The United States Space Force has been much discussed about for the past year. What is a “Space Force”? What do international treaties say about it? Did Donald Trump’s announcement in 2018 affect spatiopolitics? What are the potential dangers? On June 18, 2018, Donald Trump announced the creation of a sixth branch of the United States Army: the Space Force. Reviving, de facto, the orbital armament race. The goal of the new branch is “to defend satellites from attack” and “perform other space-related tasks”. So far, outer space was an annex of the U.S. Air Force. Geolocation by satellite and telecommunications, among others, supported military operations on the ground, at sea or in the air. If the will of POTUS is followed by the U.S. Congress, all space defense activities will be united within the same army corps.
The United States Space Force
This race has never stopped since the beginning of the Space Age. If humanity is still far from the death ray or death beam, a theoretical particle beam or electromagnetic weapon first theorized around the 1920s and 1930s (energy-based weapons inspired by past speculation have contributed to real-life weapons in use by modern militaries sometimes called a sort of “death ray”, such as the AN/SEQ-3 Laser Weapon System, a directed-energy weapon developed by the United States Navy; the weapon was installed on USS Ponce for field testing in 2014), on the other hand, the destruction of satellite communications of a country would be a major asset in case of future armed conflict. Recently, France accused Russia of spying on military from outer space: is military history about to change?
In 2000, Donald Rumsfeld who has served as Secretary of Defense from 1975 to 1977 under Gerald Ford, and again from January 2001 to December 2006 under George W. Bush, recommended an internal reorganization of the United States Air Force (USAF), to consolidate the Department of Defense’s space sector.
In 2018, speaking at a meeting of the National Space Council (a body within the Executive Office of the President of the United States that was created in 1989 during the administration of George H.W. Bush, operating as an office of policy development and handling a portfolio of civil, commercial, national security, and international space policy matters; the Vice President of the United States chairs the council, which is composed of cabinet-level members and supported by a Users’ Advisory Group), Donald Trump ordered the Pentagon to immediately establish a national “Space Force” that would become the sixth branch of the armed forces. “We are going to have a space force!” Donald Trump said in Washington D.C., “An Air Force and a Space Force. Separate, but equal”. The president of the United States (POTUS) had already mentioned the idea in May during a ceremony at the White House honouring the Army Black Knights (the athletic teams that represent the United States Military Academy) college football team.
Donald Trump did not go into details about what military role the so-called Space Force would carry, but he framed outer space as a national security issue, saying he did not want “China and Russia and other countries leading”. POTUS also said the United States will be “the leader by far” in outer space and is looking to revive the nation’s flagging space program by returning the United States to the Moon and soon reaching Mars. Trump was joined by Vice President Pence, who heads the National Space Council, as well as NASA Administrator Jim Bridenstine, former astronaut Buzz Aldrin and other members of the council. The main threat is the ability to disable or destroy an adversary’s satellites from the ground. In 2007, China first used a ballistic missile to destroy its own old weather satellite orbiting eight hundred and sixty kilometres above Earth; Russia has been testing a missile that could be used to strike and destroy a satellite or ballistic missile. It’s likely that other nations won’t be far behind.
After discussions, it would finally be under the tutelage of the United States Air Force (USAF). The French government has also reacted and stated that “In the face of increased risks and threats, the continued strengthening of the protection and resilience of new outer space assets is essential”. The current renewed interest in outer space is, in addition to military issues, linked to economic issues: the GAFA are investing heavily in satellite telecommunications. At present, there is no declared weaponization in outer space, which does not mean that there are no weapons in outer space. But, because of the growing and worrying number of space debris, if a conflict was to occur, cyber-attacks or the use of blinding lasers would probably be favoured to disable satellites rather than destroy them.
For some observers, it’s more of an administrative reshuffle; the Space Force will not change anything at the operational level, because all systems are already in place, it’s more symbolical than anything else. Such a Space Force has never existed. It’s like saying that outer space is a physical environment like any other. The Earth, the sea, the air and outer space. Today, all countries depend on outer space.
Since the 2000s, outer space has been a key issue in American economic and military policies. Ronald Reagan had already in the 1980s presented his Strategic Defense Initiative (SDI) on U.S. television. The arrival of Donald Trump in power has changed the situation. The latter wants an army in outer space, a Space Force which would not be a branch of the United States Air Force (USAF) but another army. An active project for outer space? For fifteen years, Americans have thought that military power goes through the capacity to master outer space. Let’s note that today, the United States Air Force (USAF) already has the most important space command.
In the world of space powers (United States of America, Russia, France, Japan, China…), each army has its space command. Recently, the French Minister of Defense has said that outer space is an environment in which there could be confrontations in the medium-long term. This symbolic declaration puts in the public place what has been said in recent years. Outer space is becoming a “medium” according to the military. Before, it was a sanctuary where people spied on each other. The first use of outer space has always been military. What’s new is the fact that conflictuality could now be intra-spatial, that is to say in outer space and for the control of outer space. We might enter in the next years in a space-space paradigm, and no longer an Earth-space’s one.
Is it the weaponization of space or the militarization of space? Militarization is very old. Arsenalisation is the deployment of weapons in outer space (active militarization), weapons in orbit designed to destroy satellites. The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force on October 10, 1967), on which we will come back later, does not prohibit the weaponization of space. Today, most of the states use spy satellites, it is their main military technical means in outer space. These spy satellites contribute to the global strategic balance, and were particularly important in Cold War times. As for the issue of orbital bombers, outer space bombers, it would be difficult to implement such technology. It is difficult to deorbit a missile in Low Earth Orbit (LEO). Today, functionally, there is no possibility of deploying such weapons of mass destruction in orbit.
In a report to Congress released in 2018, the Department of Defense laid out a plan to build a new force to defend U.S. interests in space with aggressive offensive capabilities. This would include systems that could “degrade, deny, disrupt, destroy, and manipulate adversary capabilities”. The force would hold joint space training and military exercises with U.S. allies. The U.S. military was already working on systems to protect satellites from threats like jamming and destruction by “kinetic” objects, such as missiles or other satellites.
Text of Space Policy Directive-4: Establishment of the United States Space Force
The Space Policy Directive-4 was issued on: February 19, 2019. Section 1 states that “Space is integral to our way of life, our national security, and modern warfare. Although United States space systems have historically maintained a technological advantage over those of our potential adversaries, those potential adversaries are now advancing their space capabilities and actively developing ways to deny our use of space in a crisis or conflict. It is imperative that the United States adapt its national security organizations, policies, doctrine, and capabilities to deter aggression and protect our interests. Toward that end, the Department of Defense shall take actions under existing authority to marshal its space resources to deter and counter threats in space, and to develop a legislative proposal to establish a United States Space Force as a sixth branch of the United States Armed Forces within the Department of the Air Force. This is an important step toward a future military department for space. Under this proposal, the United States Space Force would be authorized to organize, train, and equip military space forces of the United States to ensure unfettered access to, and freedom to operate in, space, and to provide vital capabilities to joint and coalition forces in peacetime and across the spectrum of conflict”.
Section 2 declares that “For the purposes of this memorandum and the legislative proposal directed by section 3 of this memorandum, the following definitions shall apply: (a) The term “United States Space Force” refers to a new branch of the United States Armed Forces to be initially placed by statute within the Department of the Air Force. (b) The term “Department of the Space Force” refers to a future military department within the Department of Defense that will be responsible for organizing, training, and equipping the United States Space Force. (c) The term “United States Space Command” refers to a Unified Combatant Command to be established pursuant to the Presidential memorandum of December 18, 2018 (Establishment of United States Space Command as a Unified Combatant Command), that will be responsible for Joint Force space operations as will be assigned in the Unified Command Plan”.
Section 3 enounces that “Legislative Proposal and Purpose. The Secretary of Defense shall submit a legislative proposal to the President through the Office of Management and Budget that would establish the United States Space Force as a new armed service within the Department of the Air Force. The legislative proposal would, if enacted, establish the United States Space Force to organize, train, and equip forces to provide for freedom of operation in, from, and to the space domain; to provide independent military options for national leadership; and to enhance the lethality and effectiveness of the Joint Force. The United States Space Force should include both combat and combat support functions to enable prompt and sustained offensive and defensive space operations, and joint operations in all domains. The United States Space Force shall be organized, trained, and equipped to meet the following priorities: (a) Protecting the Nation’s interests in space and the peaceful use of space for all responsible actors, consistent with applicable law, including international law; (b) Ensuring unfettered use of space for United States national security purposes, the United States economy, and United States persons, partners, and allies; (c) Deterring aggression and defending the Nation, United States allies, and United States interests from hostile acts in and from space; (d) Ensuring that needed space capabilities are integrated and available to all United States Combatant Commands; (e) Projecting military power in, from, and to space in support of our Nation’s interests; and (f) Developing, maintaining, and improving a community of professionals focused on the national security demands of the space domain”.
The Space Force still has a big hoop to jump through: U.S. Congress must approve the creation of any new military branch.
The legality of military activities in outer space
The space sector has emerged for reasons related to the military sector. Are we today heading towards a militarization of international spaces (Antarctica, outer space or the high seas)? To be interested in outer space is to understand that this environment is free but framed (some will say limited). Space law is based on liberty and this freedom cannot be shared at best for the greatest number unless it has certain limits. The first limitation, and one of the most important when space activities appeared, was for the two superpowers of the Cold War and the United Nations, to establish the peaceful uses of outer space, the demilitarization or denuclearization of outer space.
All States without discrimination have an inalienable right to develop the uses of nuclear energy for civilian purposes, provided that they do not divert these peaceful uses to nuclear weapons. However, five countries have the right to possess these weapons, namely the United States of America, France, Russia, China and the United Kingdom of Great Britain and Northern Ireland. Around this position, a lively debate both legal and ethical has been raised. For its opponents, nuclear energy represents a long-term risk that cannot be controlled by science. Major nuclear accidents, radioactive waste and the diversion of nuclear energy for military purposes are unmanageable and exceptionally serious risks. On the other hand, the defenders of this energy present it as safe, even as a stakeholder in sustainable development. According to them, nuclear power is a reliable way to fight against global warming and also a solution to the energy shortage that the world is facing. By examining and analysing the reliability and credibility of all the arguments against and in favour of this industry, we find that the lawfulness and legitimacy of the use of nuclear energy are ill-founded. What about the use of weapons in outer space? The nuclearization of outer space?
If the Soviet Union was able on October 4, 1957 to orbit Sputnik 1, the first space object, it meant that it would also be able to use intercontinental ballistic missiles (an intercontinental ballistic missile or ICBM, is a guided ballistic missile with a minimum range of five thousand five hundred kilometres primarily designed for nuclear weapons delivery – delivering one or more thermonuclear warheads) against its adversaries, in particular the United States of America. The question of the militarization of outer space is a very delicate issue, the subject being highly strategic, and States not easily agreeing on it, often leaving room for further misunderstandings. Since a resolution of the United Nations General Assembly of December 13, 1958, it was desired to see outer space used exclusively for peaceful purposes. The General Assembly stated that it wished to avoid the extension of present national rivalries into the field of outer space, that the exploration and exploitation of outer space shall be done for the benefit of mankind, considered that such co-operation will promote mutual understanding and the strengthening of friendly relations among people. The Partial Test Ban Treaty, signed on August 5, 1963, also prohibits nuclear weapons testing in the atmosphere, beyond its limits, including outer space, or underwater, including territorial waters or high seas. This text has the merit of enacting prohibitions that extend as much to areas under the jurisdiction of States as to spaces removed from the sovereignty of States. It is also important to mention that resolution 1884 (XVIII), calling upon States to refrain from placing in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction or from installing such weapons on celestial bodies, was adopted unanimously by the United Nations General Assembly on October 17, 1963.
Article IV of the 1967 Treaty distinguishes the legal regime for the whole of outer space and special limits concerning the Moon and other celestial bodies. It states that “States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner. The Moon and other celestial bodies shall be used by all States Parties to the Treaty exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on celestial bodies shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration of the Moon and other celestial bodies shall also not be prohibited”. It refers to a total demilitarization of outer space and prohibits weapons of mass destruction, that is to say, atomic, bacteriological, chemical or equivalent effect. We can also think of environmental modification techniques for military or hostile purposes, as envisaged since the Convention of May 18, 1977, which prohibits the use of such weapons. The Environmental Modification Convention (ENMOD), formally the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, is an international treaty prohibiting the military or other hostile use of environmental modification techniques having widespread, long-lasting or severe effects. It opened for signature on May 18, 1977 in Geneva and entered into force on October 5, 1978. The Convention bans weather warfare, which is the use of weather modification techniques, such as cloud seeding, for the purposes of inducing damage or destruction. The Convention on Biological Diversity of 2010 would also ban some forms of weather modification or geoengineering.
This ban on certain armaments, particularly on Earth orbits, is obviously one of the most important for security on Earth. Recall that the Treaty of Outer Space (1967) was adopted at a time when arms limitation agreements were at the heart of diplomatic concerns, especially those of the two superpowers (The Treaty of Tlatelolco, signed on February 14, 1967, is the conventional name given to the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean; the Treaty on the Non-Proliferation of Nuclear Weapons, commonly known as the Non-Proliferation Treaty or NPT, signed on July 1, 1968, is an international treaty whose objective is to prevent the spread of nuclear weapons and weapons technology, to promote cooperation in the peaceful uses of nuclear energy, and to further the goal of achieving nuclear disarmament and general and complete disarmament; the Strategic Arms Limitation Talks (SALT) were two rounds of bilateral conferences and corresponding international treaties involving the United States of America and the Soviet Union, the Cold War superpowers, on the issue of arms control. The two rounds of talks and agreements were SALT I and SALT II and negotiations commenced in Helsinki, Finland, in November 1969). The total demilitarization of the Moon and celestial bodies is also provided for in the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (entered into force on July 11, 1984).
Article 3 of the Moon Agreement of 1979 states that “States Parties shall not place in orbit around or other trajectory to or around the Moon objects carrying nuclear weapons or any other kinds of weapons of mass destruction or place or use such weapons on or in the Moon. The establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military manoeuvres on the Moon shall be forbidden. The use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited. The use of any equipment or facility necessary for peaceful exploration and use of the Moon shall also not be prohibited”.
There are questions about the interpretation of the term peaceful: either non-military (broad interpretation) or non-aggressive (narrow interpretation). The United States of America prefers the narrow interpretation and constructs its argument by explaining that it is necessary to retain the right of self-defence, as expressed both in customary law and in Article 51 of the Charter of the United Nations. Chapter VII, Article 51 of the Charter of the United Nations concerning “Action with respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression” states that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.
The National Aeronautics and Space Administration (NASA) Act of 1958 also refers to the peaceful purposes of research and outer space, stating that “The Congress hereby declares that it is the policy of the United States that activities in space should be devoted to peaceful purposes for the benefit of all mankind”. The United States of America has always considered the action of reconnaissance satellites (a reconnaissance satellite or intelligence satellite, commonly, although unofficially, referred to as a spy satellite, is an Earth observation satellite or communications satellite deployed for military or intelligence applications) to be both military and peaceful. The Soviet Union, for its part, quickly defended the idea that certain activities are prohibited, even for the State acting under conditions of self-defence, based for example on the Geneva Protocol of 1925 on the use of biological weapons (the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, usually called the Geneva Protocol, is a treaty prohibiting the use of chemical and biological weapons in international armed conflicts. It was signed at Geneva on June 17, 1925 and entered into force on February 8, 1928. It was registered in League of Nations Treaty Series on September 7, 1929), the 1972 Convention on the Prohibition of the Manufacture, Stockpiling and Use of Bacteriological and Toxin Weapons (the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and on their Destruction, usually referred to as the Biological Weapons Convention, was the first multilateral disarmament treaty banning the production of an entire category of weapons. The Convention was the result of prolonged efforts by the international community to establish a new instrument that would supplement the 1925 Geneva Protocol. The Geneva Protocol prohibits use but not possession or development of chemical and biological weapons) or the Environmental Modification Convention of May 18, 1977 on Environmental Changes for hostile purposes. The Soviet Union has also come to recognize the peacebuilding function of reconnaissance satellites.
To summarize, all areas of outer space are devoid of certain weapons, in this case weapons of mass destruction, whether for storage, experimentation or even more use; on the other hand, certain areas, in this case the Moon and the celestial bodies, generally exclude all military activity: all weapons are prohibited in certain areas and certain weapons are prohibited in all zones. This conclusion makes it possible to develop or envisage certain military activities in outer space without the right being able to give an unambiguous answer to the question of the lawfulness of these activities.
The question of anti-satellite weapons
For various reasons, States may wish to consider damaging, destroying or temporarily rendering satellites useless for their operators. On January 11, 2007, China conducted an anti-satellite missile test. A Chinese weather satellite, the FY-1C polar orbit satellite of the Fēngyún series, at an altitude of eight hundred and sixty-five kilometres, with a mass of seven hundred fifty kilograms, was destroyed by a kinetic kill vehicle, launched with a multistage solid-fuel missile from Xichang Satellite Launch Center (XSLC) or nearby, travelling with a speed of height kilometres a second in the opposite direction. Although the subject is often mentioned, we know that the first systems were set up in the sixties, first by the United States of America, then by the Soviet Union.
From a legal point of view, these weapons do not fall under the prohibition of Article IV of the Outer Space Treaty since they are in no way weapons of mass destruction. The Outer Space Treaty of 1967 allows certain military activities to continue as long as there is no total prohibition of weapons in outer space. Certain defensive military activities remain permissible. Article 2 of the Charter of the United Nations states that “The Organization and its Members, shall act in accordance with the following Principles. The Organization is based on the principle of the sovereign equality of all its Members. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action. The Organization shall ensure that states which are not Members of the United Nations act in accordance with these Principles so far as may be necessary for the maintenance of international peace and security. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII”.
In any case, the manufacture and deployment of anti-satellite remains lawful: it is their possible use that should be subject to review (for this case, one should perhaps rely more surely on General International Law). It might be envisaged that a State party to the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (entered into force on 10 October 1967), which would multiply anti-satellite systems, should be regarded as depriving the Treaty of its object and purpose. Other States parties to the Treaty could then withdraw in accordance with the one-year notice provided for in Article XVI which states that “Any State Party to the Treaty may give notice of its withdrawal from the Treaty one year after its entry into force by written notification to the Depositary Governments. Such withdrawal shall take effect one year from the date of receipt of this notification”.
The Woomera Manual
The Woomera Manual aims at developing a Manual that will objectively articulate and clarify existing international law applicable to military space operations. According to the project, the instruments or Onusian Space Treaties do not expressly address the initiation and conduct of hostilities involving outer space, and little State practice exists on the subject. The Information Booklet of The University of Adelaide specifies that “Since the 1980s, the United Nations General Assembly has annually adopted a resolution urging States to refrain from actions that contribute to an arms race in outer space. Various initiatives, such as the proposed treaty to prevent the placement of weapons in outer space (PPWT), the proposed International Code of Conduct for Outer Space Activities (ICOC), and multilateral diplomatic efforts aimed at developing transparency and confidence-building measures (TCBMs) have not sufficed to ensure the sustainability and security of outer space”.
It then adds that “The law governing the resort to force set forth in the UN Charter and the law of armed conflict have long been accepted by States as applicable to operations involving outer space. Yet, the manner in which these bodies of law should be interpreted in the context of outer space has not been comprehensively examined. This resulting lack of normative clarity presents the risk of State or non-State actors taking action involving outer space that might be misunderstood by others, or even characterised as unlawful. It also allows States that might wish to conduct hostile space operations to do so in a zone of uncertainty, which complicates responses by other States. Therefore, it is essential that space actors not only acknowledge that there is a rules-based order that applies to outer space, even in periods of tension and hostilities, but also that they have an understanding of when and how those rules apply”.
The Woomera Manual gathers together legal experts specialised in the fields of international space law, international law on the use of force and the law of armed conflict, together with technical experts. Experts contribute in a personal capacity on the basis of their own conclusions as to the state of the law, independent of the official position or preference of any State or organisation.
The Woomera Manual on the International Law of Military Space Operations aims to articulate and clarify extant law applicable to military activities associated with the space domain, especially that which is relevant in periods of tension (when States and non-State actors may consider using force) or outright hostilities. The Manual will examine the circumstances in which operations associated with space infrastructure would be considered unlawful as a violation of the law on the use of force. It will also consider the responses available to States in reacting to such operations. Further, the Manual will discuss how the law of armed conflict governs operations that are conducted from, to or through outer space, should armed conflict break out. Ultimately, the Manual is meant to support a stable, rules-based global order, even in periods of tension and armed conflict.