Space is so vast and distant for humans that until recently it has never been considered much of an economic resource or domain for competition among states. It has been largely viewed as a ‘global commons,’ much like international waters, for all nations to access for improved communications. However, space is now used for many purposes beyond exploration. It is less of a mysterious frontier and rather a new domain where both states and private entities meet and compete. Space has been a recognized domain since the 1950s when Sputnik was launched.[1] Competition in space will likely only increase in the future, but its future is uncertain. For space to benefit all humankind, international law and norms must be protected and advanced to ensure the commercial and security interests of all states in space.

The economy, healthcare, climate, technology, and now space all depend on a firm understanding of world politics. No state can thrive and avoid conflict by isolating itself. Satellites in space provide crucial data on weather, natural disasters, conflict, the internet, famine, and commerce. All states, including those that own no assets in space, critically depend on data transiting space. However, the great powers, US, Russia, and China, are competing aggressively for influence and power worldwide, which will extend into space.[2] Added to these new realities is the fact that private companies, such as SpaceX and Blue Origin, are now involved in their own space launch businesses.[3] No state is unaffected. Space is vital to all states’ security, prosperity, and scientific progress.

Why Space is Important

Space today plays a far more important role in human activities on Earth than just a few decades ago and will play a greater role in our lives in the future. The emergence of new space-related technologies, much greater private sector activity, and state capabilities have made possible new economic, military, and civilian applications for many countries.

US Space Force’s Capstone Publication, Spacepower, recognizes space as a separate warfighting domain, just like the air, land, sea, and cyberspace domains, that is “congested, contested, and competitive.”^[4] Almost all modern warfare relies on space assets to some degree. During the US-led invasion of Iraq in 2003, 68% of US munitions were guided using space-based means. A sharp increase from 10% in 1991, during the first Gulf War.[5] However, most countries cannot directly participate in space competition or exploitation. Only about a half-dozen states – the United States, Russia, China, the European Union, and Japan – have developed sophisticated space launch programs so far. Morgan Stanley, in its team-researched study of the future of the industry, estimates that the roughly $350 billion global private space industry could surge to over $1 trillion by 2040.^[6]

As the US Department of Defense’s 2020 Space Strategy notes, military forces in advanced countries are far more dependent on space infrastructure than in the past.^[7] Space has facilitated both the generation and transmission of valuable information and has as served as a vector for weapons delivery and surveillance technology. Beyond the military, space capabilities are critical to the economy. Satellites are a major contributor to these developments.

For instance, the US Global Positioning System (GPS) is capable of telling time down to the nanosecond and can locate any geographical coordinates on Earth.^[8] Along with other fleets, these satellites impact the global market by providing critical data to predict weather conditions, estimate geographical resource quantities, enable civilian and military communication, transmit news, facilitate financial transactions, and much more. US surveillance systems in space provide critical warning information, not only for natural disasters, such as hurricanes, but also for state-on-state attack. When Iran fired dozens of ballistic missiles into Iraq in January of 2020, American forces were able to react in enough time, as US satellites had detected the launches and the directions in which the missiles were headed.^[9]

The US Department of Defense acknowledges the potential vulnerabilities of these critical space assets. Interference with GPS alone could risk the lives of millions of people and hurt economies on a global scale.^[10] Security concerns are so serious, the United States has devoted parts of its military (e.g., Space Force, Space Command) to protect these assets. Potential US adversaries, such as China and Russia, have capabilities to disrupt space assets now and can be counted on to develop these weapons further. All actors will increasingly have access to space-based information services. Thus, it is critical to recognize adversarial intent to avoid conflict.

The Next Domain for Competition and Advantage

Competition among nation-states is certainly not new. The space race between the former USSR and the United States during the Cold War was a great example of the impact of private sector interests on the political realm. Many US companies provided expertise, training, education, and leadership to develop increasingly sophisticated space systems. The future holds another ‘space race’ – this time, where private companies, fueled by venture capital and new technology, will drive the commercialization of space, as government agencies reposition their attention on the Moon, Mars, and beyond.^[11]

The US Space Force has already expressed interest in how venture capitalists are assessing startups in the space industry. A new outreach program in Space Force, SpaceWERX, attracts small businesses and entrepreneurs in the space industry to work with the US Government.^[12] Many commercial enterprises recognize the potential space offers for vastly more efficient communications, technology transfer, and distribution. But whereas in the past, space was leveraged for state power (intelligence and communications satellites), the private sector today wants to use space for commercial development. According to Morgan Stanley, this race to compete for space investments is driven by both commerce and state rivalries.^[13] The emergence of satellite broadband, for instance, will have the potential to give entire countries better access to the internet.

The United States should lead and protect the private sector’s role in and development of space. The domain must be open for all states to leverage operations and advantages, while also maintaining freedom from massive state competition, including the emplacement of weapons. Should space become militarized, it would likely suppress much needed development for non-space-capable states – those that depend on it for weather information, commerce, and internet communications.

Space Rules and Regulations

Until recently, the consensus among senior policy makers assumed a future of unimpeded US military activity in space. Given its importance, the concept of space as a warfighting domain is a serious concern.^[14] The US National Security Strategy emphasizes this concern, arguing that the United States must assist with capabilities designed to protect and defend the domain.

On November 15, 2021, Russia destroyed one of its inoperative satellites in space, generating some 1,500 trackable pieces of debris that now threaten other space assets.[15] Although that action was reckless in an area shared by the world, Russia could not be punished legally for the damage done. Such issues have occurred before, which begs the question: is regulation in space necessary?

International law becomes operative in one of two ways: nations may agree on implementing customary law (things currently in order) or sign international agreements, which are intended to bind them to a decision. So far, space has enjoyed many customs, such as the restraints all states have displayed from shooting down satellites that transit over the space of another state. It is imperative that such customs (also known as norms under international law) continue and are developed further for space. So far, the private sector has been highly monitored and regulated by their state sponsors and clients. At least with US firms, the private sector is unlikely to violate any state-sponsored norms.

In 2021, US Secretary of Defense Lloyd Austin signed a memorandum, “Tenets of Responsible Behavior in Space,” to articulate norms of good space behavior within the Department of Defense. The memo challenges other states to follow suit and offers five tenets for responsible departmental behavior:

1. Operate in, from, to, and through space with due regard to others and in a professional manner.
2. Limit the generation of long-lived space debris.
3. Avoid the creation of harmful interference.
4. Maintain safe separation and safe trajectory.
5. Communicate and make notifications to enhance the safety and stability of the domain.^[16]

Space debris poses a hazard for all states to access and develop space. If too much space debris accumulates in orbit, a positive feedback loop of chain-reaction destruction could take out all space assets, rendering space inoperable for decades. This is known as the Kessler Syndrome and is entirely possible if we are too careless.[17] Such norms will prove imperative for all states to take advantage of space in the future. The United States has already signed numerous ‘space-sharing agreements’ with over 100 countries to provide data and collision avoidance notification.[18] The US should consider appointing an ambassador for space or at least a high-level official to lead space preservation agreements to protect space norms.

The Outer Space Treaty

Intellectual discourse on the law of the space domain concluded with an international agreement in 1967 that became known as the Outer Space Treaty (OST). It became the foundation of space law. One of the most important principles of the OST is its recognition of space as non-appropriable and free for use and exploration. The air domain emerged first as a warfighting domain in World War I, and then a huge private sector interest after the Second World War. Today both the private sector and states manage and use the air domain. Airspace is sovereign; thus, flying aircraft over another state’s territory without permission is a violation of sovereignty. Space does not follow the same rules of sovereignty, meaning states can fly spacecraft and orbit satellites over the territory of another state without violating international law.

This is what is both unique and strange about space: should a state fly a manned or unmanned aircraft over the airspace of another without permission, the state whose airspace is being violated, assuming all efforts to turn the aircraft around are exhausted, can legally shoot down that aircraft. The one caveat is that the aircraft remains no higher than 100 km (62 miles) in altitude – the Kármán Line – or the craft is then ‘in space.’[19] Under customary international law, states do not have the right to shoot down craft transiting outer space above another state. This custom has been true since Sputnik flew over outer space above the United States in the late 1950s. Subsequent launches by both the Soviet Union and the United States that transited outer space above the other state and the two major powers represented an implicit agreement not to shoot down competitors’ satellites.

The Outer Space Treaty bans orbiting nuclear weapons and weapons of mass destruction (WMDs) to prevent the militarization of space.[20] What constitutes a weapon of mass destruction is ambiguous, hence, ‘weapons’ are not completely or definitively prohibited. The US Air Force’s unmanned space plane, for instance, can travel into space, maneuver over the space of another state, and has a cargo bay that can easily carry a weapon – including a nuclear weapon.^[21] China is developing a similar system that may be even more capable than the US space plane.^[22] Moreover, space assets can maneuver in space and ram another.^[23] Are such space satellites weapons? To date, they have not been called violations of the OST. Such weapons are likely to appear in space, or at least threaten space assets from the ground.

Space requires an enormous infrastructure of systems both on the land and in space. Each element is vulnerable to attack or interruption.[24]

US Space Force’s Spacepower seems to be correct that space is contiguous with and similar to the air domain. Space is interconnected with the other military domains and thus will most likely also develop as a domain in which states compete militarily.^[25]

The OST explicitly clarifies the liability and international responsibility of states to keep space safe and at peace. Therefore, it is in a state’s best interest to conduct operations responsibly and monitor private sector initiatives. With rules and regulations, states need to consider the consequences of violations of the spirit and intent of the OST, which was clearly designed to dissuade bad intentions and prevent military escalation of competition among states in space. Of course, any treaty’s success is contingent upon trust and cooperation between states. Thus, it is imperative that the space states be open in their programs and deployments in space.

During times of conflict, however, OST terms may not apply to belligerent states, meaning OST provisions could be ineffective in armed conflict. Parts of the treaty may need to be updated to extend into wartime, or to address these non-WMD counter-satellite weapons, such as how the Law of Armed Conflict is applied to such weapons.

Despite its flaws, the OST provides a vision for all states – at least that space should not be a domain where WMDs can stay aloft and threaten other states continuously. The vision of the OST was for space to be different – something that would eliminate the political differences among the states on Earth and draw them into a collective goal of economic and technical development and progress into our solar system. This intent seems still relevant and important today. The spirit of the Outer Space Treaty survives, despite the emerging threats to its provisions.

Artemis Accords

Cooperation between private sector initiatives and state interests drive development in space. Without impacting their own interests, states want to limit regulations on private sector initiatives to gain economic advantage in space. Both states and the private sector have recognized space as a major economic interest.

In contrast to advancing military competition in space, the Artemis Accords were recently introduced by NASA in October of 2020 to gauge interest among states on a new project to return humans to the moon by 2024 and establish a crewed lunar base by 2030.^[26] The project is grounded in the OST and is meant to promote peaceful space exploration, with the goal to “establish a common vision via a practical set of principles, guidelines, and best practices to enhance the governance of the civil exploration and use of outer space with the intention of advancing the Artemis Program.”^[27] As of March 6, 2022, there are sixteen participants. However, neither China or Russia has supported the initiative.^[28]

NASA is prohibited from cooperating with China without special approval from Congress due to the Wolf Amendment of 2011. However, there is a more important reason for China’s lack of cooperation.^[29] China is investing heavily in space and remains competitive with the United States and determined to advance its presence and capabilities in space. China has neither embraced the Artemis Accords nor advanced any similar international agreement.

How Commerce and the Private Sector Could Reduce Conflict

The private sector plans to place private satellites into space around the globe. SpaceX is a prime example. But states and some private sectors wish also to ‘mine’ asteroids and the moon. A new set of laws and agreements will have to merge to permit and govern this international activity. Article 2 of the 1967 Outer Space Treaty prohibits any country from claiming territory on the moon through an assertion of sovereignty or any other means.^[30] Under international law, therefore, China cannot use its flag-planting to claim sovereignty over any part of the moon. How will states deal with states that ignore this and other space agreements? How can space help those states that have no technical means to exploit it? Do space powers have a responsibility to involve the developing world? These questions need to be answered, either by treaty or the establishment of norms.

The privatization and commercialization of the space industry can help to prevent conflict by promoting cooperation among states. All parties should be willing to avoid conflict given the risk of losing their investments in space.

Private space companies have a significant role in this effort and should be involved in proposing guidelines for responsible behavior in space, but states also have a critical role in supporting and promoting space development for both economic and security reasons. The relationship between private companies and states is especially complicated given that the world depends on the economic interactions between states and the private sector. Non-space states depend on space states for access to the benefits of space.

The future may see space mining, military deployments, and even warfare in space. Such competition has the potential to bar space as a resource for a larger good for all humanity. As space emerges, it is critically important to understand and shape it, therefore, for all humankind.

States and the private sector will have to work together to recognize and keep space as a ‘global commons.’ The space-states and the private sector must somehow accommodate states that cannot access space directly.

Recommendations

States will attempt to leverage space for military advantage. Therefore, norms of military and commercial behavior must be developed to allow non-space-launch-vehicle states to access the benefits of space. International organizations, such as the United Nations, will have to propose regulations or norms to manage and coordinate space activities in the future.

The United States, the European Union, Japan, and India should pledge to protect the space domain from weaponization and threats. All weapons in space should be banned, including lasers, microwave weapons, and kamikaze and grappling satellites. These like-minded liberal democratic (space) states should pledge to make space a domain for all states to access – not just the space-launch-capable states. They should decry Chinese claims of moon sovereignty and state that authoritarianism is incompatible with humankind’s move into space and beyond.

The White House should make the Artemis Accords a priority initiative. They serve to isolate China’s attempt to gain advantage, both militarily and commercially in space. They reveal the West’s altruistic attitude generally toward space.

US Space Force should demonstrate consistently its goal of defending (and not weaponizing) space. Western space launches should increasingly involve like-minded states. An international registration system, roughly similar to the internet’s ICANN, should be established to allow non-space-launch-capable states to access the advantages of space.

The United States should lead an international effort to create a NASDAQ-like market for investment in the free-market development of space industries. Rules-based institutions should govern space through investments and cooperation so that the powerful space-states will not dominate.

Whereas the United States was naïve about cyberspace, thinking it would emerge as a public domain for all, the United States should be more canny about space. Passivity in the face of malign activities in cyberspace led it to become a mine from which authoritarian states steal intellectual property, conduct ransomware attacks, pre-position capabilities, and conduct information operations. The authoritarian states will surely seek to compete for advantage in space and turn it into a domain of coercion, political influence, and military pre-positioning — as they did to cyberspace. The United States should not let that happen to space.

Space has only just begun to emerge but will bring major challenges in most aspects of the global economy and politics. Space is the domain where all states will eventually meet. It is imperative that it emerges to the peaceful benefit of all.

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[1] Where is Space, National Satellite Data and Information Service, Department of Commerce, February 22, 2016. https://www.nesdis.noaa.gov/news/where-space.

[2] States that have active ‘space launch-capability’ (the ability to launch payloads into space) include the United States, Russia, Ukraine, the European Space Agency, Israel, China, India, Japan, North Korea, the Republic of Korea, and Iran. See Katharina Buchholz, “The Countries Capable of launching Space Rockets,” Statista, July 18, 2022. Chart: The Countries Capable of Launching Space Rockets | Statista

[3] Private ‘spaceflight’ (cargo and crew transport) companies include SpaceX, Orbital, Northrop Grumman Innovation Systems, Sierra Nevada Corporation, Blue Origin, Boeing. Suborbital companies include Scaled Composites, Blue Origin, The Spaceship Company, Copenhagen Suborbitals, PD AeroSpace, World View. Space-related companies include firms involved in launch vehicle manufacturing; landers, rovers and orbiters; research craft and tech demonstrators; propulsion manufacturers; satellite launchers; space-based economy; space mining; space stations; space settlement; spacecraft component developers and manufacturers; ‘spaceliner’ companies.

[4] Spacepower: Doctrine for Space Forces. Space Force, June 2020, www.spaceforce.mil/Portals/1/Space%20Capstone%20Publication_10%20Aug%202020.pdf. Accessed 28 November 2021.

[5] Beyza Unal, Cybersecurity of NATO’s Space-based Strategic Assets, Chatham House, July 1, 2019. https://www.chathamhouse.org/2019/07/cybersecurity-natos-space-based-strategic-assets. Accessed 20 September 2022.

[6] A New Space Economy on the Edge of Liftoff. Morgan Stanley, 17 February 2021, www.morganstanley.com/Themes/global-space-economy. Accessed 28 November 2021.

[7] Defense Space Strategy Summary. US Department of Defense, Department of Defense, June 2020, media.defense.gov/2020/Jun/17/2002317391/-1/-1/1/2020_DEFENSE_SPACE_STRATEGY_SUMMARY.PDF?source=GovDelivery. Accessed 25 Oct. 2021.

[8] The Global Positioning System. National Ocean Service, US Department of Commerce, 1 March 2021, oceanservice.noaa.gov/education/tutorial_geodesy/geo09_gps.html. Accessed 28 November 2021.

[9] David Rosa, “Why we’d all be screwed without the Space Force.” Task & Purpose, 10 June 2022, taskandpurpose.com/analysis/what-does-the-space-force-do/?utm_source=sailthru&utm_medium=email&utm_campaign=dfn-ebb. Accessed 13 June 2022.

[10] Defense Space Strategy Summary. US Department of Defense, Department of Defense, June 2020, media.defense.gov/2020/Jun/17/2002317391/-1/1/1/2020_DEFENSE_SPACE_STRATEGY_SUMMARY.PDF?source=GovDelivery. Accessed 25 Oct. 2021.

[11] Technology Outlook 2030. www.dnv.com/to2030/trend/the-new-space-race.html. Accessed 1 October 2022.

[12] Sandra Erwin, “Space Force to kick off new program to attract small businesses and startups.” Spacenews, 12 August 2021, spacenews.com/space-force-to-kick-off-new-program-to-attract-small-businesses-and-startups/. Accessed 12 Mar. 2022.

[13] Adam Jonas, producer. Thoughts on the Market Podcast. 2021. Morgan Stanley, www.morganstanley.com/ideas/thoughts-on-the-market-space. Accessed 28 November 2021.

[14] David Thompson et al. “Space as a War-fighting Domain.” Air & Space Power Journal, www.airuniversity.af.edu/Portals/10/ASPJ/journals/Volume-32_Issue-2/SLP-Thompson.pdf. Accessed 28 Nov. 2021.

[15] Adam Gabbatt, “US accuses Russia of ‘dangerous’ behavior after anti-satellite weapons test.” The Guardian, 15 November 2021, www.theguardian.com/science/2021/nov/15/us-investigating-debris-event-space-reports-russia-anti-satellite-weapon-test. Accessed 1 Oct. 2022.

[16] Philip Potter, George W. Foresman, and Michael Horowtitz, “Space Norms and US National Security:  Leading on Space Debris,” War on the Rocks, August 2, 2021. https://warontherocks.com/2021/08/space-norms-and-u-s-national-security-leading-on-space-debris/. Accessed 28 September 2022.

[17] Mike Wall, “Kessler Syndrome and the space debris problem.” Space.com, 15 Nov. 2021, www.space.com/kessler-syndrome-space-debris.

[18] Ibid.

[19] Where is Space, National Satellite Data and Information Service, Department of Commerce, February 22, 2016. https://www.nesdis.noaa.gov/news/where-space.

[20] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, United Nations Office for Outer Space Affairs, https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html. Accessed 28 September 2022. The Outer Space Treaty provides the basic framework on international space law, including the following principles:

1. the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind;
2. outer space shall be free for exploration and use by all States;
3. outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means;
4. States shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies or station them in outer space in any other manner;
5. the Moon and other celestial bodies shall be used exclusively for peaceful purposes;
6. astronauts shall be regarded as the envoys of mankind;
7. States shall be responsible for national space activities whether carried out by governmental or non-governmental entities;
8. States shall be liable for damage caused by their space objects; and
9. States shall avoid harmful contamination of space and celestial bodies.

[21] US Air Force:  X-37B Orbital Test Vehicle. Fact Sheet. https://www.af.mil/About-Us/Fact-Sheets/Display/Article/104539/x-37b-orbital-test-vehicle/.

[22] Eric Berger, “China’s secretive space plane flies higher and longer than before,” ArsTechnica. August 9, 2022. https://arstechnica.com/science/2022/08/chinas-secretive-space-plane-flies-higher-and-longer-than-before/.

[23] Patrick Tucker, “Russia Tests a Satellite That Rams Other Satellites, US Says,” DefenseOne, July 23, 2020. https://www.defenseone.com/technology/2020/07/russia-tests-satellite-rams-other-satellites-us-says/167154/

[24] Defense Space Strategy Summary, US Department of Defense June 2020, p. 4. https://media.defense.gov/2020/Jun/17/2002317391/-1/-1/1/2020_DEFENSE_SPACE_STRATEGY_SUMMARY.PDF.

[25] Cameron Porter, “Spacepower.” The Forge, theforge.defence.gov.au/publications/watch-space-whole-new-war-domain. Accessed 25 Oct. 2021.

[26] Christopher Newman, “Artemis Accords: why many countries are refusing to sign Moon exploration agreement,” The Conversation, October 19, 2020.

[27] The Artemis Accords, National Aeronautics and Space Administration, Washington, DC., signed October 13, 2020, p. 2. https://www.nasa.gov/specials/artemis-accords/index.html.

[28] Tariq Malik, “Romania signs the Artemis Accords for space exploration cooperation,” Space, March 6, 2022. https://www.space.com/romania-signs-artemis-accords.

[29] William Pentland, “Congress Bans Scientific Collaboration with China, Cites High Espionage Risks,” Forbes, May 7, 2011. https://www.forbes.com/sites/williampentland/2011/05/07/congress-bans-scientific-collaboration-with-china-cites-high-espionage-risks/?sh=3fb2aaf74562.

[30] Donald R. Rothwell and Imogen Saunders. “Does a US flag on the Moon amount to a claim of sovereignty under law?” The Interpreter, Lowy Institute, 25 July 2019, www.lowyinstitute.org/the-interpreter/does-us-flag-moon-amount-claim-sovereignty. Accessed 12 Mar. 2022.

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Max Van de Velde is a Yorktown Intern. He is a Senior at Our Lady of Good Counsel High School in Olney, Maryland, and a former student intern at the National Security Space Institute in Colorado Springs, Colorado.