Academic journal article Chicago Journal of International Law

Technology, Politics, and the New Space Race: The Legality and Desirability of Bush's National Space Policy under the Public and Customary International Laws of Space

Academic journal article Chicago Journal of International Law

Technology, Politics, and the New Space Race: The Legality and Desirability of Bush's National Space Policy under the Public and Customary International Laws of Space

Article excerpt

I. INTRODUCTION

Since the terrorist attacks of September 11, 2001, the War on Terror has affected US defense policy in lands as far flung as Afghanistan, Southeast Asia, and Iraq. Recently, President George W. Bush has expanded the scope of the War on Terror into a new area: space. On August 31, 2006, President Bush authorized the new National Space Policy ("NSP06"), an assertion of the US's right to defend itself in outer space. In it, the US reserves the right to "deny, if necessary, adversaries the use of space capabilities hostile to [US] interests."1 It also declares that "[p]roposed arms control agreements must not impair the rights of the [US] to conduct. . . activities in space for [US] national interests."2 The NSP06 thus grants the US wide unilateral discretion to protect its national interests in space.

Predictably, the international response has not been enthusiastic. A London Times editorial piece summed up the consensus view on the NSP06: "SPACE: no longer the final frontier but the [fifty-first] state of the United States."3 Russia claims that the US "want[s] to dictate to others who else is allowed to go there" and has called the NSP06 "the first step toward a serious deepening of the military confrontation in space."4 Meanwhile, China recently launched its first antisatellite missile in January 2007 in an apparent response to the US's increasingly assertive position in space.5 The US's aggressive assertion of space rights through the NSP06 has spurred strong responses from China and Russia, the primary rivals of the US for space power. The NSP06 may be unpopular, but is it illegal?

This Development argues that it is not. Although a backdrop of international treaties requires peaceful, nonmilitary use of outer space and the moon, these treaties do not bar space regulation as proposed by the NSP06. In addition, customary international law of space also suggests that the NSP06 is legal. section II grounds the NSP06 in the historical context of space competition from the Cold War to the War on Terror, as well as in general national security policy since the September llth attacks. It further argues that the current space treaty regime does not invalidate the NSP06. section III analyzes the customary international law of space and posits that it also would not conflict with the NSP06. section IV concludes by investigating implications of the NSPOo's legality in light of current international politics.

II. NATIONAL SPACE POLICY UNDER THE MOON AND OUTER SPACE TREATIES

A. COLD WAR TENSIONS LEAD TO DEVELOPMENT OF CURRENT SPACE LAW REGIME

Space policy-related tensions arise from two main factors: development of technology capable of expanding countries' power in space and underlying political tensions between countries holding that technology. Today, that technology involves satellite surveillance and ballistic missile defenses of countries vying for power in the midst of the war on terror. Current space treaties, however, developed during another era of blossoming technology and political tensions: the Cold War.

As early as the 1950s, the US and USSR engaged in a struggle for space dominance.6 Both countries feared that, because each possessed nuclear weapons, the other would combine its space-based technical expertise with nuclear knowledge to obliterate the other.7 Nonetheless, both powers viewed space technology as critical to both their civilian and non-nuclear military futures.8 International consensus developed that the powers should use space for nonaggressive purposes.9

The consensus was codified in five space treaties that, since 1967, have provided the general principles defining positive international law governing space generally.10 Two of these-the Outer Space Treaty and Moon Treatyarticulate three main principles governing space use specifically. First, "[o]uter space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. …

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