 "Satellite in Space" by theglobalpanorama is licensed under CC BY-SA 2.0. The Importance of Space
The immense costs of kinetic conflict in space, disrupting commercial activity and threatening critical infrastructure, underscore the urgent need for an updated space law regime to face emerging threats in a heightened geopolitical environment. Modern life depends on space-based systems that would be either directly targeted or suffer collateral damage during such a conflict. The destruction of even a single key satellite in low Earth orbit could cripple GPS navigation, weather forecasting, and satellite internet for a nation. Equally important is the protection of peaceful economic development in space. A space economy built on cooperation promises great scientific and technological returns. Sectors such as orbital debris removal, asteroid mining, and Earth observation still hold vast untapped potential, and international law must both safeguard and encourage their growth. Beyond Earth’s orbit, celestial bodies offer vast resources that can be harvested. The moon’s water and mineral resources could be used to create rocket fuel to travel deeper into the solar system and access the mineral and fuel wealth of the asteroid belt, with conservative estimates of their value in the quintillions of dollars. Questions about space mining were previously reserved for science fiction, but with declining launch costs and other technological advancements, they are fast approaching. Rising Tensions in Space: Amid these developments, a divergent space order is emerging, with one side led by the United States and the other by China. The United States is promoting its version of space cooperation with the 2020 Artemis Accords, a non-binding multilateral agreement between fifty-six nations, which seeks to promote “a common set of principles to enhance the governance of the civil exploration and use of outer space.” The Artemis Accords state that “cooperative activities (in space) should be exclusively for peaceful purposes, consistent with the Outer Space Treaty.” Nonetheless, the US Department of Defense has been gearing up for a competitive space environment. The United States declared space as a distinct warfighting domain in 2020. Several US space arms control treaties, such as the New START and the ABM treaties, have lapsed within the past five years with no attempts to negotiate replacements. In parallel, China sees space as a critical domain for its grand strategy. In a 2021 white paper, Beijing stated its goal was to become the world leader in space by 2049, and that “the space industry is a critical element of the overall national strategy.” China is approaching its space ambitions more unilaterally than the United States, though its space development is an integral part of its outwardly focused Belt and Road Initiative. As both China and the United States increasingly recognize the importance of space, tensions between the two in this domain are poised to escalate. Grey zone warfare and kinetic conflict in space are growing possibilities as economic and military tensions between the United States and China further intensify. While the United States and China lead diverging space orders, the international legal framework governing space is slowly losing its teeth. The Outer Space Treaty, ratified in 1967, is the basis for today's international space order. The rapid pace of economic and technological development has left the treaty in the dust. While Article IV definitively states that “Space is only to be used for peaceful purposes,” the increase in grey zone warfare in space has blurred the line between peace and war. Aggressive scenarios may arise that may approach war but not outright cross into it. This includes electronic attacks, such as jamming and lasers, as well as threatening spacecraft maneuvers. A new space law regime is needed to regulate and restrict these possibilities. A New Space Regime: Current and future spacefaring nations should reaffirm the prohibition on the use of weapons in space and increase cooperation among major space powers through an updated and expanded outer-space treaty. This prohibition should include anti-satellite weapons tests, as the rising tensions between space powers leave little room for de-escalation should one of their satellites be damaged as a result of the tests. The United States committed to a ban on anti-satellite weapon tests in 2022 and called for other nations to follow suit in accordance with a UN resolution passed in 2021. Only seven different countries have done so, while China and Russia have denounced the resolution. In addition, dual-use missions such as the removal of large space debris should be coordinated through robust international bodies, such as the United Nations Office for Outer Space Affairs, to avoid inadvertent disputes. NASA and the ESA are both working to improve tracking of orbital debris, but more work needs to be done in this field in conjunction with foreign agencies, such as the China National Space Administration, to promote a collaborative approach to space regulation. Creating a new legal framework that restricts the use of weapons in space will be difficult, as most space technologies have both civilian and military uses, known as dual-use technologies. If we are to restrict one type of technology, then we will also restrict technology that may have great civilian benefits. For example, the technology needed to collect and remove orbital debris can also maneuver to and destroy other satellites. This is the dilemma facing advocates for a new space law regime: any treaty that controls or restricts the use of space weapons must be permissive enough to allow new, innovative technologies. To navigate this ambiguity, the new space law legal regime should focus on actions, rather than prohibiting the development of technologies. For instance, the technology used to conduct anti-satellite tests shouldn’t be banned, as there are valuable uses in maneuvering and grappling technology in other settings. However, the act of maneuvering near other nations' or companies' satellites without prior clearance should be made illegal, and infrastructure and regulations should be created to allow international overseers to carry out these operations safely. A potential template that could be used is aviation law. Aviation law has advanced since the time of the Outer Space Treaty due to events such as the 9/11 attacks and the 737 Max crashes. In the evolving laws stemming from these incidents, aviation technology was not restricted, but dangerous aviation actions were. The 1926 Air Commerce Act of the United States is an example of such a law that international lawmakers could take notes from. This act established government regulation of civil aviation operations and laid the groundwork for aviation infrastructure, both sorely needed in today’s space operations. Conclusion: The costs of war in space are avoidable and too high for space-faring nations to accept. The peaceful use of outer space must be maintained for all mankind, and international actors should be urged to enact legal frameworks that restrict the use of weapons in space and on celestial bodies. The authors of 21st-century space law should take a page from 21st-century aviation law and create an orbital space framework that prohibits hostile actions while protecting the vast economic benefits the space industry brings. David Baker is the Security and Diplomacy Editor for the Rainier Institute of Foreign Affairs. Tin Pak is the President and Co-Founder for the Rainier Institute of Foreign Affairs
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