Does the Establishment of Specialized Space Military Corps Ipso Facto Violate International Law?

[Rohit Gupta is a final year student at the West Bengal National University of Juridical Sciences and Prospective Member of the International Institute of Space Law (IISL).]

In 2018, the United States (‘US’) Department of Defense
submitted a
legislative proposal to the US Congress outlining the
establishment and structure of the US Space Force (‘USSF’). Globally,
the establishment of the USSF produced a destabilizing effect in an already
hyper-impulsive warfaring environment. While the United Nations has been
consistently involved in preventing a space-based arms race, the US has equally
consistently abstained from participating in such efforts. Citing recent
events, such as the 2007 anti-satellite testing (‘ASAT’) conducted by China, which produced over
3,000 pieces of space debris, the US has posited a dire need to ensure that any
use or threat to use force against unprotected national space heritage does not
go unanswered. This post attempts to analyse the legal validity of the
establishment of the USSF.

1.     The Law against Space Militarization

With 134 nations recognizing its right to restrict their sovereign freedom to act, the 1967 Outer Space Treaty (‘OST’) is the most widely accepted international convention governing the activities of national actors in outer space. Being dubbed the ‘cornerstone of international space law’, the OST contains the primary prohibition on extra-terrestrial militarization in the form of Article IV. Naturally, however, Article IV is criticized as one of the most ill-drafted provisions due to the plethora of lacuna that flow from its phrasing. Inter alia, several other key points of misinterpretation and regulatory loopholes arise:

  1. Article IV does not prevent the use and placement of weapons other than weapons of mass destruction (‘WMDs’) on the orbits of the Moon and other celestial bodies, in the interorbital space between celestial bodies, and in deep space;
  2. Technology advancements such as the creation of stable space stations and artificial testing facilities hovering in outer space may allow the testing of conventional and other kinds of weapons upon such space stations without contravention of Article IV;
  3. ASAT operations and the launching of sub-orbital intercontinental ballistic missiles (‘ICBMs’) are not governed by any provision under Article IV. Thus, instances of ASAT testing, such as the one conducted by China in 2007, while receive international condemnation, cannot be squarely held violative of the OST; and
  4. Article IV is also myopic in that the provision does not support a restriction on non-kinetic or non-physical weaponry, such as cyber-warfare. 

2.     Trump’s Mandate for the USSF

Of importance to our enquiry is
the rhetorical mandate that was created surrounding the USSF through various
congressional and strategy documents as well as public statements delineating
the purpose of the Force. The 2018 National Space Strategy, prepared by
the Trump Administration, diverged from both the 2010 National Space Strategy and the 2011 Department of Defense Report on its characterization of space policy and the need for a USSF. First,
it portrays the outlook on space in terms of the ‘America First’ ideology,
echoing Trump’s electoral campaigning, as opposed to the emphasis that was
drawn in former documents on the need for international cooperation and
commercial importance. Second, outlining the four pillars of its renewed space
policy, it identifies the objectives such as strengthening deterrence and
warfighting options.

A 2018 Department of Defense Report further outlined objectives, such as “deploy[ing]
next-generation capabilities to support the warfighter”. While the reference to
the ‘warfighter’ here does not necessarily allude to the USSF, the Report, in
latter halves, blames the congestion and accumulation of rival militarization
capabilities in space, specifically that of Russia’s directed-energy weaponry
and China’s recent and recurrent anti-satellite (‘ASAT’) testing, for the need
to militarize. It constantly refers to space as a ‘battlefield’ and advocates
for the military leadership of a new independent armed corps.

Additionally, the creation of the
USSF led to several American public officials declaring the growing imperative of
establishing “American superiority in space” and the recognition of space as
the “newest war-fighting domain”. The Chairman of the Senate Committee on Armed
Forces, too, publicly denounced the USSF as tasked with the
restoration of the American “margin of dominance in space”. In fact, the stated
duties of the USSF, within 10 U.S.C. §9081
(2018)
, is providing for
the protection of US space interests, deterring aggression in, from, and to
space, and conducting space operations. While the expression may impress a
‘non-first-use’ approach, the painful emphasis on the establishment of
dominance hints at the non-self-defense exclusive nature of the USSF’s
establishment.

Section 14.10.3 of
the US Law of War Manual further reaffirms that Article IV of the OST merely
prohibits the placement of WMDs in full orbit, and not the placement of other
space-based weapon systems. To this effect, it expressly cites anti-satellite
laser weapons and other conventional weapons, which would include suborbital
defensive systems such as the Terminal High Altitude Area Defense system, as
not being subject to the prohibition. Further, it clarifies that “the
interpretation of ‘peaceful purposes’ [as mentioned in the second paragraph of
Article IV] is like the interpretation given to the reservation of the high
seas for ‘peaceful purposes’ in the [Law of the Seas] Convention”, referring
specifically to its historically maintained ‘non-aggressive’, rather than a
‘non-military’, stance on ‘peaceful purposes’. Even with respect to the recent ban on direct-assent ASAT operations by the Biden administration, the
lack of mention of any legally binding obligation under the OST, or any other
norm of treaty or customary nature, is suspect.

3.     Reconciling the USSF’s Existence with the Prerequisite of ‘Peaceful Purposes’

An
analysis of the legality of the operations of the USSF necessarily requires the
existence of questionable realization of its on-paper mandates. As of the time
of writing, no such activities or operations have been reported, the legality
of which could be scrutinized for the purpose of determining an active
violation of the OST and the several other international legal obligations
described hereinabove. That is not to say, however, that the question itself is
moot. The analysis contained in the previous part of this post outlines, in
most specific terms, the permissible activities of the USSF, as well as those
which, when undertaken, may sound immediate legal sirens across
jurisdictions. 

The USSF,
as detailed under by the Space
Force Proposal
, is for “both combat and combat-support functions to enable
prompt and sustained offensive and defensive space operations and joint
operations in all domains”. The specific use of the term ‘offensive’ thus casts
doubt on the ‘non-aggressive’ narrative of the USSF so propagated. The
existence of this document itself falls foul of the OST in that it goes further
than the mere defense-based mandate.

An amended proposal, however, was produced which omitted the
use of the term ‘offensive’. Albeit the current defensive rhetoric, the
legislative history of the USSF is mired with utterances of possible
actualization of the need to establish a sovereign dominion in outer space. In
light of this, it is imperative to note that while legislative history and
preparatory works have been characterized as supplementary means of
interpretation under the 1969
Vienna Convention on the Law of Treaties
(‘VCLT’), municipal courts of the
US, even to the tune of the US Supreme Court,
have recognized legislative history as a legitimate means of interpreting the
intention behind an enactment.

The constant emphasis on the establishment of a “dominion
in space
” is directly in contradiction of Article II of the OST, which
states that outer space cannot be “subject to national appropriation by claim
of sovereignty, by means of use or occupation, or by any other means”. During
the testimonial
hearing
before the Senate Committee on Armed Services, Senator Warren and
Senator Kaine both specified the need to advance military presence in outer
space, the former worried about the “risk of losing [the US’] competitive
advantage in space” and the latter interested in “grandfathering” the rules of
outer space, apparently believing that outer space suffered from a lack of
regulatory norms with respect to militarization. Thus, it is possible, on a prima
facie
basis, to view the mere establishment of the USSF as an attempt to
flout and circumvent established international norms for the purpose of
national superiority, masquerading under the need to ensure national security.
However, the inquiry undertaken below provides for a more nuances opinion.

4.     Subsequent Practice in Relation to Specialized National Space Corps

While accepted
subsequent practice aids in demonstrating the true good faith application of
the provision at hand, it is imperative to note, that any action in
non-compliance of a treaty obligation cannot be considered as relevant
subsequent practice for the purpose of treaty interpretation. Further,
significant weight is given to the “clarity and specificity” of the practice in determining
whether it actually relates to the international obligation at hand.
Additionally, special considerations regarding relevant state parties
for the determination of practice can be given in certain circumstances. For
instance, the practice of coastal and archipelagic States is considered with
much more weightage than land-locked States in the context of the Law of the
Seas. Similarly, with reference to the OST, the practice of spacefaring nations
shall be considered with slightly more weightage as opposed to the practice of
those which are yet to develop such capabilities. In terms of determining
whether a sense of agreement is established between State parties, the practice
in question could be reiterated by several State parties or the practice by
single party must be followed by “manifested or imputable” agreement of other State
parties, through statements, acquiescence, etc. In this regard, it may
be noted that accepted subsequent practice does not necessarily need to attain
virtually uniform character, provided it is supported by “good evidence that the other
parties have endorsed the practice.

To answer
whether the establishment of the USSF ipso facto violates the OST or any
other United Nations treaty, it must be determined whether the mere creation of
an independent national space corps has come to be an accepted subsequent
practice which could be interpreted as constituting a threat to use of force.

Currently,
several countries have a semi-dedicated armed aerospace corps. The Russian Aerospace Forces, or VKS, was created on August 1,
2015, by the merging of the Russian Air Force and the Russian Aerospace Defence
Forces. It currently operates as the aerospace branch of the Russian Armed
Forces. The French Air and Space Force, which assumed its current name
in September, 2020, is also a combined force for conducting aviation and
aerospace military operations under the French Ministry of Defence. Iran’s Islamic Revolutionary Guard Corps
Aerospace Force

and India’s Defence Space Agency, too, currently possess, albeit
to a significant lesser degree, warfighting capacity in space. Recently, Australia,
too, announced the creation of its Defence Space Command, following squarely in the
footsteps of the USSF-model.

Of the
specific military operations conducted by these agencies in outer space, the
Islamic Revolutionary Guard Corp, on April 22, 2021, successfully conducted the launch of its first military
reconnaissance satellite. France, during March 8-12, 2021, conducted its first outer space military
exercise by undertaking a ‘stress-test’ of its ASAT defense systems. Russia, on
the other hand, on April 15, 2020, conducted an ASAT test of its direct-assent
missile system. India, too, on March 27, 2019, successfully conducted an ASAT test of the Prithvi
Mark-11 delivery vehicle by intercepting its own Microsat-R satellite at an
altitude of 282 kilometres.

While the
conduct of these military operations was each warned against as being
representative of the harbinger of space warfare, the establishment and the
existence of the autonomous or semi-autonomous armed forces have not received
scholarly or international flak. In fact, even the creation of the USSF was met
with disappointment as to the failure of international law to nip the thought
in the bud, signalling that the mere establishment and even the undertaking of
certain space activities (those which are not squarely prohibited by Article IV
of the OST) would not be considered violative. While the above example do not,
by any means, achieve the status of accepted subsequent practice, the formalized
plans, in the form of statements and the preparation of future military
budgets, evidence the fact that the establishment of independent sovereign
space corps seems inevitable. While the US could be blamed for sparking the
ignition of the same, it cannot yet be concluded that the creation of the USSF
is ipso facto a violation of international law.

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Rohit Gupta