Satellite States: China and America’s National Security in Space

By Samuel Naramore

Introduction

Over sixty years ago, in April of 1961, the Soviet Union successfully left the terrestrial safety of Earth and entered outer space (“space”) for the first time.[1] The Soviets entering space initiated the Cold War’s Space Race, prompting the U.S. to devote extraordinary amounts of resources towards developing its space capabilities––to beat the Soviets to the Moon.[2] After reaching the Moon in 1969 as part of NASA’s Apollo program, the United States (“U.S.”) claimed the position as the World’s premier space power.[3]

Since the “Space Race” of the Cold War, the U.S. has led the world in public and private expenditure in space.[4] Even though direct spending on space initiatives by the U.S. government has waned under recent presidential administrations, compared to other space-faring nations, the U.S. still invests more in its space program than any other country.[5] This expenditure since 1961 helped the U.S. establish itself as the dominant presence in space and leading the world in technological advancements––many of which American citizens increasingly rely on.[6]

Countries are interested in space because of the opportunities for immense wealth and technological advancement.[7] Space programs, like NASA, have made significant technological and scientific advancements by conducting space research; furthermore, satellite technology is integral to the contemporary economic and scientific landscape.[8] Americans use space technology and satellites daily, and many experts consider space-age technologies as a “Fourth Industrial Revolution,” with the potential to increase the quality of life for people worldwide.[9]

Satellite technology is essential to the U.S. space prowess.[10] In both military and civilian applications, satellites are critical to many of the U.S.’s technological capabilities, ranging from communication, economic management, and GPS navigation, to name a few.[11] As of 2023, the U.S. has a total of 5,798 satellites in orbit––the most for any government.[12] The number of operational satellites in orbit from different governments and private companies is approximately 26,673 and the majority are commercial, but this number continues to grow.[13]

Since entering space, the domain’s military benefits were immediately apparent, and the U.S. began investing billions of dollars yearly into its space capabilities.[14] With the importance of space growing, and the increasing reliance on its space assets like satellites, remaining the world leader in space must be a priority for the U.S.’s national security.[15] For civilians, satellites are critical to maintaining financial systems, powering information systems, and enabling communication.[16] Militarily, the U.S. is more reliant on its space assets than any other country.[17] Rivals to the U.S. have noticed the U.S.’s reliance on satellites, and adversarial intelligence analysts report the American military “relies upon [satellites] for 70-90 percent of its intelligence and 80 percent of its communications….”[18] The consequences of an adversarial country damaging or destroying U.S.’s satellites could paralyze the country’s ability to defend itself, respond to emergencies, communicate, or even navigate across roads, waterways, or flight routes.[19]

Space Law

Space law is largely governed through different international treaties and customary international law.[20] Five treaties make up the bulk of space law:

1. The Outer Space Treaty (1967)
2. The Rescue Agreement (1968)
3. The Liability Convention (1972)
4. The Registration Convention (1976)
5. The Moon Agreement (1984).[21]

However, the Outer Space Treaty (“OST”), often referred to as the “constitution for outer space,” was the first international treaty governing space, laying the foundation for subsequent laws governing the domain.[22] The international community recognizes the OST as customary international law, binding all countries to its provisions––not just the original signatories.[23]

Because the OST was the first treaty governing human behavior in space, this discussion will focus primarily on the OST. The OST provides basic guidelines on the conduct of countries in space.[24] In addition to general ideals, the OST’s overarching goal is to prevent warfare in the domain and facilitate international peace in space.[25] The OST lists what countries cannot do in space but is vague on what countries can do.[26] Article IV of the OST explicitly prohibits countries from stationing any “weapon of mass destruction” in space or on celestial bodies; the “establishment of military bases, installations and fortifications”; and the “testing of any type of weapons” on the Moon or other celestial bodies.[27] This language constrains any offensive military actions countries can take in space; notably, the OST provides “use of military personnel for scientific research or for any other peaceful purposes shall not be prohibited.”[28] The language of the OST limits any offensive military capabilities, but the U.S. can fortify its national security by building defensive mechanisms to protect its satellites and other space interests.

However, in the context of national security, the U.S. drafted domestic law enabling the country to protect its assets in space[29] like satellites, in accordance with the international legal norms.[30] In an effort to build influence binding international law, the U.S. seeks to bring international allies into its domestic practices and establish international law, which allows countries to bolster its defensive capabilities in space.[31]

China & U.S. National Security in Space

Space is becoming increasingly militarized. The U.S.’s assets in space, particularly its satellites, are targets for malign actors, and this raises substantial national security concerns.[32] The most significant risk to the U.S.’s satellites is China, which currently possesses technology capable of incapacitating and destroying American satellites.[33] Specifically, China possesses advanced anti-satellite weapons (“ASATs”), and these ASATs, often ground-launched missiles, can reach American satellites in different orbits.[34] A successful Chinese ASAT attack on U.S.’s satellites could completely halt civilian operations and the military’s ability to respond.[35]

Economically and militarily, China presents the greatest threat to the U.S.’s space dominance.[36] Second to the U.S. in governmental funding,  China spent $10.29 billion in 2021 and $11.94 billion in 2022; furthermore, China is second to the U.S. in the number of operational satellites.[37] China became the premier space rival to the U.S. by investing heavily in its military, commercial, and technological capabilities in space, subsequently bolstering its political power.[38]

In 2007, China demonstrated its ability to successfully target and destroy satellites when the country first used an ASAT missile to destroy one of its weather satellites orbiting at an altitude of 500 miles.[39] Because many American reconnaissance satellites orbit at the same altitude as the Chinese weather satellite, China’s successful demonstration of an ASAT missile marked a critical moment in the U.S. national security in space.[40] Seven years later, China again demonstrated its military capabilities in space when it tested an advanced ASAT missile that reached the highest geosynchronous orbit.[41] This ASAT test presented a more severe national security threat because the geosynchronous orbit is where the U.S.’s missile warning and nuclear control satellites sit.[42]

International Law Concerns

China presents a national security threat in space through its influence and skirting of international law.[43] Commentators describe China’s approach to international law as “legal warfare,” wherein the Chinese government seeks to “create and promote international legitimacy for expanding [its] sovereignty rights as part of its access control strategy.”[44] The Chinese government has already indicated the country’s willingness to disregard international law, most explicitly with its actions in the South China Sea.[45] China’s building of artificial islands in the South China Sea is the country’s direct manipulation of international law, thereby allowing it to extend its territory beyond its natural boundaries.[46] These actions by the Chinese government are in direct violation of the United Nations Convention on the Law of the Sea (“UNCLOS”) and extend seek to control open and shared waters as its own territory.[47] China, as a signatory to the UNCLOS, is legally bound to uphold its provisions, yet the country’s actions are in conflict with the treaty.

Any unprovoked military action by China would be a prima facie unlawful act according to international law.[48] As a signatory and member of the United Nations, having ratified the U.N. Charter, to lawfully use force against the U.S. and target its satellites, China would have to show its actions were in self-defense.[49] Without a clear indication of an imminent use of force against the country, China would likely be unable to justify any claim of self-defense as a lawful defensive use of force according to international law.[50] But an armed attack is the not only means of disabling U.S. satellites.

Perhaps most importantly in relation to international law, the U.S. and China are both signatories to the OST, and are thus bound to uphold its provisions. Although space law is relatively a new, China has exercised an approach to space law that seeks to serve its own purposes, regardless of whether its action violates binding international treaties.[51] Article IX of the OST establishes a prohibition on the “harmful contamination and…adverse changes” in space.[52] Scholars have held China’s 2007 testing of an offensive ASAT weapon and subsequent destruction of one of the country’s satellites as a direct violation of Article IX.[53] By testing weapons and destroying satellites, even if it is there own, China is creating the prohibited “harmful contamination” of the space environment the OST seeks prevent.[54] The main goal of the OST is to establish “international cooperation in the field of activities in the peaceful exploration and use of outer space…develop[] the rule of law in this new area of human endeavor.”[55]

Conclusion

Because space law is relatively new and key principles remain vague, China’s manipulation of international law is particularly threatening  to U.S.’s national security.[56] China has the ability to mold the law of space in a way that could accelerate its ambitions of space supremacy. Many experts believe that China has demonstrated a track record of violating international law through its actions in the South China Sea,[57] and the same disregard that China demonstrates towards treaties like the UNCLOS is likely predictive of how the country will uphold its prerogatives in the OST.[58]

 

 

Image Source: https://www.csis.org/analysis/no-place-hide-look-chinas-geosynchronous-surveillance-capabilities

[1] See Brian Dunbar, Human Spaceflight, NASA (last visited Jan. 3, 2024), https://www.nasa.gov/specials/60counting/spaceflight.html.

[2] See id.

[3] See id.

[4] Landry Signé & Hanna Dooley, How space exploration is fueling the Fourth Industrial Revolution, Brookings (Mar. 28, 2023), https://www.brookings.edu/articles/how-space-exploration-is-fueling-the-fourth-industrial-revolution/ (noting public space investment totaled $54.6 billion in 2021 and private space investment in the U.S. has almost ten times as many space companies as the following country).

[5] See Andrew Chatzky et al., Space Exploration and U.S. Competitiveness, CFR (Sept. 23, 2021), https://www.cfr.org/backgrounder/space-exploration-and-us-competitiveness (describing presidential administrations’ outlook on space goals and spending); see also Euroconsult – EC, Government expenditure on space programs in 2020 and 2022, by major country, Statista (last visited Jan. 4, 2024), https://www.statista.com/statistics/745717/global-governmental-spending-on-space-programs-leading-countries/ (listing the top spenders by country in 2021 and 2022).

[6] See Signé & Dooley, supra note 4; see also JPL, 20 Inventions We Wouldn’t Have Without Space Travel, NASA (May 20, 2016), https://www.jpl.nasa.gov/infographics/20-inventions-we-wouldnt-have-without-space-travel.

[7] See Shriya Yarlagadda, Economics of the Stars: The Future of Asteroid Mining and the Global Economy, Harv. Int’l Rev. (Apr. 8, 2022), https://hir.harvard.edu/economics-of-the-stars/; see also Why Go to Space?, NASA (Sept. 22, 2023), https://www.nasa.gov/humans-in-space/why-go-to-space/ (listing the benefits of investing in space research and space exploration––from benefiting humanity, advances in different sciences, and technology advancements).

[8] See Yarlagadda, supra note 7; see also Why Go to Space, supra note 7.

[9] See John Yoo, Rules For the Heavens: The Coming Revolution In Space and The Laws of War, 2020 Ill. L. Rev. 123, 127–33 (2020); see also Signé & Dooley, supra note 4 (including fostering economic growth and structural transformation; fighting poverty and inequality; reinventing labor, skills, and production; increasing financial services and investment; modernizing agriculture and agro-industries; and improving health care and human capital); see also JPL, supra note 5.

[10] See Bret Austin White, Reordering the Law for a China World Order: China’s Legal Warfare Strategy in Outer Space and Cyberspace, 11 J. Nat’l Sec. L. & Pol’y 435, 453 (2021).

[11] See Cassandra Steer, Why Outer Space Matters for National and International Security, U. Penn. Ctr. Ethics Rule L. 1, 29 (Jan. 8, 2020).

[12] See n2yo.com, Number of satellites in orbit as of February 2023, by leading nations and organizations, Statista (Feb. 21, 2023),  https://www.statista.com/statistics/1367699/number-of-satellites-in-orbit-by-country.

[13] See CelesTrak, Number of cataloged, decayed, and on orbit satellite objects worldwide from 1958 to 2023, Statista (last visited Jan. 8, 2024), https://www.statista.com/statistics/1422809/number-of-satellites-cataloged-decayed-orbit/; see also Trevor Kehrer, Closing the Liability Loophole: The Liability Convention and the Future of Conflict in Space, 20 Chi. J. Int’l. 178, 189 (2019).

[14] See Steer, supra note 11, at 3; see also Press Release, The White House, FACT SHEET: Strengthening U.S. International Space Partnerships (Dec. 20, 2023) (outlining Vice President Harris’s role in the U.S.’s continued focus on Space as a national security priority); see generally Dep’t of Def., Space Policy Review and Strategy on Protection of Satellites (Sept. 2023) (explaining the Department of Defense’s national security strategy for space, satellites, foreign adversaries, and budgetary concerns) [hereinafter DoD Space Strategy].

[15] See Matthew T. King, Olive Branches or Fig Leaves: A Cooperation Dilemma for Great Power Competition in Space, 12 J. Nat’l Sec. L. & Pol’y  417, 422, 426 (2022); see also Defense Satellite Communications System, Space Force (Oct. 2020), https://www.spaceforce.mil/About-Us/Fact-Sheets/Article/2197790/defense-satellite-communications-system/.

[16] See Dakota Cary, The Biden Administration Must Designate Civilian Satellites Critical Infrastructure, Sci. Am. (Aug. 9, 2022), https://www.scientificamerican.com/article/the-biden-administration-must-designate-civilian-satellites-critical-infrastructure/.

[17] See Kelsey Eyanson, Billionaires Eclipse NASA: The next Space Race over National Regulation, 60 Hous. L. Rev. 1181, 1208 (2023).

[18] See White, supra note 10, at 453.

[19] See Steer, supra note 11, at 29 (noting the security concerns relating to both military and civilian functions).

[20] See Eyanson, supra note 17, at 1191.

[21] See Eyanson, supra note 17, at 1191–92; see generally G.A. Res. 2222 (XXI), annex, Treaty On Principles Governing the Activities of States In Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (Dec. 19, 1966).

[22] See Eyanson, supra note 17, at 1191–92; see also G.A. Res. 2222, supra note 24.

[23] See Eyanson, supra note 17, at 1192; see also Ross Brown, Conflict on the Final Frontier: Deficiencies in the Law of Space Conflict below Armed Attack, and How to Remedy Them, 51 Geo. J. Int’l L. 11, 37 (2019).

[24] See Eyanson, supra note 17, at 1192.

[25] See id. (stating the ideals of “common interest of all mankind,” “peaceful purposes,” and “broad international co-operation.”).

[26] See Lauren Hauck, The Rogue One: Trump’s Space Force and the Threat of a New Cold War, 42 U. Haw. L. Rev. 119, 132–33 (2020).

[27] See G.A. Res. 2222 (XXI), Treaty On Principles Governing the Activities of States In Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, art. IV (Dec. 19, 1966).

[28] See id.

[29] See 10 U.S.C. § 135; see also Exec. Order No. 27892, The National Space Policy (2020).;

[30] Exec. Order No. 27892, The National Space Policy (2020).

[31] See Internationally recognized norms lead to safety and security in the space domain, U.S. Space Command (Mar. 8, 2024), https://www.spacecom.mil/Newsroom/News/Article-Display/Article/3701890/internationally-recognized-norms-lead-to-safety-and-security-in-the-space-domain.

[32] See DoD Space Strategy, supra note 14, at 2; see also Hauck, supra note 26, at 132–34.

[33] See King, supra note 15, at 423–25; see also Hauck, supra note 26, at 134–36.

[34] See King, supra note 15, at 423–25; see also Hauck, supra note 26, at 134–36; see also DoD Space Strategy, supra note 14, at 2–4.

[35] See Hauck, supra note 26, at 134–36; see also DoD Space Strategy, supra note 14, at 2–4; see also Melissa de Zwart & Christopher J. Borgen, Space and National Security: International Cooperation, Competition, and Commerce, ABA (Feb. 1, 2023), https://www.americanbar.org/groups/law_national_security/publications/aba-standing-committee-on-law-and-national-security-60-th-anniversary-an-anthology/space-and-national-security-international-cooperation-competition-and-commerce/.

[36] See White, supra note 10, at 454; see also King, supra note 15, at 436.

[37] See n2yo.com, supra note 12; see also Euroconsult, supra note 5; see also White, supra note 10, at 454.

[38] See White, supra note 10, at 454; see also DoD Space Strategy, supra note 14, at 2–3.

[39] See Hauck, supra note 26, at 135.

[40] See id.

[41] See id.; see also Space Systems Command, LEO, MEO or GEO? Diversifying orbits is not a one-size-fits-all mission, part 1, Space Force (July 18, 2023), https://www.ssc.spaceforce.mil/Newsroom/Article-Display/Article/3462074/leo-meo-or-geo-diversifying-orbits-is-not-a-one-size-fits-all-mission-part-1-of (explaining that low-earth orbit is anything up to 1,200 miles in altitude); see also Space Systems Command, LEO, MEO or GEO? Diversifying orbits is not a one-size-fits-all mission, part 3, Space Force (July 21, 2023), https://www.ssc.spaceforce.mil/Newsroom/Article-Display/Article/3465828/leo-meo-or-geo-diversifying-orbits-is-not-a-one-size-fits-all-mission-part-3-of (explaining geosynchronous orbit is an altitude of 22,236 miles, orbiting in synch with the Earth’s rotation).

[42] See Hauck, supra note 26, at 135; see also Defense Support Program Satellites, Space Force (Oct. 2020), https://www.spaceforce.mil/About-Us/Fact-Sheets/Article/2197774/defense-support-program-satellites/.

[43] See DoD Space Strategy, supra note 14, at 3–4; see also White, supra note 10, at 436–37, 475, 477.

[44] See White, supra note 10, at 451–52 (noting how China has exhibited this “legal warfare” in the South China Sea and its perceived sovereignty and in cyberspace); see also See DoD Space Strategy, supra note 14, at 4.

[45] See Lynn Kuok, How China’s Actions in the South China Sea Undermine the Rule of Law, Brookings Inst. 1, 5–6 (Nov. 2019), https://www.brookings.edu/wp-content/uploads/2019/11/FP_20191118_china_scs_law_kuok.pdf.

[46] See id. at 1, 4–6.

[47] See id. at 2–6.

[48] See Francis Grimal, The Threat of Force as an Action in Self-Defense Under International Law, 44 Vand. 285, 287 (2011).

[49] See id. at 292–95.

[50] See id. at 292–95, 328–29.

[51] See White, supra note 10, at 452–453, 455–57.

[52] https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/outerspacetreaty.html

[53] See Christine Cho et al., Summary of Discussions of the Expert Roundtable on The Weaponization of Outer Space: Ethical and Legal Boundaries, U. Penn. Ctr. Ethics Rule L. 5–7 (Apr. 6–7, 2018).

[54] See Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, art. IX, Oct. 10, 1967, 610 U.N.T.S. 205.

[55] See id. at annex.

[56] See White, supra note 10, at 452; see also Edwin C. Kisiel, Strategic Competition Implications for Commercial Space Operations, 51 Denv. J. Int’l L. & Pol’y 41, 43 (2022) (noting that China and Russia seek to bend international law towards and authoritarian style of governance that best suits their interests).

[57] https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf

[58] See Charlie Dunlap, China & the Moon & the Law, Law Fire (Jan. 23, 2023), https://sites.duke.edu/lawfire/2023/01/23/guest-post-lcdr-tracy-reynolds-on-china-the-moon-the-law/.