Evidence: Recently Added
International participation is another key ingredient of effective ASAT arms control regimes. But many of America’s key space-capable competitors perceive ASAT weapon possession as a strategic necessity. In other words, the interests of America’s rivals decrease the likelihood of reaching an international consensus on an anti-ASAT treaty, which is a necessary ingredient for a successful ASAT arms control regime. The United States relies on its space assets for a “diverse array of political, military and economic activities” fundamental to its national security.[15] This overreliance is seen as a weakness, something America’s adversaries can reliably exploit when conventional American military capabilities outstrip theirs.
Mutual weakness is a source of stability. American competitors, notably China and Russia, enjoy having ASATs because this allows them to exploit a major American weakness. Russia and China proposed the PPWT specifically because it satisfies the political hunger for ASAT arms control while permitting loopholes for a variety of ASAT possessions. From the perspective of Russia and China, ASATs are an equalizer that allows them to overcome a relative conventional weaknesses. The perceived strategic value of ASAT weapons makes arms control agreements that seek to legitimately and comprehensively eliminate or reduce the ability of countries to develop and possess ASATs unlikely.
Second, the international community should try to establish norms of behavior that dictate activity in outer space. Norms will be more useful than codified, ineffective arms control agreements. Norms are built intentionally over time through repeated action. “Norms,” explains Audrey Schaffer, “can serve to highlight abnormal behavior, enabling warning of and protection against space threats.”[18] They can’t constrain malicious action, but they can serve to flag violations and increase international clarity as to what is right and wrong in the space domain. The United States, to capitalize on the utility of norms should, first, acknowledge that norms exist and, second, build a non-binding list of norms that can be communicated to the international community. This will serve to ignite an international conversation around what is good and what is not. Already, the international community is making meaningful progress. The United Nation’s Guidelines for the Long-term Sustainability of Outer Space Activities are a good start to a solidified, articulated collection of norms. To continue progress, the UN First Committee recently approved “a new working group to develop rules of the road for military activities in space.”[19]
ASAT weapons are a legitimate threat to the global community, and the space domain could benefit from more relevant, stronger rules of the road. But the solution is not ASAT arms control. The United States and the international community generally should let the PPWT revel in irrelevance. Instead, effort would be better spent on constructing a useful and implementable ban on definable, monitorable, and verifiable kinetic ASAT tests and solidifying general norms for behavior in outer space. Comprehensive ASAT arms controls might be politically pleasant but realistically, they're practical pitfalls.
Even worse, pursuing ASAT arms control agreements could be detrimental to the competitiveness of American assets in space. One probable response to an ASAT arms control agreement is reduced federal government’s willingness to fund improvements to the resiliency and survivability of American space constellations.[16] Maintaining American competitiveness in space necessarily entails bolstering defensive measures against hostile ASAT capabilities. But reducing, or appearing to reduce, the threat to United States space assets through arms control agreements could make it harder to convince legislators and policymakers that expensive satellite acquisitions are worth pursuing.
Advocates for ASAT arms control would disagree, pointing to modern space situational awareness capabilities that can detect space launches and track the orbital inclination of their payloads through space-based infrared and infrasound monitoring systems.[9] Even if states can track objects that are placed into orbit, “verifying the function of a particular space object already in orbit is significantly more difficult.”[10] The “PAXSAT A” study demonstrated that uncovering the functionality of satellites in orbit is possible by utilizing a four-satellite constellation.[11] But this investigation method relies on the ability of the constellation to position itself near the object in question and the assumption that form follows function. Two problems are presented here. First, we do not have the infrastructure to conduct on-orbit investigations. Second, the logic that form follows function is fallible. Because space launches are expensive, advocates argue that the extra weight and cost needed to obscure the true function of an ASAT weapon in orbit with facade architecture is too expensive to be realistic. But basing arms control agreements on the predicted frugality of nation-states seems illogical, at best.
Even with perfect launch monitoring capabilities, significant unknowns remain. Many space-related armaments are ground-based, meaning these weapons can be developed and deployed outside of the scope of current ASAT monitoring systems. Also, for non-physical weapons, verification is simply impossible. No mechanism exists, for example, to verify compliance with moratoriums against developing or deploying cyberweapons or jamming capabilities.
The diversity of ASAT weapons makes articulating a sufficiently comprehensive and precise definition impossible. Any attempt to do so will inevitably leave significant loopholes because each technology exists in a separate domain defined by unique operational requirements, norms, and expectations that require specific rules and regulations to control.
Controlling these technologies is especially difficult given most have legitimate, peaceful, or commonplace uses. Satellites are fragile. It takes little force to render them temporarily or permanently ineffective. When a target is defined by fragility, everything becomes a weapon, meaning innocent and commonplace technologies can be weaponized. Remotely operated repair satellites, for instance, are being developed to revitalize failing satellites.[5] But the same capabilities used to repair can be repurposed to destroy. Similarly, any satellite equipped with a radiofrequency antenna necessary to receive signals can also emit them with sufficient strength to jam the communications of nearby satellites.[6] This dual-use problem presents an obstacle for ASAT arms control by pitting legitimate and peaceful operational freedom against national security.
Treaties that ban or control weapons must define what, exactly, they aim to ban or control. Without an ASAT definition that is simultaneously inclusive and precise, international regimes preventing the development, deployment, and use of ASATs are ineffective. Two obstacles make constructing a useful definition nearly impossible: weaponry diversity and the dual-use problem.
The variety of potential ASAT weaponry presents a problem. ASAT weapons are any technology that can temporarily or permanently disable or destroy a satellite’s functionality. This means lasers and other directed energy weapons, air- and land-launched kinetic missiles, cyber uplink and downlink attacks, radiofrequency jamming attacks, attacks on ground stations, and maneuverable attack satellites are all ASAT weapons.
Separation of military uses of outer space from its civil uses leaves military uses to international regulation in the United Nations (UN) Disarmament Commission and other UN commit- tees, as well as to multilateral and bilateral arrangements outside of the UN, in addition to national regulation. It also leaves military operators free to use whatever regulations are developed for civil space at their discretion. Experience shows that military users appreciate the greater safety that results from using the uniform international air navigation standards.35 In fact, the military is also threatened by unregulated space activities that lead to military traffic collisions with other space objects and space debris. Any improvement in civilian traffic rules and space debris avoidances would diminish interferences with military operations. Order in outer space would also leave military operations free to follow civilian traffic rules, as has actually happened in military aviation, maritime traffic, and space telecommunication.
How do we know a civil outer space regime would work? All international transport of goods by air and sea depend on civilian treaties.16 Civilian regulation is the most effective method to manage space issues. Relevant to the establishment of civil outer space norms is an important precedent established in 1944, during World War II. At that time, the United States convened an international diplomatic conference in Chicago for the purpose of coordinating post-war international aviation.17 Because of the ongoing war, most aviation at that time was for military purposes.18 It was not possible for the nations convened in Chicago in 1944 to conduct any negotiations about military aviation;19 thus, the negotiations in Chicago were limited to civil aircraft as evidenced by Article 3 of the Chicago Convention.20 The war had spurred great technological developments in aviation, resulting in large, dependable airplanes.21 It was apparent that a post-war world market for global air transport had emerged.22 States had anticipated the Chicago Conference to be a forum for establishing order in this marketplace.23 However, the then- British Commonwealth, which spanned the globe, controlled the post-war marketplace for international air transportation.24 The United States possessed the aviation technology for exploiting the world marketplace because the U.S. development of larger bomber airplanes could be adapted to serve as commercial airplanes.25 Aviation was the main issue left for negotiation, but because the United Kingdom wanted to delay negotiation of international air routes until it could recover economic strength after the war,26 successful negotiation of economic exploitation failed in Chicago in 1944.27 However, the conference negotiation did result in the very successful Chicago Convention and in the creation of the ICAO, the members of which created inter- national standards for a safe international civil aviation network.28 The states participating in the Chicago Conference created the ICAO to establish international technical norms for aviation in the form of international standards and recommended practices.29 These standards and procedures were produced by experts in the Air Navigation Commission and, once approved by the ICAO Council, became international mandatory standards.30 However, individual states retained the right to file deviations from international standards as provided in Article 38 of the Chicago Convention.31
Separating military from civil uses is now common practice for international commercial enterprises.32 The International Maritime Organization (IMO) does not regulate maritime military activities.33 The International Telecommunication Union (ITU) also does not regulate military radiofrequencies or their related orbital slots.34 The ITU’s military exception may be the most relevant precedent for discussion of outer space norms be- cause the ITU’s civil regulations apply in outer space and are acceptable to military authorities.
IADC is a unique organization, having been able to galvanize the major national space agencies into recognition that the deb- ris in outer space is rapidly accumulating and of the dangers thereto.138 Furthermore, these thirteen state agencies have the resolve to act jointly when member states of COPUOS prove either unable or too slow to agree on remedies for the space deb- ris problem in COPUOS. Key to the success of the IADC initiative has been IADC’s ability to characterize the guidelines as technical, thus distancing the debris issue from the realm of national security politics. The success of the technical IADC guidelines may be contrasted with the failure of the European Union to persuade the world to adopt a code of conduct for reasonable traffic rules in outer space. The EU’s valiant effort to establish a code of behavior for outer space activities failed be- cause the draft Code of Conduct touched on national security issues, which is difficult in today’s political world. By contrast, IADC avoids politics by addressing the dangers of space debris from a non-political stance. Characterizing space debris as being a technical problem establishes an important precedent for other outer space regulation because many aspects or functions in outer space can be characterized and treated as technical.139
The general acceptance of the IADC guidelines by the wider geographical distribution of COPUOS member states is indeed remarkable.140 Considering the slow process of decision-making in COPUOS, it was unusual that the guidelines, authored by an outside committee, were so quickly accepted. Their acceptance illustrates the urgency of the space debris issue.141 It helped progress on the guidelines in that the states began to make them mandatory standards even before they were approved by the UNGA Resolution 62/217.142 The IADC must be praised for its leadership and organization where and when COPUOS was unable to perform. Consequently, the world now benefits from action on the space debris problem, although the remedy is insufficient to resolve the problem. Much more needs to be done. Despite its limited mandate to resolve one of the world’s problems, the IADC continues to exercise its initiative, because no other international organization has stepped up to the task. Great credit goes to the individuals who took this initiative as well as to the agencies that facilitated and joined.
Uncertainty about ownership of unidentifiable space debris represents a difficulty in appropriation and removal of space debris by states other than by the original launching state of registry.63 The problem is that some debris cannot be identified, and thus, a claimant cannot prove that it belongs to an identifiable launching party. That may present uncertainty for a launch- ing state about its legal right to valuable space debris. But, in addition, it presents particular legal difficulty as to the right of third party states to remove such debris. The uncertainty of property rights to debris causes third party states to hesitate to remove unregistered and unclaimed space debris. A general international agreement to waive sovereign claims to unidentified space debris to facilitate removal of debris by third parties is recommended.64