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UNIVERSITY OF CALIFORNIA

Los Angeles

God’s in His Heaven, All’s Right with the World: The Need for the Timely Establishment of

an International Legal Regime in Outer Space and the Privatization of Space War

A Thesis submitted in partial satisfaction

of the requirements for the major in

Global Studies

By

Einar Engvig

June 7, 2010

The thesis of Einar Engvig is approved.

John A. Agnew, Chair of Global Studies

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Russell A. Burgos, Faculty Advisor

ACKNOWLEDGEMENTS This project is the end product of two years of intense study at the University of California, Los Angeles; an institution that has given me the freedom to engage in an incredibly rewarding and mind expanding major while allowing me to create, design and facilitate my very own political science class for spring quarter 2010. Specifically, I would like to thank my faculty mentor Russell A. Burgos for inspiring me to be independent, creative and to push myself as hard as it takes and librarian Joseph Yue for all the help in research. I would also like to thank all my friends in the Global Studies major at UCLA for being supportive and friendly. Most of all, however, I would like to thank Yvonne Pueblos of Los Angeles Harbor College, who helped me every step of the way to pull myself up and dared me to challenge the world and get into UCLA, making this all possible for me. Doors have been opened for me; I will not close any behind me. Of note is also Dr. James Clay Moltz for indirectly revealing the field of space security to me and for sending me resources and going out of his way to help out a UCLA undergrad. I would also like to forward appreciation to all my friends at UCLA who have made this the best year of my life. Of note are my roommates Brian Khang Le and Tim Rozelle, who have always kept me in good company day in and day out and the fifth roommate, James Jeffery who kept me company no matter the distance. Special thanks go to my last roommate Stephen Crisafulli who helped create the figures, graphs and Orson Scott Card references. I would also like to thank all my friends who have waited patiently on the sidelines for my return to the social world and have always been caring, loving and supportive. Of special note are Charles Ryu, Omar Salim Patel, Roomana Patel and Mariam Ter-Stepanian who have always given me all the companionship, love and beer I need, even when I forget to return the favor myself. Most of all I would like to thank my family who has loved me unconditionally through thick and thin. I would like to thank my funny and kindhearted father, Olaf, for loving life and teaching me to do so as well and my brother Tormod for always being a steadfast and true role model who always makes time for his silly brothers. I would like to thank my extremely intelligent yet hopeless mother, Dr. Mona Engvig, for an endless source of unconditional love

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that has always encouraged me in whatever endeavor I set before me. Most of all, I would like to thank my brother Håkon “Hawk” Engvig for being my entire life’s best friend and for inspiring

me to write this thesis, conquer the world and take on endless, nerdy challenges from new places, new planets, new galaxies and occasionally even new dimensions. I love you all. TABLE OF CONTENTS

1. Abbreviations and Acronyms…………………………………………………………………4

2. Introduction (Relevant Characteristics of Space)………………………………………… …5

3. Literature Review……………………………………………………………… …… ……10

4. Thesis……………………………………………………………………………………

4.1. Governance in Space is a Reality Today

…14

4.2. Governance in Space will not be a Reality in the Future

5. Case………………………………………………………………………………………….19

5.1. Space Security Will Be Privatized……………………………………………… …….19

5.1.1.KillSats as beneficial

5.1.2.Privatization of KillSats as beneficial

5.2. Space Security Must Not Be Privatized…………………………………….….….……31

5.2.1.Unnecessary

5.2.2.Not Beneficial for Nation-States

5.2.3.Empowers Destabilizing Actors

5.2.4.Weakens Centrality of Nation-States in Space

6. Recommendation……………………………………………………………………… … 46

6.1. Existing pertinent legislation on space

6.2. Type, form and methods of legislation needed to halt the privatization of space security

6.3. A New Outer Space Treaty

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7.

Summary and Conclusion…………………………………………………….………… …54

8. Tables ………………………………………………………………………………………55

9. Figures…………………………………………………………………………… ….…….63

10. Works Cited………………………………………………………………….…………… 65

1. ABBREVIATIONS AND ACRONYMS

ASAT = Anti-Satellite ABM Treaty = Anti-Ballistic Missile Treaty CIS = Corpus Iuris Spatialis, or Five Treaties ComSat = Communications Satellite EU = European Union KillSat = (Hunter) Killer Satellite KKV = Kinetic Kill Vehicle LEO = Low Earth Orbit Liability Convention = Known officially as the Convention on International Liability for Damage Done by Space Objects MEO = Medium Earth Orbit MHIV = Miniature Homing Intercept Vehicle Moon Treaty = Known officially as the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies OST = Outer Space Treaty, known officially as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies PMSC = Private Military Security Company PRC = People’s Republic of China Partial Test Ban Treaty = Known officially as the Treaty banning Nuclear Weapon Tests In The Atmosphere, In Outer Space And Under Water

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Registration Treaty = Known officially as the Convention on Registration of Objects Launched into Outer Space Rescue and Return Agreement = Known officially as the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space SPT = Space Preservation Treaty Terra = Planet Earth and its atmosphere US = United States

2. INTRODUCTION 1

While less than one century ago, outer space was void of any interaction with mankind, it

has today become characterized by (1) globalization, (2) the types and numbers of actors, (3)

strategic military value, (4) nation-state and private militarization and (5) weaponization.

Although there are many definitions of globalization, they revolve around (1) the de-emphasis of

the nation-state and the emphasis of global transnational political processes, (2) the emergence of

a global economic market centered on new systems of production, finance and consumption and

(3) the emergence of a social, world-spanning “global culture.” 2 All three of these trends

complement and compete against one another in emerging global commons, a world

environment where the circumstances and events of one region has consequences on all others. 3

Specifically, authors on globalization decry the lack of institutions when analyzing the state of

the world’s natural environment and note the lack of capacity to conserve and lack of support for

1 &Part&of&the&/tle&of&this&paper&is&taken&from&Browning,&Robert,&Pippa%Passes&(New&York:&Dodd,&Mead&and&Co.,&

1901).

2 &See&Sklair,&Leslie,&“Compe/ng&Concep/ons&of&Globaliza/on.”&Journal%of%World1Systems%Research&2&(Summer&

1999):&143Q163.

3 &See&“World&Commission&on&Environment&and&Development:&Our&Common&Future.”&United&Na/ons&World&

Commission&on&Environment&and&Development.&(Oxford&University&Press,&1987):&1Q9.

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conservation in national and international legislation. 4 Authors also note that, due to global

integration, a serious issue in the global commons is ungoverned spaces. Ungoverned spaces are

areas of (1) contested, (2) incomplete or (3) abdicated governance. 5 Outer space is a global

common characterized by a lack of institutions, lack of capacity to conserve and a system of

incomplete or abdicated governance.

Since the launch of the privately owned Telstar 1 Communications Satellite (ComSat) in

1962, interaction in space has been typified less by the Soviet/United States (US) Cold War

rivalry of nation-states, and more by privatized commercial interests. This trend has not

diminished in recent days with the coming retirement of the US Space Shuttle, President Barak

Obama’s cancellation of the Constellation Program, the creation of space tourism as well as

increasing Russian and US privatization of the space sector. 6 ComSats are no exception to this

development. According to the Union of Concerned Scientists’ Satellite Database, 40.69 percent

(or 378 of 929) of satellites in orbit are solely commercial as of April 2010. In terms of the

different categories of ownership for space assets (commercial, government, military, civil, etc.),

4 &See&“World&Conserva/on&Strategy:&Living&Resource&Conserva/on&for&Sustainable&Development.”&Interna/onal& Union&for&Conserva/on&of&Nature&and&Natural&Resources&(1980).&Available&from& h_p://data.iucn.org/dbtwQwpd/

edocs/WCSQ004.pdf;&Internet;&Accessed&21&May&2010.

5 &See&Rabasa,&Angel&and&others,&“Ungoverned&Territories:&Understanding&and&Reducing&Terrorism&Risks.”&RAND& (2007).&Available&from& h_p://www.rand.org/pubs/monographs/2007/RAND_MG561.pdf ;&Internet;&Accessed&24&

May&2010.

6 &For&examples,&see&Amos,&Jonathan,&“Atlan/s&Launches&on&Final&Voyage.”&BBC&News.&Bri/sh&Broadcas/ng& Corpora/on&(14&May&2010).&Available&from& h_p://news.bbc.co.uk/2/hi/science/nature/8681451.stm ;&Internet;&

Accessed&15&May&2010.&and&Amos,&Jonathan,&“Obama&cancels&Moon&return&project.”&BBC&News.&Bri/sh&

Broadcas/ng&Corpora/on&(1&Feb.&2010).&Available&from& h_p://news.bbc.co.uk/2/hi/science/nature/8489097.stm ;&

Internet:&Accessed&1&Feb&2010.&and&“More&Entrepreneurs&Push&ISS&Commercial&Use.”&Avia;on%Week%&%Space%

Technology%154,&no.&2&(8&January&2001):&26.&and&“Russian&Operator&of&Mir&to&Sell&Shares&to&Investors.”&Wall&Street&

Journal&Q&Eastern&Edi/on&232,&no.&18&(July&27,&1998):&B7A.

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this makes up the plurality of all assets in space by a margin of at least 102 satellites. 7 See Figure

1. Add to this private firm SpaceX’s successful launch of the Falcon 1 launch vehicle in

September 2008 and the Falcon 9 in June 2010 and one sees that private firms are fully capable

of ownership, placement and operation of space assets. 8

While space has not yet been significantly weaponized, it has been militarized. US

military forces and many militaries like it today depend on satellites for communications, early

warning, intelligence gathering, arms control verification, navigation, mapping and weather

forecasting. Strategically, nation-states militarize space in order to create space support and force

enhancement. 9 Specifically, space assets are essential in observation and planning in peacetime,

are essential as force multipliers in wartime and fill both of these roles in the advent of nuclear

operations, making them an indispensible tool for deterrence. 10 Having nets of deployed satellites

is crucial for national defense as well as waging both modern wars and new wars. They were

central to the US offensive during the first “modern war;” Operation Desert Storm. 11 See Table 1

7 &See&Grimwood,&Terri,&“UCS&Satellite&Database.”&Union&of&Concerned&Scien/sts&(March&17,&2006).&(Last&updated&

technical_issues/ucsQsatelliteQdatabase.html;&Internet;&Accessed&17&May&2010.

8 &See&Shanklin,&Emily,&“SpaceX&Successfully&Launches&Falcon&1&into&Orbit.”&SpaceX&press&release&(28&Sept.&2008).&

Available&from& h_p://www.spacex.com/press.php?page=20080928 ;&Internet:&Accessed&27&May&2010.&and&“SpaceX&

Falcon&9&Rocket&Enjoys&Successful&Maiden&Flight.”&BBC&News.&Bri/sh&Broadcas/ng&Corpora/on&(4&June&2010).&

Available&from& h_p://news.bbc.co.uk/2/hi/science_and_environment/10209704.stm ;&Internet;&Accessed&4&June&

2010.

9 &See&Chapter&4&of&JohnsonQFreese,&Joan,&Space%as%a%Strategic%Asset%(New&York:&Columbia&University&Press,&2007).

10 &See&chapters&2&and&3&of&Stares,&Paul&B.,&Space%and%Na;onal%Security &(Washington,&D.C.:&The&Brookings&Ins/tu/on,& 1987).&and&Richelson,&Jeffrey,& America’s%Space%Sen;nels:%DSP%Satellites%and%Na;onal%Security&(University&Press&of&

Kansas,&1999).&for&inQdepth&analyses&of&the&value&of&satellites&to&na/onQstates.

11 &See&Smith,&Marcia&S.,&“U.S.&Space&Programs:&Civilian,&Military&and&Commercial.”&CRDCQID:&CRSQ2002QRSIQ0162.&

U.S.&Congressional&Research&Service.&Resources,&Science&and&Industry&Division&(14&Jan.&2002).&and&Smith,&Marcia&S.,&

“Military&and&Civilian&Satellites&in&Support&of&Allied&Forces&in&the&Persian&Gulf&War.”&CRDCQID:&CRSQ1991QSPRQ0025.&

U.S.&Congressional&Research&Service.&Science&Policy&Research&Division&(27&Feb.&1991).

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for a full list of the satellites used in the war. Satellite intelligence networks have been, and still

are today, critical in the War on Terror to hunt down al-Qaeda operatives the world round. 12

Though it may be no new revelation that governments have privatized a wealth of

orbiting satellites and that military forces depend on satellites today, note that the US military did

utilize privately owned or operated satellites during Operation Desert Storm to assist in their

offensive. They were utilized to a limited degree for communications, navigation, weather

forecasting and land remote sensing. 13 See Table 1 for specific private and military satellites and

space systems utilized by the US in the conflict. While US forces did not depend on these private

satellites in critical areas such as closed communications, Navstar global positioning system

operation, intelligence gathering and early warning systems, this finding does represent the fact

that political and military leadership has in the past privatized militarily valuable space assets

and depended on them for military support. Note that this represents that policy makers will be

willing to privatize militarily valuable assets in space and depend on them for military support in

the future, which can be in new applications. We will return to this last point in another chapter.

Due to the invaluable military advantages garnered by the deployment of constellations

of satellites, preparations were made in the past to deny these advantages to other states and, as a

result, today there are multiple weapons available to disrupt satellites. While the militarization of

space entails using space as a strategic asset to fight wars on Earth, the weaponization of space

12 &For&specific&examples,&see&Mannion,&Jim,&“UAVs&and&Satellites&Cri/cal&to&Termina/ng&alQQaeda.”&AgenceQFrance&

Presse&(17&Nov.&2001).&Available&from& h_p://www.spacedaily.com/news/uavQ01l.html ;&Internet:&Accessed&17&May&

2010.&and&Goldman,&Adam&and&Ma_&Apuzo,&“Iran&Eases&Grip&on&alQQaeda.”&Time&Magazine&(13&May&2010).&

Available&from& h_p://www./me.com//me/world/ar/cle/0,8599,1989031,00.html ;&Internet;&Accessed&17&May&

2010.

13 &See&Smith,&Marcia&S.,&“Military&and&Civilian&Satellites&in&Support&of&Allied&Forces&in&the&Persian&Gulf&War.”&CRDCQ

ID:&CRSQ1991QSPRQ0025.&U.S.&Congressional&Research&Service.&Science&Policy&Research&Division&(27&Feb.&1991).

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entails the deployment and use of weapons against space assets to fight wars in space as well. 14

Denying satellite use can come in the form of information warfare, such as jamming or hacking

enemy systems, or weaponized space warfare, the conventional destruction or removal of the

satellites themselves. Nation-states weaponize space in order to establish space control and

create force application. 15 These conventional anti-satellite (ASAT) weapons can be categorized

as kinetic energy weapons or directed energy weapons and can be employed as space-to-Earth,

Earth-to-space or space-to-space weapons. 16 The only ASAT weapons seen as practical are

kinetic energy weapons employed for either Earth-to-space or space-to-space warfare.

However, due to the strategic restraint practiced by both Soviet and US leadership during

the Cold War, the weaponization of space has been limited. 17 While ASAT programs like the

Earth-based Program 437 (also known as Squanto terror) nuclear space-bomb have long been

abandoned, the People’s Republic of China (PRC), Russia and the US all maintain limited ASAT

forces today. In addition, with the current level of technology at their disposal, India, Iran and

North Korea are capable of establishing national ASAT systems as well. 18

Considering that outer space is (1) a global common characterized by a lack of

institutions, lack of capacity to conserve and a system of abdicated governance, (2) characterized

14 &This&dis/nc/on&is&made&specifically&in&chapters&8&and&9&of&Yusof,&Nordin,&Space%Warfare:%High1Tech%War%of%the%

Future%Genera;on.&Universi/&Teknologi&Malaysia&(Johor&Bahru:&First&Prin/ng,&1999).&see&them&for&details.

15 &See&Chapter&4&of&JohnsonQFreese,&Joan,&Space%as%a%Strategic%Asset&(New&York:&Columbia&University&Press,&2007).

16 &See&Yusof,&Nordin,& Space%Warfare:%High1Tech%War%of%the%Future%Genera;on.&Universi/&Teknologi&Malaysia&(Johor&

Bahru:&First&Prin/ng,&1999).&for&categoriza/ons&of&both&exis/ng&and&theore/cal&space&weapons.

17 &See&Moltz,&James&Clay,&The%Poli;cs%of%Space%Security:%Strategic%Restraint%and%the%Pursuit%of%Na;onal%Interests%

(Stanford&University&Press,&2008).&and&Moltz,&James&Clay,&“The&Past,&Present,&and&Future&of&Space&Security.”&Brown&

Journal&of&World&Affairs&14,&no.&1&(Fall&2007):&187Q195.

18 &See&Chun,&Clayton&K.&S.,&“Shoo/ng&Down&a&“Star”:&Program&437,&The&US&Nuclear&ASAT&System&and&PresentQday&

Copycat&Killers.”&Cadre&Paper&No.&6.&(Air&University&Press,&April&2000).&for&the&history&of&Project&437&and&his&claims&

regarding&China,&India,&Iran&and&North&Korea.

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by new types and numbers of actors, (3) of indispensible strategic military value, (4) militarized

by both nation-states and private firms and (5) weaponized to a limited degree, it has now

become an indispensible, invaluable, vulnerable and uncontrolled arena open to all and contested

between many violent, militarily capable actors. Despite this bleak outlook, however, the global

common of outer space can still be salvaged from self-destruction in the hands of mankind. The

answer is legislation and the time is now.

This paper argues that if nation-states do not cooperate now to establish an international

legal regime in space, they will not have another chance. Outer space is today (1) at a historical

crossroads that makes its international legislative governance more a reality than ever before and

at the same time, (2) is at its most vulnerable stage of development in history. This paper is

structured as follows. Chapter two is a literature review on global studies, security studies,

mercenarism and private military and security company (PMSC) studies and space security.

Chapter three is the thesis, or central argument of this paper, that the establishment of an

international governing legal regime in space must occur now. Chapter four is a case study of the

privatizing of space warfare, illustrating arguments for and against the privatization of space

warfare for nation-states. Chapter five is this paper’s recommendations, which outlines

contemporary space legislation while offering prescriptions to better it. Chapter six will

summarize the findings of this paper and conclude.

3. LITERATURE REVIEW

This literature review will conduct a brief analysis of pertinent topics in the fields of (1)

global studies, (2) security studies, (3) mercenarism and PMSC studies and (4) space security.

The forces of globalization have altered international relations. Realist assumptions on

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international anarchy, rationality, national interest, power, security and the centrality of the

nation-state are being challenged by a new model. 19 The study of complex interdependence

posits that (1) societies are connected not only by interstate, but transgovernmental and

transnational channels as well; (2) interstate issues are not arranged in a hierarchy with military

security at the top and (3) military force is not always central to conflict resolution. 20 These new

assumptions move the nation-state away from the center of international relations, and while a

few will argue that the nation-state is vanquished, the fact is that we are living in a world

characterized by power and influence stemming from both nation-states and non-state actors. 21

The literature on security studies can be divided into traditional and non-traditional

perspectives on the (1) centrality of the nation-state and definitions of national interest, (2) role

of influence and legitimacy and (3) proliferation of “modern” and “new” wars. Traditionalists

argue that the nation-state is solely significant and its survival and maintenance paramount, that

influence and legitimacy are only significant in perpetuating the nation-state and that security is

the nation-state’s ability to wage modern wars against other nation-states. 22 Non-traditionalists

argue that due to trends in globalization, nation-state power is still central, but has been spread to

19 &For&examples&of&realist&thinking,&see&Smith,&Michael&Joseph,&Realist%Thought%from%Weber%to%Kissinger&(Louisiana&

State&University&Press,&1987).

20 &See&Keohane,&Robert&O.&and&Joseph&S.&Nye,&“Realism&and&Complex&Interdependence.”&Power%and% Interdependence,&3 rd &ed.&(AddisonQWesley,&2000):&3Q7.

21 &See&Ohmae,&Kenichi,&“The&End&of&the&Na/on&State.”&The%End%of%the%Na;on%State:%The%Rise%of%Regional%Economies&

(Simon&and&Schuster,&1995).&and&Strange,&Susan,&“The&Declining&Authority&of&States.”&The%Retreat%of%the%State&

(Cambridge:&Cambridge&University&Press,&1996).

22 &See&Waltz,&Kenneth&N,&“Realist&Thought&and&Neorealist&Theory.”&Journal%of%Interna;onal%Affairs&44,&Issue&1&

(Spring/Summer&1990).&and&Waltz,&Kenneth&N.,&"Globaliza/on&and&Governance."&PS&Online&(New&York:&Columbia&

University&Press,&Dec.&1999).&Available&from& h_p://www.mtholyoke.edu/acad/intrel/walglob.htm ;&Internet;&

Accessed&22&May&2010.&and&Tilly,&Charles,&“War&Making&and&State&Making&as&Organized&Crime.”&found&in&Evans,&

Peter&and&others,&eds.,&Bringing%the%State%Back%In&(Cambridge:&Cambridge&University&Press,&1985).

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other actors like international, non-government and private organizations and people in general

and that national interests have shifted accordingly. In addition, non-traditionalist security studies

scholars argue that international normative regimes are significant and war is now more

characterized by the nation-state’s struggle against these new non-state actors. 23 There has also

emerged a discussion of the significance of the security threat from diminishing resources,

pollution and unsustainability of mankind’s natural environment. 24

Modern wars can be defined as wars that are (1) fought between nation-states, (2)

dictated within a nation’s government, armed forces and people, (3) high-tech in being only

affordable by and useful against nation-states, (4) based on lines of communication and (5)

strategically two-dimensional with the end goal of cutting lines of communication and are

thought to have diminished with the Cold War, but still exist in outer space. 25 New wars can be

defined as a transformation in wars as they are now (1) between nation-states and non-state

actors and (2) changed in both attitudes on war and military strategies utilized in war. 26 Both are

characteristic of the proliferation of PMSCs.

23 &See&Cha,&Victor&D,&“Globaliza/on&and&the&Study&of&Interna/onal&Security.”&Journal%of%Peace%Research&37,&No.&3&

(2000):&391Q403.&and&Davis,&Lynn&E.,&“Globaliza/on’s&Security&Implica/ons.”&RAND&(2003).&and&Lio_a,&P.&H.,&

“Boomerang&Effect:&The&Convergence&of&Na/onal&and&Human&Security.”&Security%Dialogue&33,&No.&4&(2002)&:&

473Q488

24 &See&Klare,&Michael&T.,&Resource%Wars:%The%New%Landscape%of%Global%Conflict&(New&York:&Owl&Publishing,&2001).

25 &See&Creveld,&Mar/n&van.,&“The&Future&of&War.”&found&in&Patman,&Robert&G.,&Security%in%a%Post1Cold%War%World&

(New&York:&St.&Mar/n’s&Press,&1999).

26 &See&chapter&6&of&Neack,&Laura,&Elusive%Security:%States%First,%People%Last%(Rowman&and&Li_lefield,&2007).

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The literature on the privatization of force and PMSCs can be divided into (1) functional,

(2) political and (3) social discussions. 27 Functional opinions discuss the usefulness,

effectiveness, efficiency and conflict resolution abilities of PMSCs as well as the supply and

demand characteristics of the global market for private force. 28 Political arguments are centered

on the effects PMSC proliferation has on political control of force, authority over the use of

force, sovereignty and the legitimacy of the nation-state. 29 Social discussions on the privatization

of force revolve around whether concepts like specific definition, democracy, human rights,

international law and protection of civilians are or should be implicated in PMSCs. 30

The influx of PMSC proliferation has been attributed to supply and demand dynamics. In

a world where diminishing military budgets funneled into advanced and specialized forces create

27 &This&dis/nc/on&is&made&in&chapter&2&of&“Employing&Private&Military&Companies:&A&Ques/on&of&Responsibility.”&

Advisory%Council%on%Interna;onal%Affiars&(The&Hague:&Advisory&Council&on&Interna/onal&Affairs,&Dec.&2007).&and,&to&

a&broader&degree,&in&chapter&2&of&Avant,&Deborah&D.,&The%Market%for%Force:%The%Consequences%of%Priva;zing%

Security% (Cambridge:&Cambridge&University&Press,&2005).

28 &See&Singer,&P.W.,&“Corporate&Warriors:&The&Rise&of&the&Priva/zed&Military&Industry&and&Its&Ramifica/ons&for&

Interna/onal&Security.”&Interna;onal%Security&26,&no.&3&(2002):&186Q220.&and&Messner,&J.&J.&“Ethical&Security:&The&

Private&Sector&in&Peace&and&Stability&Opera/ons.”&found&in&Gumedze,&S.,&Ed.,&Private%Security%in%Africa:%

Manifesta;on,%Challenges%and%Regula;on&(Pretoria:&Ins/tute&for&Security&Studies,&November&2007):&57Q70.&and&

Leander,&Anna,&“The&Market&for&Force&and&Public&Security:&The&Destabilizing&Consequences&of&Private&Military& Companies.”& Journal%of%Peace%Research&42,&no.&5&(2005):&605Q622.

29 &See&Leander,&Anna,&“Eroding&State&Authority?&Private&Military&Companies&and&the&Legi/mate&Use&of&

Force”&(Rome:&Centro&Militare&di&Studi&Strategici,&2006).&and&Simelane&H.S.,&“The&State,&Security&Dilemma,&and&the&

Development&of&the&Private&Security&Sector&in&Swaziland”&found&in&Gumedze,&S.,&Ed.,&Private%Security%in%Africa:%

Manifesta;on,%Challenges%and%Regula;on&(Pretoria:&Ins/tute&for&Security&Studies,&November&2007):&151Q167.&

30 &See&Gumedze,&S.,&“Pouring&Old&Wine&into&New&Bo_les?&The&Debate&around&Mercenaries&and&Private&Military&and& Security&Companies.”&and&Juma,&Laurence,&“Mercenarism:&Looking&Beyond&the&Current&Interna/onal&and&Regional& Norma/ve&Regimes”.&both&found&in&Gumedze,&S.,&Ed.,&Elimina;on%of%Mercenarism%in%Africa:%A%Need%for%a%New%

Con;nental%Approach%(Pretoria:&Ins/tute&for&Security&Studies,&July&2008).&and&Williamson,&Jamie,&“Private&Security&

Companies&and&Private&Military&Companies&Under&Interna/onal&Humanitarian&Law”.&found&in&Gumedze,&S.,&Ed.,& Private%Security%in%Africa:%Manifesta;on,%Challenges%and%Regula;on&(Pretoria:&Ins/tute&for&Security&Studies,&

November&2007):&89Q96.&and&Lumina,&Cephas,&“Coun/ng&the&Cost:&The&Impact&of&Corporate&Warfare&on&the&Human&

Right&of&Women&and&Children&in&Africa.”&found&in&Gumedze,&S.,&Ed.,&Elimina;on%of%Mercenarism%in%Africa:%A%Need%

for%a%New%Con;nental%Approach%(Pretoria:&Ins/tute&for&Security&Studies,&July&2008):&101Q120.

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a supply of effective military personnel and ungoverned spaces have created a demand for their

services, PMSCs have become a powerful force in the global market. 31 Ungoverned spaces are

arenas of ungoverned force where PMSCs excel and add to the cycle by offering short term

solutions to long term problems. 32 Outer space is characterized by a lack of governance.

The existing literature on space security can be divided into discussions on the (1) value

and vulnerability, (2) legislation, (3) military control and (5) past history of outer space. The

perceptions and opinions in these five categories, now and in the future, can be divided into

camps of (1) space nationalism, (2) technological determinism, (3) social interactionism and (4)

global institutionalism. Simply put, the first camp seeks weaponized military control of space,

the second seeks the non-confrontational “go slow” approach to defense in space, the third seeks

a social framework of interdependence and mutually established “rules of the road” of

encouraged self-restraint while the fourth seeks a unified international response to the inherent

dilemma of the “tragedy of the space commons” through institutions and treaties. 33

Space security scholars and policy makers have also noted how outer space has also

become characterized by the increasing number and influence of private actors. 34 However,

while there are discussions on both weaponization and privatization of space, there is no

31 &See&chapter&3&of&Mandel,&Robert.,&Armies%Without%States:%The%Priva;za;on%of%Security&(Boulder:&Lynne&Rienner,&

2002).&and&Leander,&Anna,&“The&Market&for&Force&and&Public&Security:&The&Destabilizing&Consequences&of&Private&

Military&Companies.”& Journal%of%Peace%Research&42,&no.&5&(2005):&605Q622.&and&Avant,&Deborah&D.,& The%Market%for%

Force:%The%Consequences%of%Priva;zing%Security%(Cambridge:&Cambridge&University&Press,&2005).

32 &See&Leander,&Anna,&“Global&Ungovernance:&Mercenaries,&States&and&the&Control&over&Violence.”&Copenhagen&

Peace&Research&Ins/tute&(June&2001).

33 &See&Moltz,&James&Clay,&The%Poli;cs%of%Space%Security:%Strategic%Restraint%and%the%Pursuit%of%Na;onal%Interests&

(Stanford&University&Press:&2008).

34 &See&chapter&7&of&Moltz,&James&Clay,&The%Poli;cs%of%Space%Security:%Strategic%Restraint%and%the%Pursuit%of%Na;onal%

Interests &(Stanford&University&Press:&2008).

14

literature on the weaponization of space by and through private firms. “Although the space

nationalist school accepts and even endorses international cooperation, it rejects the notion of

possible changes in space security decision making stemming from the influence of new non-

state actors, including those in the commercial sector. This prediction may be shortsighted.” 35

4. THESIS

The establishment of an international governing legal regime in space ameliorates threats

from the (1) weaponization of space, (2) chaos from the lack of a space traffic control authority

and (3) space debris. 36 While there are limited forms of law and cooperation on the latter two

points, this chapter will argue that the establishment of this regime in space must occur now.

Simply put, if nation-states do not cooperate now, they will not have another chance. Outer space

is today (1) at a historical crossroads that makes its international legislative governance more a

reality than ever before and (2) at the same time, is at its most vulnerable stage of development

in history. The establishment of a safe and stable international legal regime for outer space is

more a reality than ever today from (1) linkages from complex interdependence, (2) a

comparative political calm, (3) the stable and laissez-faire nature of the contemporary political

unipolar regime, (4) the power of legislating nation-states and (5) the influence of a multilateral

US. Space is characterized by a lack of governance in that it lacks overarching international

legislation and institutions on a wealth of topics. Just as realists would claim the arena of

35 &Taken&from&Moltz,&James&Clay,& The%Poli;cs%of%Space%Security:%Strategic%Restraint%and%the%Pursuit%of%Na;onal% Interests &(Stanford&University&Press:&2008):&316.

36 &See&MacDonald,&Bruce&W.,&“Steps&to&Strategic&Security&and&Stability&in&Space:&A&View&from&the&United&States.”&

found&in&Vignard,&Kers/n,&“A&Safer&Space&Environment?.”&Disarmament%Forum&4.&United&Na/ons&Ins/tute&for&

Disarmament&Research&(Geneva:&United&Na/ons,&2009):&17Q26.

15

international politics is, space is an anarchic realm where naked force exists and is not

centralized in a single international legislative or institutional power.

However, contrary to realist opinions rooted in the tensions of the Cold War, today’s

integrated and globalized world connects nation-states and non-state actors through interstate,

transgovernmental and transnational mediums. 37 Economic and social integration has spurred on

cooperative and interdependent governance structures inside, outside and through national

boundaries. Globalizing forces have empowered non-state actors to internationally integrate and

cooperate outside national borders as well. These trends are evident in outer space, where a

multiplicity of civil, public, private and military groups work in cooperation without

confrontation. As such, a complex, cooperative and invested framework already exists to

implement informal practices already in use to create an international legal regime in space.

Considering that the high strung tensions and political realism of the Soviet/US Cold War

rivalry did not end in the complete weaponization of space, one finds comparatively little

justification for committing to weaponizing space after the political Mexican standoff that was

the Cold War. Other than the PRC, Russia and the US, there are few nation-states with

questionable ambitions, in regards to weaponization, in outer space. While India, Iran and North

Korea could theoretically develop “killer satellites” (KillSats) and other ASAT weaponry, they

are very far from establishing a standardized space fleet and generations behind the rocket

science and rocket engineering of ASAT capable nation-states and thus far from posing any real

37 &See&Keohane,&Robert&O.&and&Joseph&S.&Nye,&“Realism&and&Complex&Interdependence.”&Power%and%

Interdependence,&3rd&ed.&(AddisonQWesley:&2000):&3Q7.

16

threat to the common of space. 38 At the same time, ASAT capable nations are no longer pitched

in uncompromising ideological showdowns and are comparatively agreeable and cooperative. 39

Since the collapse of the Soviet Union, outer space has been characterized as a unipolar

domain dominated by US presence. According to the Union of Concerned Scientists’ Satellite

Database, solely US owned and operated space assets account for a plurality of 45.43 percent

(422 of 929) of all assets in space. 40 See Figure 2 for details. While this may not be reassuring

for other nation-states, the point stands that as outer space is dominated by a single nation-state,

power and politics are centralized and space is stabilized through it. 41 Where most nation-states

have solely commercial interests in space, the stability and freedom of the US internationalist

laissez-faire regime of space offers an environment conductive for peaceful cooperation on a

variety of projects for commercial gain as well as establishing law in space.

While outer space has become typified less by the Soviet/US Cold War rivalry of nation-

states, and more by privatized commercial interests, nation-states are still the fundamental source

of power and control. Constructivists and neoliberals argue that the nation-state is not the sole

source of power in the international arena but accept that the nation-state is still central to the

38 &Rocket&science&is&the&technology&while&rocket&engineering&is&the&technical&knowledge&in&building&and&opera/ng&

space&assets&as&defined&in&chapter&5&of&JohnsonQFreese,&Joan,&Space%as%a%Strategic%Asset&(New&York:&Columbia&

University&Press,&2007).&also&see&Chun,&Clayton&K.&S.,&“Shoo/ng&Down&a&“Star”:&Program&437,&The&US&Nuclear&ASAT&

System&and&PresentQday&Copycat&Killers.”&Cadre%Paper&No.&6.&(Air&University&Press:&April&2000).&for&informa/on&on&

India,&Iran&and&North&Korea’s&theore/cal&ASAT&capabili/es.

39 &See&Chai,&Winberg,&“The&Ideological&Paradigm&Shirs&of&China's&World&Views:&From&MarxismQLeninismQMaoism&to&

the&Pragma/smQMul/lateralism&of&the&DengQJiangQHu&Era.”&Asian%Affairs&30,&no.&3&(Fall&2003):&163Q175.

40 &See&Grimwood,&Terri,&“UCS&Satellite&Database.”&Union&of&Concerned&Scien/sts&(March&17,&2006).&(Last&updated&

April&1,&2010)&Available&from&h_p://www.ucsusa.org/nuclear_weapons_and_global_security/space_weapons/

technical_issues/ucsQsatelliteQdatabase.html;&Internet;&Accessed&17&May&2010.

41 &For&an&overview&on&polarity&and&stability,&see&chapter&2&of&Schweller,&Randall&L.,&Deadly%Imbalances:%Tripolarity%

and%Hitler’s%Strategy%of%World%Conquest&(New&York:&Columbia&University&Press,&1998).

17

relationship of actors. This is true in space as well. While private actors hold influence in space,

they are still subject to their respective nation-states’ laws and enforcement. Where nation-states

do not codify formal codes of conduct, private actors do, as they have done in space. However,

these informal orderings are not adequate as they are disorganized, not comprehensive and

accountable only to firms’ profits and shareholders, and not the interests of all. Although there is

no overarching and standardized international legal regime in space, single nation-states and

regional entities have fashioned their own respective legislation. 42 As both non-state actors and

nation-states have begun legislation while nation-states are still primary in space, nation-states

need only to unify their resources to enforce a comprehensive legal regime for all.

On the third of February, 2009, Iran became the 11 th nation-state to deploy a domestic

satellite into orbit. 43 Although more nation-states are becoming independently space-capable, the

number is still small. In addition, the US holds a stabilizing economic and military hegemony on

both Earth and in outer space. This puts the US in the unique position of acting as either

benevolent patriarch or uncaring dictator. Considering that the US has the plurality of all assets

in space, the single nation-state holds tremendous sway in its own legislature and could lead the

way for the creation of an overarching legal regime in space. However, this is dependent on the

stance of the US in it policies regarding outer space. While the majority of nation-state

interaction in space following the moratorium on the testing of nuclear weapons in space in 1963

can be characterized as social interactionism between the Soviet Union and the US, policies

42 &See&Rathgeber,&Wolfgang&and&others,&“Space&Security&and&the&European&Code&of&Conduct&for&Outer&Space&

Ac/vi/es.”&found&in&Vignard,&Kers/n,&“A&Safer&Space&Environment?.”&Disarmament%Forum&4.&United&Na/ons&

Ins/tute&for&Disarmament&Research&(Geneva:&United&Na/ons,&2009):&33Q42.

43 &See&Tait,&Robert,&“Iran&Launches&First&Domes/cally&Produced&Satellite.”&guardian.co.uk.&Guardian&Media&Group&(3&

Accessed&30&May&2010.

18

adopted by various national executives have been more confrontational than others. 44 Notably,

the space policies of the administration of former president George W. Bush can be characterized

as aggressive space nationalism. 45 However, the multilateral policies of the current presidential

administration of Barak Obama free the US executive to bring the premier space power to the

head of negotiations to formulate a legal regime in space. All that is needed is a push.

Outer space is also at its most vulnerable stage of development in history. While there are

multiple circumstances that make today the best time to initiate the creation of a legal order in

space, this will not be the case in the near future. The safety and stability of outer space will

diminish in coming years from conflictions over (1) increasing weaponization, (2) inherent

scarcity of space lanes and frequencies, (3) increasing number of actors, and (4) the privatization

of space security. Although outer space has been militarized by multiple nation-states and

represents an investment that should be defended from encroaching legislation, an overarching

legal regime in space need not encroach upon the right of nation-states to use space assets to

assist people and forces on the ground, but will be perceived as threatening regardless. As nation-

states might contest this from fear of these assets being used against them, these fears will not be

resolved with the initiation of further weaponization of space. The weaponization of space would

represent a much greater investment for nation-states that would undermine multilateral trust and

44 &See&Treaty&Banning&Nuclear&Weapon&Tests&in&the&Atmosphere,&in&Outer&Space&and&under&Water,&Signed&by&the& Original&Par/es,&the&Union&of&Soviet&Socialist&Republics,&the&United&Kingdom&of&Great&Britain&and&Northern&Ireland&

and&the&United&States&of&America&on&5&Aug.&1963&(Entered&into&force:&10&Oct.&1963).

45 &For&details&on&the&Bush&administra/on’s&policies&on&space&security,&see&Rumsfeld,&Donald&H.&and&others,& “Commission&to&Assess&United&States&Na/onal&Security&Space&Management&and&Organiza/on.”&Wri_en&in&

Accordance&with&Sec/on&1623&of&the&United&States&Na/onal&Defense&Authoriza/on&Act&for&Fiscal&Year&2000&(11&Jan.&

2001).

19

hinder the establishment of any meaningful legal regime in space. The anarchic regime in outer

space assures that the eventual weaponization by some power is inevitable in the future.

Satellites are invaluable for nation-state military forces in communications, early

warning, intelligence gathering, arms control verification, navigation, mapping and weather

forecasting. 46 They are also of great value to the private and commercial sectors of the

international economy. The value of space assets for both national and international entities is

compounded by the fact that there are (1) limited orbital lanes in which to station space assets as

well as (2) a limited frequency spectrum of transmission without both of which satellites are

useless. Considering the influx of actors and interests in space in recent years, the limited nature

of space as a resource entails that a surplus of this resource will eventually dry up, leaving

nation-states to resort to lawless acts to acquire more. This is also compounded by the fact that

space will become economically and militarily more invaluable to more nation-states in the

future as more of them develop further. Cooperation will not exist in this dog-eat-dog future

environment.

The establishment of an international legal regime in space is also made uncertain by the

inevitable influx of actors. While there may only be 11 nation-states capable of independent

space launches, this number will continue to expand in the future. This entails the eventual

empowerment of nation-states that may wish to challenge US supremacy or international norms

in space. Private actors on the other hand, while already well established in outer space, represent

other unstable elements to cooperation in conflicting interests and misunderstandings. The two

46 &See&chapters&2&and&3&of&Stares,&Paul&B.,&Space%and%Na;onal%Security &(Washington,&D.C.:&The&Brookings&Ins/tu/on,& 1987).&and&Richelson,&Jeffrey,& America’s%Space%Sen;nels:%DSP%Satellites%and%Na;onal%Security&(University&Press&of&

Kansas,&1999).&for&inQdepth&analyses&of&the&value&of&satellites&to&na/onQstates.

20

go hand in hand as private actors also work as a source of space technology proliferation that

stimulates the growth of new and ambitious space-capable nation-states. 47

Most importantly, however, private actors represent a new source of space weaponization

that will destroy the possibility of creating a cooperative international legal regime in outer

space. Although the irreversible process of the privatization of space security has not yet been

initiated, it represents the gravest threat to safety, stability and trust in space. Where nation-states

leave space ungoverned, market forces fill security gaps for them. 48 In addition, nation-states will

seek private firms as a solution to issues of space security, as will be elaborated upon below. I

will argue in the next two chapters (1) how and why space security will be privatized in the near

future, (2) why this is a threat to security in space and (3) what should be done about it now.

5.1. SPACE SECRUITY WILL BE PRIVATIZED

In this chapter, I shall elucidate (1) why policy makers in the US, as well as other

countries, would consider the creation of fleets of KillSats beneficial and (2) why policy makers

in the US, as well as other countries, would consider the privatization of KillSats beneficial

while in the next section I shall show (3) why the US, as well as other countries, must not

privatize weapons in space. In my debate on space weaponization, I will forgo a discussion of

Earth-to-space weapons and concentrate on space-to-space weapons as (1) commitments have

already been solidified in the national policies of several nation-states to Earth-to-space

weapons, (2) space is currently still free of space-to-space weapons deployment and thus at an

historical critical point and (3) space-to-space weapons constitute unique possibilities in the form

47 &See&chapter&2&of&Mandel,&Robert,&Deadly%Transfers%and%the%Global%Playground:%Transna;onal%Security%Threats%in%

a%Disorderly%World%(Connec/cut:&Praeger,&1999).

48 &See&chapter&3&of&Mandel,&Robert,&Armies%Without%States:%The%Priva;za;on%of%Security&(Boulder:&Lynne&Rienner,&

2002).

21

of KillSats. Although there are many forms of space militarization that could be subject to

privatization, I have chosen to center my case on KillSats specifically for a number of reasons.

As will be elaborated in depth below, KillSats work as unique weapons in space as they are (1)

tested and effective, (2) hard to reach and far reaching, (3) deterring and first strike capable, and

(4) dual-use, disguisable and, most importantly, can be enhanced through privatization. In

describing why policy makers in the US, as well as other countries, will consider the creation of

KillSats beneficial, I will illustrate (1) traditional arguments supporting weaponization of space

and (2) why KillSats are desirable as the primary, long term medium of weaponization.

Traditional arguments supporting the weaponization of space, and thus the creation

KillSats, are (1) the inevitability of realist politics, (2) the establishment of space control, (3)

sustainment of established space hegemony, (4) lack of defensibility in space, and (5) the

desirability first and second strike capabilities. In an anarchic international ordering on Terra (the

Earth and its atmosphere), nation-states must secure and defend three core values; protection of

territory and citizenry, sovereignty and economic welfare. 49 Within this insecure environment,

realism pervades as nation-states must prepare for the use of conventional and nonconventional

military force as (1) the political world is uncertain and thus they must take worst-case scenario

preparatory defensive stances, (2) defense deters other nation-states, (3) in the end, wars do not

have rules, (4) there are cultural and ideological differences between nation-states which are

sometimes inconsolable and (5) security is no longer a simple win or lose circumstance, meaning

49 &See&chapter&2&of&Neack,&Laura,&Elusive%Security:%States%First,%People%Last&(Rowman&and&Li_lefield,&2007).

22

nation-states need as much military force as can be afforded. 50 As such, nation-states must

prepare for war in all places where it can grant them military advantages over other nation-states.

Considering the critical value satellites have for national militaries in communications,

early warning, intelligence gathering, arms control verification, navigation, mapping and weather

forecasting, many policy makers, politicians, military strategists and scholars in the space

nationalism school of space security are proponents of the concept of space control. 51 While

there are many varying interpretations of space control, the US Department of Defense defines

space control as “combat, combat support, and combat service support operations to ensure

freedom of action in space for the United States and its allies and, when directed, deny an

adversary freedom of action in space.” 52 In short, the establishment of space control is critical for

a nation-state’s ability to target potential assets for offence on Terra, enemy ballistic missiles for

defense and space assets for sustainment of space control. Space control works to allow one

nation-state to enjoy unfettered access to the benefits of access to outer space while denying any

would be opponents these same benefits at the same time through early weaponization. Although

few nation-states have weaponized space, the insecurity of realist politics in anarchy ensures that

competing nation-states both space-capable and not, will invariably seek space control.

50 &See&Quinlan,&Michael,&“The&Role&of&Military&Force&in&Interna/onal&Security.”&found&in&Patman,&Robert&G.,&Security%

in%a%Post1Cold%War%World&(New&York:&St.&Mar/n’s&Press,&1999).

51 &See&authors&Dean&Cheng&(2007),&Evere_&Carl&Dolman&(2002),&Colin&S.&Gray&(1986),&Steven&Lambakis&(2001)&and&

James&T.&Westwood&(1984)&for&examples&of&realist,&space&na/onalism&perspec/ves&on&space&security,&taken&from&

Moltz,&James&Clay.& The%Poli;cs%of%Space%Security:%Strategic%Restraint%and%the%Pursuit%of%Na;onal%Interests&(Stanford&

University&Press:&2008).

52 &Taken&from&“U.S.&Department&of&Defense,&Joint&Chiefs&of&Staff,&Joint&Doctrine&for&Space&Opera/ons,”

Joint&Publica/on&3,&no.&14&(9&Aug.&2002):&GLQ6.&found&in&Fernandez,&Adolfo&J.,&“Military&Role&in&Space&Control:&A&

Primer.”&order&code&RL32602.&US&Congressional&Research&Service.&Foreign&Affairs,&Defense&and&Trade&Division&(23&

Sept.&2004).

23

However, this realist security dilemma is compounded by the fact that outer space is a

unique combat environment void of defensibility. While security analysts will liken space to the

“ultimate high ground” for military operations, I posit that any actor with established assets in

space is an indefensible threat to a nation-state that has already consolidated a position in

space. 53 After all, there is no higher ground than outer space. In Orson Scott Card’s Ender’s

Shadow, the science fiction novel’s protagonist, Bean, when reviewing 17 th century French

military strategist Marquis de Vauban’s traditional, two-dimensional conceptualizations on

defense, comes to the conclusion that defensibility is meaningless in space as any “enemy is not

limited to a primary direction of approach… [creating] the classic problem of defense, cubed.” 54

While Earth-to-space weapons are somewhat limited to a primary direction of approach, which is

Terra, space-to-space weapons are not hindered by this foundation of defensibility. Logically,

Bean concludes that the only fit strategy for the International Fleet is to destroy the home world

of the alien Formics, an excellent analogy that highlights that policy makers will presume that it

is solely an offense-only strategy of defense in space could deny any would be attackers. This

offensive strategy would require ASAT weapons use and thus the weaponization of space.

In light of this realization, there has developed a fear in US defense circles about the

possibility of a “space Pearl Harbor,” where US space assets would be compromised by a swift,

all out offensive by enemy forces. 55 Realists would posit that this leaves the US, as the premier

53 &See&Lambeth,&Benjamin&S.,&Mastering%the%Ul;mate%High%Ground:%Next%Steps%in%the%Military%Uses%of%Space.&RAND:&

Project&Air&Force&(Santa&Monica:&RAND,&2003).

54 &See&Card,&Orson&Sco_,&Ender’s%Shadow.&(Tor,&1999),&153.

55 &The&term&“space&Pearl&Harbor”&was&used&most&popularly&in&Rumsfeld,&Donald&H.&and&others,&“Commission&to& Assess&United&States&Na/onal&Security&Space&Management&and&Organiza/on.”&Wri_en&in&Accordance&with&Sec/on&

1623&of&the&United&States&Na/onal&Defense&Authoriza/on&Act&for&Fiscal&Year&2000&(11&Jan.&2001).

24

space power, with a forced hand and three options in order to sustain and assure future space

hegemony, which would be critical in assuring that the US could be the only power capable of

initiating a space Pearl Harbor. The US can (1) declare its own preemptive space war and

forcibly remove all competitors’ assets, (2) create first or second strike capabilities or (3) do

nothing. As initiating a world war over space control is unrealistic and costly in the extreme, the

establishment of an offensive network of a multiplicity of ASAT weapons complemented by a

fleet of KillSats to deter and ensure the ability to destroy the weaponized space forces of other

nation-states will be desired in order to enforce US space hegemony.

As mentioned at the beginning of the section, KillSats work as a unique choice in the

decision to weaponize space as they are (1) tested and effective, (2) hard to reach and far

reaching, (3) deterring and first strike capable, and (4) dual-use, disguisable and, most

importantly, can be enhanced through privatization. From 1967 to 1982, the Soviet Union

conducted tests of its own KillSat program. While only 45 percent of the 20 tests conducted were

considered completely successful by Soviet authorities, the point stands that KillSats have been

created and shown to work in the past. 56 & See Table 2 for details. Considering that nearly 30 years

have elapsed since the last test, one must also note how the success rates will be increased over

time to a much greater rate today and into the future with investment. To elaborate, note that the

riskiest stage in establishing a fleet of KillSats is placing them into space on volatile rocket

launch vehicles. However, as of 1999, 91.1 percent (or 3,988 of 4,378) of space launches

conducted worldwide were successful. See Table 3 for details. Of all the US launch failures in

56 &Taken&from&Yusof,&Nordin,&Space&Warfare:&HighQTech&War&of&the&Future&Genera/on.&Universi/&Teknologi&

Malaysia&(Johor&Bahru:&First&Prin/ng,&1999):&669.

25

this same period, 68.6 percent (or 101 of 164) were from 1957 to 1967 alone. 57 See Figure 3 for

details. As such, KillSats represent a reliable deterring presence in space and will represent a

reliable ASAT weapon with future investment. KillSats can also extend general ASAT range.

Fleets of KillSats would be difficult to target by ASAT weapons and would diversify the

range of targets that could be destroyed in space beyond contemporary limitations. While there

are many different orbits in space that space assets can occupy, the majority of them are located

at either low, medium or geosynchronous orbits. These orbits are classified by their altitudes

above sea level. Low Earth orbit (LEO) ranges from 180 km to 2,000 km, and is populated by

the majority of satellites. Medium Earth orbit (MEO) ranges from 2,000 km to 42,164 km, and is

populated by navigation and specialty satellites. Geosynchronous Earth orbit ranges from 42,164

km and is populated by weather satellites and communications satellites. 58 While the Soviets

developed KillSats during the Cold War, the US developed Miniature Homing Intercept Vehicles

(MHIVs) and kinetic kill vehicles (KKVs). Launched from a high flying F-15 jetfighter, MHIVs

are known as the “poor man’s ASAT weapon” and are limited to interception in LEO only. Using

a traditional, Earth-based rocket launch vehicle, KKVs are also limited to LEO but with nearly

twice the range of MHIVs at 1,000 km. However, this is roughly only half of the distance to

MEO. 59 A KillSat on the other hand, can be deployed in any satellite orbit to target any space

asset in any orbit while avoiding the current ASAT kill zone of 1,000 km above sea level.

57 &Taken&from&“Space&Launch&Vehicle&Reliability.”&Crosslink.&Aerospace&Corpora/on.&Available&from& h_p:// www.aero.org/publica/ons/crosslink/winter2001/03.html ;&Internet;&Accessed&1&May&2010.

58 &See&Riebeek,&Holli,&“Catalog&of&Earth&Satellite&Orbits.”&Earth&Observatory.&Na/onal&Aeronau/cs&and&Space& Associa/on&(4&Sept.&2009).&Available&at& h_p://earthobservatory.nasa.gov/Features/OrbitsCatalog/page1.php ;&

Internet:&Accessed&May&20,&2010.

59 &See&part&3&of&chapter&9&sec/on&on&the&development&of&ASAT&weapons&in&Yusof,&Nordin,&Space%Warfare:%High1

Tech%War%of%the%Future%Genera;on.&Universi/&Teknologi&Malaysia&(Johor&Bahru:&First&Prin/ng,&1999).

26

The creation and deployment of a web of KillSats would also work as an invulnerable

and fast first-strike capability as well as a military deterrent for competing nation-states. As

noted in the paragraph above, current ASAT weaponry is limited in range, and KillSats could

exceed this range and thus remain impervious to forms of ASAT technology other than KillSats,

hopefully none of which are operating by any nation-state in space today. In the advent of war

between space-capable nation-states, the space-to-space KillSat employing nation-states could

also destroy enemy space assets in less time than traditional Earth-to-space ASAT forces would

be able to. This would accelerate and enhance the scare presented from a space Pearl Harbor

preemptive attack scenario to nation-states not utilizing this weaponry. The Rumsfeld

Commission notes that “in order to extend its deterrence concepts and defense capabilities to

space, the U.S. will require development of new military capabilities for operation to, from, in

and through space.” 60 Also, these KillSat capabilities can work as an ever present deterrence for

any knowledgeable would be aggressors. These space forces would browbeat contending nation-

states under the threat of being denied the benefits of space.

Depending on how a KillSat is deployed, designed or advertized, they can afford their

user additional advantages in their dual-use and disguisable properties. Scholars and policy

makers have been quick to realize the militarized dual-use advantages of satellites in general. 61

For a list, see Table 4. However, KillSats also have inherent, weaponized dual-use advantages.

Considering that space assets freefall in LEO at speeds ranging from 25,000 to 28,000 km/hr, a

60 &Rumsfeld,&Donald&H.&and&others,&“Commission&to&Assess&United&States&Na/onal&Security&Space&Management&and&

Organiza/on.”&Wri_en&in&Accordance&with&Sec/on&1623&of&the&United&States&Na/onal&Defense&Authoriza/on&Act&

for&Fiscal&Year&2000&(11&Jan.&2001):&12Q13

61 &See&chapter&two&of&JohnsonQFreese,&Joan,&Space%as%a%Strategic%Asset&(New&York:&Columbia&University&Press,&

2007).

27

head on collision of two satellites can work as an ASAT weapon in its own right. With the right

trajectory, even typical, unarmed ComSats could become KillSats. By sacrificing sufficient

weight for space weapons while retaining enough equipment for basic telecommunications,

ComSats could also double as full-fledged KillSats, performing both tasks simultaneously. When

one considers that KillSats can double as ComSats, depending on how a nation-state decides to

release information regarding a KillSat, it could be disguised as a non-military space asset,

doubling its effectiveness as a first-strike space weapon. The disguisable nature of KillSats

specifically, but also many other aspects, are enhanced greatly by their privatization as well.

Policy makers in the US, as well as other countries, will consider the privatization of

KillSats beneficial because (1) of outsourcing pressures and privatized space assets have been

used and proven before, (2) there are traditional advantages to the privatization of military tasks

and (3) there are case specific advantages to the privatization of KillSats. With the advantages of

privatization enumerated below aside, an overriding determining factor in the US is persistent

government programs to outsource technical operation, support and assessment and combat

functions from traditional military forces to commercial providers. This trend began under the

Bill Clinton administration in the mid 1990s and accelerated under the strain of the George W.

Bush administration’s foreign policy. 62 Space is no sanctuary to this trend. As mentioned before,

privately owned and operated space assets were utilized during Operation Desert Storm to

62 &This&argument&is&supported&by&Krahmann,&Elke,&“Transi/onal&States&in&Search&of&Support:&Private&Military& Companies&and&Security&Sector&Reform.”&found&in&Chesterman,&Simon&and&Chia&Lehnardt,&eds.,&From%Mercenaries%

to%Market:%The%Rise%and%Regula;on%of%Private%Military%Companies&(Oxford&University&Press,&2007).&94Q112.

28

support the US military offensive in communications, navigation, weather forecasting and land

remote sensing. 63 See Table 1 for details.

There are traditional advantages to privatization of military tasks which has empowered

and proliferated PMSCs the world round since the end of the Cold War. The traditional PMSC

advantages pertinent to the proliferation of space-capable PMSC use of KillSats are (1)

efficiency and cost-effectiveness, (2) enhanced power and capacity for action, (3) advantages for

transitional nation-states, and (4) an existing market of supply and demand. The use of PMSCs

increases efficiency and benefits nation-states by freeing up core national military forces for

more important or more specific tasks that cannot be privatized. Standardized military forces,

while most effective and appropriate in a wide spectrum of tasks, are frequently overstretched

and placed into operations where a greater level of specialization would be optimally performed

by tailor-made professionals. Employment of PMSCs also benefits nation-states that have

diminished military budgets since the close of the Cold War and are facing a wider array of

security issues. For nation-states forced into a “juggling act to try to maintain the existing scope

(or maybe at times even a greater scope) of operations with lower funding, outsourcing to cost-

effective private military providers can play a decisive role” 64 While the upkeep of other assets in

space is not cost-effective, ComSats are a reliable, established and profitable foothold for private

63 &See&Smith,&Marcia&S.,&“Military&and&Civilian&Satellites&in&Support&of&Allied&Forces&in&the&Persian&Gulf&War.”&CRDCQ

ID:&CRSQ1991QSPRQ0025.&U.S.&Congressional&Research&Service.&Science&Policy&Research&Division&(27&Feb.&1991).

64 &Taken&from&Mandel,&Robert,&Armies%Without%States:%The%Priva;za;on%of%Security&(Boulder:&Lynne&Rienner,&2002):&

59.

29

firms in outer space. 65 Considering the dual-use nature of KillSats as ComSats, this makes space-

capable PMSCs cost-effective for governments and profitable for private firms.

Utilization of PMSCs can bring an administration enhanced power and capacity for

action as well. The conscription of ready-to-order private military assets work to enhance the

power of executive administrations by providing a reserve of raw military power with a short

deployment time required in high tension or emergency situations. In addition, just as access to

space works as a force multiplier to forces on the ground, PMSCs are seen as force multipliers

that complement existing national military forces in more direct ways by providing professional

expertise, which is usually complemented with high levels of experience. Because executive

administrations are empowered by the reduced transparency, reduced mobilization bureaucracy

and relative weakening of the power of obtrusive legislatures from the employment of PMSCs,

they are afforded the freedom to engage in more ambitious and adventurous foreign policies. 66

In scholarship concerning mercenarism and PMSCs, the clientele of PMSCs can be

broadly categorized as either donor states or transitional nation-states. While donor states enjoy

the benefits of an efficient and cost-effective force with short deployment time, specific expertise

and high levels of experience mentioned above, transitional nation-states enjoy additional

advantages from PMSC use. For lesser developed transitional nation-states lacking in sufficient

security, PMSCs offer not only (1) force multipliers to existing national military institutions, but

also offer (2) first-rate assistance in the creation, development and training of national military

forces, (3) alternative sources for advanced, modern war military capabilities and hardware other

65 &See&Reichhardt,&Tony,&“U.S.&Commercial&Space&Ac/vi/es.”&CRDCQID:&CRSQ1992QSPRQ0015.&U.S.&Congressional&

Research&Service.&Science&Policy&Research&Division&(1&Feb.&1992).

66 &See&Chapter&7&of&Avant,&Deborah&D.,&The%Market%for%Force:%The%Consequences%of%Priva;zing%Security&(Cambridge:&

Cambridge&University&Press,&2005).

30

than nation-states with specific political agendas and (4) an alternative to slow, unresponsive and

obstructive international assistance. 67 While the distinctions made between the multiple

advantages of PMSC use as well as donors and transitional nation-states have been made by

scholars with mercenaries and failed states in mind, all of these advantages can be provided to

these respective parties by private firms with the expertise, experience and resources to create,

deploy and operate KillSats in order to provide clients with the advantages of space control.

The accelerating proliferation of PMSCs since the close of the Cold War has been

attributed, on the systemic scale, to the creation of both an international supply and demand for

the services that they provide in the new world order. Where the world had, only a decade before

the fall of the Berlin Wall, seen a near limitless funding for national military services and

servicemen, the decade following the fall of the Berlin Wall has shown dramatic cutbacks in

military spending throughout Europe, but most dramatically in post-apartheid South Africa and

the nation-states of the former Warsaw Pact. This left a surplus of young men trained in very

specialized military occupations without jobs and in excess supply. With the collapse of the

Soviet/US world rivalry, loss of their combined world security enforcement and control interests

and these same cutbacks in military spending there developed a “security vacuum” that has left

entire regions of the world without security or governance. This has created a demand in the

world market for security where none exists and only PMSCs can provide. 68 The collapse of the

67 &The&dis/nc/on&between&donor&and&transi/onal&states,&as&well&as&some&of&the&reasons&for&PMSC&use&is&made&by& Krahmann,&Elke,&“Transi/onal&States&in&Search&of&Support:&Private&Military&Companies&and&Security&Sector&Reform.”& found&in&Chesterman,&Simon&and&Chia&Lehnardt,&eds.,&From%Mercenaries%to%Market:%The%Rise%and%Regula;on%of%

Private%Military%Companies&(Oxford&University&Press,&2007).&94Q112.

68 &See&chapter&3&of&Mandel,&Robert,&Armies&Without&States:&The&Priva/za/on&of&Security&(Boulder:&Lynne&Rienner,&

2002).&and&Leander,&Anna,&“The&Market&for&Force&and&Public&Security:&The&Destabilizing&Consequences&of&Private&

Military&Companies.”& Journal%of%Peace%Research&42,&no.&5&(2005):&605Q622.

31

Soviet Union, the US’s rival in space, has likewise created open sources of supply for the

weaponization of space. As outer space lacks both governance and security, and as one nation-

state’s pursuit of space security and space control only increases the insecurity of space to all

other actors, there exists a demand for PMSCs in space as well.

Case specific advantages to the privatization of KillSats include (1) their enhanced dual-

use disguisable nature, (2) clients’ freedom of plausible deniability and lack of accountability, (3)

the overt and secret exploitation of a lucrative and untapped market, and (4) the overt and

secretive and selective selling of KillSats in order to undermine rival nation-states or the

international regime. As mentioned above, KillSats afford their users additional advantage in

their dual-use and disguisable nature, working as hidden, first-strike capable space assassins.

However, the privatization of KillSats doubles this advantage. This advantage has both defensive

and offensive properties. Defensively speaking, while nation-states can observe a threatening

nation-state’s assets in space and target them in the advent of weaponized confrontation in space,

KillSats under the guise of privately owned and operated ComSats would be immune from

unwitting enemy forces. Offensively speaking, as KillSats in the guise of private ComSats would

be immune from a first strike, this affords them both first and second strike capabilities. This

ensures invincibility from and, depending on how information regarding this hidden fleet is

selectively disseminated, deterrence through other nation-state’s fears of a space Pearl Harbor.

A traditional advantage PMSCs have granted executive government administrations has

been the freedom of plausible deniability and a lack of accountability. By establishing loose and

liberal chains of command where operators in the field are left to their own judgments

disconnected from higher level oversight, PMSCs empower government executives by giving

32

them the capability of diverting blame for publicly unpopular actions by institutionalizing a lack

of required adherence to responsibility for an agent in the principle/agent relationship. This

cushions and protects governments from moral and normative restrictions while ensuring

freedom of action, as was accomplished by nation-states like France and Belgium when seeking

to manipulate newly independent African nation-states in the latter half of the 20 th century. 69

Utilization of PMSCs also affords clients with a flexible tool equipped with a non-obstructive

lack of accountability. The lack of accountability inherent in PMSCs and the sustainment of it

complements their condition as plausibly deniable and is in the interest of governments to utilize.

As elaborated upon above, there exists an overt market with both a supply and demand

for space assets, which includes weaponized space assets. For example, Glavcosmos, a Russian

space company looking to sell its services abroad, sold advanced, dual-use rocket technology to

both India and Iran for “civilian space” cooperation. These nation-states were seeking to

ameliorate their lack of presence in space. However, these moves were so unpopular

internationally, and especially in the US, that US legislators enforced sanctions against the

company. 70 So while there is a high supply and high demand for space security, there exist a

plethora of restrictions to the proliferation of much of this technology within the US, and

consequences for nation-states openly trading this technology on the world market from the US.

Any space-capable PMSCs that could bypass these roadblocks with secrecy, especially with the

additional help from cooperative nation-states, could tap into an untapped market for major

profits from the highest bidder for both the PMSC and nation-state in question. However, if the

69 &See&Avant,&Deborah&D.,&“Mercenaries.”&Foreign%Policy ,&no.&143&(Aug.&2004):&20Q28.&and&French,&Howard.,&“The& Mercenary&Posi/on.”& Transi;on ,&no.&73&(1997):&110Q121.

70 &See&Shin,&Jenny,&“A&Chronology&of&Iran’s&Space&Ac/vi/es.”&Center&for&Defense&Informa/on&(2009).&Available&from&

h_p://www.cdi.org/pdfs/IranSpaceTimeline09.pdf ;&Internet;&Accessed&11&Dec.&2009.

33

US was to privatize its KillSat technologies and capabilities, it would also open a lucrative, albeit

suicidal market for its goods which it would dominate. The US could also engage in these trades

with secrecy to save face internationally. Nation-states could also profit from a market of space-

capable PMSCs by flying flags of convenience.

Utilizing space-capable PMSCs as a front for the selective dissemination of KillSat

technologies and capabilities, nation-states can decide who is afforded the advantages of a fleet

of KillSats and who is not in order to further their own interest. While it would not be in the

interest of the US to disseminate this technology through PMSCs, this is because the US is outer

space’s hegemon and the world’s enforcer against undesired KillSat proliferation; this is not the

case for other nation-states. Other nation-states can utilize these PMSCs to proliferate KillSat

technologies and capabilities in order to undermine either rival space-capable nation-states, the

international world order or both. The freedom of plausible deniability and lack of accountability

garnered from PMSC use, mentioned above, allow nation-states the freedom to proliferate

KillSats to their advantage with no repercussions from the US or the international community.

5.2. SPACE SECURITY MUST NOT BE PRIVATIZED

In this section, I will reveal why the US, as well as other countries, must not privatize

weapons in space. The weaponization of outer space, the creation of fleets of KillSats, the

privatization of space security and the initiation of an arms race in space (1) is unnecessary, (2) is

not beneficial for nation-states, (3) empowers a diversified array of actors that will destabilize

space and (4) weakens the power, centrality and cooperation of nation-states in a realm

characterized by lack of governance. The weaponization of outer space, the creation of fleets of

KillSats, the privatization of space security and the initiation of an arms race in space is

34

unnecessary because of (1) complex interdependence, (2) normative constraints, (3) a history of

peaceful space interaction, (4) the creation of a threat that does not exist and (5) Terra already

being weaponized. Contrary to realist assumptions of the inevitability of an arms race in space,

space, like many theaters of international interaction, is characterized by cooperation and

normative values. In a world characterized more by international cooperation and less by

confrontation and outright war, nation-states interact in ways characterized as complex

interdependence than simple realism. They are influenced not only through interstate channels,

but also transgovernmental and transnational ones. They do not have a static policy hierarchy

that always prioritizes military positioning above all others. Also, when states establish a

complex interdependence with one another, they do not militarily position themselves against

one another in new ways and places where it is unnecessary. 71 Multilateral cooperation and

mutual trust would offer an alternative that would make weaponizing space unnecessary.

While realists conceptions on international politics are a self fulfilling prophesy that

spiral nation-states into arms races based on a simple model of prioritized militarization and

mutual mistrust, this is not the case for nation-states that represent a wide spectrum of identities

and interests. The interests of nation-states cannot be simplified as one answer to every dynamic

situation to which nation-states confront, but are defined by the identity or role of a nation-state

gives itself. 72 The identity or role a nation-state assumes is based off normative beliefs and

interpretations that do not always put every aspect of national defense, no matter how

71 &See&Keohane,&Robert&O.&and&Joseph&S.&Nye,&“Realism&and&Complex&Interdependence.”&Power%and%

Interdependence,&3rd&ed.&(AddisonQWesley:&2000):&3Q7.

72 &See&Wendt,&Alexander,&“Anarchy&is&What&States&Make&of&It.”&Found&in&Wendt,&Alexander,&“Anarchy&Is&What&

States&Make&of&It:&The&Social&Construc/on&of&Power&Poli/cs.”&Interna;onal%Organiza;on&46,&No.&2&(Spring,&1992):&

391Q425.

35

unnecessary or overly specific, first. The power of normative values makes an assumption of

inevitable weaponization of space misplaced and works to inspire the normative values of other

nation-states toward multilateral resolutions to conflicts of interest.

History shows that an arms race in space is not inevitable and that these normative values

of coordinated restraint are possible. This has been evidenced in the past on multiple occasions in

outer space. There are three years that illustrate how Soviet and US leadership consistently

sought to secularize outer space from the hostility of the superpower Cold War rivalry where it

would have been in the strategic interests of each party to do otherwise. The first is 1962, where

Soviet and US cooperation established the Partial Test Ban Treaty and with it a moratorium on

the environmentally catastrophic testing of nuclear weapons in space in order to ensure safe

access to space for all. 73 The second is 1983, with the abandonment of the confrontational and

space weaponizing Strategic Defense Initative due to unrealistically high costs, a desire to

preserve the Anti-Ballistic Missiles (ABM) Treaty and difficulties of creating a weapons system

to intercept over 2,000 Soviet multi-warhead missiles. The third is 2001, when the possibility of

an arms race in space began with the militant prescriptions of the Rumsfeld commission on space

management, heated up with the PRCs ASAT test of 2007 and the US withdrawal from the ABM

Treaty that ended with the PRC stating an end to its ASAT tests and the US stating that there was

to be no arms race in space. 74

73 &See&Treaty&Banning&Nuclear&Weapon&Tests&in&the&Atmosphere,&in&Outer&Space&and&under&Water,&Signed&by&the& Original&Par/es,&the&Union&of&Soviet&Socialist&Republics,&the&United&Kingdom&of&Great&Britain&and&Northern&Ireland&

and&the&United&States&of&America&on&5&Aug.&1963&(Entered&into&force:&10&Oct.&1963).

74 &See&Moltz,&James&Clay,&“Protec/ng&safe&access&to&space:&Lessons&from&the&first&50&years&of&space&security,”&Space%

Policy% 23,&no.&4&(November&2007):&199Q205.

36

In view of the complex interdependence, the normative constraints, history of peaceful

space interaction and comparative political calm between nation-states that has restrained them

from fully weaponizing space, the weaponization of space at this point in time would create a

threat to all nation-states that does not exist yet. The full scale weaponization of space is

reciprocal and multiplies on itself. However, as no nation-state has taken this first leap, there is

still no dire need to arm space assets. The weaponization of space is unnecessary as it will create

a threat in space in itself, where none existed before, in an environment that would not need to be

weaponized for that reason. Also, the proliferation of disguised KillSats works to legitimize the

threat posed by a preemptive, first strike space Pearl Harbor attack in an arena where such a

threat does not exist to such a great degree.

Creating constellations of weaponized KillSats is unnecessary in that the utilization and

control of space assets is grounded on the surface of the Earth, which is already weaponized. By

destroying the command centers of space assets of a rival nation-state in time of war, a military

force could deny the rival the benefits of space access without the costs and consequences

inherent in the initiation of space warfare. Consider the case of the US, which has the force

projection of 11 aircraft carriers to ensure the safety of both grounded and orbiting space assets

through deterrence or naked force. 75 Such overwhelming force would not need to be

complemented with fleets of KillSats to ensure supremacy over another nation-state.

The weaponization of outer space, the creation of fleets of KillSats, and the privatization

of space security will not be beneficial for nation-states in that it will (1) destroy the laissez-faire

unipolar regime of space, (2) create a security dilemma and initiate an arms race, (3) destabilize

75 &For&a&list&of&all&ac/ve&US&aircrar&carriers,&see&“The&US&Navy&Aircrar&Carriers.”&Navy.mil.&United&States&Navy.& Available&at&h_p://www.navy.mil/navydata/ships/carriers/cvQlist.asp ;&Internet;&Accessed&17&May&2010.

37

the nuclear standoff on Terra, (4) inadvertently threaten every actor and asset in space, (5) pollute

the environment of space and safe access to it impossible for all, (6) be extremely expensive with

cheaper alternatives and (7) be normatively deplorable and negatively affect influence. As it

already dominates space, it is not in the interest of the US specifically to weaponize space

anymore than it already has as it has the most to lose of all nation-states with complete

weaponization. However, other nation-states, while perhaps threatened by US dominance, still

benefit from the stable regime of US power restrained under its laissez-faire economic

cooperative approach of interaction. 76 The proliferation of space weapons will create instability

in a realm that is currently secured and undermine this centrality to make space nonconductive to

the peaceful commercial and political interaction of all actors.

The weaponization of space will also create a security dilemma which, in turn, will

generate an arms race that creates a space environment that is threatening to all nation-states

including the weaponizing nation-states themselves. 77 Simply put, the security dilemma is

created when a nation-state seeks to increase its own security which inadvertently furthers the

insecurity of other nation-states. This dilemma is likened to Rousseau’s “Stag Hunt” where

actors can either cooperate and trap the stag, or defect and hunt the easier but less desirable

rabbit alone. If there are any defections, the cooperation is insufficient and the prospective stag

hunters are left with nothing. In terms of international relations, this affords nation-states a

hierarchy of choices to either “(1) cooperate and trap the stag (the international analogue being

cooperation and disarmament); (2) chase a rabbit while others remain at their posts (maintain a

76 &For&an&overview&on&polarity&and&stability,&see&chapter&2&of&Schweller,&Randall&L.&Deadly%Imbalances:%Tripolarity%

and%Hitler’s%Strategy%of%World%Conquest&(New&York:&Columbia&University&Press,&1998).

77 &See&Maogoto,&J.&N.&and&Steven&Freeland,&“From&Star&Wars&to&Space&Wars&Q&The&Next&Strategic&Fron/er:&Paradigms&

to&Anchor&Space&Security.”&Air%and%Space%Law&33,&no.&1&(February&2008):&10Q37.

38

high level of arms while others are disarmed); (3) all chase rabbits (arms competition and high

risk of war); and (4) stay at the original position while another chases a rabbit (being disarmed

while others are armed).” 78 Logically, in one instance with no development of trust, nation-states

will choose to all chase rabbits. However, with a continuation of instances, a development of

trust can arise and it logically follows that the best choice is for nation-states to cooperate and

trap the stag. Historically, nation-states have cooperated in establishing very limited

weaponization of space. 79 Weaponization of space at this point would undo that trust and lead to

arms competition between nation-states and a high risk of war.

The stability of outer space is depended on for the political stability of Terra as well.

While nation-states will go to war if their space assets are actively targeted and destroyed by a

belligerent power, this threat is compounded by the fact that space assets are depended on for

early warning of nuclear strikes. Satellites also work to ease the instability of the nuclear standoff

in functioning in intelligence gathering, arms control monitoring, and crisis management tasks. 80

Where the destruction of enemy space assets would prove beneficial in the advent of wars

between space-capable nation-states, the cost of initiating a nuclear exchange would eclipse this

benefit. The weaponization of space would not be beneficial for nation-states as it would create a

blindfolded Mexican standoff that would strain tensions and fears between nation-states by

destabilizing the nuclear standoff between the nation-states possessing nuclear arms.

78 &See&Jervis,&Robert,&“Coopera/on&Under&the&Security&Dilemma.”&World%Poli;cs &30,&no.&2.&(New&York:&Cambridge&

University&Press,&Jan.&1978):&167.

79 &See&Moltz,&James&Clay,&The&Poli/cs&of&Space&Security:&Strategic&Restraint&and&the&Pursuit&of&Na/onal&Interests&

(Stanford&University&Press:&2008).&and&Moltz,&James&Clay.&“The&Past,&Present,&and&Future&of&Space&Security.”&Brown&

Journal&of&World&Affairs&14,&no.&1&(Fall&2007):&187Q195.

80 &See&chapter&3&of&Stares,&Paul&B.,&Space%and%Na;onal%Security%(Washington,&D.C.:&The&Brookings&Ins/tu/on,&1987).&

and&Richelson,&Jeffrey,&America’s%Space%Sen;nels:%DSP%Satellites%and%Na;onal%Security&(University&Press&of&Kansas,&

1999).&for&a&list&of&peace/me&uses&for&satellites.

39

The weaponization of space acts as a threat to not only targeted actors and assets in space,

but indirectly all actors and assets in space. The buildup of debris in space from both natural and

manmade sources is a great concern for the high-velocity environment and can damage or

destroy assets placed into orbit from hypervelocity impacts. One of these manmade sources is

“the intentional creation of debris in orbit by the testing or use of destructive ASAT weapons.

With their high speed in orbit, even relatively small pieces of debris can damage or destroy

satellites in a collision. Since debris at high altitudes can stay in orbit for decades or longer, it

accumulates as more is produced.” 81 This indiscriminate and environmentally destructive power

makes ASAT weapons a danger to all nation-states’ space assets, including one’s own, and if

enough assets are destroyed, can perpetuate a cycle of debris creation.

This threat of environmental degradation and self-perpetuating rogue space debris

collisions can close off access to space for both humans and material assets for decades at a time.

In a study released in 1995, it was found that, in total, 177 impacts with space debris has

occurred on the windshield of US Space Shuttles alone since the program’s inception in 1981

until the STS-65 mission in July 1994. Of all these impacts, 45 were severe enough to warrant

the replacement of the Space Shuttle windshield. 82 Table 5 illustrates the details of 11 debris

impacts with various Space Shuttles investigated using a scanning electron microscope. Note that

two of the impacts were caused by free falling chips of paint. The weaponization of space will

81 &See&Wright,&David,&“Space&Debris,”&Physics%Today &60,&no.&10&(Oct.&2007):&35Q36.

82 &See&Edelstein,&Karen&S.,&“Orbital&Impacts&and&the&Space&Shu_le&Windshield.”&Lyndon&B.&Johnson&Space&Center.&

Na/onal&Aeronau/cs&and&Space&Administra/on.&ES2/Structures&and&Dynamics&Branch.&NASAQTMQ110594.&1995.&

Accessed&25&May&2010.

40

pollute space with excessive debris that cause deadly hypervelocity impacts and ruin and halt

safe access to the common of space for all actors and all purposes, be they militaristic or not.

Contrary to arguments supporting the cost-effectiveness of PMSCs, the weaponization of

space is not cost-effective, whether private or not. Space travel is an expensive endeavor. The

average price of for launch vehicles from October 2009 to April 2010 is estimated at $103.83

million each. 83 See Table 6 for details. Space warfare would be more expensive. As all space

assets are operated from control stations on Earth, conventional Earth-based force projection

would be a much cheaper alternative to the same end of denying an enemy the advantages of

space. While the rocket science and rocket engineering of launching satellites into space has

improved over the years, this may not be the case for KillSat technology, which was tested by the

Soviet Union up until 1982 and found to be successful only 45 percent of the time. 84 See Table 2

for details. KillSat technology has not been tested since then and even if the rocket science may

have improved over the years, the rocket engineering has not. 85 The weaponization of space also

endangers the emerging lucrative commercial markets in space and space industries private firms

have been so anxious to develop.

The weaponizaiton of space is also normatively deplorable and negatively affects

influence. National populations, who depend upon satellites for a wealth of different tasks, would

83 &Averaged&from&a&total&use&of&$3.12&billion&between&30&launches&with&disclosed&prices&taken&from&“SemiQAnnual&

Launch&Report:&First&Half&of&2010.”&Federal&Avia/on&Administra/on.&Available&from&h_p://www.faa.gov/about/

2010.

84 &Taken&from&Yusof,&Nordin,& Space%Warfare:%High1Tech%War%of%the%Future%Genera;on.&Universi/&Teknologi&

Malaysia&(Johor&Bahru:&First&Prin/ng,&1999):&669.

85 &Rocket&science&is&the&technology&while&rocket&engineering&is&the&technical&knowledge&in&building&and&opera/ng&

space&assets&as&defined&in&chapter&5&of&JohnsonQFreese,&Joan,&Space%as%a%Strategic%Asset&(New&York:&Columbia&

University&Press,&2007).

41

voice strong disagreement with the deployment, testing or use of space weapons in that it would

destroy the fragile environment and halt access to it for both satellite use and human exploration.

Space has always been normatively viewed as a peaceful common for the use of all people and

nations, typified by the Outer Space Treaty’s (OST) statement “recognizing the common interest

of all mankind in the progress of the exploration.” 86 The symbolic victory afforded to nation-

states with fleets of KillSats would be eclipsed by public and international negative reaction, as

was the case when the PRC and the US tested Earth-to-space ASAT weapons and destroyed the

Feng Yun 1C and USA 193 satellites. 87

By establishing and employing PMSCs for space security, nation-states will diversify the

array of actors that can engage in space warfare, which will add an unstable element to the

delicate balance created by mutual understandings between nation-states in outer space. The

consequences of this diversified array of actors is (1) the spread of new wars to outer space, (2)

the empowerment of “unruly perpetrators” and (3) the control issues inherent in the

establishment of PMSCs in a new arena of nation-state interaction. While there currently exists

the prospect of fighting a modern war in space, as the destruction of satellites works to sever

lines of communications through nation-states and is high-tech and expensive enough only to be

useful against other nation-states, the emergence of a private market for force in space will

86 &See&Treaty&on&Principles&Governing&the&Ac/vi/es&of&States&in&the&Explora/on&and&Use&of&Outer&Space,&Including&

the&Moon&and&Other&Celes/al&Bodies,&United&Na/ons&General&Assembly&Resolu/on&2222&(XXI)&(January&1967).

87 &See&“Concern&over&China’s&Missile&Test.”&BBC&News.&Bri/sh&Broadcas/ng&Corpora/on&(Last&updated:&19&Jan.&

2007).&Available&from& h_p://news.bbc.co.uk/2/hi/asiaQpacific/6276543.stm ;&Internet;&Accessed&19&May&2010.&and&

“China&Confirms&Satellite&Downed.”BBC&News.&Bri/sh&Broadcas/ng&Corpora/on&(Last&updated:&23&Jan.&2007).&

Available&from& h_p://news.bbc.co.uk/2/hi/asiaQpacific/6289519.stm ;&Internet.&and&“US&Missile&Hits&‘Toxic& Satellite.’”&BBC&News.&Bri/sh&Broadcas/ng&Corpora/on&(Last&updated:&21&Jan.&2008).&Available&from& h_p:// news.bbc.co.uk/2/hi/7254540.stm ;&Internet.&and&“Chinese&An/QSatellite&Test&Sparks&Concern:

U.S.&and&Other&Countries&React&to&Reports&about&Orbital&Weapon.”&msnbc.com&Staff&and&News&Service&Reports.& MSNBC&(Last&updated:&18&Jan.&2007).&Available&from& h_p://www.msnbc.msn.com/id/16689558/ ;&Internet;&All&

accessed&19&May&2010.

42

introduce aspects of new wars into outer space. 88 This emergent domain of new wars will be

characterized by non-state actors fighting on behalf of nation-states against other nation-states

and non-state actors in ways that will transform conventional assumptions, strategies and

attitudes on space war and conventional wars fought on Terra. 89 This transformation in space war

will require policy makers to rewrite traditional and well understood doctrines for new and

experimental ones. The instability of venturing into this undiscovered country poses

unacceptable risks to nation-states that prefer stability, predictability, controllability in policy.

The privatization of force in space empowers formerly excluded unruly perpetrators of

instability and warfare like (1) rogue nation-states, (2) terrorist groups, (3) criminal organizations

and (4) deviant individuals. While rogue nation-states may benefit from the freedom of action

and power space-capable PMSCs are able to offer, it is not beneficial for all other nation-states to

empower those nation-states that refuse civil participation in the international community, ignore

established conventions, undermine the influence of major nation-states and expand their power

at whatever cost. 90 The proliferation of space-capable PMSCs also empowers transitional, rogue

nation-states that seek space power but lack the domestic means to project it with an alternative

at the right price. However, all nation-states would be threatened by the empowerment of

terrorist groups, criminal organizations and deviant individuals who would undermine the

centrality of the nation-state in the control of raw space power.

88 &For&a&defini/on&of&modern&war,&see&Creveld,&Mar/n&van,&“The&Future&of&War.”&found&in&Patman,&Robert&G.,&

Security%in%a%Post1Cold%War%World&(New&York:&St.&Mar/n’s&Press,&1999).

89 &For&a&defini/on&of&new&wars,&see&chapter&6&of&Neack,&Laura,&Elusive%Security:%States%First,%People%Last&(Rowman&

and&Li_lefield,&2007).

90 &See&chapter&1&of&Mandel,&Robert,&Deadly%Transfers%and%the%Global%Playground:%Transna;onal%Security%Threats%in%

a%Disorderly%World&(Connec/cut:&Praeger,&1999).

43

The control issues inherent in the establishment of PMSCs in a new arena of nation-state

interaction are (1) nation-state dependency on PMSCs and their power over national security

agendas, (2) the uncontrollability and accountability issues of PMSCs, (3) the loss of

transparency, (4) passive, long-term consequences of the contagion of rocket science and rocket

engineering and (5) that PMSCs are not a good alternative to national forces in terms of control.

An issue of contention between scholars on PMSCs has been the ability to define and

differentiate different forms of private security operators. 91 Whether they are defined as PMSCs,

mercenaries or privateers, the privatized actors of space wars ranging from fictional benevolent

liberators like Captain Han Solo to ruthless profiteers like bounty hunter Boba Fett of Star Wars,

they have wide ranging effects on control, nation-state power and the formulation of

international order in space.

The more nation-states resort to utilizing PMSCs, the more they will expect their services

and become dependent upon them. This dependency is compounded by the fact that by becoming

an integral part of one of the fundamental tenets of nation-hood, the use and control of applied

violence, PMSCs also tie themselves into the nation-states that utilize their services to the extent

that the differentiation between the public and private sectors for force in a nation-state become

blurred and difficult to differentiate and thus control. 92 The use of PMSCs has been found to

influence the sovereignty of individual nation-states on (1) domestic political change, (2)

empowering outside sources of influence and (3) making certain nation-states victim to the

91 &For&a&discussion&on&the&differen/a/on&between&PMSCs&and&mercenaries,&see&Gumedze,&S.,&“Pouring&Old&Wine& into&New&Bo_les?&The&Debate&around&Mercenaries&and&Private&Military&and&Security&Companies.”&found&in& Gumedze,&S.,&Ed.,&Elimina;on%of%Mercenarism%in%Africa:%A%Need%for%a%New%Con;nental%Approach%(Pretoria:&Ins/tute&

for&Security&Studies,&July&2008).

92 &See&Tilly,&Charles,&“War&Making&and&State&Making&as&Organized&Crime.”&found&in&Evans,&Peter&and&others,&eds.,&

Bringing%the%State%Back%In&(Cambridge:&Cambridge&University&Press,&1985).

44

actions of more central, powerful and influential nation-states in the international system. 93 In

addition, the utilization of PMSCs foments a conflicting duality between the organizational and

political security sector reforms of nation-states. While PMSCs are not involved directly with

political security sector reform, they still have influence on the organizational aspects of security

sector reform by recasting institutional reform, police and military training and providing

expertise on military and organizational strategy, design and structure of defense departments,

national militaries and police forces as well as expertise on future force levels. This influence is

not limited to nation-states, but can also affect regional and international entities. 94 The

disconnect created from this duality ensures that politicians and policy makers continue to think

of national militaries in ways that do not fit how they are built, operated, controlled and used.

This duality empowers nationally and internationally destabilizing executive administrations

with adventurous foreign policies while weakening stabilizing national legislatures. 95

Control issues over the use of PMSCs arise from transparency and accountability as well.

Government collection and distribution of information regarding PMSCs in use today is spread

between many sectors and lacks centrality and thus the ability of nation-states to punish bad

behavior and reward proper behavior by PMSCs is lost. 96 As private organizations, PMSCs can

93 &This&globalizing&argument&is&centered&in&analyses&by&Crocker,&Chester&A.,&“Colonialism&in&Military&Dependence:&

The&Colonial&Legacy&in&Africa.”&The%Journal%of%Modern%African%Studies&12,&No.&2&(New&York:&Cambridge&University&

Press,&June&1974)&265Q286.

94 &See&Krahmann,&Elke,&“Transi/onal&States&in&Search&of&Support:&Private&Military&Companies&and&Security&Sector& Reform.”&found&in&Chesterman,&Simon&and&Chia&Lehnardt,&eds.,&From%Mercenaries%to%Market:%The%Rise%and%

Regula;on%of%Private%Military%Companies&(Oxford&University&Press,&2007).&94Q112.

95 &See&Chapter&7&of&Avant,&Deborah&D.,&The%Market%for%Force:%The%Consequences%of%Priva;zing%Security&(Cambridge:&

Cambridge&University&Press,&2005).

96 &See&Krahmann,&Elke,&“Transi/onal&States&in&Search&of&Support:&Private&Military&Companies&and&Security&Sector& Reform.”&found&in&Chesterman,&Simon&and&Chia&Lehnardt,&eds.,&From%Mercenaries%to%Market:%The%Rise%and%

Regula;on%of%Private%Military%Companies&(Oxford&University&Press,&2007).&94Q112.

45

operate secretly and separately from the nation-states that hire them. The chain of command that

national militaries are responsible to is not applied to PMSCs. As they are international, and

there is lack of overarching international legislation on them, PMSCs are able to dodge and avoid

punitive actions taken by individual nation-states against them for improper conduct. 97 In the

case of space-capable PMSCs, transparency and accountability is also irrevocably damaged by

their disguising KillSats as ComSats.

The uncontrollability of space-capable PMSCs also has passive, long-term consequences

in the contagion of rocket science and rocket engineering. The contagion of the technology of

rocket science can be characterized as dangerous transfers and transnational flows of (1)

clandestine arms, (2) hazardous materials and (3) information disruptions which constitute major

security threats to national and international (1) political authority and political/military stability,

(2) environmental sustainability and (3) organizational communication and socioeconomic

cohesion respectively. In addition, these transnational flows surge within and between nation-

states internationally in many geographical regions, making them difficult to locate and control.

These dangerous transnational flows are most threatening not in the hands of individuals or

nation-states, but organized groups such as rogue nation-states, terrorist groups and criminal

organizations empowered by internationalized and space-capable PMSC operators utilizing flags

of convenience. 98 As the registration and regulation of vessels is the responsibility of respective

nation-states on the high seas, as it is in outer space as well, there has emerged a market for

nation-states that offer their flags as a matter of convenience for private firms looking for lower

97 &See&Scoville,&Ryan&M.,&“Toward&an&AccountabilityQBased&Defini/on&of&“Mercenary.””&Georgetown%Journal%of%

Interna;onal%Law&37&(2005Q2006):&541Q581.

98 &See&chapter&2&of&Mandel,&Robert,&Deadly%Transfers%and%the%Global%Playground:%Transna;onal%Security%Threats%in%

a%Disorderly%World&(Connec/cut:&Praeger,&1999).

46

costs and looser regulations that offer these (lack of) services for competitive prices. Flying flags

of convenience poses challenges to jurisdictions, weaponization prevention and further the

hiding of corporate identities, loss of control and anarchy. 99 An ironic example being landlocked

Mongolia’s issuing of maritime flags for nominal fees and full profits. 100 The proliferation of

space-capable PMSCs could allow any of these actors to hire space control under any flag.

It should also be noted that PMSCs are not a good alternative to national forces in many

respects. Telecommunications have been privatized in similar respects, but their failure leads to

considerable frustration while the failures of PMSCs lead to severe consequences and loss of life.

They create inefficient redundancy in influencing nation-states to form a multilayered and wide

ranging public and private military apparatus unnecessary in many contexts and strategic

situations. 101 Privatized military forces also lack a holistic approach to military situations that

require tasks beyond the use of naked force. In general, PMSCs lack (1) the direct ties with

nation-states and international organizations that are the root of the organizational and political

transformations that resolve conflicts and affect security sector reform, (2) the influence,

authority and legitimacy to direct and implement these changes and (3) direct military-to-military

ties between nation-states cooperating or competing against one another. 102

99 &See&Gianni,&Ma_hew,&“Real&and&Present&Danger:&Flag&State&Failure&and&Mari/me&Security&and&Safety.”&World&

Wide&Fund&for&Nature&and&Interna/onal&Transport&Worker’s&Federa/on&(Oslo/London:&June&2008).&Available&from&

100 &See&Brooke,&James,&“Landlocked&Mongolia’s&Seafaring&Tradi/on.”&Global&Policy&Forum.&New&York&Times&(2&July&

Accessed&20&May&2010.

101 &See&chapter&2&of&Mandel,&Robert. ,& Armies%Without%States:%The%Priva;za;on%of%Security&(Boulder:&Lynne&Rienner,&

2002).

102 &See&Krahmann,&Elke,&“Transi/onal&States&in&Search&of&Support:&Private&Military&Companies&and&Security&Sector& Reform.”&found&in&Chesterman,&Simon&and&Chia&Lehnardt,&eds.,&From%Mercenaries%to%Market:%The%Rise%and%

Regula;on%of%Private%Military%Companies&(Oxford&University&Press,&2007).&94Q112.

47

The weaponization of outer space, the creation of fleets of KillSats, the privatization of

space security and the initiation of an arms race in space weakens the power, centrality and

cooperation of nation-states further in a realm characterized by lack of governance. This lack of

governance is perpetuated by PMSCs in that they (1) undermine the legitimacy of the nation-

state, (2) are linked to ungovernance and (3) pose a great threat to the developing international

order in space. As mentioned earlier, the fundamental tenets of the nation-state are legitimized

(1) war-making; to eliminate rivals outside a territory where they are seen as the owners of force,

(2) state-making; to eliminate domestic rivals inside this territory, (3) protection; to eliminate the

rivals of their subjects and (4) extraction of resources to further these ends. 103 Centralized public

security, and a public’s viewing of it as legitimate, is thus central to the nation-state. The use of

PMSCs undermines the institution of legitimate public security by (1) providing more effective

but short-term solutions to long-term control issues and damaging the nation-state’s monopoly on

the use of force, (2) gaining increasing influence as users of force within a nation-state, while

being outside its control, (3) changing the form and nature of authority within a nation-state and

(4) replacing the cultural and symbolic value of the institutions of sovereign public military. 104

In space, PMSCs could influence nation-states and their centrality to the developing international

order in space while nation-states would not be able to influence PMSCs in return.

The use of PMSCs is also linked to ungovernance in that in some cases it is caused by

ungovernance while reciprocally contributing to its proliferation in turn. Following the end of the

Cold War and with military cutbacks worldwide, there was created a supply for private military

103 &See&Tilly,&Charles,&“War&Making&and&State&Making&as&Organized&Crime.”&found&in&Evans,&Peter&and&others,&eds.,&

Bringing%the%State%Back%In&(Cambridge:&Cambridge&University&Press,&1985).

104 &See&Leander,&Anna,&“Eroding&State&Authority?&Private&Military&Companies&and&the&Legi/mate&Use&of&

Force”&(Rome:&Centro&Militare&di&Studi&Strategici,&2006).

48

forces in the unemployed soldiers of yesterday’s world war. The diminishing world security

enforcement and control interests between the Cold War Soviet and US rivals created a gap in

international funding and intervention which led to pockets of regional ungovernance that work

as the primary demand for PMSCs. 105 While PMSCs are used to restore order in regions where

order has been lost, their services are short-term and do not assist in the state-making, protection

and extraction aspects of a nation-state necessary for governance. Fundamentally, PMSCs also

perpetuate ungovernance by undermining the nation-state’s centralized and legitimate use of

violence. 106 This is reinforced by PMSCs self-perpetuating the supply and demand of private

force by creating demand in undermining the establishment of governance while creating supply

in the market that emerges from more ungoverned spaces. 107

This lack of governance is perpetuated by PMSCs also in that they pose a great threat to

the developing international order in outer space. The empowerment of so many actors, including

non-state actors, will create a “durable disorder” of instability with many conflicting interests

coming to a head in space. 108 With the establishment of a security dilemma in space, inherent in

privatizing security there, will come an irreversible drive for weaponization and an arms race in

outer space. This will undermine international cooperation and trust in space, which is

fundamental in establishing governance in the ungoverned realm. Nation-states that may have

105 &See&chapter&3&of&Mandel,&Robert.,&Armies%Without%States:%The%Priva;za;on%of%Security%(Boulder:&Lynne&Rienner,&

2002).&and&Avant,&Deborah&D.,& The%Market%for%Force:%The%Consequences%of%Priva;zing%Security&(Cambridge:&

Cambridge&University&Press,&2005).&

106 &See&Leander,&Anna,&“Global&Ungovernance:&Mercenaries,&States&and&the&Control&over&Violence.”&Copenhagen&

Peace&Research&Ins/tute&(June&2001).

107 &See&&Leander,&Anna,&“The&Market&for&Force&and&Public&Security:&The&Destabilizing&Consequences&of&Private& Military&Companies.”& Journal%of%Peace%Research&42,&no.&5&(2005):&605Q622.

108 &See&chapter&7&of&Avant,&Deborah&D.,&The%Market%for%Force:%The%Consequences%of%Priva;zing%Security&(Cambridge:&

Cambridge&University&Press,&2005).

49

been forced to cooperate with other nation-states to pursue action in space will now have another

avenue of new privatized actors to consult, which also undermines the unity of legislating nation-

states against non-state actors in ungoverned outer space. Most importantly, this loss of trust and

cooperation between nation-states and formation of mistrust and arms races amongst them will

make future legislation and cooperative international governance of space impossible.

6. RECOMMENDATIONS

Having reviewed why space security will be privatized because nation-states would think

the creation of KillSats under PMSCs would be beneficial while showing why the privatization

of space security must not occur, this section concludes by arguing that the solution is

establishing an international legal regime for the ungoverned common of outer space. Going full

circle, we see that it is essential that the legislation of outer space takes place for multiple reasons

and that the legislation of outer space takes place now. In this section, I shall (1) summarize

existing pertinent legislation on space and (2) describe what type, form and methods of

legislation are needed to halt the privatization of space security and create a stable space regime.

The existing pertinent legislation on outer space can be divided into (1) peacetime and (2)

wartime national and international legislation. The core of existing international space legislation

is referred to as the Corpus Iuris Spacialis (CIS), comprising of (1) the OST, which disallows the

stationing of nuclear weapons and weapons of mass destruction in space and grants rights to self-

defense, (2) the Rescue and Return Agreement, which assigns responsibilities to “launching

authorities,” (3) The Liability Convention, which establishes private liability laws, (4) the

Registration Treaty, which assigns responsibilities and “states of registry” and (5) the Moon

50

Treaty, which establishes the moon and other bodies as the “common heritage of mankind.” 109

The most widely endorsed treaty of the international CIS is the OST, which has been ratified by

98 nation-states with an additional 27 having only signed it as of January 2008. 110 While there

are 11 nation-states that have indicated an interest in adopting national space legislation in the

future, there are currently only 10 nation-states that have employed national space legislation. 111

Within this international legal framework, the peacetime space legislation has both law

and lacks of law on (1) private ownership rights, (2) nation-state liability and (3) space

institutions and conduct. Under the current regime of the OST, although there are no private

rights in outer space, there is private ownership that is the responsibility of launching nation-

states. However, there exist multiple gaps in questions regarding where the jurisdiction of nation-

states applies to the manufacture of space assets, whether states decide to apply their own

national private laws to space assets originating from their lands and the rights and obligations of

non-state actors in this legislation. 112

In terms of public, private, civil and military legislation in outer space, nation-states are

liable and are expected to uphold the responsibilities and restraints set forth under the OST to

their respective territories and civilian and private citizenry in that regard. Under the auspices of

national space legislation, people or organizations looking to launch assets into space must first

109 &See&chapter&4&and&5&of&Haanappel,&P.P.C.,&The%Law%and%Policy%of%Air%Space%and%Outer%Space:%A%Compara;ve%

Approach &(The&Hague:&Kluwer&Law&Interna/onal,&2003).

110 &See&Treaty&on&Principles&Governing&the&Ac/vi/es&of&States&in&the&Explora/on&and&Use&of&Outer&Space,&Including&

the&Moon&and&Other&Celes/al&Bodies,&United&Na/ons&General&Assembly&Resolu/on&2222&(XXI)&(January&1967).

111 &See&Gerhard,&Michael,&“Na/onal&Legisla/on&–&Perspec/ves&for&Regula/ng&Private&Space&Ac/vi/es.”&found&in& Benkö,&M.&and&KaiQUwe&Schrogl,&eds.,&Space%Law:%Current%Problems%and%Perspec;ves%for%Future%Regula;on&

(Utrecht:&Eleven&Interna/onal,&2005).

112 &See&chapter&2&of&Haanappel,&P.P.C.,&The%Law%and%Policy%of%Air%Space%and%Outer%Space:%A%Compara;ve%Approach&

(The&Hague:&Kluwer&Law&Interna/onal,&2003).

51

receive a license to do so by their respective nation-states which requires third-party liability

insurance and cross-waivers of liability with other accomplices. Only the aforementioned 10

nation-states with national space legislation require this. 113 The requirement of third-party

liability insurance ensures the inability of firms to engage in license shopping. However, prices

vary from one to another, ranging from French Arianespace’s 60 million ($73m) to Australian

legislation’s 450 million ($550m) requirement. 114

There are many national and international institutions, like the International

Telecommunications Union, that coalesce to bring about order in outer space where little exists.

In the vacuum created by the lack of international legislation in space, international commercial

institutions have pieced together mutual and unlegislated rules of the road, such as the European

Union’s (EU) Draft Code of Conduct for Outer Space Activities, that work to strengthen existing

United Nations legislation while complementing it further by institutionalizing effective and

efficient practices where nation-states have not. 115 In addition, while commercial satellite

operators originally depended on the data available from the US Joint Space Operations Center

and US Air Force satellite observation systems, shortcomings in accuracy and lag-time for these

systems prompted these non-state actors to begin the development of their own satellite tracking

Data Center. 116

113 &See&chapter&7&of&Ibid.

114 &Based&on&exchange&rates&as&of&June&2,&2010;&see&Gerhard,&Michael,&“Na/onal&Legisla/on&–&Perspec/ves&for&

Regula/ng&Private&Space&Ac/vi/es.”&found&in&Benkö,&M.&and&KaiQUwe&Schrogl,&eds. ,%Space%Law:%Current%Problems%

and%Perspec;ves%for%Future%Regula;on&(Utrecht:&Eleven&Interna/onal,&2005).

115 &See&“Council&Conclusions&and&Drar&Code&of&Conduct&for&Outer&Space&Ac/vi/es.”&Council&of&the&European&Union.&

17175/08.&PESC1697,CODUN61&(Brussels:&17&Dec.&2008).

116 &See&Rathgeber,&Wolfgang&and&others,&“Space&Security&and&the&European&Code&of&Conduct&for&Outer&Space&

Ac/vi/es.”&found&in&Vignard,&Kers/n,&“A&Safer&Space&Environment?.”&Disarmament%Forum&4.&United&Na/ons&

Ins/tute&for&Disarmament&Research&(Geneva:&United&Na/ons,&2009):&33Q42.

52

Within this same international legal framework, the wartime space legislation has both

law and lacks of law on (1) overarching arms control legislation and (2) non-state actors. In the

OST, signatory nations have agreed that the deployment and use of nuclear weapons and

weapons of mass destruction outside the atmosphere is prohibited. 117 However, this does not

apply to conventional weapons used on or against space assets from Terra or space. The

remaining four treaties that make up the CIS with the OST do not restrain nation-states from

weaponization either. Within this contemporary framework of international legislation on the

subject, “so long as none of these [space assets] carry weapons of mass destruction or violate

territorial airspace, they would not be in direct violation of existing rules of space and air law.” 118

Legislation on the complete deweaponization of space has been attempted before in the

international Space Preservation Treaty (SPT), which was intended to expand on the OST, but it

inevitably failed. 119 And while the OST forbids the use of space for things other than “peaceful,”

it does allow for the self-defense of national assets in space, which frees nation-states to

weaponize space by how they decided to define “self-defense.” Other treaties have also limited

the use of force marginally in space and are listed in Table 7.

While the CIS was established in a time when the majority of all space assets were still

either Soviet or US owned, there are some provisions for legislating the safe and proper conduct

of non-state actors in space. The treaties require signatory nation-states to establish licensing and

117 &See&Treaty&on&Principles&Governing&the&Ac/vi/es&of&States&in&the&Explora/on&and&Use&of&Outer&Space,&Including&

the&Moon&and&Other&Celes/al&Bodies,&United&Na/ons&General&Assembly&Resolu/on&2222&(XXI)&(January&1967).

118 &See&Schauer,&William&H.,&“OUTER&SPACE:&The&Boundless&Commons?.”&Journal%of%Interna;onal%Affairs&31,&no.&1&

(Spring&1977):&79.

119 &See&Space&Preserva/on&Treaty,&Available&from&h_p://www.peaceinspace.com/sp_treaty.shtml ;&Internet;&

Accessed&27&May&2010.

53

regulation of space assets. However, the CIS specifically assigns this responsibility to nation-

states that deem themselves the “appropriate state party” or “launching authority.” 120 This

loophole can lead to confusion and abuse.

The type, form and methods of legislation that are needed to halt the privatization of

space security and establish a stabilizing international legal regime in space are (1) national

security sector reform, (2) international institutions and (3) monitors. 121 The progression of these

three fields can, in turn, spur on the creation of a meaningful, enforceable and overarching

international licensing and regulatory regime in the form of a new and comprehensive OST. The

establishment of governance in space ameliorates threats from the (1) weaponization of space,

(2) chaos from the lack of a space traffic control authority and (3) space debris. 122 While there

are limited forms of law and cooperation on the latter two points, this section will concentrate on

legislation to limit war in space. With the creation of overarching international legislation on

space weaponization, the framework would exist in which the patchy amalgamation of existing

cooperation on space traffic and debris control could be codified into an overarching

international body of space law. 123

120 &See&chapter&4&of&Haanappel,&P.P.C.,&The%Law%and%Policy%of%Air%Space%and%Outer%Space:%A%Compara;ve%Approach&

(The&Hague:&Kluwer&Law&Interna/onal,&2003).

121 &A&similar&scheme&is&proposed&for&legisla/on&on&mercenarism&by&Krahmann,&Elke,&“Transi/onal&States&in&Search& of&Support:&Private&Military&Companies&and&Security&Sector&Reform.”&found&in&Chesterman,&Simon&and&Chia& Lehnardt,&eds.,& From%Mercenaries%to%Market:%The%Rise%and%Regula;on%of%Private%Military%Companies&(Oxford&

University&Press,&2007).&94Q112.

122 &See&MacDonald,&Bruce&W.,&“Steps&to&Strategic&Security&and&Stability&in&Space:&A&View&from&the&United&States.”&

found&in&Vignard,&Kers/n,&“A&Safer&Space&Environment?.”&Disarmament%Forum&4.&United&Na/ons&Ins/tute&for&

Disarmament&Research&(Geneva:&United&Na/ons,&2009):&17Q26.

123 &For&an&example&of&coopera/on&of&space,&see&“Council&Conclusions&and&Drar&Code&of&Conduct&for&Outer&Space&

Ac/vi/es.”&Council&of&the&European&Union.&17175/08.&PESC1697,CODUN61&(Brussels:&17&Dec.&2008).

54

National security sector reform must move away from aggressive space nationalist

strategies of confrontation and space control that seeks dominance at any cost, as epitomized

under the US George W. Bush presidency. 124 In terms of military interests, national security

sector reform could still retain cost-effective defense in space by creating satellite redundancy

schemes, developing rules to minimize the damage a space war could incur on other aspects of

space and pursuing a “go slow,” limited approach to the weaponization of space, as championed

by the technological determinist movement in space security. In terms of national interests, the

social interactionism school of space security posits that the security sector must reevaluate

national interests and defend national commercial aims, consumer safety and market stability in

outer space. 125 Taking a constructivist approach, national security sector reform would also have

to consider what values a nation-state represents, which in the case of the US would be

promoting democracy, freedom from tyranny and free trade by creating an environment of

assurance over one of domination in outer space.

These reforms would open the doors for national integration into existing international

institutions that could work as stepping stones to a comprehensive institution and legal regime

for outer space. The establishment of a nondiscriminatory international body of law is critical to

create an environment of assurance and ensure that single nation-states do not undermine

common space security for lone profit. Building off the existing structures of international space

institutions and organizations such as the EU’s Draft Code of Conduct for Outer Space Activities,

124 &See&Rumsfeld,&Donald&H.&and&others,&“Commission&to&Assess&United&States&Na/onal&Security&Space&Management&

and&Organiza/on.”&Wri_en&in&Accordance&with&Sec/on&1623&of&the&United&States&Na/onal&Defense&Authoriza/on&

Act&for&Fiscal&Year&2000&(11&Jan.&2001).

125 &See&chapter&8&of&Moltz,&James&Clay,&The%Poli;cs%of%Space%Security:%Strategic%Restraint%and%the%Pursuit%of%Na;onal%

Interests &(Stanford&University&Press:&2008).

55

Inmarsat, Intelsat and the International Telecommunications Union and the many rules of the

road they have developed, nation-states can standardize and codify tried and true practices

already in place. These non-state groups can also inspire international integration with enhanced

(1) representation from non-state technical bodies and administrations and (2) operating

principles based on economic and commercial interests in international institutions and law.

While the contributions of these commercial entities will not bring about the deweaponization of

space, they can exert influence, expertise and representation for the commercial space sector that

makes up such a large part of interaction in space, as a neutral third party whose interests lies in

the sustaining of the peaceful space market. 126 These private commercial actors should also be

afforded a barebones frame of international private rights in space. Along with private interest

representation and rights, there should be private responsibilities that make non-state actors, and

not just nation-states, liable for infractions of internationalized space law. However, the

separation of liability from nation-states and non-state actors can only be achieved with a

common international licensing, registration and third-party liability insurance scheme. This

framework empowers both secures nation-states and empowers non-state actors in space for the

proper distribution of rights, obligations, jurisdiction and control as well as the protection of third

party rights in a jointly utilized common. 127

Legislation needed to halt the privatization of space security, ensure compliance to an

international legal framework and ensure stability in space would have to be observed and

126 &See&Lellouche,&Pierre&and&others,&“Satellite&Warfare:&A&Challenge&for&the&Interna/onal&Community.”&Report&by& the&French&Ins/tute&for&Interna/onal&Rela/ons.&United&Na/ons&Ins/tute&for&Disarmament&Research&(Geneva:&

United&Na/ons,&1987).

127 &See&SchmidtQTedd,&Bernhard&and&Michael&Gerhard,&“Registra/on&of&Space&Objects:&Which&are&the&Advantages& for&States&Resul/ng&from&Registra/on?.”&found&in&Benkö,&M.&and&KaiQUwe&Schrogl,&eds.,&Space%Law:%Current%

Problems%and%Perspec;ves%for%Future%Regula;on&(Utrecht:&Eleven&Interna/onal,&2005):&121Q140.

56

enforced based on an international network of monitors. A comprehensive monitoring and

verification system could be implemented (1) on Earth through the institutions mentioned above,

(2) in space by the international community and (3) in space by private firms and organizations

as well. The establishment of a common licensing and registration scheme would make private

firms subject to regular updates, inspections and lawful operation internationally. While space

arms proliferation is difficult to hinder and arms monitors are generally ineffective on Terra, the

securing of the transparent outer space itself through verification and monitoring can work as

inspiration for future progress on Earth. 128 Highly advanced space monitoring systems that exist

in the PRC, Russia and the US could be utilized independent of one another to verify and ensure

cooperation and compliance. 129 Private initiatives in space to ensure safety in space by

commercial satellite operators can also be utilized as another source of independent monitoring.

The development of the Data Center will (1) make transparent information regarding general

satellite orbits, movements and frequencies, (2) convert and reformat data across nation-states,

(3) standardize terminology, (4) establish common procedures for both routine and emergency

situations and (5) share contact information amongst satellite providers and operators. 130

The progression of these three fields can, in turn, spur on the creation of a meaningful,

enforceable and overarching international licensing and regulatory regime in the form of a new

and comprehensive OST or SPT. While the abolition of ASAT capabilities would be difficult

128 &See&chapter&1&of&Mandel,&Robert,&Deadly%Transfers%and%the%Global%Playground:%Transna;onal%Security%Threats%in%

a%Disorderly%World&(Connec/cut:&Praeger,&1999).

129 &See&Baines,&Philip&J.&and&Adam&Côté,&“Promising&ConfidenceQ&and&SecurityQ&Building&Measures&for&Space&

Security.”&found&in&Vignard,&Kers/n,&“A&Safer&Space&Environment?.”&Disarmament%Forum&4.&United&Na/ons&

Ins/tute&for&Disarmament&Research&(Geneva:&United&Na/ons,&2009):&5Q16.

130 &See&Rathgeber,&Wolfgang&and&others,&“Space&Security&and&the&European&Code&of&Conduct&for&Outer&Space&

Ac/vi/es.”&found&in&Vignard,&Kers/n,&“A&Safer&Space&Environment?.”&Disarmament%Forum&4.&United&Na/ons&

Ins/tute&for&Disarmament&Research&(Geneva:&United&Na/ons,&2009):&33Q42.

57

considering three superpowers have already invested considerable time and resources into their

development and cannot singly disarm against their own security concerns, a good stepping stone

would be moratoriums on KillSat deployment, testing and use. Referring to the OST’s clause on

the right of nation-states to self-defense in outer space, legal experts can argue that while Earth-

to-space weapons may be considered defensive, space-to-space ASAT weapons like KillSats are

certainly not. The abolition of dual-use KillSats would stem the profitability of space war for

private firms and the advantages of PMSC use in outer space for nation-states. A policy of

restraint from stationing space-to-space and space-to-Earth weapons in outer space would not

infringe on contemporary Earth-to-space based ASAT and ballistic missile defense programs.

The adoption of a new overarching and comprehensive OST would not be impractical or

unrealistic as national space laws already resemble the OST. 131

7. SUMMARY AND CONCLUSION

This paper has shown that the establishment of an international governing legal regime in

the ungoverned common of outer space is more possible today than ever before due to (1)

linkages from complex interdependence, (2) a comparative political calm, (3) the stable laissez-

faire unipolar regime on Terra and in space, (4) central nation-state power, and (5) the influence

of a multilateral US. However, it is found that the establishment of an international governing

legal regime in the ungoverned common of outer space will not be a reality in the future due to

the decay of cooperation in the eventual (1) increasing weaponization of space between nation-

states, (2) scarcity of lanes and frequencies, (3) volatility of increased numbers of actors, and (4)

privatization of space security. The paper built off the last speculation that nation-states could

131 &See&chapter&1&of&Haanappel,&P.P.C.,&The%Law%and%Policy%of%Air%Space%and%Outer%Space:%A%Compara;ve%Approach&

(The&Hague:&Kluwer&Law&Interna/onal,&2003).

58

employ space-capable PMSCs by justifying (1) why nation-states would desire to do so and (2)

why it would not be in the interest of nation-states to do so. This paper then offered an array of

recommendations on the type, form and methods of legislation needed to build up the

contemporary body of space law into an overarching international legal regime in order to

promote safety, stability, cooperation and most importantly, prevent the creation and proliferation

of space-capable PMSCs now and in the future. While the chaos of marauding space fleets

pitched in bloody and destructive conflicts spanning the miasma of outer space are the stuff of

science fiction, if we allow Icarus to plummet in our indecisive hesitation, science “fiction” will

no longer be known for the lighthearted smiles of today, but the burning tears of the billions who

look back on a time before the sky had fallen.

8. TABLES

TABLE 1: Satellites in Support of the Persian Gulf War 132

FUNCTION

SATELLITE OR SYSTEM

COMMUNCATIONS (Military Systems)

Defense Satellite Communications System (DSCS) Fleet Satellite Communications System (FLTSATCOM) Air Force Satellite Communications System (AFSATCOM) Satellite Data System Macsat NATO (NATO) Skynet (U.K.) Telecom/Syracuse (France)

132 &Taken&from&Smith,&Marcia&S.&“Military&and&Civilian&Satellites&in&Support&of&Allied&Forces&in&the&Persian&Gulf&War.”&

CRDCQID:&CRSQ1991QSPRQ0025.&U.S.&Congressional&Research&Service.&Science&Policy&Research&Division.&(Feb.&27,&

1991):&11Q12.

59

COMMUNICATIONS (Civilian/Commercial Systems)

Tracking and Data Relay Satellite System International Telecommunications Satellite Organization (INTELSAT) International Maritime Telecommunications Satellite Organization (INMARSAT) Other illustrative examples:

European Telecommunications Satellite Organization (EUTELSAT) Arab Telecommunications Satellite Organization (ARABSAT) Panamsat

NAVIGATION (Military and Civilian)

NAVSTAR Global Positioning System (GPS)

WEATHER (Military)

Defense Meteorological Satellite Program (DMSP)

WEATHER (Civilian)

National Oceanographic and Atmosphere Administration (NOAA) Geostationary Operational Environmental Satellite (GOES) Meteosat Operational Programme (MOP) – European system that may be supporting Desert Storm

LAND REMOTE SENSING (Civilian/ Commercial)

Landsat (U.S.) SPOT (France) Resurs (Soviet Union)

INTELLIGENCE GATHERING (Military)

Photographic Reconnaissance:

KH-11

Advanced KH-11 Space-Based Radar:

Lacrosse Electronic/Signals Intelligence:

Magnum Chalet White Cloud Vortex? Advanced KH-11?

EARLY WARNING (Military)

Defense Support Program (DSP)

TABLE 2: Soviet Anti-Satellite (ASAT) Tests (1968-1982). 133

133 &Taken&from&Yusof,&Nordin.& Space%Warfare:%High1Tech%War%of%the%Future%Genera;on.&Universi/&Teknologi&

Malaysia&(Johor&Bahru:&First&Prin/ng,&1999):&669.

60

Test Number

Date

Attempted Intercept Altitude

Mission Type

Probable Outcome

1

20

Oct 68

525

2

rev

Failure

2

1

Nov 68

535

2

rev

Success

3

23

Oct 70

530

2

rev

Failure

4

30

Oct 70

535

2

rev

Success

5

25

Feb 71

585

2

rev

Success

6

4

Apr 71

1005

2

rev

Success

7

3

Dec 71

230

2

rev

Success

8

16

Feb 76

575

1

rev

Failure

9

13

Apr 76

590

1

rev

Success

10

21

Jul 76

16307

2

rev

Failure

11

21

Dec 76

570

2

rev

Failure

12

23

May 77

1710

1

rev

Failure

13

17

Jun 77

15757

1

rev

Success

14

26

Oct 77

150

2

rev

Success

15

21

Dec 77

995

2

rev

Failure

16

19

May 78

985

2

rev

Failure

17

18

Apr 80

1000

2

rev

Failure

18

2

Feb 81

1005

2

rev

Failure

19

14

Mar 81

1005

2

rev

Success

20

18

Jun 82

1005

2

rev

Failure

Table 3: Launch Successes (s) and Failures (f), 1957-1999