport fields (e.g., note that Galileo was shall establish the necessary presented first and foremost as a tool for trans- measures, which may take the form of a European space program. European transport networks, and still 3. The Union shall establish any essentially resides with the Commission’s appropriate relations with the Directorate on Transport and Energy). This 133 European Space Agency.

By many, this was considered to represent the of 24 March 1997; Directive of the European Parliament and first true acceptance of a competence in space of the Council on a common framework for general for the Union, even if only shared or parallel. authorizations and individual licenses in the field of telecommunications services, 97/13/EC, of 10 April 1997; This, however, overlooked the fact that Decision of the European Parliament and of the Council on already since 1994, with the adoption of the the selection and authorization of systems providing mobile Satellite Directive,134 the Union had exercised satellite services (MSS); No. 626/2008/EC, of 30 June 2008. 136For example: Commission Decision relating to a a fundamental competence to regulate satellite proceeding pursuant to Article 85 of the EC Treaty and communications as part of the broader Article 53 of the EEA Agreement (IV/34.768 – International telecommunications sector in the context of Private Satellite Partners), No. 94/895/EC, of 15 December 1994; Commission Decision declaring a concentration to be the European Internal Market. From that incompatible with the common market and the functioning of moment on, for example, the Commission had the EEA Agreement (IV/M.490 – Nordic Satellite adopted more Regulations, Directives, and Distribution), No. 96/177/EC, of 19 July 1995; Commission Decision relating to a proceeding under Article 85 of the EC Decisions to deal with specific aspects of Treaty and Article 53 of the EEA Agreement (IV/35.518 – 135 commercial satellite communications and Iridium), No. 97/39/EC, of 18 December 1996; Commission Decision declaring a concentration to be compatible with the common market according to Council Regulation (EEC) No 133 Article III-254, Treaty establishing a Constitution for 4064/89 (IV/M.1564 – Astrolink), of 25 June 1999; Europe. Commission Decision declaring a concentration to be 134Commission Directive amending Directive 88/301/EEC compatible with the common market according to Council and Directive 90/388/EEC, in particular with regard to Regulation (EEC) No 4064/89 (IV/M.4465 - Thrane and satellite communications, 94/46/EC, of 13 October 1994. Thrane/Nera), of 21 March 2007; Commission Decision 135For example: Commission Directive amending Directive declaring a concentration to be compatible with the common 90/387/EEC with regard to personal and mobile market and the EEA Agreement (COMP/M.4403 – communications, 96/2/EC, of 16 January 1996; Commission Thales/Finmeccanica/Alcatel Alenia Space & Telespazio), of Directive amending Directive 90/388/EEC with regard to the 4 April 2007; Commission Decision declaring a concentration implementation of full competition in telecommunications to be compatible with the common market according to markets, 96/19/EC, of 13 March 1996; Decision of the Council Regulation (EEC) No 4064/89 (IV/M.4709 – Apax European Parliament and of the Council on a coordinated Partners/Telenor Satellite Services), of 20 August 2007, authorization approach in the field of satellite personal 137Council Regulation setting up the Galileo Joint communications systems in the Community, No. 710/97/EC, Undertaking, No. 876/2002/EC, of 21 May 2002.

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was not generally considered to be subject to Note that paragraphs 1 and 3 are identical to dispute, and even as the Treaty Establishing a paragraphs 1 and 3 of Article III-254 of the Constitution for Europe was running into Treaty Establishing a Constitution for Europe, trouble, this clause was expected to survive.138 and that paragraph 4, though not present in the latter, does only confirm the default As it turned out, by way of an unpleasant relationship. Thus, paragraph 2 is the key surprise for the supporters of European space difference here. cooperation, the Treaty of Lisbon did take one fundamental step backwards here. The Treaty First, it replaces the reference to European on the Functioning of the European Union as laws and framework laws (the new names per the Treaty of Lisbon in relevant part firstly proposed by the Treaty Establishing a faithfully copies Article I-14 of the Treaty Constitution for Europe for Regulations and Establishing a Constitution for Europe that Directives) with a more complicated formula, was stated above.139 which in essence still refers to EC secondary law.141 Second, a clause is now added Secondly, however, the Treaty now provides: excluding from any such EU competence the possibility to use Regulations, Directives, or 1. To promote scientific and technical Decisions for the purpose of harmonizing laws progress, industrial competitiveness, and regulations of EU member states. and the implementation of its policies, the Union shall draw up a Consequently, the EU competence on space is European space policy. To this end, it now limited to adopting secondary EU law may promote joint initiatives, support that either (1) establishes a space project or research and technological space program and presumably takes care of development, and coordinate the its financing through EU budgets, or (2) efforts needed for the exploration and exploitation of space. applies the freedoms of movement of goods, 2. To contribute to attaining the services, persons and capital as well as the objectives referred to in paragraph 1, competition regime to the space sector, as the the European Parliament and the remaining key pillars of the Internal Market Council, acting in accordance with not covered by the last clause of paragraph 2. the ordinary legislative procedure, shall establish the necessary measures, which may take the form With regard to the latter, moreover, with the of a European space program, exception of areas of satellite excluding any harmonization of the telecommunications and satellite navigation laws and regulations of the Member where the leadership role of the Commission States. 3. The Union shall establish any and also in the legislative domain is generally appropriate relations with the accepted and already has led to secondary EU European Space Agency. law being adopted, actual adoption of 4. This Article shall be without Regulations, Directives, or Decisions may run prejudice to the other provisions of 140 into problems. Any existence of member state this Title. regulation on any such topic – as part of the exercise of member state competence, left 138Stephen Hobe, et al, “A New Chapter for Europe in Space,” Zeitschrift für Luft- und Weltraumrecht I: 54 (2005), 141The “ordinary legislative procedure” referred to here is 346. described as “the joint adoption by the European Parliament 139 Article 4(3), Treaty on the Functioning of the European and the Council of a regulation, directive or decision on a Union. proposal from the Commission.” See Ibid., Article 289(1) and 140Ibid., Article 189. Article 294.

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unhampered under Article 4(3) of the Treaty and the Agency into the field of space security on the Functioning of the European Union – has started to occur. might be expected either to exclude ipso facto a right for the EU institutions to adopt This process so far has been largely an secondary EU law, or lead to sufficient indirect one, bringing many factors together – opposition in the Council to preclude such the increasing entanglement, even adoption in practice. convergence, of ESA and the EU, the gradual swallowing of the WEU by the latter (where Still, the combined force of existing perhaps that process is most advanced with competencies in the satellite communication respect to the space part of the WEU), the and satellite navigation fields, the clauses of double perspective of security and space from the Treaty on the Functioning of the European which the Union is addressing space security, Union, and the subsidiarity principle vis-à-vis the joint development of the flagship projects, the inherently global domain of outer space the specific focus on international trade in and may well lead to increasing activity of the EU exports of security-sensitive technology, and institutions in the space domain. Once the trying to cope with potential Internal Market- Council would be convinced that it is in the distorting consequences of national licensing overarching interest to do so, the framework regimes on export control. The process is briefly outlined above certainly would allow further driven by the political will of the this to happen. Union to be in Europe’s driver’s seat with regard to global developments, such as concerning the Wassenaar Arrangement and Conclusions the MTCR, but also Space Situational Awareness and other space security-related From the above analyses of the often issues. painstaking and complicated processes of European integration, it may be concluded that The failed Treaty Establishing a Constitution the involvement of key intergovernmental for Europe and the successful Treaty of entities in Europe, including the European Lisbon from that perspective together Union and ESA, in space security is rapidly represented the extent to which the EU and its evolving at least on a political and visibility leading institutions, first of all the level, even as such involvement is crucially Commission, were able to move along that shaped by the institutional structures and the path so far, and establish a first measure of roles of the member states in delineating legislative and regulatory coherence on the relevant competencies. The outside reality that European front. The results, as analyzed, are space activities are almost always inherently rather mixed and certainly do not overcome security-sensitive or even simply developed many of the complications, sometimes from security needs has caught up with the perhaps even inconsistencies, arising as a principled prohibition in the relevant result from the manifold angles from which documents (for the European Union at least issues of space security are addressed in until the Treaty on European Union) to Europe. become fundamentally involved in security issues. The European flagship projects, For example, in spite of the increasing Galileo and GMES, may be seen as clear cooperation of the Union and ESA in matters indicators that indeed a gradual acceptance of of space policy, and now even projects, a full- the inevitability of involvement of the Union fledged integration of ESA into the Union Space and Defense, Winter 2010 99

does not seem to be plausible for now. Issues, such as the conflicting approach to the financing of space industry in the context of European space projects, with ESA largely still forced to adhere to the “fair return” concept and the Union insisting on open and competitive procurement, will therefore continue to require ad-hoc solutions, as was achieved for example for Galileo. In that sense, institutionally speaking, Europe has not yet moved fundamentally beyond the Framework Agreement. This is not to diminish the value and importance of what has been achieved.

To paraphrase the most famous quote in space history, it may not be the giant leap hoped for, but it is a small step forward opening up the prospect of more steps in the same direction. Security is also high on the agenda in Europe, space is increasingly playing an indispensable role in that context, and the flagship projects may well turn out to prove that the best way to deal with these issues would be by allowing more space for integrated decision-making at a European level, in which case both the European Union and ESA will be indispensable players – or at the very least indispensable vehicles for the sovereign member states to ensure their individual interests would not unduly obstruct the overarching European interests in security, space, and in space security.

Chinese Intentions in Space: A Historical Perspective for Future Cooperation

Gregory Kulacki Senior Analyst and China Project Manager, Global Security Program, The Union of Concerned Scientists

The United States (U.S.) is opening a new Cox Commission concluded many of the dialogue with China on cooperation in space alleged illegal transfers of American space that includes human space flight. The technology occurred in the wake of “the announcement appeared in the Joint Statement Reagan administration’s decision to permit issued by U.S. President Obama and Chinese satellite launches in the PRC” and that the President Hu in Beijing, China on 17 factors that led to the Reagan decision, which November 2009. The two leaders also agreed was left unaltered by subsequent “the two countries have common interests in administrations, were “no longer applicable.”4 promoting the peaceful use of outer space and The U.S. Congress and the Executive branch agree to take steps to enhance security in outer responded by enacting highly restrictive space.”1 These are significant shifts in U.S. export control laws and regulations that ended civilian and military space policy. The U.S. U.S. - China cooperation in commercial ended cooperation in space with China more satellite launches and prevented cooperation in than a decade ago2 and consistently refused to civilian space exploration.5 discuss Chinese concerns about security in outer space. Just a few months later, in March 1999, the Chinese government refused to support a In January 1999, a Select Committee of the program of work at the United Nations (UN) U.S. House of Representatives chaired by Conference on Disarmament (CD) because it Representative Christopher Cox issued its did not include negotiations on the Prevention Report on U.S. National Security and of an Arms Race in Outer Space (PAROS).6 Military/Commercial Concerns with the The United States repeatedly opposed opening People’s Republic of China (PRC). The report such a discussion, insisting on many occasions claimed “The PRC (China) has stolen or during the last ten years “there is no arms race otherwise illegally obtained U.S. missile and in outer space” and therefore no need to space technology that improves the PRC’s military and intelligence capabilities.”3 The

p. xii, http://www.access.gpo.gov/congress/house/hr105851 (accessed January 2010). 1The White House Office of the Press Secretary, “U.S.-China 4Ibid. p. xxiv. Joint Statement,” 17 November 2009, Beijing, China, 5Joan Johnson-Freese, “Becoming Chinese: Or, How U.S. http://www.whitehouse.gov/the-press-office/us-china-joint- Satellite Export Policy Threatens National Security,” Space statement (accessed November2009). Times, January/February 2001. Also, see Joan Johnson- 2Primarily consisting of U.S. government permission to allow Freese, “Alice in Licenseland: U.S. Satellite Export Controls commercial space activities, such as satellite launch services, Since 1990,” Space Policy 16: 3 (2000). consulting and satellite and component purchases. 6Statement by H. E. Mr. Li Changhe, Ambassador for 3Select Committee of the U.S. House of Representatives, Disarmament Affairs of the People’s Republic of China, Report on U.S. National Security and Military/Commercial Plenary Meeting of the Conference on Disarmament, 27 May Concerns with the People’s Republic of China Volume III, 1999, Geneva, Switzerland, http://www.nti.org/db/china/ U.S. Government Printing Office, Washington, D.C., 1999. engdocs/lichangh_0599.htm (accessed December 2009).

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discuss space security issues in the CD.7 In Command is likely aware of the limited value June 2009, the U.S. and China agreed to form of many existing U.S. assessments of Chinese an ad-hoc committee in the CD to discuss intentions in space, which often lack PAROS. The change in the U.S. position on credibility because they are based on space in the CD is consistent with the questionable information from a small set of agreement in the U.S. - China Joint Statement poorly evaluated Chinese sources.11 The to “take steps” on space security. unwarranted concern generated by U.S. analysts over the comments of Chinese These shifts in U.S. civilian and military space General Xu Qiliang on 1 November 2009 is a policy towards China are supported by the good example. Xu was discussing general head of the U.S. Strategic Command, General trends in the development of military space Kevin Chilton. Just before President Obama’s technology in the context of comments on the trip to China, the general told reporters that 60th anniversary of the People’s Liberation China was “on a fast track to improving Army Air Force (PLAF). American press capabilities,” that space was “a competitive accounts, took highly edited fragments of domain” and that the United States needed “a Xu’s full remarks out of context, making it forum that provides an open dialogue between appear the head of the Chinese Air Force said our nations.”8 General Chilton hopes the new war in space was inevitable, which he did dialogue with China will help the United not.12 States “understand exactly what China’s intentions are.”9 The chief coordinator of U.S. The new willingness to talk about cooperation military activities in space admitted “where in space is a welcome sign that both the U.S. they are heading is one of the things that a lot and China recognize the undesirable of people would like to understand better.”10 consequences of maintaining the post-Cox Commission status-quo. If the bilateral General Chilton’s open-minded approach to dialogue on space is to succeed, both sides Chinese intentions is at odds with many U.S. need to be prepared to manage the inevitable analysts of China’s space programs, who claim to know that Chinese investments in 11Gregory Kulacki, “Anti-Satellite (ASAT) Technology in space, including the large sums spent on their Chinese Open-Source Publications,” Union of Concerned human space flight program, are guided by Scientists, Cambridge, Massachusetts, 9 June 2009, military objectives. The head of U.S. Strategic http://www.ucsusa.org/nuclear_weapons_and_global_security /international_information/us_china_relations/anti-satellite- asat.html (accessed December 2009). 12Analysts are made to appear to sanction the inaccurate 7 The most notable among these was the statement of the interpretation that Xu’s remarks exposed hitherto Delegation of the United States of America to the Conference unpublicized Chinese plans for space warfare. See Colin on Disarmament on 13 June 2006, which states: “The Cold Clark, “China Declares Space War Inevitable,” War is over, Mr. President, and there is no arms race in outer http://www.dodbuzz.com/2009 /11/04/china -declares-space- space. Thus there is no – repeat, no – problem in outer space war-inevitable (accessed December 2009). The original story for arms control to solve.” The statement was delivered by clearly indicates Xu was referring to longstanding public John Mohanco, then the Deputy Director of the U.S. State Chinese discussions of trends in the militarization of outer Department’s Office of Multilateral Nuclear and Security space, not plans for space war or space weaponization. See Affairs, http://www.reachingcriticalwill.org/political/cd/ “China’s PLA Eyes Future in Space, Air: Air Force speeches06/13JuneUS.pdf (accessed December 2009). Commander,” Xinhua General News Service, Beijing, China, 8 Phil Stewart, “U.S. Eyes Intent of China’s Space Programs,” 1 November 2009, http://eng.mod.gov.cn/TopNews/2009- Reuters 3 November 2009, http://www.reuters.com/ 11/02/content_4099975.htm (accessed December 2009). An article/scienceNews/idUSTRE5A25XG20091103 (accessed extended Chinese language account of the full press December 2009). conference from which the quotes in the prior source are 9Ibid. derived is available at http://news.mod.gov.cn/ 10Ibid. headlines/2009-11/01/content_4099571.htm. Space and Defense, Winter 2010 103

difficulties and frustrations of continued Chinese analysts are beginning to use the miscommunication and misunderstanding. For word “deterrence” the same way their example, the United States and China began a American counterparts do. Ironically, this similar dialogue on nuclear weapons nearly accommodation to the American nuclear twenty years ago, but the participants still vernacular is producing more confusion. Some argue over the meaning of basic concepts, like American analysts, mistakenly according to deterrence.13 China’s nuclear weapons experts the Chinese, are interpreting changes in their have an institutionalized aversion to the use of use of terminology as a sign China is changing the Chinese word for deterrence “weishe.” its nuclear posture.15 Elder Chinese leaders do not want them to use deterrence to describe the purpose of Chinese The American side should prepare for the nuclear weapons because they associate the upcoming dialogue with China on space by concept with the “nuclear blackmail” they learning more about the history of the Chinese believe China experienced at the hands of the space program. Familiarity with the choices Americans in the 1950s.14 Today, younger China made in the past, as well as how and why those choices were made, should help the American participants be more effective in

13The Committee on the U.S. - Chinese Glossary of Nuclear meeting whatever objectives they set for the Security Terms, composed of members of the U.S. National talks. The best way to determine where China Academy of Science Committee on International Security and might be heading is to understand more about Arms Control (CISAC) Policy and the Chinese Scientists Group on Arms Control (CSGAC) negotiated for months over where they have been. the inclusion of the term “limited deterrence” in their English- Chinese, Chinese-English Nuclear Security Glossary. The aim of the glossary is to “reduce the likelihood of misunderstanding, and to remove barriers to progress in The 1980s: The Formative Decade for exchanges and diplomatic, cooperative and other activities Contemporary Chinese Space Policy where unambiguous understanding is essential.” CISAC and CSGAC have been meeting for almost twenty years. In the end, the two sides agreed to disagree, saying it was “a term China’s contemporary space capabilities, used by some scholars to describe a form of deterrence. including the anti-satellite (ASAT) interceptor However, there is no consensus on the definition.” This may tested in January 2007 and their human space seem a small matter, but some of the scholars they refer to in the definition argue that China is in the process of changing flight program, were made possible by a 1986 its nuclear posture from a “minimal” to a “limited” deterrent. leadership decision to make an initial 10 This change could have grave implications for U.S. billion Chinese Yuan (or Renminbi, RMB) perceptions of Chinese intentions regarding the alert status and possible use of their nuclear weapons. Committee on the investment in seven key areas of advanced 16 U.S. - Chinese Glossary of Nuclear Security Terms, National technology, including aerospace. This Research Council, “English-Chinese, Chinese-English Nuclear Security Glossary,” The National Academies Press, Washington, D.C., 2008, http://books.nap.edu/catalog.php? record_id=12186 (accessed January 2010). the Carnegie Endowment for International Peace and 14This was the unanimous response from a panel of eight Tsinghua University held at Tsinghua University. leading Chinese experts on nuclear strategy: Duan Zhanyuan, 15A description of the ongoing debate among scholars can be Second Artillery of the People’s Liberation Army; Fan Jishe, found in Stephanie Legge, “Going Beyond the Stir: The China Academy of Social Sciences; Guo Xiaobing, China Strategic Realities of China's No-First-Use Policy,” NTI Issue Institute of Contemporary International Relations; Hu Yumin, Brief, December, 2005, http://www.nti.org/e_research China Institute of International and Strategic Studies; Li Bin, /e3_70.html (accessed December 2009). Legge notes the Tsinghua University; Sun Xiangli, China Academy of origins of the linguistic roots of the suspected Chinese posture Engineering Physics; Teng Jianqun, China Institute of change in Alastair Iain Johnson, “China's New Old Thinking: Intemational Studies; and Yang Mingjie, China Institute of The Concept of Limited Deterrence,” International Security Contemporary International Relations. These experts were 20: 3 (1995-1996). responding to a question on the Chinese aversion to the term 16Gregory Kulacki and Jeffrey Lewis, “A Place for One’s “deterrence” from James Acton at a workshop sponsored by Mat,” American Academy of Arts and Sciences, Cambridge,

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decision was a direct result of a personal “Man of the Year.” Time noted “his appeal to Deng Xiaoping by Chinese scientists continuing reform of China and Marxism who were closely associated with China’s holds more promise for changing the course of nuclear weapons and ballistic missile history than anything else that occurred during programs.17 That appeal was contained in a 1985.”20 letter written in response to U.S. President Ronald Reagan’s 23 March 1983 speech The Chinese scientists who persuaded Deng announcing the Strategic Defense Initiative Xiaoping to commit a large block of the (SDI).18 nation’s limited technical and fiscal resources to an ambitious space program believed that Influential Chinese defense community SDI was “not just a military program, but a scientists were not writing to Deng because of far-reaching political striving to preserve a concern about the possibility of a future American superiority.”21 The military military conflict with the United States. The implications of SDI were not the “real contents of their letter and the state of U.S. - objective” behind a program they saw as an China relations at the time it was written make effort to “push forward new advanced this clear. The United States and China were technologies and national economic cooperating in efforts to contain the Soviet development.”22 The Chinese leadership, Union, and the United States was providing attentive to the concerns of their scientific intelligence, technology and training to the advisers, wanted to ensure China kept pace in Chinese military. President Reagan received a the international competition for technological warm welcome in what he described as the and economic power. Military space “so-called Communist China” during his visit capability was a secondary concern. This was in April 1984. Reagan proclaimed, “My visit reflected in the “Outline for National High to China has convinced me that our future is Technology Planning” that codified the bright,” and “America is on the edge of a new scientists concerns into national policy.23 The era of peace, prosperity and commerce.”19 While the two nations were not allies, U.S. and Chinese mutual threat perceptions were 20George J. Church, “Deng Xiaoping,” Time 6 January 1986, http://www.time.com/time/subscriber/personoftheyear/archive low. The year the letter was sent to Deng /stories/1985.html (accessed November 2009). It was the Xiaoping Time magazine made him their second time Deng received high praise from Time, which named him “Man-of-the-Year” in 1978 for “leading one- quarter of mankind quickstep out of dogmatic isolation into the late 20th Century and the life of the rest of the planet.” From the Time archive, “Person of the Year,” Time 1 Massachusetts, 2009, pp.23-24, http://www.amacad.org/ January1979, http://www.time.com/time/subscriber/ publications/spaceChina.aspx (accessed December 2009). personoftheyear /archive/stories/1978.html (accessed 17The scientists were Wang Daheng, Chen Fangyun, Wang December 2009). Ganchang and Yang Jiachi. An excellent English language 21Xiaohua Fan, The Inside Story of Chinese Space Policy- summary of their contributions to China’s nuclear and Making (China Literature and History Publishing House, ballistic missile programs is contained in Evan A. 2005): 262-269. Two of the four authors of the letter detail Feigenbaum, China’s Techno-Warriors: National Security their political, economic and technological motivations for and Strategic Competition from the Nuclear to the investments in space in an article entitled: “The Science of Information Age (Stanford University Press, 2003): 154–157. Technology and Our National Aerospace Technology 18Xiaohua Fan, The Inside Story of Chinese Space Policy- Development,” Journal of the Chinese Academy of Science 4 Making (China Literature and History Publishing House, (1986), shortly after they transmitted their letter to Deng 2005): 262 - 269. Xiaoping. The article can be found in Yang Jiachi, The 19Robert A. Jemian, Laurence I. Barrett and Evan Selected Works of Yang Jiachi (China Astronautic Publishing Thomas,“An Opening to the Middile Kingdon,” Time 14 May House, 2006): 102-109. 1984, http://www.time.com/time/magazine/article/ 22Ibid. 0,9171,955255, 00.html (accessed November 2009). 23Ibid. Space and Defense, Winter 2010 105

Outline placed a priority on civilian and dual- priority since September of 1977.28 The use applications: a priority that continues to willingness of the Carter administration to guide Chinese high technology investments, provide technological assistance to China was including aerospace investments, according to encouraging and the immediate need pressing, language in the current Chinese national so Deng took the extraordinary step of making plan.24 a direct personal appeal to the United States against the wishes of his scientific advisers. During Reagan’s visit, Deng expressed They wanted to do it on their own. Fortunately frustration that the U.S. was unwilling to for them, the negotiations broke down. provide China with access to space Afterward, Deng and China’s aerospace technology.25 Six year’s earlier, U.S. leaders came to believe that China could not President Carter’s National Security Advisor, rely on the U.S. for meaningful assistance in Zbigniew Brzezinski, brought what he developing their own space technology. They described as “the most high powered went ahead with the communication satellite science/technology delegation ever sent by the on their own. There were repeated setbacks United States to a foreign country” when he and delays, but these proved to be invaluable visited China in 1978 for negotiations leading learning experiences.29 China eventually to the establishment of diplomatic relations.26 succeeded in placing their first NASA Administrator at that time, Robert communications satellite into space on 16 Frosch, was a member of that delegation. April 1984, ten days before Reagan arrived in Deng Xiaoping took the occasion to ask the China.30 Deng may have been expressing United States for help developing China’s first frustration when he chided Reagan for not communication satellite. Their own effort had providing more access to American space stalled and Deng wanted to jump start a long technology, but he may also have been trying distance education effort designed to address to let him know China could succeed without the catastrophic damage to Chinese secondary it. and higher education caused by the Cultural Revolution of 1966-1976.27 China’s disappointment in American reluctance to share advanced space technology The Carter administration was willing to sell has a historical precedent in the Soviet China a satellite, but China wanted help Union’s hesitant assistance to China’s nuclear overcoming the specific technical difficulties

inhibiting progress on their existing 28Chinese General Zhang Aiping, the Director of the communications satellite program. It had been Committee on Science, Technology for National Defense a top Chinese national technology policy (CSTND) first expressed his intention to make it a priority during a meeting of the Chinese Academy of Space Technology (CAST) in June 1975. Jisheng Li, Far Road to 24An English Language copy of the complete document is Heaven: Record of Rocket and Satellite Launches (Central available on-line at http://www.cstec.org/uploads/files/ Party School of the Chinese Communist Party Publishing National%20Outline%20for%20Medium%20and%20Long% House, 2005): 151. 20Term%20S&T%20Development.doc (accessed December 29Carter’s NASA Administrator Robert Frosch felt that the 2009). lesser risk was in helping China with their own 25Jeff Gerth and Eric Schmidt, “The Technology Trade: A communications satellite, since that would probably mean Special Report; Chinese Said to Reap Gains In U.S. Export they learned less than if they did it themselves. Moreover, in Policy Shift,” New York Times 19 October 1998. his view there were no great secrets in the comsat 26Richard Masden, China and the American Dream: A Moral (commercial satellite) business that cooperation would risk Inquiry (University of California Press, 1995): 134. compromising. Personal communication with the author. 27Xiaohua Fan,. The Inside Story of Chinese Space Policy- 30Xiaohua Fan,. The Inside Story of Chinese Space Policy- Making (China Literature and History Publishing House, Making (China Literature and History Publishing House, 2005): 199-201. 2005): 224-232.

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and ballistic missile programs– assistance technologically advanced nation, the United abruptly canceled shortly after it began. States., which they imagined was about to Chinese leaders call attention to this precedent invest hundreds of billions of dollars in a new when they compare the human spaceflight generation of space-related technologies. program to their earlier effort to develop nuclear weapons and ballistic missiles.31 At the same time, China made a diplomatic Although in practice human spaceflight has push for international restrictions on the shown little military value, the common military use of space technology. In March denominator between the two programs 1985, Chinese Ambassador Hu Xiaodi (nuclear weapons/ballistic missiles and delivered China’s first official position paper spaceflight) is that in both instances the on the peaceful use of outer space to the CD. Chinese were forced to master the It stated “China fully subscribes to the technologies on their own, or at least without objective of the non-militarization of outer substantial foreign assistance. The comparison space and the exclusive use of outer space for is meant to be an object lesson for the Chinese peaceful purposes.” Non-militarization was in the continuing importance of indigenous understood to mean “both space weapons with technological development, even in this era of actual lethal or destructive power and military globalization and interdependence. This satellites of all types from limited and understanding of the importance the current prohibited.” China was willing to postpone leadership attaches to their space program is discussions on a ban on all military uses in consistent with the concerns expressed in the lieu of an immediate effort to ban the past by the letter-writing Chinese scientists “development, testing, production, who got it started. Those scientists understood deployment and use of any space weapons” how technologically deficient China was in including “all devices or installations either comparison to the world’s most space, land, sea, or atmosphere-based, which are designed to attack or damage spacecraft in

31Many American observers see the connection in military outer space, or disrupt their normal 32 terms and describe the Chinese human spaceflight program as functioning or change their orbits.” a “military run” program. One example, among scores of others, was an editorial published in The Dallas Morning News shortly after China put their first person in space. The Had the United States, China and the other editorial was accompanied by a picture of military officers members of the CD negotiated such a surrounding the Shenzhou V space capsule. Standing at the prohibition, the research and development front of the capsule were Chinese astronaut Colonel Yang Liwei and Chinese President Jiang Zemin, both dressed in (R&D) effort that produced the ASAT their military uniforms. The editorial notes: “It is important to interceptor China tested in January of 2007, observe that Beijing’s space program is not run by the and other suspected Chinese counter space Chinese equivalent of the National Aeronautics and Space Administration, but by the People’s Liberation Army. technologies, would have been legally Following the taikonaut’s return to Earth, the countr’s science proscribed. In the absence of an agreement, and technology minister called the event a “glorious Chinese concerns about ASAT weapons achievement” as significant as China’s explosion of its first atomic and hydrogen bombs. The comparison is telling.” See gradually evolved from observations and “Red Star Rising: Space Venture Makes China a True analysis of foreign ASAT systems to Competitor,” Dallas Morning News 17 October 2003. A similar assessment of the military character of China’s human spaceflight program appeared on the eve of U.S. President Obama’s visit to China: See Gordon Chang, “The Space Race 32See China’s Basic Position on the Prevention of an Arms Begins. Should the U.S. and China Cooperate,” Forbes.com, Race in Outer Space Conference on Disarmament, CD/579, http://www.forbes.com/2009 /11/05/space-arms-race-china- 19 March 1985 in Jeffrey Lewis, The Minimum Means of united-states-opinions-columnists-gordon-g-chang.html Reprisal: China’s search for Security in a Nuclear Age (The (accessed December 2009). MIT Press, 2007): 209-210. Space and Defense, Winter 2010 107

diplomatic efforts to restrain them, and produced their ASAT interceptor in the mid- eventually to R&D programs of their own. 1980s.37

China had been watching the development of By the end of the1980s, China had committed U.S. and Soviet ASAT systems since the early to a long-term R&D effort that would 1970s.33 By the end of the decade, they noted eventually lead to the acquisition of the then that while the Soviet Union seemed to be civilian and military space capabilities they farther ahead in ASAT technology, U.S. R&D are bringing on-line today. China expressed on missile defense had also produced “strong interest” in international negotiations capabilities that could be used to “track, to control the military use of space approach, discriminate and destroy” technology, including all types of ASAT satellites.34 These early observations led weapons, but also set about developing the China’s defense aerospace experts to same military space capabilities they sought to anticipate, several years before Reagan’s SDI have controlled.38 When China made these speech, “technological breakthroughs… in commitments, neither the technologies nor the infrared sensing, adaptive optics, lasers, negotiations to control them appear to have precision guidance, micro-computing, been specifically intended to resolve concerns aerospace, particle beam and other weapons about a possible military conflict with United that will lead to a fundamental change in States. For understandable reasons, many strategic defenses.”35 China’s scientists also Americans do not see it that way today. predicted these technological changes would “undermine arms control efforts between the United States and Soviet Union that restrict Historical Perspective the development of missile defense and ASAT on American Perceptions systems.”36 This early connection between of Chinese Intentions in Space missile defense and ASAT technology is a persistent theme in Chinese discussions about American perceptions of Chinese intentions in the two technologies that continues today. The space have a history of their own that is ASAT interceptor China tested in 2007 uses disconnected from the history of China’s the same basic technologies as those used in space programs. When Ronald Reagan agreed U.S. missile defense interceptors. China to allow China to launch U.S. commercial appears to have begun the R&D program that communications satellites in September of 1988, U.S. threat perceptions of China were even lower than they had been when he visited China four years earlier. Time magazine made fun of a Chinese military “whose power and 33Gregory Kulacki, “Anti-Satellite (ASAT) Technology in prestige have been diminished by Chinese Chinese Open-Source Publications,” Union of Concerned leaders determined to de-emphasize military Scientists, 9 June 2009, http://www.ucsusa.org/ nuclear_weapons_and_global_security/international_informat ion/us_china_relations/anti-satellite-asat.html (accessed 37Gregory Kulacki and Jeffrey G. Lewis, “Understanding December 2009). China’s Antisatellite Test,” The Nonproliferation Review 15: 34Ji Shipan and Li Minghu, “Kongjian Zhanzheng yu Jiguang 2 (2008). Wuqi: Dandao Daodan Fangyu de Fazhan Qushi” (Space 38The Chinese wanted to ban all military uses of space. This Warfare and Laser Weapons: Trends in the Development of was a much stronger arms control measure than what China Missile Defense),” Xiandai Fangyu Jishu (Modern Defense and Russia are currently proposing. Links to the UN Technology) 3 (1979): 1-31. documents on the current Chinese-Russian proposal can be 35Ibid. found on-line at http://www.reachingcriticalwill.org/legal/ 36Ibid. paros/osdocuments.html.

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might in favor of agricultural and industrial Chinese leader Deng Xiaoping was instantly reform.”39 The U.S. security concern at the transformed from Time magazine’s reform- time was Chinese missile sales. Reagan minded “Man-of-the-Year” into the “Butcher administration officials, including Defense of Beijing.” In the next few years, the fall of Secretary Frank Carlucci, were “fully the Berlin Wall and the collapse of the Soviet satisfied” their discussions with Deng Union left China as the only major nation Xiaoping had resolved those concerns. ruled by a communist party. Over the next Sanctions imposed in the wake of missile sales decade, Americans developed “a picture of to Iran were lifted, and the U.S. continued to China solely as a country of brutal dictators, provide assistance and equipment to the beleaguered dissidents and corrupt deal- Chinese military.40 makers intent on using its economic clout and its military might to dominate its neighbors Less than a year later American threat and challenge the United States for regional perceptions changed dramatically after the supremacy.”42 Chinese military used lethal force to repress anti-government demonstrations throughout Changing American perceptions of China did China in June of 1989. What is known in the not bring a halt to U.S. commercial satellite United States as the “Tiananmen Massacre” launches from China until 1998. Initially this was a massive may have been due to the temporary shortage nationwide military The best way to of U.S. launch capacity created by the loss of campaign to put determine the Space Shuttle Challenger in 1986. Later in down protests in the next decade, the Clinton administration major cities where China continued to permit the launches because it throughout China. may be believed the policy encouraged China to keep Televised images of heading is to the promise not to sell missile technology it the violence in understand made just before President Reagan authorized 43 Beijing on the more about them. Republican opponents on Congress, evening of June 3 where they however, began to define Chinese space and the early programs as a grave threat to U.S. national morning of June 4 have been. security and charged President Clinton “sold horrified the to a Chinese Military Intelligence front the American public. CNN reporter Mike Chinoy, technology that defense experts argued would who was responsible for getting those images give Beijing the capacity to blind our spy out of China, later called it the defining satellites and launch a sneak attack.”44 41 moment in American perceptions of China.

speech/pre%20sept%2004%20speeches/chinoy.html 39Michael S. Serrill, Sandra Burton and Jaime A. FlorCruz, (accessed November 2009). “China Sprucing Up the Troops.” Time 11 July 1988, 42Ibid. http://www.time.com/time/magazine/article/0,9171,967873,0 43Jeff Gerth and David Sanger, “How Chinese Won Rights to 0.html (accessed 29 November 2009). Launch Satellites for U.S,” New York Times 17 May 1998, 40See Don Oberdorfer, “U.S. and China Mark 10 Years of http://www.nytimes.com/1998/05/17/us/how-chinese-won- Ties,” New York Times 16 December 1988; “China Assures rights-to-launch-satellites-for- Carlucci On Mideast Arms Sales; Peking Seen Curbing us.html?scp=2&sq=Rubin&st=nyt&pagewanted=all (accessed Missile Supply Role,” New York Times 8 September 1988; November 2009). and “U.S. to Lift Sanctions Against Beijing; Chinese Agree to 44William Safire, “Essay; U.S. Security for Sale,” New York Accept Peace Corps,” New York Times, 10 March 1988. Times 18 May 1998, http://www.nytimes.com 41Mike Chinoy, “Speech Before the Los Angeles World /1998/05/18/opinion/essay-us-security-for-sale.html?scp=5 Affairs Council,” 18 April 1997, http://www.lawac.org/ &sq=China&st=nyt (accessed November 2009).

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This claim was made in May 1998, when defeating the U.S. military in a high-tech and China had 14 satellites in orbit including ten space-based future war.”47 communication satellites, mostly of foreign manufacture, that were used primarily for Prominent American analysts of China’s television, phone and fax services. China also military modernization program believed had one weather satellite and one scientific these methods and strategies were inspired by satellite.45 Also, China’s space investments, concerns within the Chinese military about the and the Chinese military’s space work force, American use of space technology in the 1991 were developing the human spaceflight Gulf War.48 One of the most frequently was program, which had yet to launch the first Mark Stokes, whose 1999 U.S. Army War experimental capsule and would not put an College publication on Chinese strategic astronaut into space for another five years. modernization was cited frequently by Even though China had mastered the use of American analysts. Stokes called the supposed recoverable reconnaissance satellites and was Chinese preoccupation with military space developing experimental positioning technology “China’s Gulf War Syndrome.” satellites,46 they had no demonstrated counter He described it “a rude awakening for the space capabilities. Yet the “Space Pearl Harbor” narrative quickly emerged as the consensus interpretation of Chinese intentions among U.S. analysts. In January 2001, the 47Report of the Commission to Assess U.S. National Security supposed Chinese threat was highlighted in Space Management and Organization, 11 January 2001, the Report of the Commission to Assess U.S. p. xiv and p. 22, http://www.fas.org/spp/military/commission/ National Security Space Management and report.htm (accessed January 2010). 48The claim appears in many American analyses. Some of the Organization– a Congressional commission more prominent are James A. Lewis, China as a Military chaired by Donald Rumsfeld until President- Space Competitor, Center for Strategic and International elect George W. Bush nominated him to serve Studies, August 2004, http://www.csis.org/media/csis/pubs/ 040801_china_space_competitor.pdf (accessed January2010); as Secretary of Defense. The Space Phillip Saunders, Jing-dong Yuan, Stephanie Lieggi and Commission report claimed: “China’s military Angela Deters, China’s Space Capabilities and the Strategic is developing methods and strategies for Logic of Anti-Satellite Weapons, Center for Non-proliferation Studies, July 2002, http://cns.miis.edu/stories/020722.htm (accessed January 2010); David O. Meteyer, The Art of Peace: Dissuading China from Developing Counter-Space Weapons, INSS Occasional Paper 60, USAF Institute for 45The communications satellites were: Apstar 1, 3 and 4 (APT National Security Studies, USAF Academy, Colorado, August Satellite); Asiasat 1, 2, 3S, and Asiasat G (Asia Satellite 2005; Mark A. Stokes, “Space, Theater Missiles, and Telecom); Dongfanghong 3R (China Telecom Satellite Electronic Warfare: Emerging Force Multiplier for the PLA Broadcasting); Sinosat-1 (Sino Satellite Communications); Aerospace Campaign, “presented at Chinese Military Affairs: and the Chinastar-1 (Zhongwei 1) built by Lockheed, owned A Conference on the State of the Field, 26-27 October 2000, and operated by China Satellite Communications. The Fort McNair, Washington DC, Aerospace I Panel; and Mary weather satellite was the Feng Yun 2B (China National Space C. FitzGerald, “China’s Evolving Military Juggernaut,” in Administration), and the scientific sateliite was the Shijian 4 China’s New Great Leap Forward: High Technology and (CAST). See Aviation Week & Space Technology 148: 2 Military Power in the Next Half-Century, Hudson Institute, (1998): 141-147; and Aviation Week & Space Technology 2005. The assertion was also a focal point of a review of 154: 3 (2001): 167-176. Also, see the Union of Concerned China’s space program presented by Dean Cheng of the Scientist Satellite Database, which is available at Center for Naval Analysis (CNA) at the Henry L. Stimson http://www.ucsusa.org/nuclear_weapons_and_global_security Center on 3 March 2005. A somewhat less definitive /space_weapons/technical_issues/ucs-satellite-database.html agreement with this consensus appears in Joan Johnson- (accessed January 2010). Freese, “Strategic Communication with China: What Message 46This includes the FSW recoverable satellite program which about Space?” China Security 2 (2006): 51, was used for a variety of experiments as well as photo http://www.wsichina.org/attach/china_security2.pdf#search=' reconnaissance, the Ziyuan imaging satellites developed in Strategic%20Communication%20with%20China:%20Space cooperation with Brazil and the Beidou positioning satellites. (accessed January 2010).

110 Gregory Kulacki/Chinese Intentions in Space: A Historical Perspective for Future Cooperation

CMC [China’s Central Military Commission] Space Commission Report, in the Stokes’ and the military-industrial complex.”49 study and in many other U.S. analyses of China’s space programs are not from the However, the history of China’s space scientists who work in the aerospace program reviewed earlier in this paper community and advise the senior leadership of demonstrates that Stokes was mistaken. There the Chinese “military-industrial complex.” is ample documentary evidence that the The quotations are from a very different set of defense scientists who ran China’s “military Chinese authors writing for publications with industrial complex” anticipated the military a different purpose and a different audience. applications of space technology the U.S. demonstrated in the Gulf War more than a The Gulf War was a global media decade before that war started.50 They phenomenon that carried the now iconic petitioned the Chinese government for the televised images of “smart bombs” to funding to develop their own military space hundreds of million of Chinese viewers for capabilities five years before it started. And at whom television itself was advanced the time these senior figures in China’s technology. In the wake of this media event, a “military industrial complex” wrote their new and very different group of Chinese petition to the most influential military authors began writing about military space decision-maker in the CMC, Deng Xiaoping, technology for a new audience. The authors the U.S. was assisting the development of were not aerospace Chinese military capabilities. Mutual threat …China made experts or strategists perceptions were low and the probability of a a diplomatic writing for Chinese U.S. - China military conflict was remote. leaders, but non- push for experts writing for The mistake Stokes makes in interpreting international average Chinese Chinese thinking about space is revealing, and restrictions on readers who were, it is one that is repeated by American analysts the military use like many others all who cite Chinese publications without of space over the world, considering their historical, institutional and rudely awakened by technology. social context. The claim that China was the images of modern acquiring the capability to launch a “Space warfare they saw on Pearl Harbor” is based on American television. Their articles were part of a interpretations of the selected quotations of political campaign meant to reassure both Chinese military personalities culled from soldiers and officers that the Chinese Chinese military publications and press leadership was aware of the changing nature interviews. The quotations used to of modern military technology and would take demonstrate Chinese intent that appear in the steps to prepare the PLA to respond to these developments, but without saying in a detailed 51 49Mark A. Stokes, China’s Strategic Modernization: or authoritative way how it would respond. Implications for the United States, Strategic Studies Institute, American analysts were confusing Chinese U.S. Army War College, September 1999, p. 12. military space policy with Chinese military 50Gregory Kulacki, “Anti-Satellite (ASAT) Technology in Chinese Open-Source Publications,” Union of Concerned propaganda. This confusion is still a problem Scientists, 9 June 2009, http://www.ucsusa.org/nuclear_ today. weapons_and_global_security/international_information/us_c hina_relations/anti-satellite-asat.html (accessed December 2009). This study is based on over 1,500 source articles over a four-decade period. 51Ibid. Space and Defense, Winter 2010 111

Lesson for Policy Makers: knowledge about the Chinese ASAT test in Let the Scientists Do the Talking 2007, which some ministry functionaries originally dismissed as U.S. government The dialogue on cooperation and the peaceful slander.52 The U.S. State Department use of outer space President Obama and enforcement of discriminatory U.S. legal President Hu agreed to begin in their Joint restrictions on space cooperation with China is Statement of November 17, 2009 will not last interpreted by many Chinese space scientists for long if both sides continue to be suspicious and engineers as a sign of persistent U.S. of the other’s intentions. Before the dialogue hostility towards China’s efforts to join the begins in earnest, and international community of spacefaring before any agreement China had nations.53 This explains, in their view, why on cooperation is been watching China is not treated on an equal basis with signed, both sides the other less-developed Asian space programs, should take steps to specifically those of Japan, India, Malaysia correct past mistakes. development and South Korea, which all have cooperative of the U.S. and relationships with NASA. Chinese military Soviet ASAT propaganda on space system since A look back at the record of Chinese decisions may not be an the early about space suggests that neither the PLA nor indication of the the Foreign Ministry has played a decisive 1970s. intentions driving role in the formation and direction of Chinese Chinese space policy, space policy. The limited historical materials but it is a cause for concern. Repeated available on Chinese space policy, from the unsettling statements from military officers decision to launch China’s first satellite in the published in Chinese newspapers, magazines early days of the People’s Republic to current and journals have the same effect on U.S. Chinese plans to build their own space station, policy-makers as the rhetoric from the U.S. suggest that China’s scientists guided Chinese Air Force about “space dominance” has on space policy and convinced the Chinese Chinese policymakers. Because Chinese political leadership to make the investments leaders are unwilling to censure their military necessary to carry it out. Since this is the propagandists and American leaders cannot audience most likely to influence Chinese prevent U.S. space hawks from advocating policymakers, a dialogue on cooperation and visions of space dominance to Congress, negotiations on space between U.S. and policy-makers in both nations find it difficult Chinese scientists is more likely to produce to navigate the maze of heated rhetoric that credible, productive and sustainable outcomes drives their respective domestic debates over than a dialogue between military officers or the merits of cooperation and negotiation. diplomats. This is also what we have observed in the bilateral dialogue on nuclear weapons Mutual reassurances of peaceful intentions policy. issued regularly by the Chinese Foreign Ministry and the U.S. Department of State are 52David E. Sanger and Joseph Kahn, “U.S. Tries to Interpret routinely dismissed by both governments as China’s Silence Over Test,” New York Times 22 January the wishful thinking or disingenuous decorum 2007. of diplomats. In the United States, this 53Interviews with Chinese space scientists and engineers conducted by author in China during the course of managing perception was strongly reinforced by the the China Project of the Union of Concerned Scientists Foreign Ministry’s apparent lack of between 2002 and 2009.

112 Gregory Kulacki/Chinese Intentions in Space: A Historical Perspective for Future Cooperation

The publications of both militaries suggest inappropriate expectations that could provoke they will have difficulty discussing space with Congressional opposition and undermine the nation they believe to be their most likely progress. adversary in a future military conflict. This is especially true of Chinese military The history of China’s space programs publications because of their propaganda suggests that a U.S. - China dialogue on the function. Military to military exchanges peaceful uses of outer space is more likely to should begin with less controversial and less diminish mutual threat perceptions if scientists technologically complex problems. Adding are at the table. Contemporary Chinese space space to that agenda is more likely than not to policy is the product of a reaction to a U.S. derail it. Diplomats will be inclined to see plan for national missile defenses that Chinese discussions on space as a vehicle for scientists misread as a new Apollo program. addressing other problems in the bilateral The objective of their subsequent investments relationship, or to hold the discussions hostage in space was to keep China from falling too to those problems if they become worse. The far behind the pace of the global space Clinton Administration’s use of licensing technology leader, primarily because of the procedures for sensitive space technology as a imagined economic consequences. If the bargaining chip in a diplomatic effort to science delegation Zbigniew Brezinski constrain Chinese missile sales is an brought to China in 1978 had been charged instructive example of how this common with beginning a long-term scientific dialogue diplomatic practice can go awry. about space technology with their Chinese counterparts, it is possible the four anxious scientists who wrote to Deng Xiaoping would Conclusions have been better informed about the politics of missile defense in the United States. They The history of American perceptions of China might have been able suggests that U.S. Congressional concerns Contemporary to see that SDI was about technology transfer will continue to be Chinese space more science fiction the most volatile and disruptive factor in U.S. policy is the than science. They - Chinese relations in space. The new dialogue might have been able on cooperation will be more likely to produce product of a to predict that it sustainable programs if it is conducted by reaction to a would be individuals who can apply their scientific U.S. plan for immediately scaled competencies to the problem of preventing the national missile back and eventually exchange of technologies the United States defenses that terminated. wants to protect and the Chinese want to Chinese acquire. Given the substantial gap in their Had there been an respective national capabilities, many scientists on-going relationship cooperative space endeavors, including human misread as a between Chinese and spaceflight, are likely to result in transfers of new Apollo American scientists technology and expertise from the United program. in 1983, the history States to China. Having scientists organize of China’s space and conduct the discussions could help both program, as well American perceptions of parties identify and assess the relative costs Chinese intentions in space, might have taken and benefits of specific technology transfers a radically different course in a healthier early in the process. This could help avoid direction. In planning a new relationship with Space and Defense, Winter 2010 113

China in space, this historical perspective suggests it would be in the best interest of the United States to consider the long term. The U.S. Congress and Executive should avoid making the dialogue on space a hostage of unrelated troublesome contentions in the bilateral relationship. They should use cooperation to build relationships between Chinese and American scientists and engineers who share an interest in the peaceful exploration and utilization of outer space. Once established, this cross-cultural community of space scientists and engineers could help reduce miscommunication and misunderstanding, especially during moments of crisis. Dialogue and cooperation may not produce a bilateral consensus on space security or space policy, but it can establish the reliable channels of communication to the Chinese aerospace community that General Chilton said the United States Government needs to better assess Chinese intentions in space.

Eisenhower Center Program Summaries

Space Situational Awareness Workshop Summer Space Seminar Asia, Space, and Strategy Workshop National Space Forum Transatlantic Space Cooperation Workshop

Eisenhower Center Program Summaries

Compiled by Eligar Sadeh

Space Situational Awareness Areas of focus at the 2009 workshop included: Workshop • National and international perspectives on SSA. The goal of the Space Situational Awareness • Challenges of the space environment. (SSA) Workshop is to bring together • Governance issues related to safe and stakeholders interested in space situational responsible behavior in the space awareness. This includes practitioners, users environment. of data, representatives of industry and the • State of SSA data sharing and the U.S. military, the scientific community, Commercial and Foreign Entities international organizations, and the satellite- (CFE) Program. tracking community. These stakeholders • Concepts and capabilities for improved discuss how needs are changing with SSA, SSA data sharing. what improvements in SSA capabilities can be • New opportunities in SSA. achieved in the near-term to medium-term, and how various stakeholder communities might better interact to draw on each other’s Summer Space Seminar strengths. The Eisenhower Center for Space and Defense The first workshop was held in 2006. It was Studies organizes the Summer Space Seminar co-sponsored by the World Security Institute’s to advance two principal goals: (1) to foster an Center for Defense Information. A workshop education and interest in the interdisciplinary report can be found at: http://www.cdi.org/ areas of space with the intent to develop space PDFs/SSAConference_screen.pdf. professionals; and (2) to develop a network of relations across civil, commercial, and The second workshop was hosted by Inmarsat military space professionals that will likely in 2007 and was co-sponsored by the World emerge from the participants. The first Security Institute’s Center for Defense Summer Space Seminar was held in 2007. Information and the Secure World Foundation. A summary of the discussions This seminar exposes participants to the that took place at the workshop held in 2007 breadth and depth of space activities in the was published in Space and Defense 2: 1 civil, commercial, and military areas. The (2008). relationships among these areas are explored across a number of perspectives – participants The third workshop was held in 2009. This are exposed to the technology and science of workshop was hosted by Intelsat and was co- space activities, followed by discussions on sponsored by the World Security Institute’s the political, legal, economic, and social Center for Defense Information, the Secure aspects that influence the development and World Foundation, and the George C. application of the various civil, commercial, Marshall Institute. A summary of the 2009 and military space activities. The emphasis is workshop was published in Space and on exchanges among the participants. Defense 3: 2 (Winter 2009). 118 Eisenhower Center Program Summaries

The Summer Space Seminar is directed countries of the Pacific Basin have in the toward bringing together a broad group of creation of a stable, predictable, and mutually future space professionals to lay a foundation beneficial environment in space. Workshop for a future space policy community in the topics in 2009 ranged from: economic and military, civilian government, and private political goals for the use of space; improving sectors. Participants in the program include the safety and stability of the space students from the U.S. Air Force Academy, environment; deterrence and defense U.S. Naval Academy, U.S. Military Academy, concepts; and arms control and verification. A George Washington University, and the summary of the 2009 workshop was published Massachusetts Institute of Technology. in Space and Defense 3: 2 (Winter 2009).

The seminar serves as a useful forum for further professional development given that National Space Forum several of the participants worked, or are currently employed, as space professionals. The Eisenhower Center for Space and Defense During the seminar, a great deal of learning Studies organized and held its fourth annual and socialization takes place among the National Space Forum from 1-2 September participants to meet the goal to inform and to 2009 in Washington, DC. Panels at the Forum build connections between future space discussed security issues and space. professionals. Specific topics of discussion included: • An assessment of security challenges Asia, Space, and Strategy Workshop and threats in the space domain. • The role of space deterrence in In 2006, the Eisenhower Center for Space and national policy. Defense Studies held its first Asia, Space, and • The potential for new approaches to Strategy Workshop. This effort brought arms control and verification. together U.S., Canadian, and European experts • The improvement of international and policy makers from the military, civilian cooperation with allies in Asia and government, universities, think-tanks, and Europe. private sectors to discuss the implications of • The role that China plays in space. current and future Chinese space policy and to • The implementation of national space investigate areas of possible Sino-U.S. policy in the Obama Administration. cooperation in space. Beginning in 2007, an invitation was extended to include Chinese The Forum concluded with discussions on academics in the discussions. Chinese how to integrate often competing interests into participation has increased each year since a more cohesive policy and, more importantly, then, with four attendees from China at the to improve the chances that such a policy can 2009 workshop in Vancouver, Canada. be effectively implemented. Forum panels represented a number of points of view from The fourth workshop of 2009 was broadened security, civil, and commercial space. to include other space powers in the Asia- Proceedings of the National Space Forum Pacific region. For the first time in the 2009 were published in Space and Defense 3: workshop series, representatives from 2 (Winter 2009). Australia and Japan took part. The workshop focused on common interests that spacefaring Space and Defense, Winter 2010 119

Transatlantic Space Cooperation • Joint priorities in protection of critical Workshop space infrastructure. • Transatlantic cooperation on Earth In 2008, the Eisenhower Center for Space and observations for security and stability. Defense Studies established the Transatlantic • Future avenues for advancing Space Cooperation Workshop. This workshop transatlantic cooperation. series brings together a community of scholars and experts from the United States and Europe, including the European Union (EU), European Space Agency (ESA), and NATO, to share lessons learned, debate, and network on joint priorities in civil, security, and commercial space.

The first workshop was held in Brussels, Belgium in June 2008. Participants in this workshop examined U.S., European, and EU security space priorities and considered NATO’s space role. Discussions began with an opening panel where senior U.S., EU, and NATO officials briefed participants on current security space priorities before participants explored issues more in-depth. The goal of the workshop was to educate senior leadership from the U.S., EU, and NATO on philosophies and strategies for collective space security and deterrence in the 21st Century. The workshop was successful in initiating dialogue on harmonizing transatlantic security space strategies.

The second workshop was held in Berlin, Germany during September 2009. The 2009 workshop fostered dialogue regarding the potential for greater cooperation across the Atlantic to make the most efficient use of capabilities where possible across civil, security, and commercial space. A summary of the 2009 workshop was published in Space and Defense 3: 2 (Winter 2009).

Issues discussed at the 2009 workshop included: • Developments over the past year in transatlantic space cooperation.

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