When most of us think of space warfare, we picture the Star Wars variety—epic battles between spaceships, lightspeed chases, and planet-blasting death rays. But in reality, the state of modern orbital warfare looks less like a space opera, and more like a slow-burn political thriller.
Astronauts representing several different countries may break bread on the International Space Station, yet geopolitical tensions between their respective nations simmer under the surface. In contrast to the pyrotechnic nuclear threats faced in the 1960s, modern space militarization is defined by subterfuge, distrust, and an ever-complexifying cast of global players.
"I think what we're seeing is a metamorphosis," Joanne Gabrynowicz, a prolific space lawyer and professor emerita at the University of Mississippi, told me over the phone. "Something is happening at the international level between and among nations where the very system of law is changing."
To understand these modern growing pains, it's important to contextualize the events that catalyzed space law in the first place. The first regulations on space activities, including military use of space, were laid out during the space race, when anxiety over nuclear proliferation was at a fever pitch. With the horror of the Hiroshima and Nagasaki bombings still fresh in people's minds, many were rightly petrified atomic warfare would spill into outer space.
Their fears were validated by the fact that both the US and the USSR detonated atomic bombs in space during the early 1960s, demonstrating that nuclear war in space was a real possibility, while ratcheting up the tension between the rival nations.
Fortunately, what emerged from all this high-stakes sabre-rattling was the Outer Space Treaty of 1967—the foundational document of space law.
"There would be no space law without the fear of nukes," Gabrynowicz told me. "Everybody looked over into the abyss. They saw what it meant to place nuclear weapons in space. Think of nuclear bombs producing mushroom clouds raining down from space. Everybody said, 'Nope, we are not going there'."
To prevent this horrifying possibility, 89 nations signed the 1967 Outer Space Treaty, which unequivocally banned nuclear weapons in space and prohibited weapons of mass destruction, including chemical and biological weapons. With that, the immediate threat of space-down nuclear armageddon was thankfully averted.
This is an achievement we should be proud of, even decades later. It is rare for rival nations to agree to back down during an arms race. That the American and Soviet spaceflight communities were able to demonstrate this kind of restraint at the height of the space race set a strong precedent for the preservation of peace beyond Earth.
That said, in the decades since 1967, weapons have become smarter and more sophisticated, and that has affected the nature of potential space warfare. We may have outlawed the big guns—nukes and WMDs—but these dangers have been replaced by an ambient and malignant militarization that stealthily operates between the lines of space law.
Take, for example, the dizzyingly complicated problems sparked by dual-use technologies such as anti-satellite (ASAT) weapons. It may seem like a no-brainer to simply outlaw the launch of any satellite that can damage other spacecraft, but as it turns out, hundreds of satellites could fit this description. What looks like a benign mission to clear up space debris on paper could end up being an ASAT project in disguise.
"ASATs have always been kind of like the Achilles heel of the arms control regime," said Gabrynowicz. "DARPA, the Air Force, and the Department of Defense have been stressing how important it is to deal with debris. And they're right. It is important to deal with debris. But it can go either way."
In other words, the same technologies that can help us service malfunctioning satellites or cut down on debris can also be used to tamper with other satellites, or create more debris by shooting spacecraft down.
Suspiciously enough, military leaders from the US, Russia, and China have been particularly invested in developing these kinds of dual-use technologies for outer space, and occasionally, they will demonstrate their capabilities. In 2007, for example, the Chinese space agency performed a "kinetic kill" on one of its own satellites by shooting it down with a ground missile.
"It caused a massive amount of debris in high levels of space where it can do major amounts of harm," Gabrynowicz said. "To this day, they have never officially said what they did or why they did it."
This subtle and insidious militarization of space is creeping into space exploration at the seams, escalating tensions between major spacefaring nations. In contrast to city-blasting bombs of yesteryear, space warfare is now deployed through changeling machines that purport to uphold off-Earth peace while holding proverbial knives at their backs.
"We need to wrap our heads around the idea that space may not always be a peaceful domain and respond accordingly."
Policing this kind of arms race is a legal nightmare, but that hasn't stopped people from trying. Over the summer, for example, European Union diplomats convened a meeting between major spacefaring nations, held at the United Nations (though it bears mentioning that it was not an officially sanctioned UN meeting).
The goal was to discuss implementing the EU's proposed non-legally binding Code of Conduct for Outer Space Activities, which aims to keep space militarization in check. While the drafted code of conduct doesn't have the fangs of a legally binding treaty, the EU reasoned it would at least advance the conversation, and provide some kind of safeguard against rampant armament.
"If something is not legally binding, then it has the effect of peer pressure," Gabrynowicz explained. "The question becomes: is it more politically advantageous to break away, or is it disadvantageous? It's a very nebulous case."
"At the same time, if the alternative to a nonbinding agreement is nothing," she added, "you may take a much weaker agreement, because it gives you something. It's all a very calculated, sophisticated analysis based on so many factors."
Alas, the gathered diplomats, representing over 100 countries, couldn't come to an agreement about the terms for the code of conduct. One of the major stumbling blocks for the negotiations was the firm US position that the code explicitly grant all nations the right to self defense—a stance that some see as a tacit loophole for amping up American military domination of space.
"Some Latin American and African countries feel there is no way they are going to support the code if there is an obvious reference to the right to self defense," foreign policy expert Rajeswari Pillai Rajagopalan told Motherboard's Ali Withers last month. "For one thing, they wouldn't have counter-space capabilities to defend themselves."
Nevertheless, the US has made clear that it is not interested in any code that doesn't spell out this right.
"We need to be ready," said secretary of the US Air Force Deborah Lee James this past April, at the 31st Annual Space Symposium. "We constantly talk about readiness in the Air Force, and readiness in space is no less important than in any other domain. We need to be ready in case a conflict extends to space, while promoting the responsible use of space. We need to wrap our heads around the idea that space may not always be a peaceful domain and respond accordingly."
This scuffle over the parameters of self defense is a microcosm of general global tensions about the ownership and use of space. While only a few nations on Earth have the ability to visit, study, and weaponize orbit, the Outer Space Treaty ensures that legally speaking, outer space belongs to all Earthlings.
"There's no way you are going to get any kind of space agreement if Russia and the US are not involved."
"The treaties say that space is a global commons and all nations have the right to explore and use space without regard to their current scientific and economic capability," Gabrynowicz said. "That's the only way the little guys can control the big guys somehow. They have a legal right to be involved in the conversations."
That said, Gabrynowicz also told me that "there's no way you are going to get any kind of space agreement if Russia and the US are not involved."
Unfortunately, it's a lot harder to get those two critical nations back to the bargaining table than it was in the 1960s. "What's happening now is there is no political will," Gabrynowicz said. "The spacefaring nations don't want to limit themselves, and they don't trust one another. It's just not happening."
The recent breakdown of discussions held in New York seems like the latest in a series of heavy failures to rein in the steady militarization of outer space. For those who would like to preserve peace off Earth, it is discouraging to see terrestrial conflicts gaining dimension in the borderless expanse beyond our planet.
But from Gabrynowicz's perspective, the fact that the current legal system is stumbling to keep up with the realities of orbital weaponry presents the opportunity to reform it.
"One hundred years from now, my successor is going to stand in front of a classroom and say, 'Oh, back then in the late 20th and early 21st centuries, that's when this new system was created,'" she told me.
"We don't know what it is because we can't see it yet. It's like when I tell my students that the modern nation state and treaty system as we know it was developed from the 1400s to the 1600s. We can point to things like the Westphalia Treaty, and say that that is where the emerging modern international legal system began."
"That system is changing now, because the world is changing," Gabrynowicz said.
What the world will evolve into, however, remains opaque from our vantage point in 2015. We can only hope that future generations will be able to point to our response to these issues with the same pride with which we celebrate the foresight of the 1967 Outer Space Treaty today.
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