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.