Space Base: International Law, Geostrategic Competition, and Territorial Acquisition in Space
International space law is insufficient to address the challenges and questions that will emerge as geostrategic competition moves beyond the atmosphere.
The 2018 creation of the U.S. Space Force fits within a broader trend of militarization in space with little concern for potential violations of international treaty obligations. Photo: Trevor Cokley.
BY: CHarles f. rice, Staff member
The more optimistic stargazers among us see space as the ultimate frontier for human achievement and possibility. Space exploration offers the chance to transcend the bounds of terrestrial life, and along with them the divisions and petty rivalries imposed by national identity and parochial interests. Today’s reality, however, is that space is an increasingly critical (and hotly contested) theater for economic and military competition.
Economic activity in space is already enormous — estimated at $414.8 billion in 2018 — but it is only a drop in the bucket compared to the wealth that extraterrestrial activity will generate in the coming decades. NASA is preparing to send a probe to an asteroid that contains an estimated $10,000 quadrillion (roughly 100,000 times larger than current global GDP) worth of metals. Goldman Sachs famously projected that the world’s first trillionaire will make her fortune in asteroid mining.
While space has long possessed significant military importance — satellites create tracking, communication, and coordination capabilities that are critical to modern military hardware and operations — the prospect of space-based conflict has grown in recent years. The creation of the U.S. Space Force fits within this broader trend. Russia had an independent space force from 1992 until 2011 (when it was folded into the air force) and China created an integrated space, cyber, and electronic warfare command in 2015. The United States, China, Russia, and India have all conducted anti-satellite weapons tests. According to U.S. military analysts, space and counterspace capabilities occupy “commanding heights” in modern strategic competition.
The existing treaties and laws governing activities in space are insufficient to address today’s challenges, much less those of the future. International space law is largely defined by treaties and principles developed under the auspices of the United Nations. The most foundational of these agreements, the Outer Space Treaty of 1967, provides several basic restrictions on activity in space:
Nuclear Weapons Ban: Signatories cannot “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.”
Peaceful Use of Celestial Bodies: 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 maneuvers on celestial bodies shall be forbidden.”
Prohibition on Territorial Acquisition: Outer space, the Moon, and other celestial bodies are not “subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means.”
The shortcomings of existing space law are particularly acute in the context of the militarization of space. Entire categories of counterspace weapons are not prohibited under the letter of the Treaty. Moreover, the restriction on the use of celestial bodies does not forbid the use of “any equipment or facility,” including the employment of military personnel, as long as it is being done for scientific or “other peaceful purposes.” Despite the prohibition on territorial acquisition, there is a de facto opportunity for states to build space installations that serve a military purpose under pretenses of “peaceful” or “scientific” use.
The world must act before space becomes just another backdrop for the tired story of self-destructive conflict. The space immediately surrounding earth is well on its way to becoming an impassable, debris strewn theater of conflict defined by competing military claims. One analyst recently concluded that space is already militarized — the new goal is to prevent it from being weaponized.
Chinese island-building in the South China Sea provides an analogous example through which to analyze the risks of unfettered base-building in space. Like space, the South China Sea has outsized economic and military importance: nearly one-third of all traded goods pass through the Straits of Malacca, and the ability to choke off that trade would be a powerful tool in wartime. China has sought to assert territorial claims over the entire South China Sea, including by constructing military bases on artificial islands that serve the intertwined purposes of expanding regional economic influence and projecting military power.
China’s island-building violates its international obligations under the UN Convention on the Law of the Sea (UNCLOS), but international law has done little to discourage the ongoing construction of artificial islands. Despite losing an arbitration case on this issue in 2016, China has refused to accept the ruling. The United States maintains that the activities are illegitimate and unlawful, and conducts regular freedom of navigation operations in the region to push back on Chinese claims, but the international community has failed to take decisive collective action. The result is that China stands poised to realize its long-stated goal of declaring (and enforcing) an air defense identification zone (ADIZ) over the entire South China Sea.*
The failure to confront and halt militarization and island-building in the South China Sea offers lessons in handling the ongoing militarization of space. The law of the sea (which includes the handling of territorial claims) is one of the oldest, most broadly applied, and most clearly understood forms of international law. It has nonetheless failed to constrain an ambitious nation from solidifying strategic territorial claims in violation of treaty obligations. The geostrategic value of controlling outer space, in both economic and military terms, is far greater than that offered by any regional sea. Space law is a relatively new discipline that suffers from ambiguity and enforcement challenges. The world is ill-prepared, in both legal and institutional terms, to manage competition and conflict in space.
In the absence of more strongly defined rules and obligations, along with accompanying means of enforcement, the militarization of space is likely to continue unabated. In particular, we can expect spacefaring nations to attempt to construct military installations in space to protect their interests and project military power. The United States drew up detailed plans for building a permanent base on the Moon as early as 1959.
The United States needs to consider the risks posed by shortcomings in the legal framework governing space and act now to install a system that will protect its interests. Applying lessons from the territorial disputes in the South China Sea, it is clear that neither existing international law nor unilateral U.S. action will suffice to deter territorial claims in space. Instead, collective action is required to create and enforce meaningful rules and prevent a global race to claim territory (and construct military facilities backing those claims) in space. The need for action is urgent — once base-building begins, it will be very hard to stop.
Charles F. Rice is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He graduated from Georgetown University’s School of Foreign Service in 2014. Prior to law school, Charles worked as a research associate at the Center for Strategic and International Studies (CSIS) and The Chicago Council on Global Affairs.
ENDNOTES
* Freedom of navigation operations are a feature of U.S. policy designed to prevent excessive maritime claims that could limit the freedom of the seas; in such an operation, U.S. naval and/or air forces pass through disputed territory to demonstrate that the United States does not recognize the claim as legitimate under international law. An air defense identification zone is airspace monitored and controlled by a particular country for national security purposes. Typically, this occurs in an area to which the country has an undisputed sovereign claim. If China were to create an ADIZ over the South China Sea it could effectively exert uncontested military and economic control over critical international waters.