By: Max Raileanu
On December 18, 2018, Vice President Mike Pence announced that President Donald Trump ordered the Pentagon to create a “combatant command.” He continued by stating that: “The U.S. Space Command will integrate space capabilities across all branches of the military, it will develop the space doctrine, tactic, techniques and procedures that will enable our war fighters to defend our nation in this new era.” This space command appears to be the first step in President Trump’s plan to create a Space Force. The United States Air Force currently has its own space command and a unified space command existed from 1985-2002.
In addition to the formation of a new space command, President Trump has released the “Space Policy Directive” (“Directive”) which “reforms America’s commercial space regulatory framework, ensuring our place as a leader in space commerce.” This Directive ensures that any government regulations that are adopted and enforced promote a variety of different interests. One such interest is protecting national security, implying that the Space Force will be utilized for military purposes and not just economic growth. In addition to this directive and the Vice President’s statement above, President Trump stated that “space is a warfighting domain, just like . . . land, air, and sea.” This is important because it conveys to the world that this Space Force will serve a significant military function, which leads to the following question: is this Space Force legal?
Multiple debates revolve around space activity and many legal questions are raised. For instance, space debris is a significant issue that must be dealt with but due to legal uncertainty, especially with the “Outer Space Treaty” being so generic, only minimal action is being taken. Now, with the idea and implementation of a Space Force, more legal questions are raised regarding space and a country’s ability to perform certain acts up there. This Space Force implicates the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (“Treaty”). This treaty was ratified by 62 countries in 1967, including the United States, United Kingdom, and France. Russia (former Soviet Union) did not accept these principles and did not even sign the treaty, let alone ratify it.
Article IV of the Treaty states that, “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 . . . .” This article of the Treaty makes it very clear that many types of military actions are forbidden. Obviously, since the Trump Administration has not published a detailed plan regarding the types of military actions and installations that will be carried out and built in space, it is difficult to fully determine whether the Space Force violates this Treaty. However, due to the rhetoric and directives described above, it can be reasonably inferred that the Space Force will utilize a variety of military weapons, personnel, etc. Therefore, the Space Force may very well violate this Treaty and cause significant issues for the Trump Administration.
However, there is a counterargument that could prove that the Space Force does not violate this treaty, or at a minimum, provide the Trump Administration with viable arguments as to the legality of the Space Force. The first is found in Article III. Specifically, this Article states that, “States Parties to the Treaty shall carry on activities in the exploration and use of outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations, in the interest of maintaining international peace and security . . . .” The key phrase in this Article is “interest of maintaining international peace and security” because it could provide the Trump Administration with a justification for the Space Force. Vice President Pence mentioned that Russia, China, and North Korea have been developing weapons in recent years capable of attacking objects in space and attacking from space. An argument could be made that a Space Force is necessary because these countries, each with a history of acting against the United States and its allies, are developing new weapons that pose significant threats to national security. In addition, Russia and North Korea have not signed this Treaty, enabling them to test new space weapons without legal repercussions under this Treaty, therefore putting the United States and other countries at a disadvantage.
In the end, the answer to the question of the Space Force’s legality will depend upon the detailed plan that the Trump Administration will produce. Both sides have strong arguments and the Trump Administration could also propose an amendment to the Treaty to allow the United States to build a Space Force.