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Legal Ramifications of the U.S. Space Force

In an move that has drawn a spectrum of responses including scepticism, ridicule, awe and wonder, earlier this month U.S. President Donald Trump announced the creation of a new branch of the United States Military; a Space Force. In this piece, Eamon Driscoll examines how the analytical focus on the militarisation of space may be misplaced, and how the announcement carries more profound and potentially optimistic implications.

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U.S. President Donald Trump’s announcement on June 18th on the establishment of an independent branch of the military dedicated to space drew raised eyebrows and derision for its perceived value, purpose, and function, but none more potentially significant than those of experts in international law. The militarization of space is a controversial topic, but according to the letter of the law at the present time, only weapons of mass destruction are explicitly prohibited to be deployed in space. Therefore all conventional weapons, from handguns to kinetic bombardment, are fully permissible, and the creation of a Space Force is not as controversial as it might seem at first glance. Space is already used in command, control, communications, and intelligence aspects of military operations, so it would be incorrect to claim that warfare is restricted to the Earth’s surface and atmosphere. In terms of the law, outer space is one area which is still very much evolving and has not yet been fully agreed upon.

Space law as we currently understand it is similar in character and function to the law of the sea as formalized by the United Nations Convention on the Law of the Sea (UNCLOS). Modern sea law began to take shape in September 1945 when then-President Truman issued Proclamation 2667, which claimed the full continental shelf extending from U.S. as territorial waters, which extend three nautical miles (nm) beyond the shoreline. Because not all continental shelves are made equal, a 200 nm limit has become the legal norm, even in those areas such as the Chilean coast, where the deep sea begins far closer to the shoreline than it does off the US eastern seaboard. This 200 nm range is the Exclusive Economic Zone (EEZ) within which each state has the sovereign right to exploit the resources beneath the surface of the sea, the surface being considered international waters. Beyond 200 nm, the law as set forth by UNCLOS Part XI sets the deep sea aside for the “common heritage of mankind”.

Similarities between sea and space can immediately be seen in Article I of the Outer Space Treaty of 1967:

The exploration and use of outer space, including the moon and other celestial bodies, shall be carried out for the benefit and in the interests of all countries, irrespective of their degree of economic or scientific development, and shall be the province of all mankind.

Outer space, being everything beyond the Earth’s atmosphere, commonly accepted to begin at the Kármán line – at an altitude of 100 km (62 mi) above sea level – can therefore be considered legally identical to the deep sea: there for the common heritage of mankind. A state’s airspace can also be considered the aerospace equivalent to territorial waters. There is no direct analog to an EEZ in a cosmic sense, due to the nature of the cosmos, but the existance of the EEZ introduces a potential hiccup: resources. Truman’s proclamation was developed when it became apparent that technology would soon reach the capabilities to exploit resources in the sea, such as offshore oil deposits. Therefore, just as it was necessary to expand sea law to incorporate the innovations of the day, today it is necessary to expand space law in recognition of the coming capabilities of technology to exploit cosmic resources, such as through mining asteroids and other extra-terrestrial bodies. Within U.S. law, the establishment of a Space Force to meet cosmic force projection requirements was authorized by House Resolution 2810 Title XVI, Subtitle A, section 1601, §8091:

Not later than 45 days after the date of the enactment of this Act, the Deputy Secretary of Defense shall seek to enter into a contract with a federally funded research and development center that is not closely affiliated with the Department of the Air Force to develop a plan to establish a separate military department responsible for the national security space activities of the Department of Defense. [sic]

This technology, which will ultimately open up a new epoch of exploration, resource exploitation and perhaps eventually colonisation, will not leave law behind when it escapes Earth’s gravitational pull. Where opportunity for commerce exists, bureaucracy will not be far behind, and where the government exerts its influence, there will be the ever-present knowledge of being under the protection of one particular government or another. Whether or not the United Nations can get ahead of the matter and force parties to the Outer Space Treaty – including the United States and China – to adhere to its articles remains to be seen. As a result, the legal issues that will arise from Trump’s creation of a Space Force are not simply restricted to the issue of the militarisation of space (unless WMDs are involved), but also extend to issues surrounding exploration and the exploitation of natural mineral resources on celestial bodies such as planets and asteroids.

Moreover, it is also increasingly likely that, where American space exploration is concerned, the search for mineral wealth will be conducted by corporations and chartered companies rather than U.S. government agencies. These corporations will be in competition with foreign space agencies which may also develop the technical capacity to exploit the same resources. China is the likeliest rival for these resources, and given the tensions that are already rising over terrestrial trade and resource exploitation, it seems unlikely that the U.S. and China will feel the need to cooperate for mutual benefit in the cosmos. Despite setbacks in 2017, Trump seems determined to ensure that the United States Armed Forces retain a competitive edge in the battles of the future.

The United States needs a Space Force, no matter how the Starfleet jokes may undermine the seriousness of the issue, because despite popular perception, the militarisation of space is legal, and will happen sooner rather than later. The law will need to be updated as technology advances to take into consideration the resources up for grabs, but the primary effect in terms of international law and public policy is that the United States Space Force, if and when it begins operations, will be working to protect American commercial interests. This is the crux of the issue. It may initiate an arms race in space, but just as a key function of the U.S. Navy is to secure freedom of the seas to protect international trade in the post Breton Woods era, so too will the U.S. Space Force be tasked with protecting cosmic trade, the exploitation of resources in space, and any temporary & permanent colonies which develop in the approaching Age of Cosmic Exploration. So long as America remains generally predisposed towards international commerce (the current situation notwithstanding), this will benefit the world as a whole. Should America follow its recent trend of economic nationalism, then the outlook for the stars is less optimistic.

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Eamon Driscoll is a graduate of the University of Ilinois and postgraduate of Geopolitics, Territory and Security at King’s College, London. Eamon focuses on issues in Russia and the wider Commonwealth of Independent States, which has furnished him with extensive experience on the topic of breakaway states. His current academic focus is on the Russian enclave of Kaliningrad and how its unique position has forced the region to develop differently from other Russian territories, especially in the shadow of the ongoing crisis in Ukraine.

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Photo credit: NASA Photo by Carla Thomas