A Rendezvous in Outer Space Law: The Challenge of Establishing Binding Regulations for Dual-Use Capabilities

(Excerpt) When the Soviet Union launched Sputnik in 1957, it was not only a significant leap forward in the Space Race with the United States, but also the catalyst for a series of international treaties that would serve as the foundations of outer space law. In the last decade, the world has seen similar technological leaps in the commercial sector. Elon Musk’s SpaceX has launched spacecraft with all civilian crews while Jeff Bezos and Richard Branson aim to expand the market for commercial space flights. Lockheed Martin is one of many companies looking to offer commercial services for maintaining satellites in-orbit. The commercial industry is on the verge of applying decades of research and development, but the law has not kept pace with such advancements. The technological leaps in the commercial sector are accompanied by an increase in spacecraft. Thousands of satellites, supplied by governments, militaries, and commercial companies, now orbit the Earth in the low earth orbit (“LEO”) and geosynchronous orbit (“GEO”). LEO is located up to 1,200 miles above Earth and primarily used for communications and imaging satellites. In GEO, a spacecraft’s orbital speed matches the Earth’s rotation, giving it persistent coverage over a single area. GEO is therefore primarily used for telecommunications and Earth observation. While governments and militaries now share outer space with the civilian sector, for countries like the United States, outer space is still a strategic asset. The United States made clear that protecting its outer space assets was a priority when it created the U.S. Space Force in 2019. Space Force was established under the Department of Defense (“DoD”) to protect and defend U.S. interests in space, but it mostly consolidated DoD space operations that had been in place since the early days of space exploration and race to the Moon. International treaties satisfied the legal requirements of the early space era because only the United States and the Soviet Union were capable of launching and operating spacecraft. Since then, there has been a significant increase in the number of space-faring and space-launching states. Space-faring states are those that have satellites; space-launching states are those that are capable of launching rockets with payloads. There are over seventy space-faring nations today but less than twenty space-launching states. Russia and the United States are still two of the major space-launching states, alongside China, but the current political landscape is different than it was during the Moon race. The United States is reticent to enter into new treaties, and Russia is actively withdrawing from existing arms treaties. China and Russia proposed the Draft Treaty on the Prevention of the Placement of Weapons in Outer Space and of the Threat of Use of Force Against Outer Space Objects (“PPWT”) to the United Nations (“UN”), but it has not progressed beyond a proposal nor does it have United States support. The stalled PPWT is an example of the current difficulty in achieving a new international space treaty, particularly one that presents national security issues.