TCS Daily

Withdrawal Symptoms

By Glenn Harlan Reynolds - March 20, 2002 12:00 AM

To surprisingly little fanfare, the United States recently announced that it was withdrawing from the 1972 Treaty on the Limitation of Anti-Ballistic Missile Systems. There was nothing illegitimate about this the Treaty specifically allows for such withdrawals but the action was expected to be controversial. But it wasnt, as pretty much everyone recognized that the ABM Treaty, as it is generally called, was a Cold War relic that had outlived its usefulness. Now many in the space community are wondering whether its time to look at other space treaties that have survived the Cold War, and perhaps their own value as well. Regardless, it is certainly the case that the Afghan theater has demonstrated the importance of military space, and of U.S. space dominance, in the twenty-first century, making the legal rules governing outer space activity worthy of more attention. International space law is a surprisingly complex field, one that has inspired over a thousand law review articles and scores of books, including one that I coauthored with U.C. Berkeley law professor Rob Merges. But the basic principles of international space law having to do with military matters are fairly straightforward:
Orbit isnt trespass. Ever since Sputnik, it has been generally accepted that satellites in orbit arent trespassing on the sovereign territory of the nations they fly over. This has become customary law, and is as binding on nations as any treaty. Nuclear explosions in space, and nuclear weapons or other weapons of mass destruction in orbit, are forbidden. Explosions are barred by the Limited Test Ban Treaty, which binds only its signatories, which include the U.S., Russia, and the UK, but leaves out many nuclear powers. Nuclear weapons (and weapons of mass destruction) in orbit are banned by the Outer Space Treaty of 1967, to which virtually every nation on earth is a signatory. Nations on earth cannot claim sovereignty over the Moon or other celestial bodies (a term that includes asteroids, other planets like Mars, etc). Nor may they establish military bases or fortifications there, though they may use military personnel or equipment for peaceful missions.
This is fine as far as it goes, but as the United States is likely to play the role of space hegemon for the next several decades, it is likely to play a very important role in establishing additional law for outer space just as Great Britain played an important role in establishing the law governing the high seas during its period as global naval hegemon. That raises the question: what sort of law should the United States want to see in outer space? Figuring out the answers to that question will take time, but here are some places to start:
  1. Security of navigation. An attack on a U.S. or allied spacecraft even an unmanned satellite should be regarded as an act of war. This was the position officially taken by Jimmy Carter, generally regarded as the least bellicose of presidents, and it should remain U.S. policy for the future. As satellites -- American and non-American, civilian and military -- assume greater importance they will become more attractive targets for adversaries, rogue nations, terrorists, and non-state actors who want to make a splash (indeed, there is some reason to think that Saddam Hussein considered using modified SCUDs to mount attacks on U.S. spy satellites during the Gulf War, something that may well be feasible). It is important to do what we can to deter such attacks, and to lay the foundation for a vigorous response.
  2. Freedom of enterprise. The 1967 Outer Space Treaty forbids national appropriation of territory on the Moon or other celestial bodies, but it does not say anything about private property. Most (though not quite all) legal commentators agree that the Outer Space Treaty does not bar private property rights in those resources, and some argue that, properly interpreted, it actually provides affirmative protection for private parties who want to engage in, for example, asteroid mining. Now that such ventures have moved from the fanciful to the seriously contemplated, the United States should strongly support the right of private entities to exploit space resources, to engage in space tourism, and in general to take advantage of the opportunities that outer space presents. Such opportunities are likely to play a major part in the economy of the latter part of the 21st century and may be essential to humanitys long-term survival. Widespread commercial activity will lower costs, thus enhancing military capabilities, so the United States should ensure that they are not closed off by legal uncertainty. Ill have more about how to do this in a later column, but such efforts might be modeled on the Deep Seabed Hard Mineral Resources Act, and the United States might consider formally repudiating the 1979 Moon Treaty, which it (along with the other space powers) has refused to ratify, but has not formally rejected.
  3. Open skies. The United States has traditionally supported an open skies policy in which we can spy on other countries, and they can spy on us. In more recent years, the issue has been complicated by the presence of what amount to private spy satellites. Some segments of the United States government view this development with distaste, and seek greater control over these systems. But there are serious first amendment problems with limiting their operation outside of theater-of-war situations, and doing so would be a mistake anyway. As the Pentagon has learned, though the private systems are in some ways less capable than military satellites, they are in some ways more useful, and they greatly extend the ability to gather intelligence on happenings in remote areas at low cost. Given the tendency of terrorists and similar organizations to operate in remote and inaccessible areas, these capabilities are valuable. What Arthur Kantrowitz has called the weapon of openness is one of the great strengths of our society, and its a weapon that our adversaries greatly fear.
During the first ten years of the space age, space law received a great deal of attention from eminent scholars like Yale law professors Leon Lipson and Myres McDougal, and U.S. Attorney General Nicholas Katzenbach. These experts succeeded in creating a body of law that held up well under the pressures of the Cold War. Now its time to do the same kind of thing, for a world that will be very different.

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