Law Versus Power on the High Frontier: The Case for a Rule-Based Regime for Outer Space
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The future of peace and security in outer space is at a critical juncture. The legal regime that guides commercial, military and scientific activities in space is fragmented and increasingly inadequate to meet the challenges posed by the growing number of actors seeking to exploit space. The most serious challenge to the space regime is posed by the stated intent of the present administration of the United States to pursue national dominance in space, which may eventually include stationing weapons there. Although space is already militarized to some degree, that is, used for military support purposes, no nation has yet placed weapons in space. Such a move would cross an important and longstanding threshold,likely provoking a battle for national superiority in space dominated by the United States. It would seriously undermine the current legal order in space widely supported by the rest of the world. The deployment of ground-based antisatellite weapons would also constitute a serious departure from the current regime. Without a concerted effort to develop a more comprehensive legal regime for space that will limit unconstrained weaponization, the international community will likely face a new military competition in space, with destabilizing consequences for national and global security. Such a competition will place at risk existing military, commercial, and scientific activities in space. With events of September 11, 2001, and the war against Iraq dominating the headlines, the issue of national missile defense, and with it the larger issue of the control and weaponization of space, have receded from the front pages. However, the problem is imminent as the United States moves forward with Pentagon plans to develop "space control" and "global engagement" capabilities, which imply the deployment of weapons in space. If conflict over the use of space, or even actual conflict in space, is to be prevented or at least significantly constrained by general agreement, the international community will need to agree on permitted activity in space and more refined arrangements for distributing the benefits of that activity. Such a regime would be in the strong interest of commercial, scientific and military support constituencies worldwide. Without such agreement, space will largely be shaped by the short-term interests of power rather than the long-term interests of law.
Yale Journal of International Law, Summer