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Space force may flout international treaty

More than a half-century after the world agreed to keep the peace in outer space, U.S. President Donald Trump's plans could violate international space law.

WASHINGTON (AN) — More than a half-century after the world agreed to keep the peace in outer space, U.S. President Donald Trump plans to establish a space military force that could be a violation of international space law and presage America's withdrawal from more international organizations.

The proposed "Space Force" would create a new service within the U.S. military to prepare for conflict and war in outer space, according to an outline provided to the U.S. Congress for its approval. The plans include setting up a new agency, run by a civilian, that would develop space war technologies, and an expert-level group as the nucleus of the Space Force, costing billions of dollars as of 2020.

Such a program could contravene aspects of international space law since the Soviet Union's 1957 launch of the world’s first artificial satellite Sputnik I. That launch triggered the infamous space race between the Russians and Americans, the start of the space industry and tech advances in both nations.

It also could prompt Trump to depart from the 1967 Outer Space Treaty, which underpins space law.

The treaty's prohibition against militarization in outer space was a big achievement, wrote Marcus Schladebach, a German expert in space law, in a 2018 article entitled "Fifty Years of Space Law: Basic Decisions and Future Challenges," published by Hastings International and Comparative Law Review.

"The establishment of military bases and installations, the testing of any type of weapons and the conduct of military maneuvers on celestial bodies shall be forbidden," he wrote. "Although the idea of militarization of outer space has been shown in masses of movies in cinema or television series like “Star Wars” and others, fortunately there is no practical realization of these imaginations."

The world became so worried that Cold War tensions might erupt into a real-life star wars that the United Nations General Assembly set up the Committee on the Peaceful Uses of Outer Space, or COPUOS, to keep the peace under a December 1959 resolution.

That resolution expanded the U.N.'s Earth-bound mission of preventing more wars by recognizing there is a "common interest of mankind as a whole in furthering the peaceful use of outer space."

But the assembly stayed concerned for decades that a space arms race might develop over hypersonic rockets or satellite-launched super weapons developed by China, Russia or the United States. Those concerns led to years of talks over a proposed Prevention of an Arms Race in Space Treaty, or PAROS.

Proponents say PAROS would build on 1960s and 1970s agreements against weaponization in space.

There are five U.N. treaties on outer space: the 1967 Outer Space Treaty; 1968 Rescue Agreement; 1972 Liability Convention; 1976 Launch Registration Convention; and 1984 Moon Agreement. Outside the United Nations, there also are the 1963 Partial Test Ban Treaty and 1971 Intelsat Agreement.

All of these ban putting weapons of mass destruction — but not other types of weapons — in space.

An earlier test of space law

In 1983, when then-U.S. President Ronald Reagan called for defending the United States against a first-strike attack by developing a Strategic Defense Initiative system, the proposal was nicknamed “Star Wars,” after the Hollywood blockbuster movie.

Reagan wanted to defend against a massive sophisticated intercontinental ballistic missile attack by building ground-based and space-based systems to shield the country. He envisioned space-based lasers armed with nuclear warheads to shoot down incoming Soviet missiles.

"In the late 1950s and early 1960s many authorities had great concern that if the United Nations did not quickly establish a legal regime for outer space, the United States and the Soviet Union would establish an unalterable de facto legal regime," George Bernhardt, Sandra Gresko and Thomas Merry wrote in a 1989 article on space law published in University of Notre Dame's Journal of Legislation.

"Three problematic areas of space law provided particular concern: the sovereignty of outer space, the boundary between airspace and outer space, and the peaceful use of outer space," they wrote. "In an effort to resolve these problems the United Nations and several independent nations established the resolutions and international treaties that together comprise the bulk of modern space law."

U.S. Space Shuttle Atlantis connects to Russia's Mir Space Station (AN/Mir-19 crew/NASA)

Vienna-based COPUOS gained responsibility for overseeing international exploration and use of space for collective peace, security and development. It was charged with studying the legalities of space exploration, suitable space activities and encouraging more space research programs around the world.

The committee's 24 charter members, which included Iran, the Soviet Union and United States, grew to comprise 84 of the 193 U.N. member nations, reflecting the growing space interests of countries such as Britain, Canada, China, France, Germany, India, Japan and Luxembourg.

In contravention of peaceful aims

Washington is divided over Trump's plans. On July 30, the Washington-based Brookings Institution think tank hosted a discussion exploring the pros and cons of the proposed Space Force. “I do not believe that we should have a separate Space Force,” said Deborah Lee James, a former Secretary of the Air Force in the Obama administration from 2013 to 2017. "What is the problem we are trying to fix?"

Brian Weeden, a retired Air Force officer, described the plans as a smart idea because already outer space is “basically being integrated at all levels of warfare.” If so, that would run counter to the aims of the various U.N. treaties and entities working for peace in space.

In June, the United Nations hosted the first global space summit of the 21st century. Hundreds met in Vienna for UNISPACE, marking a half-century of occasional U.N. global space conferences in the Austrian capital where COPUOS and its secretariat, the U.N. Office for Outer Space Affairs, or UNOOSA, are based. Both promote international cooperation for the peaceful uses of outer space.

The U.N. Conference on Disarmament also set up an ad hoc committee in 1985 to look at legal protection for satellites, nuclear-powered systems in space and other issues that would come up in a proposed PAROS Treaty, which would both expand and reaffirm the Outer Space Treaty.

But the United States preferred to have its own bilateral talks with Russia or China, according to a background paper on PAROS from the Washington-based Nuclear Threat Initiative.

The U.N. General Assembly approved a Russian-drafted resolution in 2014 on banning an arms race in space. Russia declared in 2016 that it will not be the first to deploy any type of weapon in space.

But the competition has shifted towards private exploration since the space race ended in a handshake in 1975 between U.S. astronaut Tom Stafford and Russian cosmonaut Aleksey Leonov, during the docking of the Apollo-Soyuz — the first time that two nations collaborated with separate spacecraft.

Billionaire-backed companies such as Jeff Bezos’s Blue Origin, Elon Musk’s SpaceX and Richard Branson’s Virgin Galactic are intrigued by the commercial and technological possibilities of space.

Outer Space Treaty

From the perspective of international law, Trump's plans must adhere to the Outer Space Treaty — unless Trump withdraws the United States from it, as he has from other United Nations entities.

In June, he announced the United States was pulling out of the U.N. Human Rights Council, the world’s top human rights body. Trump also has withdrawn the United States from UNESCO, the Paris-based U.N.’s cultural and educational agency, and the 2015 Paris Agreement to address climate change. And he recognized Jerusalem as Israel’s capital, in defiance of the international community.

The Outer Space Treaty forbids the deployment of nuclear weapons and weapons of mass destruction in space, and it requires all nations to use outer space for peaceful purposes. But, since many of the treaty's terms lack definitions, the legality of some new weapons remain in question.

The treaty's Article II says “outer 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.” But some U.S. lawmakers have tried to address mining in space without making a claim of sovereignty.

Then there is the treaty's Article IV, which says space must be used for “peaceful purposes." That forbids nuclear weapons or weapons of mass destruction orbiting around Earth, or put on celestial bodies or man-made space stations. It also bans military bases, weapons testing and military exercises.