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International Law and Security in Outer Space: Now and Tomorrow

  • Matthew T. King (a1) and Laurie R. Blank (a2)
Extract

Once the domain of a few spacefaring nations, outer space has exploded with new actors, state and private, in recent years. New actors and activities bring new potential threats and concerns for new and existing actors alike. In this complex environment, where mistrust and misunderstanding often prevail, international law can play an important role in bridging gaps and creating predictability, clarity, and consistency. Although new treaty law is unlikely, the ordinary incremental international law processes of state practice, opinio juris, and international jurisprudence will help to resolve critical questions about the content and application of international law in outer space over time.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
Footnotes
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The views expressed herein represent the personal views and conclusions of the author writing in his personal capacity and are not necessarily the views, ideas, or attitudes of the U.S. Air Force, Department of Defense, or U.S. Government.

Footnotes
References
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1 Secure World Foundation, Handbook for New Actors in Space (Sept. 25, 2017); Saadia M. Pekkanen, Introduction to the Symposium on the New Space Race, 113 AJIL Unbound 92 (2019).

2 Robert Gates & James Clapper, National Security Space Strategy (Unclassified Summary) 1 (Jan. 2011); U.S. Dep't of Defense, Dir. 3100.10, Space Policy para. 1 (Oct. 18, 2012 incorporating Change 1, effective Nov. 4, 2016) [hereinafter DoD Dir. 3100.10].

3 DoD Dir. 3100.10, supra note 2.

4 U.S. Dept. of Defense, Providing for the Common Defense 13 (Sept. 2018).

5 Clayton Wear, Liaison Officers at Vandenberg, Vandenberg air force base (Nov. 8, 2018) (explaining that the Combined Space Operations Center (CSpOC) hosts officers from Australia, Canada, France, Germany, and the United Kingdom); Steven Hirsch, Making the Most of Military Space, Air Force Mag. (Aug. 2018) (reporting that the United States added Japan and New Zealand to the Schriever Wargames).

6 See Secure World Foundation, Global Counterspace Capabilities: An Open Source Assessment (Brian Weeden & Victoria Sampson eds., 2018); Center for Strategic & International Studies, Space Threat Assessment 2018 (Todd Harrison et al. eds., 2018) [hereinafter Space Threat Assessment 2018].

7 Space Threat Assessment 2018, supra note 6, at 3.

8 See U.S. Dep't. of Defense, Law of War Manual para. 14.10.4 (updated Dec. 2016) [hereinafter DoD LoW Manual]; see also Central Intelligence Agency, Position Paper: Definition of Peaceful Uses of Outer Space (Contingency) [declassified] (Nov. 7, 2000); Central Intelligence Agency, Attachment 2: Definition of Peaceful Uses of Outer Space [declassified] (Mar. 13, 1962).

9 UN Charter art. 2(4).

10 DoD Dir. 3100.10, supra note 2, at para. 4.b; Pres. Donald Trump, National Security Strategy of the United States of America 31 (Dec. 2017) [hereinafter NSS].

11 Joint Chiefs of Staff, Joint Publication 3–14, Space Operations para. I.2.a (vice II.16.d) (Apr. 10, 2018) [hereinafter JP 3–14].

12 See, e.g., id. at para II.16.d (vice 2.a); DoD Dir. 3100.10, supra note 2, at para. 4.c.

13 Information Office of the State Council, Full Text of White Paper on China's Space Activities in 2016, at I.3, IV.5, V.1 (Dec. 28, 2016).

14 Information Office of the State Council, China's Military Strategy (May 27, 2015).

16 See, e.g., Brian Weeden, Through a Glass, Darkly: Chinese, American, and Russian Anti-Satellite Testing in Space, Space Rev. (Mar. 17, 2014); Steven Lee Myers & Zoe Mou, ‘New Chapter’ in Space Exploration as China Reaches Far Side of the Moon, N.Y. Times (Jan. 2, 2019).

17 Military Doctrine of the Russian Federation I.8.d & I.6.g (Feb. 5, 2010).

18 Russian Ministry of Defence, Aerospace Defence Forces.

19 Maddy Longwell, State Department Concerned over Russian Satellite's Behavior, C4ISRnet (Aug. 14, 2018); Patrick Tucker, Russia Claims It Now Has Lasers To Shoot Satellites, DefenseOne (Feb. 26, 2018).

20 U.S. Dep't of Defense, Dir. 2311.01E, DoD Law of War Program para. 4.1 (Feb. 22, 2011).

21 DoD LoW Manual, supra note 8, at para. 14.10.2.2.

22 See German Ministry of Defence, Law of Armed Conflict Manual (Joint Service Regulation (ZDv)) 15/2 paras. 201 & 212 (May 2013); United Kingdom Ministry of Defence, The UK Military Space Primer ch. 2 (2010).

23 NSS, supra note 10, at 4, 41.

24 U.S. Dep't of Defense, National Defense Strategy (Unclassified Summary) (Jan. 2018) [hereinafter NDS].

25 Id. at 8–9; see also JP 3–14, supra note 11, at para. IV.3.d; DoD Dir. 3100.10, supra note 2, at para. 4.f.

26 U.S.-China Econ. & Sec. Rev. Comm'n, China's Position on a Code of Conduct in Space 5 (Sept. 8, 2017) (“China has frequently broken its agreements, [including its] … promise not to further militarize land features in the … South China Sea, … agreements with India, and its bilateral cyber security agreement with the United States.”); Yleem Poblete, Assistant Secretary, Bureau of Arms Control, Verification and Compliance, United Nations, Remarks at the 73rd UNGA First Committee Thematic Discussion on Outer Space (Oct. 23, 2018) (“They are fundamentally flawed proposals advanced by a country [Russia] that has routinely violated its international obligations.”).

27 See Poblete, supra note 26 (calling NFP a “Potemkin resolution”); Ambassador Robert Wood, U.S. Permanent Representative to the Conference on Disarmament, Explanation of Vote in the First Committee on Resolution L.54: Further Practical Measures for the Prevention of an Arms Race in Outer Space (Oct. 20, 2017).

28 NDS, supra note 24, at 3, 5 (adversaries use “corruption, predatory economic practices, propaganda, political subversion, proxies, and the threat or use of military force to change the facts on the ground”).

29 The Woomera Manual (last updated Jan. 11, 2019). Both authors are core experts.

30 McGill Centre for Research in Air & Space Law, Manual on International Law Applicable to Military Uses of Outer Space.

The views expressed herein represent the personal views and conclusions of the author writing in his personal capacity and are not necessarily the views, ideas, or attitudes of the U.S. Air Force, Department of Defense, or U.S. Government.

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AJIL Unbound
  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
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