Commentary on the US commitment not to conduct direct-ascent anti-satellite testing

Screenshot of White House website " Remarks by Vice President Harris on the Ongoing Work to Establish Norms in Space"

In 1996, then United States (US) Commander-in-Chief of Space Command Joseph W Ashy famously touted that:

[s]ome people don’t want to hear this, and it sure isn’t in vogue, but-absolutely—we’re going to fight in space. We’re going to fight from space and we’re going to fight into space.[1]

For decades, the drums of war in space have been beating in an ever-louder fashion, emboldened by like-minded military hawks and amplified by the media. Unfortunately, the shared global commons of outer space that for over six decades has provided humanity with immeasurable economic, technological, scientific, social, and cultural benefits, has in recent years been labelled by military strategists, officials and even NATO as a “war-fighting domain”.

This past week, a fundamental shift in policy seems to have taken place when the Biden Administration unilaterally declared and committed the United States to “not conduct destructive direct-ascent anti-satellite (ASAT) missile testing”. Accompanying that commitment, the White House also released a statement which underlined that “[c]onflict or confrontation in outer space is not inevitable, and the United States seeks to ensure outer space remains free from conflict”.

Ground-breaking and legally binding

Though ground-breaking, contrary to the assertion that “the United States is the first nation to make such a declaration”, unilateral declarations with regard to space weapons have been made before. In 1983, then General Secretary Yuri Andropov committed the Soviet Union “not to be the first to put into outer space any type of anti-satellite weapon” and issued a “moratorium on such launchings for the entire period during which other countries, including the United States, will refrain from stationing in outer space anti-satellite systems of any type”.[2] The United States launched an ASAT test against the Solwind satellite a year later.

Since 2014, the United Nations General Assembly has annually adopted a resolution on the “no first placement of weapons in space”, and the vast majority of the international community agrees with the need of “upholding […] a political commitment not to be the first to place weapons in outer space”.[3] To date, 30 States have made such political statements.[4]

What is unique about the declaration of Vice President Harris is the context surrounding the statement that suggests it is more than a political commitment. International law provides that “declarations publicly made and manifesting the will to be bound” may create legal obligations on the State.[5] It does not matter whether the commitment was expressed orally or in the form of a press statement,[6] for what matters is “whether the language employed in any given declaration does reveal a clear intention”.[7] Whether there is intention to be bound depends on who is making the statement on behalf of the State in question, and the context and circumstances in which the statement was made.[8]

The statement by Vice President Kamala Harris at Vandenberg Air Force Base was made in “clear and specific terms”[9] as follows:

The United States will continue to be a leader in order to establish, to advance, and demonstrate norms for the responsible and peaceful use of outer space. […] It is clear there is strong interest among our international partners to develop these norms. We must write the new rules of road. And we will lead by example. […] I am pleased to announce that as of today, the United States commits not to conduct destructive direct-ascent anti-satellite missile testing.[10]

Clearly the stated commitment not to conduct destructive direct-ascent ASAT missile testing was addressed to the international community as a whole.[11] To have legal effect, a unilateral declaration neither needs “to be addressed to a particular State, nor [is] acceptance by any other State required”.[12]

The “factual circumstances in which the unilateral act”,[13] in this case an oral statement of commitment, can be contextualised in recent efforts by the Biden Administration to “[defend] international norms and rules”.[14] Indeed, the unilateral declaration must be read in light of the ongoing multilateral exchanges on reducing space threats through norms, rules and principles of responsible beahviour, and the upcoming Open-Ended Working Group on reducing Space Threats. It is too early to tell how other States will respond to the unilateral declaration, and whether other States will join the US in making such declarations.

Vice President Harris spoke in front of assembled military personnel, and on behalf of the United States. As the Deputy Head of State, she was clearly acting under her authority and within her functions. Though under international law “there is no doubt that every head of State is presumed to be able to act on behalf of the State in its international relations”,[15] it has been recognised that “in modern international relations other persons representing a State in specific fields may be authori[s]ed by that State to bind it by their statements in respect of matters falling within their purview”.[16] As the Chair of the US National Space Council, Vice President Harris’ statements on issues falling within her purview no doubt can bind the United States. Therefore, “having regard to intention and the circumstances” in which the statements were made, the statements “must be held to constitute an engagement of the State”.[17]

Importantly, a “unilateral declaration that has created legal obligations for the State making the declaration cannot be revoked arbitrarily”.[18] It is safe to assume that other States will take note of and even rely on such a declaration “being effective”.[19] As good faith,[20] “confidence and trust […] are so essential in the relations among States”,[21] the United States, no doubt an influential and major actor on the international as well as space arena, may not easily and arbitrarily revoke its commitment not to conduct direct-ascent ASAT tests.

Though the unilateral declaration by the US is welcome, the US has consistently voted against UN General Assembly resolutions on the prevention of an arms race and no first placement of weapon in space. It will be of interest to see whether after Vice President Harris’ statement there will be a shift in US policy and whether the US’ actions support its words.

Heightened Space Weaponisation Concerns

Vice President Harris’ unilateral declaration comes just months after the most recent ASAT test conducted by Russia in November 2021. By no means is Russia the only State to have conducted such tests, for China, India, and even the United States have over the years felt the necessity to demonstrate their capabilities of destroying space objects from Earth. The consequences of the disruption or destruction of even one part of the overall space infrastructure that is so crucial to civilian and strategic communications, navigation and position cannot be fathomed.

Indeed, high on the agenda at the United Nations (UN) for decades is the concern of an arms race in outer space,[22] and the placement (and arguably use) of weapons in outer space that would pose a “grave danger for international peace and security”.[23]

As welcome and ground-breaking as the latest US commitment may be, there is only the commitment not to conduct direct-ascent ASAT missile testing. Nothing suggests that the US has also committed not to use of direct-ascent missiles, and arguably it may very well reserve the right to use such destructive and debris-creating means of warfare in the exercise of self-defence against an armed attack.[24] To “circle back” to the 1996 quote above, the latest US commitment says nothing about the testing or use of weapons in space or weapons from space. Indeed, it does not even address weapons that are not direct-ascent ASAT weapons.

While the Outer Space Treaty prohibits the placements of nuclear and other weapons of mass destruction (WMDs) in orbit,[25] it is silent on the use of weapons other than WMDs. It is completely silent on other means and methods of disabling, disrupting or destroying space objects through, for instance, electromagnetic, cyber or other means.[26] The US has repeatedly voiced its opposition of the Russo-Sino proposal on the Treaty on the Prevention of Placement of Weapons in Outer Space (PPWT), which aims to prohibit the placement of any weapons in outer space and the resort to the threat or use of force against space objects.[27] Geopolitical tensions and rapidly developing technologies have propelled the development and testing of a variety of ASAT or counterspace capabilities other than direct-ascent missiles.

Though military and strategic interests have been integral to the exploration and use of outer space, the International Committee of the Red Cross (ICRC) has unequivocally stated that as with any new means or methods of warfare, “the weaponization of outer space is not inevitable but is a choice” that would increase the probability of armed conflict in outer space.[28] The spectre of the outbreak of an armed conflict in space cannot be fathomed, and the “absence of conflicts in space in the past could not be regarded as a guarantee of peace”.[29]

Greater clarity on the law needed

Just as the weaponisation of outer space is not inevitable, it is encouraging to note the White House statement that “[c]onflict or confrontation in outer space is not inevitable”.

In line with this assertion, and speaking truth to voices propagating the belief that conflict in space is inevitable, since 2016, an International Group of Experts have been working on the McGill Manual on International Law Applicable to Military Uses of Outer Space (McGill Manual). Scheduled for completion in the second half of 2022, the McGill Manual will be the world’s first manual clarifying the international law applicable to military uses of outer space during peacetime.

Even in the absence of definitive binding treaty rules or unilateral declarations with regard to the testing or use of weapons in space, weapons from space, or even weapons targeted toward space, there is a solid body of international law and international space law that guides and constrains State behaviour.

Space is a global commons that must be explored and used “for the benefit and in the interests of all countries”[30] and in accordance with international law, including the Charter of the United Nations.[31] States must always have due regard to the interests of other State when conducting space activities,[32] which means refraining from actions that would unjustifiably interfere with the rights of other States.[33]

Before undertaking any space activity which is expected to cause harmful interference with the space activities of other States, a State must seek consultation with those latter States[34]--an obligation that has been clarified as entering into consultations in good faith and taking into account the legitimate interests of other States.[35] All these obligations and conditions that attach to the freedom of exploration and use of outer space apply regardless of whether such activities are military or non-military in nature,[36] and regardless of whether such activities are performed by governmental or non-governmental entities.[37]

Such fundamental legal principles would place serious constraints on the testing and use of direct-ascent weapons, the spoofing and jamming of radiofrequency signals, unwanted rendezvous and proximity operations with space objects of an adversary, or the variety of means and methods aimed at disabling, disrupting or destroying of space objects of other States. The McGill Manual contains over 50 rules outlining the legality and illegality of various military and strategic uses and applications of outer space. By clarifying the limitations international law places on the threat or use of force in outer space, it is hoped the McGill Manual will further the belief that conflict in space is not inevitable.

With the unilateral declaration by the United States, accompanied by the commitment “to ensure outer space remains free from conflict”, there is great momentum to prevent the spread of conflict, and all the ensuing humanitarian tragedies and economic fallout therefrom, from extending into outer space.

Now more than ever is there a need for the clarification of the law. States, space stakeholders and the future generations need more than just “common understandings of what is right, what is wrong, and what is acceptable” in outer space.[38] A conflict-free space environment governed by an international rules-based regime is in the interests of all States.

In this interconnected world where all States and stakeholders have become so reliant on space, we must distance ourselves from the nihilism of the inevitability of conflict and war, and reaffirm the commitment to explore and use in a safe, responsible and sustainable manner.