Do as I say, not as I do - is Star Wars inevitable? Exploring the future of international space regime in the context of the 2006 U.S. National Space Policy.

INTRODUCTION--Are We on the Brink of an Arms Race
in Space?
  U.S. Says "No" to Restrictions on Weaponizing Space
  China Joins the ASAT Club
  2006 National Space Policy--National Interest v. International
Order
  Space Arms Race? What Space Arms Race?
BACKGROUND--The Origins and Evolution of Space Law
  Existing International Regime
  Traditional U.S. Postures
  Weaponization v. Militarization
"RODS OF GOD"--The Weaponization of Space
Current Space Technology
    Dual-Use Technology
    Current Space Technology
Painting a Picture of Weaponized Space
SPACE ARMS RACE--Is Proliferation Inevitable?
Hegemony and Arms Race
International Responses--A Race, or a Race of One?
An International Moratorium--Racing its own Shadow

ABSTRACT

Space law presents unique challenges to the international legal system. Wars have been fought on land, on sea, and in the air. Outer space, however, like Antarctica, was intended as a sanctuary from modern warfare. Unlike Antarctica, which has been kept free of military activities, "peaceful purposes" in outer space saw intertwined military and civilian uses from the outset. (1)

Space has been called "the ultimate high ground." (2) States that control outer space win military advantages as well as political capital. Since the end of the Cold War, the United States has enjoyed unchallenged space supremacy. (3) This scenario raises the question: how can the United States assure its dominance in space while preventing (or at least slowing down) challenges by other countries?

The 2006 National Space Policy caused an international uproar. The Policy announced that the United States has free action in space, and that any international cooperation must be "consistent with U.S. security interests." (4) The new U.S. space policy threatens to weaken the bedrock of the international space regime by directly challenging the concept of international cooperation and restraint on the militarization of space.

This Note analyzes the implications of recent developments in international space law as it relates to the 2006 National Space Policy. First, the Note examines current events responsible for the renewed interest in the (dis)armament of outer space. Then, it analyzes the legal framework that shaped both U.S. space policies and key international agreements. Third, it makes a foray into the world of weapons and technologies that are either currently in use or capable of being deployed in the near future. Lastly, the Note proposes three ways for the international community to tackle the trend of weaponizing space.

In the end, the root of man's security does not lie in his weaponry. It lies in his mind. (5)

INTRODUCTION--ARE WE ON THE BRINK OF AN ARMS RACE IN SPACE?

U.S. Says "No" to Restrictions on Weaponizing Space

The vote was 160 to 1. (6) In October 2005, the United States became the first country to oppose the annual nonbinding resolution on Preventing an Arms Race in Outer Space. (7) Surprisingly, this decision came despite a verbal commitment of non-opposition if the resolution's text remains unchanged. (8) In what would become a familiar refrain, the U.S. delegate explained that there is no need for further restrictions because the existing legal framework is sufficient. (9) In other words, there is no threat of a space arms race.

China Joins the ASAT Club

On January 11, 2007, China shot down one of its aging satellites using a ground-based ballistic missile known as an anti-satellite weapon (ASAT). (l0) The news caused widespread panic. Headlines blared of China's challenge to the U.S.'s space dominance (11) and of a space invasion. (12) Some even warned of an apocalypse. (13) Many commentators openly contemplated whether this ASAT test signals the beginning of a new space arms race. (14)

The hysteria was hardly surprising. "Red China" became only the third country to conduct a weapons test in space, after the United States and former U.S.S.R. (15) What was surprising, however, was the world's evident shock at the proliferation of ASAT capabilities.

Since the end of the Cold War, the U.S. military has enjoyed unchallenged supremacy of space. As a rising economic and regional power, China was naturally identified as the emerging threat to U.S. space hegemony. (16) For its part, China has shown no inclination to duplicate the U.S.'s arsenal, instead seeking to develop "killer" technologies that would undermine the U.S.'s space supremacy. (17)

The January ASAT test used an unarmed intermediate range ballistic missile (IRBM) to shoot down a retiring weather satellite 537 miles above the earth. (18) The missile operated as a "kinetic kill vehicle" that destroyed the target by slamming into it. (19)

Kinetic kill technology is not new. (20) Neither is weapon-testing in space. The United States' own 1962 High Altitude Nuclear Detonation caused the eventual destruction of seven satellites. (21) Between the 1960s and the 1980s, both the United States and the former U.S.S.R. conducted ground-based ASAT testing. (22) The most recent test occurred in 1985, when the United States shot down one of its own satellites. (23)

Why did the world react to China's ASAT test with such alarm? For years, Russia and China were vocal proponents of strengthening the international legal regime on banning weapons in space. (24) As recently as February, 2008, the two countries had circulated a draft to ban the weaponization of outer space. (25) United States promptly rejected the proposal, reiterating its opposition to any agreement that would "prohibit or limit access to or [the] use of [outer] space." (26) Although there is no consensus among key definitions such as "weapon" and "space", there is nonetheless broad international support for keeping space free from an arms race. (27) The United States' hostility to any concrete discussions on preventing a space arms race marks a troubling turn of tide. (28)

2006 National Space Policy--No Space Weapon Negotiation

The United States' vote against talks of an international moratorium on space weapons makes sense in the context of the administration's larger space policy. The U.S. military has traditionally adopted a hawkish stance on space power. Taking a cue from Alfred Thayer Mahan, the U.S. Air Force sees space dominance as essential to maintaining America's dominance and protecting America's interests. (29) As early as 2001, some in Washington had raised concerns of a "Space Pearl Harbor." (30) Donald Rumsfeld, who headed the Commission on U.S. National Security Space Organization and Management, warned that the United States was ill-prepared for an attack on valuable space assets. (31) He advocated that the United States must use both offensive and defensive space weapons to safeguard its satellites. (32)

The 2006 National Space Policy was published without fanfare and caused international concerns. The new policy was notable in its unilateralist tone. (33) In contrast to its 1996 predecessor, the new Policy declared, among other principles, that the United States "rejects any limitations on the fundamental right of the United States to operate in and acquire data from space." (34) The 1996 policy also acknowledged the importance of applicable international commitments. (35) The new Policy mentions nothing about such commitments. (36)

The new space policy incorporated many of the Rumsfeld Commission's recommendations. For the first time, scientific exploration was no longer a key goal. Instead, the language suggests that the United States will not hesitate to take active steps to preserve the status quo of space--U.S. supremacy. (37) The language in the new Policy makes the United States the adjudicator and enforcer in determining who, or which entity, may possess the inclination to narrow the United States' space supremacy.

Contrary to previous administrations' policies, the 2006 National Space Policy formally renounces any new efforts aimed at curbing proliferation of space weapons. (38) Although the administration reaffirms its support for the traditional notion of "peaceful use," it includes "defense-related activities." (39) The administration assured that there was no policy shift, distinguishing between "defense [in] space" and the "weaponization of space." (40)

The world reacted with alarm and anger at the 2006 National Space Policy. (41) The U.S. military had been advocating a more assertive stance in space. The new policy reflects that influence:

   [T]he United States will: preserve its rights, capabilities, and
   freedom of action in space; dissuade or deter others from either
   impeding those rights or developing capabilities intended to do so;
   ... take those actions necessary to protect is space capabilities
   ... and deny, if necessary, adversaries the use of space
   capabilities hostile to U.S. national interests. (42)

Implicit in the new Policy is the assumption that outer space "belongs" to the United States. This has effectively made the United States the gatekeeper of outer space, determining both who gets to play and under what rules. (43) In safeguarding this possession, U.S. national interests must be (and indeed, the Policy indicates they are) of supreme importance, trumping any international agreement. The inherent danger in the new policy is that it undermines existing efforts at arms control and prevention of the weaponization of space. Although the administration firmly denies that weaponization is a policy goal, the foreclosure of dialogue fosters suspicion and weakens the administration's credibility on the subject. (44)

The current administration has consistently moved away from international efforts to curtail the spread of space weapons. If the 2001 Commission's recommendations and United States' 2005 U.N. vote foreshadowed the 2006 National Space Policy, then the January 11, 2007 ASAT test could be seen as a direct response to that policy.

Commentators have speculated on the motive and timing of this recent ASAT test. Whether the test was aimed at nudging the United States back into discussions on limiting space weapons, or a direct challenge to U.S. hegemony, (45) one message is clear: the rest of the world is unwilling to play the Do-as-I-say-not-as-I-do game.

Space Arms Race? What Space Arms Race?

To be alarmed or not to be alarmed, that is the question. Hot on the heels of the 2006 National Space Policy, China conducted its first ever ASAT test in January, 2007. At about the same time, Iran also joined the rank of space powers by launching its first satellite. (46) By April, India announced that it was working on its own ASAT weapon. (47) Japan, already boasting one of the highest military spending anywhere, formally renounced its pacifist space policy from 1969 and now sanctions its own militarization of outer space. (48) Although there is no immediate threat, the trend of using outer space as the next theater of war remains unsettling and further raises the specter of a space arms race.

Currently, the United States enjoys a vastly asymmetrical space power. It has a virtual monopoly on locating targets using satellite technology. (49) Maintaining the status quo serves the United States' interest. The new Policy makes a potential target out of any country that may challenge U.S. space supremacy. (50) Although the policy does not explicitly endorse deploying weapons in space, the "denial" language suggests that offensive actions, including preemptive strikes, are now on the table. (51)

Moreover, the new policy reflects the position long advocated by the U.S. military, namely that participating in discussions on limiting space weapons undermines national security. Specifically, the policy states that:

   The United States will oppose the development of new legal regimes
   or other restrictions that seek to prohibit or limit U.S. access to
   or use of space. Proposed arms control agreements or restrictions
   must not impair the rights of the United States to conduct
   research, development, testing and operations or other activities
   in space for U.S. national interests[.] (52)

While the language does not entirely foreclose arms control in space, the administration's position is clear: "[w]e do not need to enter into new agreements ... this is a case where no arms control is better than bad arms control." (53) The 2006 National Space Policy renders international disarmament efforts subservient to the United States' interests. Alternatively, the language could be interpreted as rendering international law subservient to American policies.

Ideally, the United States would be able to take unhindered actions in space while preventing foes from any military activity in space. Proponents of the new policy praise it as the "New Monroe Doctrine,"--other countries may use space but may not engage in any military-related activities. (54) Thus, the United States would be the sole holder of military power in space. Some saw the January ASAT test as a direct response to the United States' unilateral actions in space. (55) Meanwhile, administration officials, while expressing their unease over the test, continued to adhere to the position that there is no arms race in space. (56) The inherent conflict then, is how to prevent other countries from weaponizing space while permitting the United States to do so.

BACKGROUND--THE ORIGINS AND EVOLUTION OF SPACE LAW

Existing International Regime

The International Space Treaties

Outer space, like Antarctica, is among the last unclaimed territories. Unlike Antarctica, however, military and civilian uses have overlapped in space from the outset, blurring the line between fortress and sanctuary. (57) The U.S. government had first authorized the development of a reconnaissance satellite as early as 1954. (58) However, the "space age" truly dawned when the former U.S.S.R. launched Sputnik I in October of 1957. (59) In reaction, then-President Eisenhower sought to translate the Antarctic experience to outer space. (60) "[T]he United States would, if possible, project a peaceful image regarding space activities." (61)

In 1958, the United Nations General Assembly formed the Committee on the Peaceful Uses of Space (COPUOS) to create the necessary legal regimes for space activities. (62) Under COPUOS, the international community drafted and implemented a series of treaties that became the international regime regulating outer space. (63) Along with the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, (64) CUOPOS helped to create other key treaties, including the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, (65) the Convention on International Liability for Damage Caused by Space Objects, (66) the Convention on Registration of Objects Launched into Outer Space, (67) and the Agreement Governing the Activities of States on the Moon & Other Celestial Bodies. (68) These five treaties, in combination with several arms agreements and general principles of international law, form the basis of international space law. (69)

Both the Outer Space Treaty and the Antarctic Treaty sought to prevent "a new form of colonial competition." (70) The Outer Space Treaty, patterned after the Antarctic Treaty, serves as the backbone of international space law. The Treaty establishes the principles of freedom of access, non-appropriation, peaceful purposes and at least partially bans the weaponization of outer space. (71) These principles have become "quasi-constitutional," (72) widely accepted by the international community.

The Antarctic Treaty and the Outer Space Treaty were "non-armament" treaties. (73) These treaties sought to prevent conflicts and preserve international peace by dedicating the areas to the exclusive domain of "peaceful and scientific" (74) purposes "for the common interest of all mankind." (75) The former treaty prevented the militarization of Antarctica by banning all military activities there. (76) However, since military and civilian uses of space were intertwined at the outset, arguably space has already been militarized. (77) The more realistic goal then, is addressing the weaponization of space.

The Outer Space Treaty of 1967 remains the key legal framework governing space security. It has been ratified by over 100 states and is considered the "Magna Carta" of space law. (78) Following the formation of COPUOS, Eisenhower advocated that the basic tenants of the Antarctic Treaty should also apply to outer space. (79) The Treaty establishes four guiding principles: 1) that outer space and celestial bodies are the common province of mankind; 2) use of outer space for peaceful purposes; 3) the freedom to explore and access outer space; and 4) neither the outer space nor celestial bodies are "subject to national appropriation." (80)

Article I guarantees the freedom of access to space, supplemented by Article II's ban on the national appropriation of outer space and celestial bodies. Article I states that "[o]uter space, including the moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind...." (81) The provision guarantees that States with the capability to access space, are entitled to equal treatment. Article II further expounds that outer space is "not subject to national appropriation by claims of sovereignty, by means of use or occupation, or by any other means." (82) Article II foresaw and forbade de jure and de facto access denial. Although the two articles expressed a lofty intent, technological and budgetary restraints limited membership into the space club to the ultra elite. More than half a century after Sputnik, the club remains highly selective. Thus, even as the treaty language guarantees all parties the freedom of access, there had been no challenge to this premise.

Whereas Articles I and II establish that all (with the means to get there) have access to the playing field of outer space, Article III reminds parties that they need to play well and get along. Specifically, Article III promotes international cooperation in the exploration of outer space in the context of international law and the U.N. Charter. (83) One of the most important provisions of the Charter is Article 51, which recognizes that States have the right of self-defense during an (imminent) attack. (84) The U.N. Charter has supremacy over all other international treaties. Implicit is the notion that even in space, self-defense trumps all other cooperative goals.

The Outer Space Treaty relies on Article IV as an arms control agreement. It explicitly bans the deployment or stationing of weapons of mass destruction (WMDs) in space while emphasizing the "peaceful purposes" doctrine:

      States Parties to the Treaty undertake not to place in orbit
   around the Earth any objects carrying nuclear weapons or any other
   kinds of weapons of mass destruction, install such weapons on
   celestial bodies, or station such weapons in outer space in any
   other manner.

      The moon and other celestial bodies shall be used by all states
   parties to the treaty exclusively for peaceful purposes. The
   establishment of military bases, installations and fortifications,
   the testing of any type of weapons and the conduct of military
   maneuvers on celestial bodies shall be forbidden. (85)

Additionally, Article IV explicitly banned the militarization of the moon and celestial bodies. (86) To proponents of weaponizing space (space hawks), Article IV is important in its implicit permissibility. While banning States from placing WMDs into orbit near Earth, the Treaty is silent on the deployment of similar weapons in high altitude orbits. In addition, many writers have pointed out that Article IV does not regulate other types of weapons, such as ASATs, conventional or "exotic" high tech weapons. The peaceful purposes doctrine and the ban on putting WMDs in space remain the bedrock of international space law.

Contrasting Articles I and IV, the Outer Space Treaty acknowledged the military applications of outer space. Instead of trying to turn back the clock, the Treaty sought to curtail further militarization by excluding all military activities from celestial bodies. The result is that states seek to expand the non-WMD military uses of outer space. (87)

Despite the framework of "peaceful purposes" and "freedom of access" embodied in the Outer Space Treaty, governing outer space has proven to be difficult. In the early days of the space age, the United States and U.S.S.R. submitted proposals for disarmament in outer space. (88) Both drafts envisioned an organization similar to the International Atomic Energy Agency. That entity would be responsible for objective on-site inspections to verify a general and full disarmament. States would also be required to notify the entity of all satellite and missile launches. (89) In negotiations, states bickered over the specificity of inspections, and the United States balked at U.S.S.R.'s insistence of dissolving all military bases on foreign soil. (90) In the end, no disarmament treaty came to fruition.

Decades after that lost opportunity, joint research and development between military and civilian entities have created an arsenal of advancements with dual capabilities. Satellites and shuttles undertake scientific endeavors just as easily as military reconnaissance. (91) Moreover, since the end of the Cold War, States face non-conventional threats that bolster the demand for flexible responses. (92)

Arms Agreements--the Limited Test Ban and the ABM Treaties

Several arms agreements complement the original five space treaties. The Treaty Banning Nuclear Weapons Test in the Atmosphere, in Outer Space and Under Water, (93) was the first international effort to protect vulnerable space assets. In July, 1962, the Defense Department's Project Starfish Prime detonated a nuclear bomb at an altitude of 250 miles. (94) The project's aim was to study the effects of an electromagnetic pulse on radar and communication systems. However, the artificial radiation belt that resulted from the explosion destroyed seven satellites in seven months. (95)

The Starfish test underscored the vulnerability of satellites in space. In the Nuclear Test Ban Treaty, the two space powers, the United States and the U.S.S.R., agreed not to "carry out any nuclear weapon test ... or any other nuclear explosion, at any place under its jurisdiction or control: in the atmosphere; beyond its limits," including outer space. (96) The Limited Test Ban Treaty is not a disarmament treaty. It bans signatories from testing nuclear weapons in outer space, but states remain free to develop the technology. (97)

The Treaty on the Limitation of Anti-Ballistic Missile Systems (98) sought to maintain international stability by insisting that the United States and the U.S.S.R. hold each other hostage. ABM systems increase a State's defensive capabilities by intercepting incoming ballistic missiles. (99) Unfortunately, doing so also undermines international stability by unbalancing the equation of mutual threat. Enhancing the security of one state necessarily undermines the security of its adversary State. The second State either acquiesces to its new disadvantageous position, or more likely, takes countermeasures to reach a new and better-armed equilibrium, forcing an arms race.

The ABM Treaty aimed to forestall the spiraling effect of an arms race. The Treaty, along with its related Protocol of 1974 and the ABM Treaty Demarcation Agreement of 1977, banned all development, testing and deployment of ABM systems. (100) Following the Rumsfeld Commission, the United States formally withdrew from the Treaty in 2002, citing new threats from non-traditional actors that have rendered the Treaty obsolete. (101) Currently, there is no legal barrier to placing conventional weapons in space. (102)

Inherent Problems of the International Space Law

The world's changing geopolitical conditions highlight inherent instabilities in the international space law regime. There are no agreed-upon definitions to key terms such as "space weapon," "peaceful purposes," or even "outer space." (103) This "quagmire of ill-defined terms" (104) creates inherent instability. Deciphering the meaning of each term becomes power politik, with the spacecapable states deciding the scope of the terms. (105)

Traditional U.S. Postures

The Outer Space Treaty evolved from a U.S. initiative to legitimize covert reconnaissance over the Sino-Soviet bloc. (106) In 1955, after the failure of an "Open Skies" proposal, President Eisenhower announced U.S. plans to launch a scientific satellite "Open Skies" as part of the 1957-1958 International Geophysical Year. (107) The first national space policy sought to establish the precedent of free passage in space. (108) Its aim was to distinguish between aerial overflights, which were illegal infringements on territorial sovereignty, and satellite overflights, which it advocated to be lawful. (109)

The National Aeronautics and Space Act of 1958 (110) set out the domestic policy goals for outer space. "Peaceful purposes" doctrine guides U.S. space activities. (111) Yet in order to reconcile "peaceful purposes" with the national defense exception, (112) "peaceful purposes" would need to include civilian and non-aggressive military activities. (113) The military would, if needed, covertly develop other uses for satellites, including reconnaissance, early warning of missile attacks, weather observation, communications and reconnaissance capabilities. (114) The assumption is that strong national defense would be an effective deterrent of armed conflict, thereby promoting international peace, and benefiting all mankind. (115)

Military use of outer space began with the Space Age. The 1960 downing of a U-2 spy plane in the U.S.S.R. led to greater dependence on satellites for military purposes. Now that even high-altitude planes are vulnerable to defensive air strikes, the United States (and later the U.S.S.R./Russia) has been dependent on reconnaissance satellites to obtain strategic information. (116) Since the U-2 downing, neither of the countries has challenged the right of passage by satellite overflights. (117)

As a leader of space technology possessing disproportional space power, national space policies had to balance national interests with international cooperation and the doctrine of peaceful use of outer space. President Nixon's Launch Assurance Policy of 1972 affirmed mutual cooperation, in the context of the NATO alliance. (118) President Carter's 1978 National Space Policy affirmed the United States' commitment to the peaceful use and exploration of outer space. (119) Yet, national security still takes precedence. (120) In the press release that accompanied the new national space policy, the Carter administration acknowledged that it was pursuing ASAT capabilities to counteract the Soviet Union's ASAT development. (121) Despite all of this, the administration supported strengthening the space legal regime to "assure ... [the] safe and peaceful use" of outer space. (122)

The Reagan administration was the first to depart from the principles of the Outer Space Treaty. In his "Star Wars Speech," President Reagan set out plans for the Strategic Defense Initiative. (123) The system would use an array of lasers and high energy beams, either stationed on earth, in the air, or from space, to destroy incoming missiles. (124) The Initiative deploys no WMDs into space, so it does not run contrary to any of the prohibitions stated in the Outer Space Treaty. (125)

President Clinton's national space policy had two main goals: enhance knowledge about Earth and the solar system, and strengthen and maintain national security. (126) Notably, the 1996 policy opened the door for the use of space weaponry, by stating that:

   Consistent with treaty obligations, the United States will develop,
   operate and maintain space control capabilities to ensure freedom
   of action in space.... These capabilities may also be enhanced by
   diplomatic, legal or military measures to preclude an adversary's
   hostile use of space systems and services. (127)

Despite the implied weaponization of space, the 1996 National Space Policy administration was also open to negotiations on future arms controls in space, provided the agreement would be "equitable[,] ... effectively verifiable[,] and enhance[s] the security of the United States and [its] ... allies." (128)

Weaponization v. Militarization

The United States is in a unique position as an original space power and now the space power. As a result, it wields great influence over any international effort dealing with outer space. The United States continues to spend billions on its space budget. (129) It also possesses the largest share of space assets and its derivative markets. In 1999, the commercial space industry was worth $61.3 billion. (130) Globally, the space industry is worth approximately $110 billion per year, of which $40 billion belongs to U.S. companies. (131) As is, the United States has the most to gain and the most to lose by weaponizing space.

Space assets such as satellites are expensive to deploy but easy to damage. When Pan Am's Galaxy IV satellite malfunctioned in 1998, it rendered 89% of the forty-five million beepers in use in America inoperative. (132) The malfunction also delayed financial transactions and direct broadcast transmissions. (133) The impact of the failure highlighted the vulnerability of satellites. Satellites are not only useful for reconnaissance and coordinating theaters in battle, but they also play a valuable role in the national economy. (134) Unfortunately, satellites' versatility and inter-usage also make them difficult to regulate.

There are offensive and defensive means to mitigate outer space vulnerability. (135) The United States can take purely defensive means to safeguard space assets, take active and defensive means to safeguard, or actively seek to negate an adversary's space capabilities. (136) If the United States takes either of the latter two approaches, there is a real likelihood that other States will upgrade their efforts to bridge the asymmetric threat, producing an arms race.

The militarization of space began when the United States and the U.S.S.R. used satellites to monitor arms control obligations. (137) But thus far, States have refrained from deploying weapons in space. (138) While the 2006 National Space Policy does not state that the United States will deploy weapons in space, it follows a troubling trend that began with the 2002 withdrawal from the ABM Treaty. China's recent ASAT test has only shown that any attempt towards weaponizing space would be crossing the Rubicon. Expanding the theater of war into space would only destabilize the strategic balance with no redeeming value.

"RODS FROM GOD"--THE WEAPONIZATION OF SPACE

Despite the principle of "peaceful purposes" in outer space, States have long experimented with a variety of offensive and defensive space weapons. (139) Space weapons can be divided up into three groups: ground-to-space weapons, space-to-space weapons, and space-to-ground weapons. (140) Since the ABM Treaty no longer applies, as long as these are not weapons of mass destruction, arguably weapon deployment is permissible under the self-defense exception of the Outer Space Treaty. (141)

Current Space Technology--Dual-Use Technology--Satellites and ASATs

Dual-use technologies involve defensive technologies that can easily be converted for offensive uses. (142) They also include technologies that have both civilian and military applications. (143) Space assets such as satellites provide crucial informational support in times of war and peace. (144) Satellites, for example, serve a variety of roles, including: monitoring the environment, enabling communications, global positioning, tactile warning and attack assessment, and monitoring arms control agreements and reconnaissance missions. (145) Since the passage of the Outer Space Treaty, "peaceful purposes" has been interpreted by space powers to permit "passive" or military support activities such as "observation, surveillance, communications, and detections of nuclear explosions on Earth." (146) However, the distinction between aggressive and passive conducts becomes blurred when an adversary relies on the same space technology for attacks. (147) This scenario worsens with the number of space-capable States increasing. Currently, "there are over 270 military satellites" and 600 more civilian and multi-purpose satellites. (148)

Satellites

Article IV of the Outer Space Treaty does not ban dual-use equipments from outer space. (149) However, the principle of "peaceful purposes" still applies. Whether equipment is being used for military purposes, in violation of the principle, depends on the intent of its application. (150) Applying the intent standard can be problematic. The United States cannot always judge a potential adversary's intent when the latter launches a satellite. (151) Therefore, the safest path is one that safeguards the existing space supremacy while remaining vigilant, regardless of whether there is intent to harm. (152)

Desert Storm has been referred to as "the first space war." (153) The International Maritime Satellite Organization (INMARSAT) enabled the Department of Defense and the troops to communicate and monitor the war, almost in real time. The world watched via the International Telecommunications Satellite Organization (INTELSAT) traasmissions. (154) The phenomenon raises a legal question: does the use of satellites for war violate the Outer Space Treaty's "peaceful purposes" provision? In another words, when does the use of an unarmed satellite become "non-peaceful?"

Since the military has been involved in space activities from the outset, it is necessary to distinguish between "acceptable" military involvements and those that violate the Outer Space Treaty. States and international law distinguish between passive, non-destructive measures, and active, destructive measures. (155) For example, reconnaissance, navigational and early-warning systems would all constitute acceptable uses that do not violate the peaceful use doctrine. (156)

The United States depends on military communications satellites for a variety of purposes, from navigation to surveillance to mapping to reconnaissance. The usage generally falls into one of three categories:

1) command and control of strategic forces; 2) secure ... high capacity communications supporting the intelligence community (and other command posts); and, 3) beyond-the-horizon communications between mobile forces and their command structure. (157)

The military depends on satellites to provide crucial information ranging from precision-targeting to communications. (158) Technology exists to mitigate some of satellites' weaknesses.

These include "hardening" their exteriors against electronic interference or laser illumination, adding warning sensors and increasing maneuverability to better evade an attack, (159) and expanding the use of microsatellites to prevent single-point failures. (160) Passive satellite activities such as geo-mapping and weather forecasting have wide military and civilian applications. But as one author suggests, so long as that passive activity contains no destructive capability, even military applications would be permissible. (161)

ASAT Systems

As satellites play a more vital role in engagements, there has been more focus on the research and development of anti-satellite systems. Originally, its use was two-fold: 1) enforcing agreements on non-weaponizations of space, and 2) destroying a (nuclear) missile while it was still in orbit. (162) Satellites are vulnerable to interference but are effective as "kinetic-kill vehicles." (163) The new space policy addresses their vulnerability to jamming, laser and shock.

Whether a conduct qualifies as a "peaceful purpose" depends either on the means or the ends being sought. (164) Many States, including the United States, adopt the view that any non-aggressive device would comply with the "peaceful purposes" provision of the Outer Space Treaty, even if the device is military in nature. They point to the U.N. Charter Article 2(4), which prohibits the "threat or use of force" to support their claim. (165) Under the traditional notion of right to self defense, states would be permitted to engage in non-aggressive behaviors such as monitoring of nuclear activities, surveillance, communications and other "passive" activities. (166) But what would be a "non-aggressive" device? Satellites that are hardened against laser interception would qualify, but what about satellites with self-destructive capabilities? "Non-aggressive" device leaves room to permit armed assets that are capable of self-defense. As is the case with a gun, the line between defensive use and offensive attack depends more on the strategy and intent rather than the capability of the gun itself. (167)

As the unchallenged leader in space exploration and usage, the United States has the most satellites in orbit. (168) The 2006 National Space Policy, while admittedly stretching the definitions of "peaceful purposes" and "defense," nonetheless is aimed at preserving domination. The uneven playing field ensures that United States maintains its supremacy at the price of international credibility, fairness and long term considerations.

The dual-use nature of space weapons has led to an international consensus on the need to curtail space weapons. (169) The United States' opposition to efforts addressing the weaponization of space indicates not only an unwillingness to concede its current strategic advantage, but also a heightened sense of vulnerability in the post-9/11 era.

High-tech Space Weapons

The United States has an array of high-tech space weapons in its arsenal and it continues to develop more. (170) These include mass-to-target weapons that destroy either by explosion or by the velocity of impact, (171) directed-energy weapons that concentrate energy to heat and destroy some critical component of the targets, (172) and the space-to-earth deployment of conventional weapons. (173) Each type of system faces its own challenges.

Mass-to-Target Weapons

Mass-to-target weapons include the type of kinetic weapons used in the January, 2007 ASAT test. These weapons use more routine technology and materials to destroy targets through impact. (174) Mass-to-target weapons can be either space-based or earth-based. A kinetic energy weapon can be deployed space-to-space to neutralize a satellite through impact or explosion. (175) A space-to-earth kinetic energy weapon, such as the hyper-velocity bundle of tungsten rods more commonly known as the "Rods from God," (176) relies on a combination of mass and high entry speed to destroy targets without explosives. These can be fired from satellites, and are well-suited for use against bunkers, missile silos, and even heavily fortified ships. (177) The current technological difficulty rests with storing enough energy on the rod to ensure it reaches its target. (178)

Directed-Energy Weapons

Directed-energy weapons include the use of lasers, particle beams and microwaves capable of disabling targets. (179) Lasers disable targets from the outside. Ground-based, short-wave lasers can easily neutralize satellites, but they are energy-intensive and difficult to maneuver or hide. (180) Directed-energy weapons require intensive energy. The Air Force has been working on a space-based nuclear reactor. (181) The Outer Space Treaty does not define "nuclear weapon," leaving it unclear whether deploying a nuclear-powered weapon violates the Treaty. (182)

Lasers can be more effective weapons than ASATs. They travel at the speed of light, striking with little warning. (183) The target has no time to take evasive action. (184) An orbiting satellite would be a sitting duck. The laser's high intense energy would incinerate the target. (185) Although lasers are lightning fast and not subject to the earth's gravitational pull, their uses are limited by the difficulties in powering them. (186) Additionally, atmospheric conditions, such as cloud coverage and wind, all impact the performance of laser weapons. (187)

Lasers can be deployed either from the ground or from space. A ground-based laser (GBL) beams towards the target in space. These lasers are energy-intensive short-wave lasers. (188) Satellites in Low Earth Orbit (LEO) are especially vulnerable to an illumination from a GBL. (189) Conversely, a space-based laser is designed to operate in LEO (190) and to destroy hostile missiles before they reach orbit. (191) These particulate lasers are chemical long-wave lasers that cannot be based on land because of radiation. (192) A fourth type of laser is the x-ray laser, which is notable because it is nuclear-powered. (193)

Particle beams and microwaves operate differently than lasers. While lasers destroy targets from the outside, high-energy atomic particle beams melt the inner workings of their targets. (194) The defensive weapon could easily be altered to become an offensive one. (195) The current legal regime is unprepared to deal with dual-use technologies.

Conventional Weapons

Conventional weapons can be deployed from space against terrestrial targets. These Conventional weapons rely on small, precision weapons to reach targets. (196) Unlike energy weapons or hyper-velocity rods, conventional weapons are slower and more susceptible to defenses such as interceptors. (197)

Despite some technical challenges, space weapons are in the foreseeable future. As States search for the next breakthrough, they are moving away from collective security. Unless the international community takes action, a space race is inevitable.

SPACE ARMS RACE--Is PROLIFERATION INEVITABLE?

Hegemony and Arms Race

The Outer Space Treaty ("Treaty") recognizes the supremacy of the U.N. Charter. Space hawks look to the Treaty's Article III as proof that article 51 expands the common understanding of "peaceful purposes." (198) They argue that a State's inherent right to self-defense encompasses military support and application missions, whether terrestrial or space-based. (199) Therefore, deploying non-WMD weapons would not violate the Outer Space Treaty.

Every medium that the United States and other states have ever operated in, such as land, sea or air, eventually became a medium of conflict. There is no reason to think that outer space will be any different. (200) Space hawks advocate complete domination in outer space, and giving the United States total control. (201) Others worry that the United States' aggressive pursuit of space supremacy would force other States into a space weapons race. (202) In 2004, the U.S. Air Force released Counterspace Operations, pressing for a more aggressive posture in space. (203) In order to protect satellites and other infrastructures in space, the United States has developed the ability to camouflage, jam, defend and destroy other satellites. (204)

The new National Space Policy lists the denial of space access as one of its goals. (205) This violates a main principle of the Outer Space Treaty--the freedom of access to space. The new policy suffers from the same definition ambiguities that plague other international space treaties. Effectively, there is no clear delineation of "adversary" or "interference." (206) The new policy injects further instability into the international community by making the United States the sole arbiter on the rule of space.

U.S. space hawks have long anticipated the dawn of the space warfare era. (207) They argue that because the United States has the most space assets, it must maintain its current level of domination in outer space. (208) SPACECOM's Vision for 2020 spelled out two themes: 1) achieve military domination of outer space to protect U.S. interests and investment; and 2) integrate space forces into the armed forces. (209) The Rumsfeld Commission argued that the United States needs to "project force in space to ... counter presumed threats to U.S. military security there." (210)

If the 2006 National Space Policy in fact leads to the United States' defense of its space hegemony, then the expanded use of technology for national security and defense purposes would result in more insecurity. As it is shaped now, the Policy creates a super-regime under which international cooperation becomes a code word for support of U.S. ventures. Any technological headway to be gained would likely lead to a replay of the Carter/Reagan era and create an arms race. The timing of China's ASAT, India's announcement and Japan's policy reversal indicates that an arms race may be closer than the current administration envisions, or would like to admit. (211)

International Responses--A Race, or a Race of One?

The international community can exercise three options: 1) fall in line with the United States' 2006 National Space Policy position and maintain the status quo, 2) begin negotiations for a "status quo plus" regime that strengthens the existing legal regime, or 3) disregard the United States' opposition and push forward with a comprehensive ban of all space weapons.

Status Quo

If the international community does nothing, the inevitability of space as the next dimension of warfare becomes a self-fulfilling prophecy. "[W]hoever has the capability to control space will likewise possess the capability to exert control [over] the surface of the earth." (212) History has shown that when one state seeks to dominate, there will be a countermeasure from another State. (213) Allowing the United States to be a unipolar space power effectively gives it the gate-keeping power of deciding which State can or cannot access space.

This Note has highlighted deficiencies to the current space law regime. The lack of coherent and agreed-upon definitions creates loopholes. Customary international law becomes the product of the will of one or two states. If the international community takes no action, it would effectively allow a state to hide behind a cloak of national interest and security, in disregard of international obligations and consequences. Giving any one state absolute power to rule outer space runs contrary to the spirit of non discrimination and freedom of access guaranteed by the Outer Space Treaty.

Status Quo Plus

Status quo plus would enhance existing space laws to adapt to the changing geopolitical arena. The international community would go ahead with agreements that would slow the trend of weaponization of space. The United States' position is clear: no participation in any further negotiations on space arms control. (214) Nonetheless, the current confusion in the international space regime proves the need to formulate a coherent and verifiable regime to supplement the Outer Space Treaty. New measures might include confidence-building measures such as setting up multilateral inspection points and provide concrete definitions of "peaceful purposes," "weapons of mass destruction" and "space." One recent proposal would specifically ban ASAT testing. (215) Although a limited goal may be more realistic, it does not resolve the underlying issue of the 2006 Policy--the "do as I say, not as I do" problem of American foreign policy.

Total Ban

The most drastic measure would be for the international community to create a new treaty that truly parallels the Antarctic Treaty, where "peaceful purposes" mean no militarization of any sort. Currently, the United States would not ratify such an agreement, but a total ban would have many advantages. Instead of states spending billions to compete in making the world more volatile, the interdependence of states on satellites and on each other creates an economic deterrent against the outbreak of another conflict. Such a ban would also give the international community moral supremacy. Furthermore, it removes the confusion surrounding which equipment qualifies as "offensive" or "defensive."

The implementation and enforcement of a total ban can be achieved in two ways. One, to establish an equivalent of the International Atomic Energy Commission (IAEC) under the U.N. solely devoted to monitoring and enforcing the non-weaponization of outer space; or two, establish a private organization of space powers to monitor each other and adopt international framework on the use of outer space. There are advantages and disadvantages to both methods. Under the former, membership would be open to all U.N. members, ensuring that the concerns of both space powers and non-space powers are heard. The enforcement would be neutral, and likely to carry wider credibility. However, it would be challenging to prevent the body from turning into another paper-pushing, speech-making bureaucracy. If instead, space powers like Russia, China, the E.U. and Japan band together to create its own organization, it can vastly reduce the bureaucracy hurdles. Furthermore, a condensed body independent of the U.N. would have more flexibility, more efficiency and any frameworks developed by it can better respond to the concerns facing space powers. Non-space powers may greet this organization with skepticism. It would not be inconceivable that a framework for the usage of outer space would over-represent the interests of those with space capabilities at the expense of those without.

Then there is the issue of how to involve the United States in the process of developing a workable framework to prevent weaponization of space. The current administration has made it clear that any inclination to reduce U.S. domination in space is a direct challenge to the United States. But by holding itself to one standard--arms in space as acceptable--and the rest of the world to another--the United States risks becoming a lone cowboy yet again.

If states can recognize that banning the weaponization of outer space benefits mankind, then the fact that United States may oppose, should not end the endeavor. As the history of nuclear weapon's development, deployment and curtailment shows, when one state has a monopoly on military supremacy, there is no incentive for it to engage in restrictive actions. But when there develops a general consensus on the need to curtail that supremacy, be it nuclear weapons or outer space weapons, states will come together.

States that the United States considers as potential adversaries would be taking a risk. The arms race thrives because of fear. When one arms and another chooses not to, the latter will be in a worse position than if it had responded in kind. Thus both sides become prisoners of each other and themselves. But the fear of this fourth best outcome in a prisoner's dilemma (216) is unlikely to be realized. States can be shamed and pressured into compliance. (217) If an international consensus can be reached, the United States would be the pariah who stands for war, not peace. In such a scenario, it would be even less likely for the United States to abuse its space superiority.

An International Moratorium--Racing Its Own Shadow

The quest for space domination is an expensive endeavor that creates no benefit to mankind. The 2006 National Space Policy signals a crossroad. Will this be another instance of the lowest common denominator, in which loftier goals fall because a "majority" of one refuses to play along? Or will this be another opportunity lost, much like the chance to create a military-free outer space half a century ago? Cynics may argue that a total ban of military activities in space, even if it can attract international support, would be futile without the biggest player. That would be putting the fate of many states in the hands of one.

Unfortunately, the new U.S. Space Policy applies a double standard that places U.S. national interests supreme, at the cost of international peace and stability. The purpose of a sanctuary is premised on the notion that the interest of mankind must prevail over the interest of any one state. Ironically, the original champion of that greater good now positions itself to do the precise opposite. The ASAT test of January 2007 is but one indication of the rekindling of a space arms race. Although officials may deny its existence, the trend of hyper-militarization of outer space is clear.

The United States, while seeking to guarantee its national security, has, through its policy changes, made the world less secure. The ultimate irony may be that the country which had originally advocated for an arms control regime in outer space may also be the first to transform that same arena into a battleground. After fifty years of space hegemony, the United States now finds it difficult to "project a peaceful image regarding space activities." (218) It is naive to think that the world would abide by the U.S. definition of "cooperative" measure or "peaceful use" or "interference". It is equally naive to think that United States can wield its supreme space power to dictate one set of lax rules for itself and another strict interpretation of the international legal framework for the rest of the world.

In a game of make-belief demons, one fool is enough, there is no need for 160 more.

(1.) Case in point: during the first Gulf War, commercial communications satellites supplied 45% of U.S. military data. By the second Gulf War, the number bad increased to 80%. See PARLIAMENTARY OFFICE OF SCI. AND TECH., POSTNOTE, MILITARY USES OF SPACE 4, 2006, Num. 273, available at http://www.parliament.uk/documents/upload/postpn273.pdf [hereinafter U.K. POSTNOTE]; see also R. Cargill Hall, Military Space and National Policy: Record and Interpretation, George C. Marshall Institute, May 1, 2006, at 1, available at http://www.marshall.org/pdf/materials/419.pdf.

(2.) See Barry J. Smernoff, A Bold Two-Track Strategy for Space: Entering the Second Quarter-Century, in INTERNATIONAL SECURITY DIMENSIONS OF SPACE 17, 23 (Uri Ra'anan & Robert L. Pfaltzgraff, Jr. eds., 1984). See also Kenneth Luongo & W. Thomas Wander, THE SEARCH FOR SECURITY IN SPACE 16 (1989) (discussing space as the "ultimate high ground") (quoting U.S. SPACE COMMAND, GUARDIANS OF THE HIGH FRONTIER 4 (1997)), and BENJAMIN S. LAMBETH, MASTERING THE ULTIMATE HIGH GROUND--NEXT STEPS IN THE MILITARY USES OF SPACE 101 (2003).

(3.) See Loring Wirbel, Op-Ed, Space Policy Still Off-Course: Bush Administration's Unilateralist Strategy for Space Militarization Is Made in the Clinton Mold, ELEC. ENG'G TIMES, Oct. 30, 2006.

(4.) OFFICE OF SCI. AND TECH. POLICY, U.S. NATIONAL SPACE POLICY (UNCLASSIFIED), Aug. 31, 2006, at 17, available at http://www.globalsecurity.org/space/library/policy/national/ us-space-policy_060831.pdf [hereinafter 2006 National Space Policy].

(5.) DETLEV WOLTER, COMMON SECURITY IN OUTER SPACE AND INTERNATIONAL LAW 1 (2006) (quoting Robert McNamara, Sec'y of Def., Speech on National Defense Policy, Dec. 18, 1967).

(6.) GEORGE C. MARSHALL INST. POLICY OUTLOOK: WHAT DO YOU LEAVE BEHIND? EVALUATING THE BUSH ADMINISTRATION'S NATIONAL SECURITY SPACE POLICY 2 (2006), available at http://www.marshall.org/pdf/materials/490.pdf.

(7.) Id. at 4. See also Matthew Davis, Dominating the Final Frontier, BBC NEWS, Oct. 19, 2006, available at http://news.bbc.co.uk/go/pr/fr/-/2/hi/americas/6068304.stm.

(8.) William Marshall, Weapons in Outer Space, BOSTON GLOBE, Jul. 5, 2006, at A7 (previously, the U.S. abstained instead of voting "no").

(9.) US Opposes Restrictions on Use of Space, SPACE DAILY, Oct. 26, 2006 (quoting Robert Luaces, U.S. representative to the UNGA First Committee on Disarmament & Int. Security, in an Oct. 11, 2006 statement as saying, "The danger ... is not some theoretical arms race in space, but threats that would deny peaceful access to and use of space...."). The position is further echoed by Robert Joseph. See Robert G. Joseph, Under Sec'y of State for Arms Control & Int'l Security, The U.S. National Space Policy, Address Before the George C. Marshall Institute (Dec. 13, 2007), available at http://www.marshall.org/ pdf/materials/481.pdf (stating there is "no need to enter into new agreements ... [we] should concentrate our efforts on real threats, such as those to the nuclear nonproliferation regime" (emphasis added)).

(10.) Tim Reid, 'Star Wars' Missile Test Heralds New Arms Race in Space, LONDON TIMES, Jan. 19, 2007, available at http://www.timesonline.co.uk/ article/0,,11069-2555576,00.html.

(11.) See, e.g., Editorial, A Star Wars Sequel? China Throws Down Gauntlet with Missile Test, DALLAS MORNING NEWS, Jan. 29, 2007, at 12A; Paul Reynolds, China's Space Challenge to the US, BBC NEWS, Jan. 23, 2007, available at http://news.bbc.co.uk/go/pr/fr/-/1/hi/world/asia-pacific/6290525.stm.

(12.) China: Space Invaders, THE ECONOMIST, Jan. 22, 2007.

(13.) Praful Bidwai, Doomsday Clock Ticking Faster--in Asia, INTER PRESS SVCS., Jan. 22, 2007.

(14.) See, e.g., A New Arms Race? China's Satellite Test, THE ECONOMIST, Jan. 27, 2007; Jason Beattie, Chinese Missile Test Sparks Fears of 'Star Wars' Race, THE EVENING STANDARD (LONDON), Jan. 19, 2007, at A22; Peter Spiegel & James Gerstenzang, Chinese Missile Strikes Satellite, L.A. TIMES, Jan. 19, 2007, at A1, available at http://www.latimes.com/news/nationworld/world/la-fgsatellite 19jan 19,0,3917551.story?coll=la-home-headlines.

(15.) Clarence A. Robinson, Jr., Antisatellite Weaponry and Possible Defense Technologies Against Killer Satellites, in INT'L SEC. DIMENSIONS OF SPACE 71 (Uri Ra'anan & Robert L. Pfaltzgraff, Jr. eds., 1984).

(16.) See Reid, supra note 10. See also Jim Wolfe, U.S. Military Cites Growing China Space, Cyber Threat, REUTERS, May 20, 2008, http://www.reuters.com/ article/idUSN2029195220080520 (Army Brig. Gen. Jeffrey Home of the U.S. Strategic Command refered to China as "aggressively" pursuing military ambitions in outer space).

(17.) Singapore Daily Questions Asia's Stability as China Takes Arms Race into Space, BBC WORLDWIDE MONITORING, Jan. 22, 2007.

(18.) See China Confirms Satellite Downed, BBC NEWS, Jan. 23, 2007, available at http://news.bbc.co.uk/go/pr/fr/-/2/hi/asia-pacific/6289519.stm.

(19.) Incidentally, this was the exact technology used by the United States to shoot down its crippled satellite. See Jim Miklaszewski, Transcript, The US Military is Ready to Shoot Down Crippled Spy Satellite as Early as Today, NBC NEWS, Feb. 20, 2008 (the estimated speed at impact for the U.S. kill was 20,000mi/hr).

(20.) The technology has existed since the Canner Administration. See John Liang, U.S. Official Says new Multilateral Space Agreements Unnecessary, 23 INSIDE THE PENTAGON 3 (2007) (citing Robert G. Joseph, Under Sec'y of State for Arms Control & Int'l Security, Remarks on the President's National Space Policy--Assuring America's Vital Interests, Remarks to Center for Space & Defense Forum (Jan. 11, 2007), available at http://www.state.gov/t/s/rm/78679.htm).

(21.) See U.K. POSTNOTE, supra note 1.

(22.) William J. Broad & David E. Sanger, Flexing Muscle, China Destroys Satellite in Test, N.Y. TIMES, Jan. 19, 2007, at A1. The former U.S.S.R. alone conducted approximately 20 ASAT tests between 1968 and 1982. DANIEL GONZALEZ, THE CHANGING ROLE OF THE U.S. MILITARY IN SPACE 27 (1999).

(23.) Mark Kaufman & Dafna Linzer, China Criticized for Anti-Satellite Missile Test; Destruction of an Aging Satellite Illustrates Vulnerability U.S. Space Assets, WASH. POST, Jan. 19, 2007, at A1.

(24.) The former Soviet Union had originally sought to completely demilitarize outer space and ban military bases on foreign soil. See WOLTER, supra note 5, at 11 (citing G.A. Res. U.N. Doc. A/3818, Annexes (Mar. 15, 1958)); Joseph J. Simeone, Jr., Space--A Legal Vacuum, 16 MIL. L. REV. 43, 56 n.58 (1962). In 1981, it sought to impose a blanket ban on stationing weapons in space. See S. Neil Hosenball, Present and Prospective Military Technologies and Space Law: Implications of the 1967 Outer Space Treaty, in INT'L SEC. DIMENSIONS OF SPACE 219, (Uri Ra'anan & Robert L. Pfaltzgraff, Jr. eds., 1984) (citing U.N.G.A. Doc. A/36/192, Aug. 11, 1981). In 2002, China and Russia had tried to ban the use of weapons in space. See Paul Reynolds, China's Space Challenge to the US, BBC NEWS, Jan. 23, 2007, available at http://news.bbc.co.uk/go/pr/fr/-/1/hi/world/asiapacific/6290525.stm.

(25.) Nick Cumming-Bruce, U.N. Weighs a Ban on Weapons in Space, but U.S. Still Objects, N.Y. TIMES, Feb. 13, 2008, at A11, available at http://www.nytimes.com/2008/02/13/world/europe/13arms.html?_r=1&sq=.

(26.) Id.

(27.) Liang, supra note 20.

(28.) However, the White House welcomes "discussions aimed at promoting transparency and confidence-building measures." Cumming-Bruce, supra note 25.

(29.) See U.S. Space Command, Vision for 2020, Feb. 1997, at 4, available at http://www.fas.org/spp/military/docops/usspac/visbook.pdf [hereinafter SPACECOM]. In the late 19th century, Alfred Thayer Mahan advocated naval supremacy as the key to world supremacy. See generally ALFRED THAYER MAHAN, THE INFLUENCE OF SEA POWER UPON THE FRENCH REVOLUTION AND EMPIRE, 1793-1812 (1892).

(30.) Report of the Commission to Assess United States National Security Space Management and Organization vii, xiii, xv (2001) [hereinafter the Rumsfeld Commission Report].

(31.) See Marc Kaufman, Bush Sets Defense as Space Priority; U.S. Says Shift Is Not A Step Toward Arms; Experts Say It Could Be, WASH. POST, Oct. 18, 2006 at A 1. (reporting on the recommendations of the Rumsfeld Commission).

(32.) See MICHAEL E. O'HANLON, NEITHER STAR WARS NOR SANCTUARY: CONSTRAINING THE MILITARY USES OF SPACE 13 (2004).

(33.) See 2006 NATIONAL SPACE POLICY, supra note 4.

(34.) See id. [section] 2 (emphasis added); cf. THE WHITE HOUSE, NAT'L SCI. & TECH. COUNCIL, FACT SHEET--NATIONAL SPACE POLICY, art. 2, para. 2, Sept. 19, 1996, available at http://history.nasa.gov/appf2.pdf [hereinafter 1996 National Space Policy] (the United States "rejects any limitations on the fundamental right of sovereign nations to acquire data from space.") (emphasis added).

(35.) 1996 National Space Policy, supra note 34, para. 4. "All [U.S. governmental] actions ... shall be consistent with U.S. law, regulations, national security requirements, foreign policy, international obligations and nonproliferation policy." Id. (emphasis added).

(36.) See generally 2006 NATIONAL SPACE POLICY, supra note 4. Furthermore, the new policy "oppose[s] the development of new legal regimes or other restrictions that seek to prohibit or limit U.S. access to or use of space." Id. [section] 2, para. 6 (emphasis added). Any such restrictions "must not impair the rights of the United States to conduct ... activities in space for U.S. national interests...." Id. (emphasis added).

(37.) See Dwayne A. Day, Not Really Lost in Space: the New National Space Policy, THE SPACE REV., Nov. 13, 2006, at http://www.thespacereview.com/ article/7415/1; see also 2006 NATIONAL SPACE POLICY, supra note 4, art. 3 (second policy goal is to "[e]nable unhindered U.S. operations in and through space to defend [its] interests there."). Because space capabilities are now deemed to be vital national interests, the U.S. "preserve[s] its rights ... [to] freedom of action in space; dissuade or deter others from either impeding those rights or developing capabilities intending to do so...." Id. art. 2, para. 5.

(38.) See 2006 National Space Policy, supra note 4, at art. 2, para. 6 (refusing to discuss new restrictions that may limit U.S.'s actions in space); cf. 1996 National Space Policy, supra note 34, at para. 4 (stating that official U.S. actions will comport to "international obligations and nonproliferation policy.").

(39.) Cheryl Pellerin, Freedom of Action Centerpiece of New U.S. Space Policy, STATE DEP'T DOCUMENTS AND PUBL'N, Oct. 25, 2006.

(40.) US Adopts Tough New Space Policy, BBC NEWS, Oct. 18, 2006, available at http://news.bbc.co.uk/go/pr/fr/-/2/hi/americas/6063926.stm

(41.) See Pro-Kremlin Group Protests at US Space Policy in Moscow, BBC NEWS WORLD MONITORING (EKHO MOCKOVY NEWS AGENCY), Oct. 30, 2006. Oct. 30, 2006; See also Davis, supra note 7.

(42.) 2006 National Space Policy, supra note 4, art. 2, para. 5.

(43.) For example, the 2006 National Space Policy does not specify what types of behavior constitute a threat that warrants an armed response. See National Space Policy, supra note 4.

(44.) See Kaufman, supra note 31.

(45.) Joseph Kahn, China Confirms Space Test; Denies Intent to Intimidate, N.Y. TIMES, Jan. 24, 2007, available at http://www.nytimes.com/2007/01/24/ world/asia/24china.html (the timing of the test suggests that China is in fact trying to prod the United States back into space arms negotiation).

(46.) Craig Covault, Iran's Sputnik; Tehran Looks Poised to try Satellite Launch with Long Range Missile Implications, AVIATION WEEK & SPACE TECH., Jan. 29, 2007, at 24.

(47.) Vivek Raghuvanshi, China's ASAT Galvanizes Indian Efforts, DEF. NEWS, Apr. 9, 2007, at 20.

(48.) Japan to Allow Military Use of Space: Lawmakers, AFP, May 5, 2008, http://afp.google.com/article/ALeqM5jgS1EqKI1nsHogI9v1U3dGx0CO6w.

(49.) O'Hanlon, supra note 32, at 132.

(50.) See, e.g., 2006 NATIONAL SPACE POLICY, supra note 4, art. 2, para. 5 (suggesting the possibility of military action against anyone or anything that may undermine the current space supremacy).

(51.) See text accompanying supra note 9.

(52.) 2006 NATIONAL SPACE POLICY, supra note 4, art. 2, para. 6.

(53.) Liang, supra note 20 (quoting Undersecretary Robert G. Joseph's Jan. 11, 2007 remarks in Colorado Springs).

(54.) See The Week, NAT'L REV., Nov. 20, 2006. U.S. relied upon the original Monroe Doctrine to prevent European powers from encroaching upon the United State's sphere of influence in Central and South America. See The Monroe Doctrine, available at http://usinfo.state.gov/infousa/government/overview/50.htm (last visited Mar. 3, 2006).

(55.) See Kaufman & Linzer, supra note 23 (quoting Michael Krepon, president emeritus of the Henry L. Stimson Center, saying that the test was a "predictable" but "unfortunate" response to the U.S. space policy).

(56.) Kaufman, supra note 31.

(57.) As far back as the Eisenhower era, satellites were already used for military purposes police arms control compliance, reconnaissance, and as early warning systems for incoming missile attacks. Hall, supra note 1, at 3. The Stockholm International Peace Research Institute estimates that approximately 70% of all satellites in outer space serve at least some military purpose. WOLTER, supra note 5, at 31.

(58.) Maj. Elizabeth Seebode Waldrop, Integration of Military & Civilian Space Assets: Legal & National Security Implications, 55 A.F.L. REV. 157, 159 (2004).

(59.) Mark E. Harter, Ten Propositions Regarding Space Power: The Dawn of a Space Force, 20 AIR & SPACE POWER J. 64, 64 (2006).

(60.) U.S. DEPT. OF STATE, BUREAU OF VERIFICATION, COMPLIANCE, AND IMPLEMENTATION, NARRATIVE, TREATY ON PRINCIPLES GOVERNING THE ACTIVITIES OF STATES IN THE EXPLORATION AND USE OF OUTER SPACE, INCLUDING THE MOON AND OTHER CELESTIAL BODIES, Oct. 10, 1967, available at http://www.state.gov/t/ac/trt/5181.htm. [HEREINAFTER DoS, BACKGROUND ON THE OST] (citing Eisenhower's address to the United Nations General Assembly (Sept. 22, 1960)).

(61.) WOLTER, supra note 5, at 10.

(62.) Colby C. Nuttall, Comment, Defining International Satellite Communications as Weapons of Mass Destruction: The First Step in a Compromise Between National Sovereignty and the Free Flow of Ideas, 27 Hous. J. INT'L L. 389, 394 (2005).

(63.) See Hosenball, supra note 24, at 213.

(64.) See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, Jan. 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205, art. 4 [hereinafter Outer Space Treaty].

(65.) Apr. 22, 1968, 19 U.S.T. 7570 [hereinafter the Rescue Treaty], dealing with the rescue of astronauts.

(66.) Mar. 29, 1972, 24 U.S.T. 2389, 961 U.N.T.S. 187 [hereinafter the Liability Convention], dealing with liability of States for actions that damaged the space assets of another State.

(67.) Jan. 14, 1975, 28 U.S.T. 695, 1023 U.N.T.S. 15 [hereinafter the Registration Convention], creatig a universally-accessible international data bank of objects in space.

(68.) Dec. 18, 1979, 18 I.L.M. 1434 [hereinafter the Moon Treaty], the most controversial, dealing with the accumulation and distribution of lunar resources. See also Joanne Irene Gabrynowicz, Space Law: Its Cold War Origins and Challenges in the Era of Globalization, 37 SUFFOLK U. L. REV. 1041, 1046 (2004).

(69.) Andrew Park, Incremental Steps for Achieving Space Security: the Need for a New Way of Thinking to Enhance the Legal Regime for Space, 28 Hous. J. IYT'L L. 871, 876 (2006).

(70.) DoS, BACKGROUND ON THE OST, supra note 60.

(71.) Nina Tannenwald, Law Versus Power on the High Frontier: The Case for a Rule-Based Regime for Outer Space, 29 YALE J. INT'L L. 363, 367 (2004).

(72.) Gabrynowicz, supra note 68, at 1042.

(73.) See DOS, BACKGROUND ON THE OST, supra note 60.

(74.) See C. WILFRED JENKS, SPACE LAW 45 (1965).

(75.) Id. at 192.

(76.) Tannenwald, supra note 71, at 374.

(77.) See O'Hanlon, supra note 32, at 8. States already use space as military support. Tannenwald, supra note 71, at 364.

(78.) WOLTER, supra note 5, at 19.

(79.) See DoS, BACKGROUND ON THE OST, supra note 60 (citing Dwight Eisenhower, President of the United States, Address to the United Nations General Assembly (Sept. 22, 1960)).

(80.) Michel Bourbonniere, NATIONAL-SECURITY LAW IN OUTER SPACE: THE INTERFACE OF EXPLORATION AND SECURITY, 70 J. AIR L. & COM. 3, 7 (2005); Outer Space Treaty, supra note 64, arts. 1, 2, 4.

(81.) Outer Space Treaty, supra note 64, art. 1.

(82.) Id. art. 3. Cf. White House Directs DoD to Create List of Space Defense Capabilities, 12 INSIDE MISSILE DEFENSE 26 (2006) (quoting Under Secretary Robert G. Joseph that any "infringement" on U.S. operations will be treated as "interference with U.S. naval and commercial vessels" on high sea, subject to diplomatic or even military responses) [hereinafter DoD to List Space Defense Capabilities].

(83.) U.N. Charter, ch. VII, art. 51, available at http://www.un.org/aboutun/charter/chapter7.htm (last visited Jan. 28, 2007).

(84.) Id.

(85.) Outer Space Treaty, supra note 64, art. 4, [paragraph] 1.

(86.) Id. art.4, para. 2.

(87.) See KARL GROSSMAN, WEAPONS IN SPACE 16 (2001) (discussing space as the "ultimate high ground") (quoting U.S. SPACE COMMAND, GUARDIANS OF THE HIGH FRONTIER 4 (1997)).

(88.) WOLTER, supra note 5, at 14. The U.S.S.R. submitted its draft to U.N.'s Ten-Nation Committee on Disarmament on March 19, 1962; the U.S. did the same a month later on April 18, 1962. Id.

(89.) Id.

(90.) Id.

(91.) See Patrick J. Friel, New Directions for the U.S. Military and Civilian Space Programs, in INTERNATIONAL SECURITY DIMENSIONS OF SPACE 121-32 (Uri Ra'anan & Robert L. Pfaltzgraff, Jr. eds., 1984).

(92.) See O'HANLON, supra note 32, at 13-14; Press Release, Statement by the President, (Jun. 13, 2002), available at http://www.whitehouse.gov/ news/releases/2002/06/20020613-9.html [hereinafter ABM Press Release] (outlining new threats to America).

(93.) Aug. 5, 1963, 14 U.S.T. 1313, 480 U.N.T.S. 43 [hereinafter the Limited Test Ban Treaty].

(94.) BENJAMIN S. LAMBETH, MASTERING THE ULTIMATE HIGH GROUND--NEXT STEPS IN THE MILITARY USES Or SPACE 101-02 (2003).

(95.) Id. at 102.

(96.) Limited Test Ban Treaty, supra note 93, art. 1.

(97.) Bourbonniere, supra note 80, at 35.

(98.) May 26, 1972, 23 U.S.T. 35, 94 U.N.T.S. 13 [hereinafter the ABM Treaty]. The United States withdrew from the treaty on Jun. 13, 2002. See ABM Press Release, supra note 92.

(99.) LAMBETH, supra note 94, at 113.

(100.) Bourbonniere, supra note 80, at 37.

(101.) See ABM Press Release, supra note 92.

(102.) See U.K. POSTNOTE, supra note 1, at 4.

(103.) See, e.g., Park, supra note 69, at 881-84; Tannenwald, supra note 71, at 397.

(104.) Hosenball, supra note 24, at 218.

(105.) For example, the U.S. and the former U.S.S.R. interpreted "peaceful" as "non-aggressive," while the international community preferred "nonmilitary." Tannenwald, supra note 71, at 372-73.

(106.) See Hall, supra note 1, at 1-3 & 7.

(107.) Id. at 1-2.

(108.) NAT'L SEC. COUNCIL (NSC), Draft Statement of Policy on U.S. Scientific Satellite Program, NSC-5520 (1955) (as discussed in Hall, supra note 1, at 2-3) [hereinafter NSC-5520]. See also Peter L. Hays, United States Military Space: Into the Twenty-First Century, 42 USAF INST. FOR NAT'L SEC. STUDIES, at 34, n.3 (2002), available at http://www.usafa.af.mil/df/inss/OCP/OCP42.pdf.

(109.) See Hays, supra note 108, at 34, n.3.

(110.) 42 U.S.C. [section] 2451 (2005) [hereinafter the Space Act].

(111.) The Space Act, [section] 2451(a).

(112.) See Id. [section] 2451(b).

(113.) Jonathan N. Halpern, Note, Antisatellite Weaponry: The High Road to Destruction, 3 B.U. INT'L L.J. 167, 170-71 (1985).

(114.) Hall, supra note 1, at 3, 4 (NASA's establishment effectively cordoned off military R&D in space to the Department of Defense and the CIA).

(115.) See Halpern, supra note 113, at 171.

(116.) Waldrop, supra note 58, at 159.

(117.) Friel, supra note 91, at 136.

(118.) See Halpern, supra note 113, at 172-73 (citing THE WHITE HOUSE, Launch Assurance Policy (Oct. 9, 1972)).

(119.) Presidential Directive, NSC-37, National Space Policy (May 11, 1978), available at http://www.hq.nasa.gov/office/pao/History/nsc-37.html [hereinafter 1978 National Space Policy].

(120.) Halpern, supra note 113, at 173. "The United States will pursue activities in space in support of its fight of self-defense ... thereby strengthen national security, the deterrence of attack, and arms control agreements." Id.

(121.) Halpern, supra note 113, at 174.

(122.) Id. at 175 (quoting Presidential Directive/NSC-42, Civil and Further National Space Policy (Oct. 10, 1978), available at http://www.au.af.mil/au/awc/awcgate/nsc-42.htm.

(123.) Ronald Reagan, President, Address to the Nation on National Security (Mar. 23, 1983), text available at http://www.pierretristam.com/Bobst/library/wf-241.htm (last visited Mar. 13, 2008).

(124.) See id. at 175-76.

(125.) See Outer Space Treaty, supra note 64, art. 4.

(126.) See Kaufman, supra note 31; see also 1996 NATIONAL SPACE POLICY, supra note 34.

(127.) 1996 National Space Policy, supra note 34, para. (6)(g) (emphasis added).

(128.) Id. para. (5).

(129.) NASA's space budget for 2007 alone totals approximately $17 billion. China Confirms Satellite Downed, BBC NEWS, Jan. 23, 2007, available at http://news.bbc.co.uk/go/pr/fr/-/2/hi/asia-pacific/6289519.stm. As of 1984, the U.S. had already spent over $100 billion to enhance military capabilities in space. Joseph E. Justin, Space: A Sanctuary, the High Ground, or a Military Theater?, in INT'L SEC. DIMENSIONS OF SPACE 102, 105 (Uri Ra'anan & Robert L. Pfaltzgraff, Jr. eds., 1984).

(130.) Nuttall, supra note 62, at 390.

(131.) Glenn Harlan Reynolds, International Space Law in Transformation: Some Observations (Symposium: Issues in Space Law), 6 CHI. J. INT'L L. 69, 72 (2005).

(132.) Id. at 72-73.

(133.) Id.

(134.) See, e.g., ANTI-SATELLITE WEAPONS AND U.S. MILITARY SPACE POLICY--AN ASPEN STRATEGY GROUP REPORT 4 (1986); see also O'HANLON, supra note 32, at 3-4, 43 (discussing the varied applications of satellites).

(135.) Harter, supra note 59, at 72.

(136.) Negation can occur through a combination of deception, disruption, denial, degradation and destruction of an adversary's space capabilities. Id. at 73. Some purely defensive measures include increasing a satellite's maneuverability to evade an attack, "hardening" the exterior to withstand spoofing and jamming, and relying on redundancy to lessen the impact of any loss. Waldrop, supra note 58, at 195.

(137.) See generally PAUL B. STARES, THE MILITARIZATION OF SPACE: U.S. POLICY, 1945-1984 (1985).

(138.) Tannenwald, supra note 71, at 364. The military has been concerned that outer space will become "a sanctuary for support of hostile forces." Sullivan, infra note 140, at 213 (quoting ARMS CONTROL AND DISARMAMENT AGENCY, ANNUAL REPORT 9 (1984)).

(139.) Between Oct. 20, 1968 and Jun. 18, 1984, the U.S.S.R. conducted 20 hunter-killer satellite intercept tests. O'HANLON, supra note 32, at 8. These tests occurred at an altitude of between 160 km and 1500 km and involved placing killer satellites in orbit, guiding it towards the target and detonating a conventional warhead. Robinson, supra note 15, at 71.

(140.) Colleen Driscoll Sullivan, The Prevention of an Arms Race in Outer Space: An Emerging Principle of International Law, 4 TEMP. INT'L & COMP. L.J. 211,212 (1990).

(141.) Incidentally, there is no formal definition of "weapons of mass destruction" either. See Bourbonniere, supra note 80, at 11. The Outer Space Treaty is completely silent on the passage of nuclear ballistic missiles through space. Tannenwald, supra note 71, at 371.

(142.) See U.K. POSTNOTE, supra note 1 (defining "dual-use").

(143.) Id.

(144.) See Tannenwald, supra note 71, at 364, 371.

(145.) Jeff Kueter, The War in Space Has Already Begun, THE MARSHALL INSTITUTE POLICY OUTLOOK, Oct. 2006, http://www.marshall.org/pdf/materials/459.pdf.

(146.) Tannenwald, supra note 71, at 371. Since no country has formally challenged this interpretation, it has become customary international law, applicable to all States. Id. at 373.

(147.) See generally Maj. David L. Willson, An Army View of Neutrality in Space: Legal Options for Space Negation, 50 A.F.L. REV. 175 (2001) (advocating that neutral States whose satellites are being used by an adversary in an attack, lose the protection guaranteed by the laws of neutrality).

(148.) U.K. POSTNOTE, supra note 1. The U.S. owns or operates 53% of all active, orbiting satellites, more than any other country. William J. Broad, Look Up! It's No Meteor, It's an Arms Race?, N.Y. TIMES, Jan. 21, 2007, at 3.

(149.) See Outer Space Treaty, supra note 64, art. 4 (banning only the stationing of WMDs in outer space).

(150.) Barry J. Hurewitz, Non-Proliferation & Free Access to Outer Space: The Dual-Use Conflict Between the Outer Space Treaty & the Missile Technology Control Regime, 9 HIGH TECH. L.J. 211, 230 (1994).

(151.) Shelton: Space Warefare is Certain; DoD Must Get Ready, INSIDE THE PENTAGON, Mar. 1, 2007, available at 2007 WLNR 3915374 (quoting Maj. Gen. William L. Shelton, commander of 14th Air Force at Vandenberg Air Force Base, California).

(152.) Id.

(153.) Richard A. Morgan, Military Use of Commercial Communication Satellites: a New Look at the Outer Space Treaty & "Peaceful Purposes", 60 J. AIR L. & COM. 237, 239 (1994).

(154.) Id.

(155.) WOLTER, supra note 5, at 25.

(156.) Hall, supra note 1, at 3.

(157.) Morgan, supra note 153, at 248-49 (citing Walter D. Reed & Robert W. Norris, Military Use of the Space Shuttle, 13 AKRON L. REV. 665, 666-67 (1979)).

(158.) O'HANLON, supra note 32, at 3-4, 43.

(159.) ANTI-SATELLITE WEAPONS AND U.S. MILITARY SPACE POLICY--AN ASPEN STRATEGY GROUP REPORT 18 (1986) [hereinafter ASPEN REPORT].

(160.) Marshall, supra note 8. The Missile Defense Agency is pushing for yet another budget hike, this time to develop space-based interceptors. Id.

(161.) WOLTER, supra note 5, at 27 (citing Daniel Goedhuis, Some Observations on the Attitude of West-European Governments to the Development of Defensive Weapons in Outer Space, 15 J.S.L. 100 (1987)).

(162.) CURTIS PEEBLES, BATTLE FOR SPACE 77 (1983).

(163.) ASPEN REPORT, infra note 159, at 9 ("Spoofing," or confusing a satellite through jamming or electronic decoys, is a common mode of attack). "Kinetic" weapons include "hit-to-kill" weapons. Id. at 25. These weapons are usually very small. They destroy targets by hitting them at high velocity, usually at an altitude of above 60krn. BOB PRESTON, ET. AL., SPACE WEAPONS EARTH WARS 37 (2002).

(164.) Bourbonniere, supra note 80, 16-17.

(165.) Park, supra note 69, at 883-84 (citing Johannes M. Wolff, "Peaceful Use" of Outer Space Has Permitted Its Militarization--Does it Also Mean Its Weaponization?, 2003 DISARMAMENT FORUM 5, 8, available at http:// www.unidir.ch/pdf/articles/pdf-art1883.pdf).

(166.) Tannenwald, supra note 71, at 371.

(167.) This analogy translates into the debate on the weaponization or disarmament of outer space also. See WOLTER, supra note 5, at 31; see also W.L. Spacy II, Does the United States Need Space-Based Weapons?, Sept. 1999, available at http://research.au.af.mil (highlighting the difficulty in distinguishing between offensive and defensive weapons as a strategy-based distinction rather than one based on any objective capability).

(168.) Weaponizing Space: Is Current U.S. Policy Protecting Our National Security?: Hearing Before the Subcomm. on Nat'l. Sec. & Foreign Affairs, 110th Cong. 11 (2007) (opening statement of Rep. Tierney, Chairman, House Subcomm. on Nat'l. Sec. & Foreign Affairs), available at http://bulk.resource.org/ gpo.gov/hearings/110h/37094.pdf (United States "owns or operates 443 of 845 of active satellites" currently in orbit).

(169.) Only the United States (and Guam) oppose the need to control space weapons. See Davis, supra note 7. 170. Marshall, supra note 8.

(171.) PRESTON, supra note 163, at 24-25.

(172.) ASPEN REPORT, supra note 163, at 25.

(173.) PRESTON, supra note 163, at 46.

(174.) Id. at 36-37.

(175.) Id. at 37.

(176.) Jonathan Shanin, Rods from God, N.Y. TIMES MAGAZINE, Dec. 10, 2006, at 70. Tungsten, which is one of the densest metals available, has a high melting point and is inexpensive to acquire. PRESTON, supra note 163, at 42-43.

(177.) Id. at 40-41. These tungsten rods can reach a terminal velocity of 10,000'/sec. Shanin, supra note 176.

(178.) See PRESTON, supra note 163, at 40.

(179.) See GONZALEZ, supra note 22, at 36 (describing different types of ASATs).

(180.) See PRESTON, supra note 163, at 33 and WOLTER, supra note 5, at 33.

(181.) KARL GROSSMAN, WEAPONS IN SPACE 35 (2001) (citing U.S. Air Force Advisory Board, New World Vistas: Air and Space Power for the 21st Century, SPACE TECH. Volume XVIII (1996)).

(182.) Bourbonniere, supra note 80, at 11.

(183.) PEEBLES, supra note 162, at 129.

(184.) Id. at 129-30.

(185.) Id. at 130.

(186.) WOLTER, supra note 5, at 33.

(187.) PEEBLES, supra note 162, at 132-33.

(188.) WOLTER, supra note 5, at 33.

(189.) PRESTON, supra note 163, at 79.

(190.) Low Earth Orbit (LEO), extends from approximately 300 miles upwards., and it is considered an unstable orbit because stationary objects inside the LEO will fall towards Earth. See Marc E. Vaucher, Geographical Parameters for Military Doctrine in Space and the Defense of the Space-Based Enterprise, in INTERNATIONAL SECURITY DIMENSIONS OF SPACE 32, 37 (Uri Ra'anan & Robert L. Pfaltzgraff, Jr. eds., 1984).

(191.) Park, supra note 69, at 900.

(192.) WOLTER, supra note 5, at 33.

(193.) Id.

(194.) Id.

(195.) See Davis, supra note 7 and U.K. POSTNOTE, supra note 1 at 4.

(196.) PRESTON, supra note 163, at 46.

(197.) Id.

(198.) The Outer Space Treaty does not define "peaceful purposes." Tannenwald, supra note 71, at 397.

(199.) Id. at 389.

(200.) Adam J. Herbert, Turning a Corner on Space, 90 J. AIR FORCE ASSOC. 1, Jan. 2007, available at www.afa.org/magazine/jan2007/0107space.html (citing Maj. Gen. William L. Shelton, commander of 14th Air Force at Vandenberg Air Force Base, California).

(201.) See GONZALEZ, supra note 22, at 25 (defining "space control").

(202.) The United States had made the same argument in justifying its development of ASAT technology. Halpern, supra note 113, at 174.

(203.) Reynolds, supra note 131, at 72 (citing UNITED STATES AIR FORCE, COUNTERSPACE OPERATIONS, Air Force Doctrine Document 2.2.1 (Aug. 2, 2004)).

(204.) See Waldrop, supra note 58, at 196, and ASPEN REPORT, supra note 159, at 9 (1986).

(205.) 2006 National Space Policy, supra note 4, para. 5. The position is also echoed in statements by the Under Secretary of State for Arms Control and International Security. See DoD to List Space Defense Capabilities, supra note 82.

(206.) See 2006 National Space Policy, supra note 4, art. 2, para. 4.

(207.) See Shelton: Space Warefare is Certain; DoD Must Get Ready, INSIDE PENTAGON, Mar. 1, 2007, available at 2007 WLNR 3915374.

(208.) Tannenwald, supra note 71, at 365.

(209.) Id. (citing SPACECOM, supra note 29, at 8).

(210.) Id. at 366.

(211.) See supra p. 420.

(212.) Justin, supra note 129, at 107 (quoting Gen. Thomas White).

(213.) The Soviet threat pushed the United States to enhance its military space operations during the Cold War. Id. at 107-08. Similar instances of tit-for-tat can be seen in the 1998 nuclear weapons test by India and Pakistan, see Indian and Pakistan Nuclear Weapons, CRS REPORT FOR CONGRESS, Feb. 17, 2005, at 1, available at http://www.ndu.edu/library/docs/crs/crs_rs21237_17feb05.pdf.

(214.) See 2006 National Space Policy, supra note 4, art. 2, para. 6.

(215.) See generally Frank M. Walsh, Forging a Diplomatic Shield for American Satellites: The Case for Reevaluating the 2006 National Space Policy in Light of a Chinese Anti-Satellite System, 72 J. AIR L. & COMM. 759 (2007).

(216.) In this case it would be, for example, the U.S. being fully armed and dominant, while Russia and China give up all military space capabilities. For a more detailed explanation on prisoner's dilemma, see Walsh, supra note 215, at 784.

(217.) O'HANLON, supra note 32, at 116 (when President George H. W. Bush removed tactile nuclear weapons from naval ships, the U.S.S.R. reciprocated also).

(218.) Cf. WOLTER, supra note 5, at 10 ("[T]he United States would, if possible, project a peaceful image regarding space activities") (quoting Pres. Dwight Eisenhower's immediate reaction to the launch of Sputnik in 1957).

Cynthia B. Zhang, BA, Political Science, Rutgers College, 2003; JD Candidate, Rutgers School of Law--Newark, 2008. I am indebted to morn and dad for their wisdom, heart and grace, and for being the best parents anyone could ask for. Many thanks also to Prof. Sabrina Safrin, for her time and expertise on international treaty regime; and to Dr. Robert W. Zuber, for his good humor, unwavering support and generosity.