UNIVERSITY OF CALIFORNIA Los Angeles

Gods in His Heaven, Alls Right with the World: The Need for the Timely Establishment of an International Legal Regime in Outer Space and the Privatization of Space War

A Thesis submitted in partial satisfaction of the requirements for the major in Global Studies

By Einar Engvig June 7, 2010

The thesis of Einar Engvig is approved.

___________________________________ John A. Agnew, Chair of Global Studies

___________________________________
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Russell A. Burgos, Faculty Advisor

ACKNOWLEDGEMENTS This project is the end product of two years of intense study at the University of California, Los Angeles; an institution that has given me the freedom to engage in an incredibly rewarding and mind expanding major while allowing me to create, design and facilitate my very own political science class for spring quarter 2010. Specifically, I would like to thank my faculty mentor Russell A. Burgos for inspiring me to be independent, creative and to push myself as hard as it takes and librarian Joseph Yue for all the help in research. I would also like to thank all my friends in the Global Studies major at UCLA for being supportive and friendly. Most of all, however, I would like to thank Yvonne Pueblos of Los Angeles Harbor College, who helped me every step of the way to pull myself up and dared me to challenge the world and get into UCLA, making this all possible for me. Doors have been opened for me; I will not close any behind me. Of note is also Dr. James Clay Moltz for indirectly revealing the field of space security to me and for sending me resources and going out of his way to help out a UCLA undergrad. I would also like to forward appreciation to all my friends at UCLA who have made this the best year of my life. Of note are my roommates Brian Khang Le and Tim Rozelle, who have always kept me in good company day in and day out and the fifth roommate, James Jeffery who kept me company no matter the distance. Special thanks go to my last roommate Stephen Crisafulli who helped create the figures, graphs and Orson Scott Card references. I would also like to thank all my friends who have waited patiently on the sidelines for my return to the social world and have always been caring, loving and supportive. Of special note are Charles Ryu, Omar Salim Patel, Roomana Patel and Mariam Ter-Stepanian who have always given me all the companionship, love and beer I need, even when I forget to return the favor myself. Most of all I would like to thank my family who has loved me unconditionally through thick and thin. I would like to thank my funny and kindhearted father, Olaf, for loving life and teaching me to do so as well and my brother Tormod for always being a steadfast and true role model who always makes time for his silly brothers. I would like to thank my extremely intelligent yet hopeless mother, Dr. Mona Engvig, for an endless source of unconditional love
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that has always encouraged me in whatever endeavor I set before me. Most of all, I would like to thank my brother Hkon Hawk Engvig for being my entire lifes best friend and for inspiring me to write this thesis, conquer the world and take on endless, nerdy challenges from new places, new planets, new galaxies and occasionally even new dimensions. I love you all. TABLE OF CONTENTS 1. Abbreviations and Acronyms4 2. Introduction (Relevant Characteristics of Space)..5 3. Literature Review....10 4. Thesis...14 4.1. Governance in Space is a Reality Today 4.2. Governance in Space will not be a Reality in the Future 5. Case.19 5.1. Space Security Will Be Privatized...19 5.1.1.KillSats as beneficial 5.1.2.Privatization of KillSats as beneficial 5.2. Space Security Must Not Be Privatized...31 5.2.1.Unnecessary 5.2.2.Not Beneficial for Nation-States 5.2.3.Empowers Destabilizing Actors 5.2.4.Weakens Centrality of Nation-States in Space 6. Recommendation....46 6.1. Existing pertinent legislation on space 6.2. Type, form and methods of legislation needed to halt the privatization of space security 6.3. A New Outer Space Treaty
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7. Summary and Conclusion...54 8. Tables 55 9. Figures....63 10. Works Cited...65 1. ABBREVIATIONS AND ACRONYMS

ASAT = Anti-Satellite ABM Treaty = Anti-Ballistic Missile Treaty CIS = Corpus Iuris Spatialis, or Five Treaties ComSat = Communications Satellite EU = European Union KillSat = (Hunter) Killer Satellite KKV = Kinetic Kill Vehicle LEO = Low Earth Orbit Liability Convention = Known officially as the Convention on International Liability for Damage Done by Space Objects MEO = Medium Earth Orbit MHIV = Miniature Homing Intercept Vehicle Moon Treaty = Known officially as the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies OST = Outer Space Treaty, known officially as the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies PMSC = Private Military Security Company PRC = Peoples Republic of China Partial Test Ban Treaty = Known officially as the Treaty banning Nuclear Weapon Tests In The Atmosphere, In Outer Space And Under Water

Registration Treaty = Known officially as the Convention on Registration of Objects Launched into Outer Space Rescue and Return Agreement = Known officially as the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space SPT = Space Preservation Treaty Terra = Planet Earth and its atmosphere US = United States

2. INTRODUCTION1 While less than one century ago, outer space was void of any interaction with mankind, it has today become characterized by (1) globalization, (2) the types and numbers of actors, (3) strategic military value, (4) nation-state and private militarization and (5) weaponization. Although there are many definitions of globalization, they revolve around (1) the de-emphasis of the nation-state and the emphasis of global transnational political processes, (2) the emergence of a global economic market centered on new systems of production, finance and consumption and (3) the emergence of a social, world-spanning global culture.2 All three of these trends complement and compete against one another in emerging global commons, a world environment where the circumstances and events of one region has consequences on all others.3 Specifically, authors on globalization decry the lack of institutions when analyzing the state of the worlds natural environment and note the lack of capacity to conserve and lack of support for

1 Part of the /tle of this paper is taken from Browning, Robert, Pippa Passes (New York: Dodd, Mead and Co.,

1901).
2 See Sklair, Leslie, Compe/ng Concep/ons of Globaliza/on. Journal of World-Systems Research 2 (Summer

1999): 143-163.
3 See World Commission on Environment and Development: Our Common Future. United Na/ons World

Commission on Environment and Development. (Oxford University Press, 1987): 1-9.

conservation in national and international legislation.4 Authors also note that, due to global integration, a serious issue in the global commons is ungoverned spaces. Ungoverned spaces are areas of (1) contested, (2) incomplete or (3) abdicated governance. 5 Outer space is a global common characterized by a lack of institutions, lack of capacity to conserve and a system of incomplete or abdicated governance. Since the launch of the privately owned Telstar 1 Communications Satellite (ComSat) in 1962, interaction in space has been typified less by the Soviet/United States (US) Cold War rivalry of nation-states, and more by privatized commercial interests. This trend has not diminished in recent days with the coming retirement of the US Space Shuttle, President Barak Obamas cancellation of the Constellation Program, the creation of space tourism as well as increasing Russian and US privatization of the space sector.6 ComSats are no exception to this development. According to the Union of Concerned Scientists Satellite Database, 40.69 percent (or 378 of 929) of satellites in orbit are solely commercial as of April 2010. In terms of the different categories of ownership for space assets (commercial, government, military, civil, etc.),

4 See World Conserva/on Strategy: Living Resource Conserva/on for Sustainable Development. Interna/onal

Union for Conserva/on of Nature and Natural Resources (1980). Available from h_p://data.iucn.org/dbtw-wpd/ edocs/WCS-004.pdf; Internet; Accessed 21 May 2010.
5 See Rabasa, Angel and others, Ungoverned Territories: Understanding and Reducing Terrorism Risks. RAND

(2007). Available from h_p://www.rand.org/pubs/monographs/2007/RAND_MG561.pdf; Internet; Accessed 24 May 2010.

6 For examples, see Amos, Jonathan, Atlan/s Launches on Final Voyage. BBC News. Bri/sh Broadcas/ng

Corpora/on (14 May 2010). Available from h_p://news.bbc.co.uk/2/hi/science/nature/8681451.stm; Internet; Accessed 15 May 2010. and Amos, Jonathan, Obama cancels Moon return project. BBC News. Bri/sh Broadcas/ng Corpora/on (1 Feb. 2010). Available from h_p://news.bbc.co.uk/2/hi/science/nature/8489097.stm; Internet: Accessed 1 Feb 2010. and More Entrepreneurs Push ISS Commercial Use. Avia;on Week & Space Technology 154, no. 2 (8 January 2001): 26. and Russian Operator of Mir to Sell Shares to Investors. Wall Street Journal - Eastern Edi/on 232, no. 18 (July 27, 1998): B7A.

this makes up the plurality of all assets in space by a margin of at least 102 satellites.7 See Figure 1. Add to this private firm SpaceXs successful launch of the Falcon 1 launch vehicle in September 2008 and the Falcon 9 in June 2010 and one sees that private firms are fully capable of ownership, placement and operation of space assets. 8 While space has not yet been significantly weaponized, it has been militarized. US military forces and many militaries like it today depend on satellites for communications, early warning, intelligence gathering, arms control verification, navigation, mapping and weather forecasting. Strategically, nation-states militarize space in order to create space support and force enhancement.9 Specifically, space assets are essential in observation and planning in peacetime, are essential as force multipliers in wartime and fill both of these roles in the advent of nuclear operations, making them an indispensible tool for deterrence.10 Having nets of deployed satellites is crucial for national defense as well as waging both modern wars and new wars. They were central to the US offensive during the first modern war; Operation Desert Storm. 11 See Table 1

7 See Grimwood, Terri, UCS Satellite Database. Union of Concerned Scien/sts (March 17, 2006). (Last updated

April 1, 2010) Available from h_p://www.ucsusa.org/nuclear_weapons_and_global_security/space_weapons/ technical_issues/ucs-satellite-database.html; Internet; Accessed 17 May 2010.
8 See Shanklin, Emily, SpaceX Successfully Launches Falcon 1 into Orbit. SpaceX press release (28 Sept. 2008).

Available from h_p://www.spacex.com/press.php?page=20080928; Internet: Accessed 27 May 2010. and SpaceX Falcon 9 Rocket Enjoys Successful Maiden Flight. BBC News. Bri/sh Broadcas/ng Corpora/on (4 June 2010). Available from h_p://news.bbc.co.uk/2/hi/science_and_environment/10209704.stm; Internet; Accessed 4 June 2010.
9 See Chapter 4 of Johnson-Freese, Joan, Space as a Strategic Asset (New York: Columbia University Press, 2007). 10 See chapters 2 and 3 of Stares, Paul B., Space and Na;onal Security (Washington, D.C.: The Brookings Ins/tu/on,

1987). and Richelson, Jerey, Americas Space Sen;nels: DSP Satellites and Na;onal Security (University Press of Kansas, 1999). for in-depth analyses of the value of satellites to na/on-states.
11 See Smith, Marcia S., U.S. Space Programs: Civilian, Military and Commercial. CRDC-ID: CRS-2002-RSI-0162.

U.S. Congressional Research Service. Resources, Science and Industry Division (14 Jan. 2002). and Smith, Marcia S., Military and Civilian Satellites in Support of Allied Forces in the Persian Gulf War. CRDC-ID: CRS-1991-SPR-0025. U.S. Congressional Research Service. Science Policy Research Division (27 Feb. 1991).

for a full list of the satellites used in the war. Satellite intelligence networks have been, and still are today, critical in the War on Terror to hunt down al-Qaeda operatives the world round.12 Though it may be no new revelation that governments have privatized a wealth of orbiting satellites and that military forces depend on satellites today, note that the US military did utilize privately owned or operated satellites during Operation Desert Storm to assist in their offensive. They were utilized to a limited degree for communications, navigation, weather forecasting and land remote sensing. 13 See Table 1 for specific private and military satellites and space systems utilized by the US in the conflict. While US forces did not depend on these private satellites in critical areas such as closed communications, Navstar global positioning system operation, intelligence gathering and early warning systems, this finding does represent the fact that political and military leadership has in the past privatized militarily valuable space assets and depended on them for military support. Note that this represents that policy makers will be willing to privatize militarily valuable assets in space and depend on them for military support in the future, which can be in new applications. We will return to this last point in another chapter. Due to the invaluable military advantages garnered by the deployment of constellations of satellites, preparations were made in the past to deny these advantages to other states and, as a result, today there are multiple weapons available to disrupt satellites. While the militarization of space entails using space as a strategic asset to fight wars on Earth, the weaponization of space

12 For specic examples, see Mannion, Jim, UAVs and Satellites Cri/cal to Termina/ng al-Qaeda. Agence-France

Presse (17 Nov. 2001). Available from h_p://www.spacedaily.com/news/uav-01l.html; Internet: Accessed 17 May 2010. and Goldman, Adam and Ma_ Apuzo, Iran Eases Grip on al-Qaeda. Time Magazine (13 May 2010). Available from h_p://www./me.com//me/world/ar/cle/0,8599,1989031,00.html; Internet; Accessed 17 May 2010.
13 See Smith, Marcia S., Military and Civilian Satellites in Support of Allied Forces in the Persian Gulf War. CRDC-

ID: CRS-1991-SPR-0025. U.S. Congressional Research Service. Science Policy Research Division (27 Feb. 1991).

entails the deployment and use of weapons against space assets to fight wars in space as well.14 Denying satellite use can come in the form of information warfare, such as jamming or hacking enemy systems, or weaponized space warfare, the conventional destruction or removal of the satellites themselves. Nation-states weaponize space in order to establish space control and create force application. 15 These conventional anti-satellite (ASAT) weapons can be categorized as kinetic energy weapons or directed energy weapons and can be employed as space-to-Earth, Earth-to-space or space-to-space weapons. 16 The only ASAT weapons seen as practical are kinetic energy weapons employed for either Earth-to-space or space-to-space warfare. However, due to the strategic restraint practiced by both Soviet and US leadership during the Cold War, the weaponization of space has been limited.17 While ASAT programs like the Earth-based Program 437 (also known as Squanto terror) nuclear space-bomb have long been abandoned, the Peoples Republic of China (PRC), Russia and the US all maintain limited ASAT forces today. In addition, with the current level of technology at their disposal, India, Iran and North Korea are capable of establishing national ASAT systems as well.18 Considering that outer space is (1) a global common characterized by a lack of institutions, lack of capacity to conserve and a system of abdicated governance, (2) characterized
14 This dis/nc/on is made specically in chapters 8 and 9 of Yusof, Nordin, Space Warfare: High-Tech War of the

Future Genera;on. Universi/ Teknologi Malaysia (Johor Bahru: First Prin/ng, 1999). see them for details.
15 See Chapter 4 of Johnson-Freese, Joan, Space as a Strategic Asset (New York: Columbia University Press, 2007). 16 See Yusof, Nordin, Space Warfare: High-Tech War of the Future Genera;on. Universi/ Teknologi Malaysia (Johor

Bahru: First Prin/ng, 1999). for categoriza/ons of both exis/ng and theore/cal space weapons.
17 See Moltz, James Clay, The Poli;cs of Space Security: Strategic Restraint and the Pursuit of Na;onal Interests

(Stanford University Press, 2008). and Moltz, James Clay, The Past, Present, and Future of Space Security. Brown Journal of World Aairs 14, no. 1 (Fall 2007): 187-195.
18 See Chun, Clayton K. S., Shoo/ng Down a Star: Program 437, The US Nuclear ASAT System and Present-day

Copycat Killers. Cadre Paper No. 6. (Air University Press, April 2000). for the history of Project 437 and his claims regarding China, India, Iran and North Korea.

by new types and numbers of actors, (3) of indispensible strategic military value, (4) militarized by both nation-states and private firms and (5) weaponized to a limited degree, it has now become an indispensible, invaluable, vulnerable and uncontrolled arena open to all and contested between many violent, militarily capable actors. Despite this bleak outlook, however, the global common of outer space can still be salvaged from self-destruction in the hands of mankind. The answer is legislation and the time is now. This paper argues that if nation-states do not cooperate now to establish an international legal regime in space, they will not have another chance. Outer space is today (1) at a historical crossroads that makes its international legislative governance more a reality than ever before and at the same time, (2) is at its most vulnerable stage of development in history. This paper is structured as follows. Chapter two is a literature review on global studies, security studies, mercenarism and private military and security company (PMSC) studies and space security. Chapter three is the thesis, or central argument of this paper, that the establishment of an international governing legal regime in space must occur now. Chapter four is a case study of the privatizing of space warfare, illustrating arguments for and against the privatization of space warfare for nation-states. Chapter five is this papers recommendations, which outlines contemporary space legislation while offering prescriptions to better it. Chapter six will summarize the findings of this paper and conclude. 3. LITERATURE REVIEW This literature review will conduct a brief analysis of pertinent topics in the fields of (1) global studies, (2) security studies, (3) mercenarism and PMSC studies and (4) space security. The forces of globalization have altered international relations. Realist assumptions on

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international anarchy, rationality, national interest, power, security and the centrality of the nation-state are being challenged by a new model. 19 The study of complex interdependence posits that (1) societies are connected not only by interstate, but transgovernmental and transnational channels as well; (2) interstate issues are not arranged in a hierarchy with military security at the top and (3) military force is not always central to conflict resolution.20 These new assumptions move the nation-state away from the center of international relations, and while a few will argue that the nation-state is vanquished, the fact is that we are living in a world characterized by power and influence stemming from both nation-states and non-state actors. 21 The literature on security studies can be divided into traditional and non-traditional perspectives on the (1) centrality of the nation-state and definitions of national interest, (2) role of influence and legitimacy and (3) proliferation of modern and new wars. Traditionalists argue that the nation-state is solely significant and its survival and maintenance paramount, that influence and legitimacy are only significant in perpetuating the nation-state and that security is the nation-states ability to wage modern wars against other nation-states. 22 Non-traditionalists argue that due to trends in globalization, nation-state power is still central, but has been spread to

19 For examples of realist thinking, see Smith, Michael Joseph, Realist Thought from Weber to Kissinger (Louisiana

State University Press, 1987).

20 See Keohane, Robert O. and Joseph S. Nye, Realism and Complex Interdependence. Power and

Interdependence, 3rd ed. (Addison-Wesley, 2000): 3-7.

21 See Ohmae, Kenichi, The End of the Na/on State. The End of the Na;on State: The Rise of Regional Economies

(Simon and Schuster, 1995). and Strange, Susan, The Declining Authority of States. The Retreat of the State (Cambridge: Cambridge University Press, 1996).
22 See Waltz, Kenneth N, Realist Thought and Neorealist Theory. Journal of Interna;onal Aairs 44, Issue 1

(Spring/Summer 1990). and Waltz, Kenneth N., "Globaliza/on and Governance." PS Online (New York: Columbia University Press, Dec. 1999). Available from h_p://www.mtholyoke.edu/acad/intrel/walglob.htm; Internet; Accessed 22 May 2010. and Tilly, Charles, War Making and State Making as Organized Crime. found in Evans, Peter and others, eds., Bringing the State Back In (Cambridge: Cambridge University Press, 1985).

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other actors like international, non-government and private organizations and people in general and that national interests have shifted accordingly. In addition, non-traditionalist security studies scholars argue that international normative regimes are significant and war is now more characterized by the nation-states struggle against these new non-state actors. 23 There has also emerged a discussion of the significance of the security threat from diminishing resources, pollution and unsustainability of mankinds natural environment. 24 Modern wars can be defined as wars that are (1) fought between nation-states, (2) dictated within a nations government, armed forces and people, (3) high-tech in being only affordable by and useful against nation-states, (4) based on lines of communication and (5) strategically two-dimensional with the end goal of cutting lines of communication and are thought to have diminished with the Cold War, but still exist in outer space.25 New wars can be defined as a transformation in wars as they are now (1) between nation-states and non-state actors and (2) changed in both attitudes on war and military strategies utilized in war. 26 Both are characteristic of the proliferation of PMSCs.

23 See Cha, Victor D, Globaliza/on and the Study of Interna/onal Security. Journal of Peace Research 37, No. 3

(2000): 391-403. and Davis, Lynn E., Globaliza/ons Security Implica/ons. RAND (2003). and Lio_a, P. H., Boomerang Eect: The Convergence of Na/onal and Human Security. Security Dialogue 33, No. 4 (2002) : 473-488
24 See Klare, Michael T., Resource Wars: The New Landscape of Global Conict (New York: Owl Publishing, 2001). 25 See Creveld, Mar/n van., The Future of War. found in Patman, Robert G., Security in a Post-Cold War World

(New York: St. Mar/ns Press, 1999).

26 See chapter 6 of Neack, Laura, Elusive Security: States First, People Last (Rowman and Li_leeld, 2007).

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The literature on the privatization of force and PMSCs can be divided into (1) functional, (2) political and (3) social discussions.27 Functional opinions discuss the usefulness, effectiveness, efficiency and conflict resolution abilities of PMSCs as well as the supply and demand characteristics of the global market for private force. 28 Political arguments are centered on the effects PMSC proliferation has on political control of force, authority over the use of force, sovereignty and the legitimacy of the nation-state.29 Social discussions on the privatization of force revolve around whether concepts like specific definition, democracy, human rights, international law and protection of civilians are or should be implicated in PMSCs.30 The influx of PMSC proliferation has been attributed to supply and demand dynamics. In a world where diminishing military budgets funneled into advanced and specialized forces create

27 This dis/nc/on is made in chapter 2 of Employing Private Military Companies: A Ques/on of Responsibility.

Advisory Council on Interna;onal Aars (The Hague: Advisory Council on Interna/onal Aairs, Dec. 2007). and, to a broader degree, in chapter 2 of Avant, Deborah D., The Market for Force: The Consequences of Priva;zing Security (Cambridge: Cambridge University Press, 2005).
28 See Singer, P.W., Corporate Warriors: The Rise of the Priva/zed Military Industry and Its Ramica/ons for

Interna/onal Security. Interna;onal Security 26, no. 3 (2002): 186-220. and Messner, J. J. Ethical Security: The Private Sector in Peace and Stability Opera/ons. found in Gumedze, S., Ed., Private Security in Africa: Manifesta;on, Challenges and Regula;on (Pretoria: Ins/tute for Security Studies, November 2007): 57-70. and Leander, Anna, The Market for Force and Public Security: The Destabilizing Consequences of Private Military Companies. Journal of Peace Research 42, no. 5 (2005): 605-622.
29 See Leander, Anna, Eroding State Authority? Private Military Companies and the Legi/mate Use of

Force (Rome: Centro Militare di Studi Strategici, 2006). and Simelane H.S., The State, Security Dilemma, and the Development of the Private Security Sector in Swaziland found in Gumedze, S., Ed., Private Security in Africa: Manifesta;on, Challenges and Regula;on (Pretoria: Ins/tute for Security Studies, November 2007): 151-167.
30 See Gumedze, S., Pouring Old Wine into New Bo_les? The Debate around Mercenaries and Private Military and

Security Companies. and Juma, Laurence, Mercenarism: Looking Beyond the Current Interna/onal and Regional Norma/ve Regimes. both found in Gumedze, S., Ed., Elimina;on of Mercenarism in Africa: A Need for a New Con;nental Approach (Pretoria: Ins/tute for Security Studies, July 2008). and Williamson, Jamie, Private Security Companies and Private Military Companies Under Interna/onal Humanitarian Law. found in Gumedze, S., Ed., Private Security in Africa: Manifesta;on, Challenges and Regula;on (Pretoria: Ins/tute for Security Studies, November 2007): 89-96. and Lumina, Cephas, Coun/ng the Cost: The Impact of Corporate Warfare on the Human Right of Women and Children in Africa. found in Gumedze, S., Ed., Elimina;on of Mercenarism in Africa: A Need for a New Con;nental Approach (Pretoria: Ins/tute for Security Studies, July 2008): 101-120.

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a supply of effective military personnel and ungoverned spaces have created a demand for their services, PMSCs have become a powerful force in the global market.31 Ungoverned spaces are arenas of ungoverned force where PMSCs excel and add to the cycle by offering short term solutions to long term problems. 32 Outer space is characterized by a lack of governance. The existing literature on space security can be divided into discussions on the (1) value and vulnerability, (2) legislation, (3) military control and (5) past history of outer space. The perceptions and opinions in these five categories, now and in the future, can be divided into camps of (1) space nationalism, (2) technological determinism, (3) social interactionism and (4) global institutionalism. Simply put, the first camp seeks weaponized military control of space, the second seeks the non-confrontational go slow approach to defense in space, the third seeks a social framework of interdependence and mutually established rules of the road of encouraged self-restraint while the fourth seeks a unified international response to the inherent dilemma of the tragedy of the space commons through institutions and treaties.33 Space security scholars and policy makers have also noted how outer space has also become characterized by the increasing number and influence of private actors. 34 However, while there are discussions on both weaponization and privatization of space, there is no

31 See chapter 3 of Mandel, Robert., Armies Without States: The Priva;za;on of Security (Boulder: Lynne Rienner,

2002). and Leander, Anna, The Market for Force and Public Security: The Destabilizing Consequences of Private Military Companies. Journal of Peace Research 42, no. 5 (2005): 605-622. and Avant, Deborah D., The Market for Force: The Consequences of Priva;zing Security (Cambridge: Cambridge University Press, 2005).
32 See Leander, Anna, Global Ungovernance: Mercenaries, States and the Control over Violence. Copenhagen

Peace Research Ins/tute (June 2001).

33 See Moltz, James Clay, The Poli;cs of Space Security: Strategic Restraint and the Pursuit of Na;onal Interests

(Stanford University Press: 2008).

34 See chapter 7 of Moltz, James Clay, The Poli;cs of Space Security: Strategic Restraint and the Pursuit of Na;onal

Interests (Stanford University Press: 2008).

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literature on the weaponization of space by and through private firms. Although the space nationalist school accepts and even endorses international cooperation, it rejects the notion of possible changes in space security decision making stemming from the influence of new nonstate actors, including those in the commercial sector. This prediction may be shortsighted.35 4. THESIS The establishment of an international governing legal regime in space ameliorates threats from the (1) weaponization of space, (2) chaos from the lack of a space traffic control authority and (3) space debris.36 While there are limited forms of law and cooperation on the latter two points, this chapter will argue that the establishment of this regime in space must occur now. Simply put, if nation-states do not cooperate now, they will not have another chance. Outer space is today (1) at a historical crossroads that makes its international legislative governance more a reality than ever before and (2) at the same time, is at its most vulnerable stage of development in history. The establishment of a safe and stable international legal regime for outer space is more a reality than ever today from (1) linkages from complex interdependence, (2) a comparative political calm, (3) the stable and laissez-faire nature of the contemporary political unipolar regime, (4) the power of legislating nation-states and (5) the influence of a multilateral US. Space is characterized by a lack of governance in that it lacks overarching international legislation and institutions on a wealth of topics. Just as realists would claim the arena of

35 Taken from Moltz, James Clay, The Poli;cs of Space Security: Strategic Restraint and the Pursuit of Na;onal

Interests (Stanford University Press: 2008): 316.

36 See MacDonald, Bruce W., Steps to Strategic Security and Stability in Space: A View from the United States.

found in Vignard, Kers/n, A Safer Space Environment?. Disarmament Forum 4. United Na/ons Ins/tute for Disarmament Research (Geneva: United Na/ons, 2009): 17-26.

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international politics is, space is an anarchic realm where naked force exists and is not centralized in a single international legislative or institutional power. However, contrary to realist opinions rooted in the tensions of the Cold War, todays integrated and globalized world connects nation-states and non-state actors through interstate, transgovernmental and transnational mediums. 37 Economic and social integration has spurred on cooperative and interdependent governance structures inside, outside and through national boundaries. Globalizing forces have empowered non-state actors to internationally integrate and cooperate outside national borders as well. These trends are evident in outer space, where a multiplicity of civil, public, private and military groups work in cooperation without confrontation. As such, a complex, cooperative and invested framework already exists to implement informal practices already in use to create an international legal regime in space. Considering that the high strung tensions and political realism of the Soviet/US Cold War rivalry did not end in the complete weaponization of space, one finds comparatively little justification for committing to weaponizing space after the political Mexican standoff that was the Cold War. Other than the PRC, Russia and the US, there are few nation-states with questionable ambitions, in regards to weaponization, in outer space. While India, Iran and North Korea could theoretically develop killer satellites (KillSats) and other ASAT weaponry, they are very far from establishing a standardized space fleet and generations behind the rocket science and rocket engineering of ASAT capable nation-states and thus far from posing any real

37 See Keohane, Robert O. and Joseph S. Nye, Realism and Complex Interdependence. Power and

Interdependence, 3rd ed. (Addison-Wesley: 2000): 3-7.

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threat to the common of space.38 At the same time, ASAT capable nations are no longer pitched in uncompromising ideological showdowns and are comparatively agreeable and cooperative. 39 Since the collapse of the Soviet Union, outer space has been characterized as a unipolar domain dominated by US presence. According to the Union of Concerned Scientists Satellite Database, solely US owned and operated space assets account for a plurality of 45.43 percent (422 of 929) of all assets in space.40 See Figure 2 for details. While this may not be reassuring for other nation-states, the point stands that as outer space is dominated by a single nation-state, power and politics are centralized and space is stabilized through it.41 Where most nation-states have solely commercial interests in space, the stability and freedom of the US internationalist laissez-faire regime of space offers an environment conductive for peaceful cooperation on a variety of projects for commercial gain as well as establishing law in space. While outer space has become typified less by the Soviet/US Cold War rivalry of nationstates, and more by privatized commercial interests, nation-states are still the fundamental source of power and control. Constructivists and neoliberals argue that the nation-state is not the sole source of power in the international arena but accept that the nation-state is still central to the

38 Rocket science is the technology while rocket engineering is the technical knowledge in building and opera/ng

space assets as dened in chapter 5 of Johnson-Freese, Joan, Space as a Strategic Asset (New York: Columbia University Press, 2007). also see Chun, Clayton K. S., Shoo/ng Down a Star: Program 437, The US Nuclear ASAT System and Present-day Copycat Killers. Cadre Paper No. 6. (Air University Press: April 2000). for informa/on on India, Iran and North Koreas theore/cal ASAT capabili/es.
39 See Chai, Winberg, The Ideological Paradigm Shirs of China's World Views: From Marxism-Leninism-Maoism to

the Pragma/sm-Mul/lateralism of the Deng-Jiang-Hu Era. Asian Aairs 30, no. 3 (Fall 2003): 163-175.
40 See Grimwood, Terri, UCS Satellite Database. Union of Concerned Scien/sts (March 17, 2006). (Last updated

April 1, 2010) Available from h_p://www.ucsusa.org/nuclear_weapons_and_global_security/space_weapons/ technical_issues/ucs-satellite-database.html; Internet; Accessed 17 May 2010.
41 For an overview on polarity and stability, see chapter 2 of Schweller, Randall L., Deadly Imbalances: Tripolarity

and Hitlers Strategy of World Conquest (New York: Columbia University Press, 1998).

17

relationship of actors. This is true in space as well. While private actors hold influence in space, they are still subject to their respective nation-states laws and enforcement. Where nation-states do not codify formal codes of conduct, private actors do, as they have done in space. However, these informal orderings are not adequate as they are disorganized, not comprehensive and accountable only to firms profits and shareholders, and not the interests of all. Although there is no overarching and standardized international legal regime in space, single nation-states and regional entities have fashioned their own respective legislation. 42 As both non-state actors and nation-states have begun legislation while nation-states are still primary in space, nation-states need only to unify their resources to enforce a comprehensive legal regime for all. On the third of February, 2009, Iran became the 11th nation-state to deploy a domestic satellite into orbit.43 Although more nation-states are becoming independently space-capable, the number is still small. In addition, the US holds a stabilizing economic and military hegemony on both Earth and in outer space. This puts the US in the unique position of acting as either benevolent patriarch or uncaring dictator. Considering that the US has the plurality of all assets in space, the single nation-state holds tremendous sway in its own legislature and could lead the way for the creation of an overarching legal regime in space. However, this is dependent on the stance of the US in it policies regarding outer space. While the majority of nation-state interaction in space following the moratorium on the testing of nuclear weapons in space in 1963 can be characterized as social interactionism between the Soviet Union and the US, policies
42 See Rathgeber, Wolfgang and others, Space Security and the European Code of Conduct for Outer Space

Ac/vi/es. found in Vignard, Kers/n, A Safer Space Environment?. Disarmament Forum 4. United Na/ons Ins/tute for Disarmament Research (Geneva: United Na/ons, 2009): 33-42.
43 See Tait, Robert, Iran Launches First Domes/cally Produced Satellite. guardian.co.uk. Guardian Media Group (3

Feb. 2009). Available from h_p://www.guardian.co.uk/world/2009/feb/03/iran-satellite-launch-omid; Internet; Accessed 30 May 2010.

18

adopted by various national executives have been more confrontational than others.44 Notably, the space policies of the administration of former president George W. Bush can be characterized as aggressive space nationalism.45 However, the multilateral policies of the current presidential administration of Barak Obama free the US executive to bring the premier space power to the head of negotiations to formulate a legal regime in space. All that is needed is a push. Outer space is also at its most vulnerable stage of development in history. While there are multiple circumstances that make today the best time to initiate the creation of a legal order in space, this will not be the case in the near future. The safety and stability of outer space will diminish in coming years from conflictions over (1) increasing weaponization, (2) inherent scarcity of space lanes and frequencies, (3) increasing number of actors, and (4) the privatization of space security. Although outer space has been militarized by multiple nation-states and represents an investment that should be defended from encroaching legislation, an overarching legal regime in space need not encroach upon the right of nation-states to use space assets to assist people and forces on the ground, but will be perceived as threatening regardless. As nationstates might contest this from fear of these assets being used against them, these fears will not be resolved with the initiation of further weaponization of space. The weaponization of space would represent a much greater investment for nation-states that would undermine multilateral trust and

44 See Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water, Signed by the

Original Par/es, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland and the United States of America on 5 Aug. 1963 (Entered into force: 10 Oct. 1963).
45 For details on the Bush administra/ons policies on space security, see Rumsfeld, Donald H. and others,

Commission to Assess United States Na/onal Security Space Management and Organiza/on. Wri_en in Accordance with Sec/on 1623 of the United States Na/onal Defense Authoriza/on Act for Fiscal Year 2000 (11 Jan. 2001).

19

hinder the establishment of any meaningful legal regime in space. The anarchic regime in outer space assures that the eventual weaponization by some power is inevitable in the future. Satellites are invaluable for nation-state military forces in communications, early warning, intelligence gathering, arms control verification, navigation, mapping and weather forecasting.46 They are also of great value to the private and commercial sectors of the international economy. The value of space assets for both national and international entities is compounded by the fact that there are (1) limited orbital lanes in which to station space assets as well as (2) a limited frequency spectrum of transmission without both of which satellites are useless. Considering the influx of actors and interests in space in recent years, the limited nature of space as a resource entails that a surplus of this resource will eventually dry up, leaving nation-states to resort to lawless acts to acquire more. This is also compounded by the fact that space will become economically and militarily more invaluable to more nation-states in the future as more of them develop further. Cooperation will not exist in this dog-eat-dog future environment. The establishment of an international legal regime in space is also made uncertain by the inevitable influx of actors. While there may only be 11 nation-states capable of independent space launches, this number will continue to expand in the future. This entails the eventual empowerment of nation-states that may wish to challenge US supremacy or international norms in space. Private actors on the other hand, while already well established in outer space, represent other unstable elements to cooperation in conflicting interests and misunderstandings. The two

46 See chapters 2 and 3 of Stares, Paul B., Space and Na;onal Security (Washington, D.C.: The Brookings Ins/tu/on,

1987). and Richelson, Jerey, Americas Space Sen;nels: DSP Satellites and Na;onal Security (University Press of Kansas, 1999). for in-depth analyses of the value of satellites to na/on-states.

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go hand in hand as private actors also work as a source of space technology proliferation that stimulates the growth of new and ambitious space-capable nation-states.47 Most importantly, however, private actors represent a new source of space weaponization that will destroy the possibility of creating a cooperative international legal regime in outer space. Although the irreversible process of the privatization of space security has not yet been initiated, it represents the gravest threat to safety, stability and trust in space. Where nation-states leave space ungoverned, market forces fill security gaps for them.48 In addition, nation-states will seek private firms as a solution to issues of space security, as will be elaborated upon below. I will argue in the next two chapters (1) how and why space security will be privatized in the near future, (2) why this is a threat to security in space and (3) what should be done about it now. 5.1. SPACE SECRUITY WILL BE PRIVATIZED In this chapter, I shall elucidate (1) why policy makers in the US, as well as other countries, would consider the creation of fleets of KillSats beneficial and (2) why policy makers in the US, as well as other countries, would consider the privatization of KillSats beneficial while in the next section I shall show (3) why the US, as well as other countries, must not privatize weapons in space. In my debate on space weaponization, I will forgo a discussion of Earth-to-space weapons and concentrate on space-to-space weapons as (1) commitments have already been solidified in the national policies of several nation-states to Earth-to-space weapons, (2) space is currently still free of space-to-space weapons deployment and thus at an historical critical point and (3) space-to-space weapons constitute unique possibilities in the form
47 See chapter 2 of Mandel, Robert, Deadly Transfers and the Global Playground: Transna;onal Security Threats in

a Disorderly World (Connec/cut: Praeger, 1999).

48 See chapter 3 of Mandel, Robert, Armies Without States: The Priva;za;on of Security (Boulder: Lynne Rienner,

2002).

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of KillSats. Although there are many forms of space militarization that could be subject to privatization, I have chosen to center my case on KillSats specifically for a number of reasons. As will be elaborated in depth below, KillSats work as unique weapons in space as they are (1) tested and effective, (2) hard to reach and far reaching, (3) deterring and first strike capable, and (4) dual-use, disguisable and, most importantly, can be enhanced through privatization. In describing why policy makers in the US, as well as other countries, will consider the creation of KillSats beneficial, I will illustrate (1) traditional arguments supporting weaponization of space and (2) why KillSats are desirable as the primary, long term medium of weaponization. Traditional arguments supporting the weaponization of space, and thus the creation KillSats, are (1) the inevitability of realist politics, (2) the establishment of space control, (3) sustainment of established space hegemony, (4) lack of defensibility in space, and (5) the desirability first and second strike capabilities. In an anarchic international ordering on Terra (the Earth and its atmosphere), nation-states must secure and defend three core values; protection of territory and citizenry, sovereignty and economic welfare.49 Within this insecure environment, realism pervades as nation-states must prepare for the use of conventional and nonconventional military force as (1) the political world is uncertain and thus they must take worst-case scenario preparatory defensive stances, (2) defense deters other nation-states, (3) in the end, wars do not have rules, (4) there are cultural and ideological differences between nation-states which are sometimes inconsolable and (5) security is no longer a simple win or lose circumstance, meaning

49 See chapter 2 of Neack, Laura, Elusive Security: States First, People Last (Rowman and Li_leeld, 2007).

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nation-states need as much military force as can be afforded.50 As such, nation-states must prepare for war in all places where it can grant them military advantages over other nation-states. Considering the critical value satellites have for national militaries in communications, early warning, intelligence gathering, arms control verification, navigation, mapping and weather forecasting, many policy makers, politicians, military strategists and scholars in the space nationalism school of space security are proponents of the concept of space control. 51 While there are many varying interpretations of space control, the US Department of Defense defines space control as combat, combat support, and combat service support operations to ensure freedom of action in space for the United States and its allies and, when directed, deny an adversary freedom of action in space.52 In short, the establishment of space control is critical for a nation-states ability to target potential assets for offence on Terra, enemy ballistic missiles for defense and space assets for sustainment of space control. Space control works to allow one nation-state to enjoy unfettered access to the benefits of access to outer space while denying any would be opponents these same benefits at the same time through early weaponization. Although few nation-states have weaponized space, the insecurity of realist politics in anarchy ensures that competing nation-states both space-capable and not, will invariably seek space control.

50 See Quinlan, Michael, The Role of Military Force in Interna/onal Security. found in Patman, Robert G., Security

in a Post-Cold War World (New York: St. Mar/ns Press, 1999).

51 See authors Dean Cheng (2007), Evere_ Carl Dolman (2002), Colin S. Gray (1986), Steven Lambakis (2001) and

James T. Westwood (1984) for examples of realist, space na/onalism perspec/ves on space security, taken from Moltz, James Clay. The Poli;cs of Space Security: Strategic Restraint and the Pursuit of Na;onal Interests (Stanford University Press: 2008).
52 Taken from U.S. Department of Defense, Joint Chiefs of Sta, Joint Doctrine for Space Opera/ons,

Joint Publica/on 3, no. 14 (9 Aug. 2002): GL-6. found in Fernandez, Adolfo J., Military Role in Space Control: A Primer. order code RL32602. US Congressional Research Service. Foreign Aairs, Defense and Trade Division (23 Sept. 2004).

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However, this realist security dilemma is compounded by the fact that outer space is a unique combat environment void of defensibility. While security analysts will liken space to the ultimate high ground for military operations, I posit that any actor with established assets in space is an indefensible threat to a nation-state that has already consolidated a position in space.53 After all, there is no higher ground than outer space. In Orson Scott Cards Enders Shadow, the science fiction novels protagonist, Bean, when reviewing 17th century French military strategist Marquis de Vaubans traditional, two-dimensional conceptualizations on defense, comes to the conclusion that defensibility is meaningless in space as any enemy is not limited to a primary direction of approach [creating] the classic problem of defense, cubed.54 While Earth-to-space weapons are somewhat limited to a primary direction of approach, which is Terra, space-to-space weapons are not hindered by this foundation of defensibility. Logically, Bean concludes that the only fit strategy for the International Fleet is to destroy the home world of the alien Formics, an excellent analogy that highlights that policy makers will presume that it is solely an offense-only strategy of defense in space could deny any would be attackers. This offensive strategy would require ASAT weapons use and thus the weaponization of space. In light of this realization, there has developed a fear in US defense circles about the possibility of a space Pearl Harbor, where US space assets would be compromised by a swift, all out offensive by enemy forces.55 Realists would posit that this leaves the US, as the premier

53 See Lambeth, Benjamin S., Mastering the Ul;mate High Ground: Next Steps in the Military Uses of Space. RAND:

Project Air Force (Santa Monica: RAND, 2003).

54 See Card, Orson Sco_, Enders Shadow. (Tor, 1999), 153. 55 The term space Pearl Harbor was used most popularly in Rumsfeld, Donald H. and others, Commission to

Assess United States Na/onal Security Space Management and Organiza/on. Wri_en in Accordance with Sec/on 1623 of the United States Na/onal Defense Authoriza/on Act for Fiscal Year 2000 (11 Jan. 2001).

24

space power, with a forced hand and three options in order to sustain and assure future space hegemony, which would be critical in assuring that the US could be the only power capable of initiating a space Pearl Harbor. The US can (1) declare its own preemptive space war and forcibly remove all competitors assets, (2) create first or second strike capabilities or (3) do nothing. As initiating a world war over space control is unrealistic and costly in the extreme, the establishment of an offensive network of a multiplicity of ASAT weapons complemented by a fleet of KillSats to deter and ensure the ability to destroy the weaponized space forces of other nation-states will be desired in order to enforce US space hegemony. As mentioned at the beginning of the section, KillSats work as a unique choice in the decision to weaponize space as they are (1) tested and effective, (2) hard to reach and far reaching, (3) deterring and first strike capable, and (4) dual-use, disguisable and, most importantly, can be enhanced through privatization. From 1967 to 1982, the Soviet Union conducted tests of its own KillSat program. While only 45 percent of the 20 tests conducted were considered completely successful by Soviet authorities, the point stands that KillSats have been created and shown to work in the past. 56 See Table 2 for details. Considering that nearly 30 years have elapsed since the last test, one must also note how the success rates will be increased over time to a much greater rate today and into the future with investment. To elaborate, note that the riskiest stage in establishing a fleet of KillSats is placing them into space on volatile rocket launch vehicles. However, as of 1999, 91.1 percent (or 3,988 of 4,378) of space launches conducted worldwide were successful. See Table 3 for details. Of all the US launch failures in

56 Taken from Yusof, Nordin, Space Warfare: High-Tech War of the Future Genera/on. Universi/ Teknologi

Malaysia (Johor Bahru: First Prin/ng, 1999): 669.

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this same period, 68.6 percent (or 101 of 164) were from 1957 to 1967 alone. 57 See Figure 3 for details. As such, KillSats represent a reliable deterring presence in space and will represent a reliable ASAT weapon with future investment. KillSats can also extend general ASAT range. Fleets of KillSats would be difficult to target by ASAT weapons and would diversify the range of targets that could be destroyed in space beyond contemporary limitations. While there are many different orbits in space that space assets can occupy, the majority of them are located at either low, medium or geosynchronous orbits. These orbits are classified by their altitudes above sea level. Low Earth orbit (LEO) ranges from 180 km to 2,000 km, and is populated by the majority of satellites. Medium Earth orbit (MEO) ranges from 2,000 km to 42,164 km, and is populated by navigation and specialty satellites. Geosynchronous Earth orbit ranges from 42,164 km and is populated by weather satellites and communications satellites. 58 While the Soviets developed KillSats during the Cold War, the US developed Miniature Homing Intercept Vehicles (MHIVs) and kinetic kill vehicles (KKVs). Launched from a high flying F-15 jetfighter, MHIVs are known as the poor mans ASAT weapon and are limited to interception in LEO only. Using a traditional, Earth-based rocket launch vehicle, KKVs are also limited to LEO but with nearly twice the range of MHIVs at 1,000 km. However, this is roughly only half of the distance to MEO.59 A KillSat on the other hand, can be deployed in any satellite orbit to target any space asset in any orbit while avoiding the current ASAT kill zone of 1,000 km above sea level.

57 Taken from Space Launch Vehicle Reliability. Crosslink. Aerospace Corpora/on. Available from h_p://

www.aero.org/publica/ons/crosslink/winter2001/03.html; Internet; Accessed 1 May 2010.

58 See Riebeek, Holli, Catalog of Earth Satellite Orbits. Earth Observatory. Na/onal Aeronau/cs and Space

Associa/on (4 Sept. 2009). Available at h_p://earthobservatory.nasa.gov/Features/OrbitsCatalog/page1.php; Internet: Accessed May 20, 2010.
59 See part 3 of chapter 9 sec/on on the development of ASAT weapons in Yusof, Nordin, Space Warfare: High-

Tech War of the Future Genera;on. Universi/ Teknologi Malaysia (Johor Bahru: First Prin/ng, 1999).

26

The creation and deployment of a web of KillSats would also work as an invulnerable and fast first-strike capability as well as a military deterrent for competing nation-states. As noted in the paragraph above, current ASAT weaponry is limited in range, and KillSats could exceed this range and thus remain impervious to forms of ASAT technology other than KillSats, hopefully none of which are operating by any nation-state in space today. In the advent of war between space-capable nation-states, the space-to-space KillSat employing nation-states could also destroy enemy space assets in less time than traditional Earth-to-space ASAT forces would be able to. This would accelerate and enhance the scare presented from a space Pearl Harbor preemptive attack scenario to nation-states not utilizing this weaponry. The Rumsfeld Commission notes that in order to extend its deterrence concepts and defense capabilities to space, the U.S. will require development of new military capabilities for operation to, from, in and through space.60 Also, these KillSat capabilities can work as an ever present deterrence for any knowledgeable would be aggressors. These space forces would browbeat contending nationstates under the threat of being denied the benefits of space. Depending on how a KillSat is deployed, designed or advertized, they can afford their user additional advantages in their dual-use and disguisable properties. Scholars and policy makers have been quick to realize the militarized dual-use advantages of satellites in general.61 For a list, see Table 4. However, KillSats also have inherent, weaponized dual-use advantages. Considering that space assets freefall in LEO at speeds ranging from 25,000 to 28,000 km/hr, a

60 Rumsfeld, Donald H. and others, Commission to Assess United States Na/onal Security Space Management and

Organiza/on. Wri_en in Accordance with Sec/on 1623 of the United States Na/onal Defense Authoriza/on Act for Fiscal Year 2000 (11 Jan. 2001): 12-13
61 See chapter two of Johnson-Freese, Joan, Space as a Strategic Asset (New York: Columbia University Press,

2007).

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head on collision of two satellites can work as an ASAT weapon in its own right. With the right trajectory, even typical, unarmed ComSats could become KillSats. By sacrificing sufficient weight for space weapons while retaining enough equipment for basic telecommunications, ComSats could also double as full-fledged KillSats, performing both tasks simultaneously. When one considers that KillSats can double as ComSats, depending on how a nation-state decides to release information regarding a KillSat, it could be disguised as a non-military space asset, doubling its effectiveness as a first-strike space weapon. The disguisable nature of KillSats specifically, but also many other aspects, are enhanced greatly by their privatization as well. Policy makers in the US, as well as other countries, will consider the privatization of KillSats beneficial because (1) of outsourcing pressures and privatized space assets have been used and proven before, (2) there are traditional advantages to the privatization of military tasks and (3) there are case specific advantages to the privatization of KillSats. With the advantages of privatization enumerated below aside, an overriding determining factor in the US is persistent government programs to outsource technical operation, support and assessment and combat functions from traditional military forces to commercial providers. This trend began under the Bill Clinton administration in the mid 1990s and accelerated under the strain of the George W. Bush administrations foreign policy.62 Space is no sanctuary to this trend. As mentioned before, privately owned and operated space assets were utilized during Operation Desert Storm to

62 This argument is supported by Krahmann, Elke, Transi/onal States in Search of Support: Private Military

Companies and Security Sector Reform. found in Chesterman, Simon and Chia Lehnardt, eds., From Mercenaries to Market: The Rise and Regula;on of Private Military Companies (Oxford University Press, 2007). 94-112.

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support the US military offensive in communications, navigation, weather forecasting and land remote sensing.63 See Table 1 for details. There are traditional advantages to privatization of military tasks which has empowered and proliferated PMSCs the world round since the end of the Cold War. The traditional PMSC advantages pertinent to the proliferation of space-capable PMSC use of KillSats are (1) efficiency and cost-effectiveness, (2) enhanced power and capacity for action, (3) advantages for transitional nation-states, and (4) an existing market of supply and demand. The use of PMSCs increases efficiency and benefits nation-states by freeing up core national military forces for more important or more specific tasks that cannot be privatized. Standardized military forces, while most effective and appropriate in a wide spectrum of tasks, are frequently overstretched and placed into operations where a greater level of specialization would be optimally performed by tailor-made professionals. Employment of PMSCs also benefits nation-states that have diminished military budgets since the close of the Cold War and are facing a wider array of security issues. For nation-states forced into a juggling act to try to maintain the existing scope (or maybe at times even a greater scope) of operations with lower funding, outsourcing to costeffective private military providers can play a decisive role64 While the upkeep of other assets in space is not cost-effective, ComSats are a reliable, established and profitable foothold for private

63 See Smith, Marcia S., Military and Civilian Satellites in Support of Allied Forces in the Persian Gulf War. CRDC-

ID: CRS-1991-SPR-0025. U.S. Congressional Research Service. Science Policy Research Division (27 Feb. 1991).
64 Taken from Mandel, Robert, Armies Without States: The Priva;za;on of Security (Boulder: Lynne Rienner, 2002):

59.

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firms in outer space.65 Considering the dual-use nature of KillSats as ComSats, this makes spacecapable PMSCs cost-effective for governments and profitable for private firms. Utilization of PMSCs can bring an administration enhanced power and capacity for action as well. The conscription of ready-to-order private military assets work to enhance the power of executive administrations by providing a reserve of raw military power with a short deployment time required in high tension or emergency situations. In addition, just as access to space works as a force multiplier to forces on the ground, PMSCs are seen as force multipliers that complement existing national military forces in more direct ways by providing professional expertise, which is usually complemented with high levels of experience. Because executive administrations are empowered by the reduced transparency, reduced mobilization bureaucracy and relative weakening of the power of obtrusive legislatures from the employment of PMSCs, they are afforded the freedom to engage in more ambitious and adventurous foreign policies.66 In scholarship concerning mercenarism and PMSCs, the clientele of PMSCs can be broadly categorized as either donor states or transitional nation-states. While donor states enjoy the benefits of an efficient and cost-effective force with short deployment time, specific expertise and high levels of experience mentioned above, transitional nation-states enjoy additional advantages from PMSC use. For lesser developed transitional nation-states lacking in sufficient security, PMSCs offer not only (1) force multipliers to existing national military institutions, but also offer (2) first-rate assistance in the creation, development and training of national military forces, (3) alternative sources for advanced, modern war military capabilities and hardware other
65 See Reichhardt, Tony, U.S. Commercial Space Ac/vi/es. CRDC-ID: CRS-1992-SPR-0015. U.S. Congressional

Research Service. Science Policy Research Division (1 Feb. 1992).

66 See Chapter 7 of Avant, Deborah D., The Market for Force: The Consequences of Priva;zing Security (Cambridge:

Cambridge University Press, 2005).

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than nation-states with specific political agendas and (4) an alternative to slow, unresponsive and obstructive international assistance.67 While the distinctions made between the multiple advantages of PMSC use as well as donors and transitional nation-states have been made by scholars with mercenaries and failed states in mind, all of these advantages can be provided to these respective parties by private firms with the expertise, experience and resources to create, deploy and operate KillSats in order to provide clients with the advantages of space control. The accelerating proliferation of PMSCs since the close of the Cold War has been attributed, on the systemic scale, to the creation of both an international supply and demand for the services that they provide in the new world order. Where the world had, only a decade before the fall of the Berlin Wall, seen a near limitless funding for national military services and servicemen, the decade following the fall of the Berlin Wall has shown dramatic cutbacks in military spending throughout Europe, but most dramatically in post-apartheid South Africa and the nation-states of the former Warsaw Pact. This left a surplus of young men trained in very specialized military occupations without jobs and in excess supply. With the collapse of the Soviet/US world rivalry, loss of their combined world security enforcement and control interests and these same cutbacks in military spending there developed a security vacuum that has left entire regions of the world without security or governance. This has created a demand in the world market for security where none exists and only PMSCs can provide.68 The collapse of the

67 The dis/nc/on between donor and transi/onal states, as well as some of the reasons for PMSC use is made by

Krahmann, Elke, Transi/onal States in Search of Support: Private Military Companies and Security Sector Reform. found in Chesterman, Simon and Chia Lehnardt, eds., From Mercenaries to Market: The Rise and Regula;on of Private Military Companies (Oxford University Press, 2007). 94-112.
68 See chapter 3 of Mandel, Robert, Armies Without States: The Priva/za/on of Security (Boulder: Lynne Rienner,

2002). and Leander, Anna, The Market for Force and Public Security: The Destabilizing Consequences of Private Military Companies. Journal of Peace Research 42, no. 5 (2005): 605-622.

31

Soviet Union, the USs rival in space, has likewise created open sources of supply for the weaponization of space. As outer space lacks both governance and security, and as one nationstates pursuit of space security and space control only increases the insecurity of space to all other actors, there exists a demand for PMSCs in space as well. Case specific advantages to the privatization of KillSats include (1) their enhanced dualuse disguisable nature, (2) clients freedom of plausible deniability and lack of accountability, (3) the overt and secret exploitation of a lucrative and untapped market, and (4) the overt and secretive and selective selling of KillSats in order to undermine rival nation-states or the international regime. As mentioned above, KillSats afford their users additional advantage in their dual-use and disguisable nature, working as hidden, first-strike capable space assassins. However, the privatization of KillSats doubles this advantage. This advantage has both defensive and offensive properties. Defensively speaking, while nation-states can observe a threatening nation-states assets in space and target them in the advent of weaponized confrontation in space, KillSats under the guise of privately owned and operated ComSats would be immune from unwitting enemy forces. Offensively speaking, as KillSats in the guise of private ComSats would be immune from a first strike, this affords them both first and second strike capabilities. This ensures invincibility from and, depending on how information regarding this hidden fleet is selectively disseminated, deterrence through other nation-states fears of a space Pearl Harbor. A traditional advantage PMSCs have granted executive government administrations has been the freedom of plausible deniability and a lack of accountability. By establishing loose and liberal chains of command where operators in the field are left to their own judgments disconnected from higher level oversight, PMSCs empower government executives by giving

32

them the capability of diverting blame for publicly unpopular actions by institutionalizing a lack of required adherence to responsibility for an agent in the principle/agent relationship. This cushions and protects governments from moral and normative restrictions while ensuring freedom of action, as was accomplished by nation-states like France and Belgium when seeking to manipulate newly independent African nation-states in the latter half of the 20th century. 69 Utilization of PMSCs also affords clients with a flexible tool equipped with a non-obstructive lack of accountability. The lack of accountability inherent in PMSCs and the sustainment of it complements their condition as plausibly deniable and is in the interest of governments to utilize. As elaborated upon above, there exists an overt market with both a supply and demand for space assets, which includes weaponized space assets. For example, Glavcosmos, a Russian space company looking to sell its services abroad, sold advanced, dual-use rocket technology to both India and Iran for civilian space cooperation. These nation-states were seeking to ameliorate their lack of presence in space. However, these moves were so unpopular internationally, and especially in the US, that US legislators enforced sanctions against the company.70 So while there is a high supply and high demand for space security, there exist a plethora of restrictions to the proliferation of much of this technology within the US, and consequences for nation-states openly trading this technology on the world market from the US. Any space-capable PMSCs that could bypass these roadblocks with secrecy, especially with the additional help from cooperative nation-states, could tap into an untapped market for major profits from the highest bidder for both the PMSC and nation-state in question. However, if the
69 See Avant, Deborah D., Mercenaries. Foreign Policy, no. 143 (Aug. 2004): 20-28. and French, Howard., The

Mercenary Posi/on. Transi;on, no. 73 (1997): 110-121.

70 See Shin, Jenny, A Chronology of Irans Space Ac/vi/es. Center for Defense Informa/on (2009). Available from

h_p://www.cdi.org/pdfs/IranSpaceTimeline09.pdf; Internet; Accessed 11 Dec. 2009.

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US was to privatize its KillSat technologies and capabilities, it would also open a lucrative, albeit suicidal market for its goods which it would dominate. The US could also engage in these trades with secrecy to save face internationally. Nation-states could also profit from a market of spacecapable PMSCs by flying flags of convenience. Utilizing space-capable PMSCs as a front for the selective dissemination of KillSat technologies and capabilities, nation-states can decide who is afforded the advantages of a fleet of KillSats and who is not in order to further their own interest. While it would not be in the interest of the US to disseminate this technology through PMSCs, this is because the US is outer spaces hegemon and the worlds enforcer against undesired KillSat proliferation; this is not the case for other nation-states. Other nation-states can utilize these PMSCs to proliferate KillSat technologies and capabilities in order to undermine either rival space-capable nation-states, the international world order or both. The freedom of plausible deniability and lack of accountability garnered from PMSC use, mentioned above, allow nation-states the freedom to proliferate KillSats to their advantage with no repercussions from the US or the international community. 5.2. SPACE SECURITY MUST NOT BE PRIVATIZED In this section, I will reveal why the US, as well as other countries, must not privatize weapons in space. The weaponization of outer space, the creation of fleets of KillSats, the privatization of space security and the initiation of an arms race in space (1) is unnecessary, (2) is not beneficial for nation-states, (3) empowers a diversified array of actors that will destabilize space and (4) weakens the power, centrality and cooperation of nation-states in a realm characterized by lack of governance. The weaponization of outer space, the creation of fleets of KillSats, the privatization of space security and the initiation of an arms race in space is

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unnecessary because of (1) complex interdependence, (2) normative constraints, (3) a history of peaceful space interaction, (4) the creation of a threat that does not exist and (5) Terra already being weaponized. Contrary to realist assumptions of the inevitability of an arms race in space, space, like many theaters of international interaction, is characterized by cooperation and normative values. In a world characterized more by international cooperation and less by confrontation and outright war, nation-states interact in ways characterized as complex interdependence than simple realism. They are influenced not only through interstate channels, but also transgovernmental and transnational ones. They do not have a static policy hierarchy that always prioritizes military positioning above all others. Also, when states establish a complex interdependence with one another, they do not militarily position themselves against one another in new ways and places where it is unnecessary.71 Multilateral cooperation and mutual trust would offer an alternative that would make weaponizing space unnecessary. While realists conceptions on international politics are a self fulfilling prophesy that spiral nation-states into arms races based on a simple model of prioritized militarization and mutual mistrust, this is not the case for nation-states that represent a wide spectrum of identities and interests. The interests of nation-states cannot be simplified as one answer to every dynamic situation to which nation-states confront, but are defined by the identity or role of a nation-state gives itself.72 The identity or role a nation-state assumes is based off normative beliefs and interpretations that do not always put every aspect of national defense, no matter how

71 See Keohane, Robert O. and Joseph S. Nye, Realism and Complex Interdependence. Power and

Interdependence, 3rd ed. (Addison-Wesley: 2000): 3-7.

72 See Wendt, Alexander, Anarchy is What States Make of It. Found in Wendt, Alexander, Anarchy Is What

States Make of It: The Social Construc/on of Power Poli/cs. Interna;onal Organiza;on 46, No. 2 (Spring, 1992): 391-425.

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unnecessary or overly specific, first. The power of normative values makes an assumption of inevitable weaponization of space misplaced and works to inspire the normative values of other nation-states toward multilateral resolutions to conflicts of interest. History shows that an arms race in space is not inevitable and that these normative values of coordinated restraint are possible. This has been evidenced in the past on multiple occasions in outer space. There are three years that illustrate how Soviet and US leadership consistently sought to secularize outer space from the hostility of the superpower Cold War rivalry where it would have been in the strategic interests of each party to do otherwise. The first is 1962, where Soviet and US cooperation established the Partial Test Ban Treaty and with it a moratorium on the environmentally catastrophic testing of nuclear weapons in space in order to ensure safe access to space for all. 73 The second is 1983, with the abandonment of the confrontational and space weaponizing Strategic Defense Initative due to unrealistically high costs, a desire to preserve the Anti-Ballistic Missiles (ABM) Treaty and difficulties of creating a weapons system to intercept over 2,000 Soviet multi-warhead missiles. The third is 2001, when the possibility of an arms race in space began with the militant prescriptions of the Rumsfeld commission on space management, heated up with the PRCs ASAT test of 2007 and the US withdrawal from the ABM Treaty that ended with the PRC stating an end to its ASAT tests and the US stating that there was to be no arms race in space.74

73 See Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water, Signed by the

Original Par/es, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland and the United States of America on 5 Aug. 1963 (Entered into force: 10 Oct. 1963).
74 See Moltz, James Clay, Protec/ng safe access to space: Lessons from the rst 50 years of space security, Space

Policy 23, no. 4 (November 2007): 199-205.

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In view of the complex interdependence, the normative constraints, history of peaceful space interaction and comparative political calm between nation-states that has restrained them from fully weaponizing space, the weaponization of space at this point in time would create a threat to all nation-states that does not exist yet. The full scale weaponization of space is reciprocal and multiplies on itself. However, as no nation-state has taken this first leap, there is still no dire need to arm space assets. The weaponization of space is unnecessary as it will create a threat in space in itself, where none existed before, in an environment that would not need to be weaponized for that reason. Also, the proliferation of disguised KillSats works to legitimize the threat posed by a preemptive, first strike space Pearl Harbor attack in an arena where such a threat does not exist to such a great degree. Creating constellations of weaponized KillSats is unnecessary in that the utilization and control of space assets is grounded on the surface of the Earth, which is already weaponized. By destroying the command centers of space assets of a rival nation-state in time of war, a military force could deny the rival the benefits of space access without the costs and consequences inherent in the initiation of space warfare. Consider the case of the US, which has the force projection of 11 aircraft carriers to ensure the safety of both grounded and orbiting space assets through deterrence or naked force. 75 Such overwhelming force would not need to be complemented with fleets of KillSats to ensure supremacy over another nation-state. The weaponization of outer space, the creation of fleets of KillSats, and the privatization of space security will not be beneficial for nation-states in that it will (1) destroy the laissez-faire unipolar regime of space, (2) create a security dilemma and initiate an arms race, (3) destabilize
75 For a list of all ac/ve US aircrar carriers, see The US Navy Aircrar Carriers. Navy.mil. United States Navy.

Available at h_p://www.navy.mil/navydata/ships/carriers/cv-list.asp; Internet; Accessed 17 May 2010.

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the nuclear standoff on Terra, (4) inadvertently threaten every actor and asset in space, (5) pollute the environment of space and safe access to it impossible for all, (6) be extremely expensive with cheaper alternatives and (7) be normatively deplorable and negatively affect influence. As it already dominates space, it is not in the interest of the US specifically to weaponize space anymore than it already has as it has the most to lose of all nation-states with complete weaponization. However, other nation-states, while perhaps threatened by US dominance, still benefit from the stable regime of US power restrained under its laissez-faire economic cooperative approach of interaction.76 The proliferation of space weapons will create instability in a realm that is currently secured and undermine this centrality to make space nonconductive to the peaceful commercial and political interaction of all actors. The weaponization of space will also create a security dilemma which, in turn, will generate an arms race that creates a space environment that is threatening to all nation-states including the weaponizing nation-states themselves.77 Simply put, the security dilemma is created when a nation-state seeks to increase its own security which inadvertently furthers the insecurity of other nation-states. This dilemma is likened to Rousseaus Stag Hunt where actors can either cooperate and trap the stag, or defect and hunt the easier but less desirable rabbit alone. If there are any defections, the cooperation is insufficient and the prospective stag hunters are left with nothing. In terms of international relations, this affords nation-states a hierarchy of choices to either (1) cooperate and trap the stag (the international analogue being cooperation and disarmament); (2) chase a rabbit while others remain at their posts (maintain a
76 For an overview on polarity and stability, see chapter 2 of Schweller, Randall L. Deadly Imbalances: Tripolarity

and Hitlers Strategy of World Conquest (New York: Columbia University Press, 1998).
77 See Maogoto, J. N. and Steven Freeland, From Star Wars to Space Wars - The Next Strategic Fron/er: Paradigms

to Anchor Space Security. Air and Space Law 33, no. 1 (February 2008): 10-37.

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high level of arms while others are disarmed); (3) all chase rabbits (arms competition and high risk of war); and (4) stay at the original position while another chases a rabbit (being disarmed while others are armed).78 Logically, in one instance with no development of trust, nation-states will choose to all chase rabbits. However, with a continuation of instances, a development of trust can arise and it logically follows that the best choice is for nation-states to cooperate and trap the stag. Historically, nation-states have cooperated in establishing very limited weaponization of space. 79 Weaponization of space at this point would undo that trust and lead to arms competition between nation-states and a high risk of war. The stability of outer space is depended on for the political stability of Terra as well. While nation-states will go to war if their space assets are actively targeted and destroyed by a belligerent power, this threat is compounded by the fact that space assets are depended on for early warning of nuclear strikes. Satellites also work to ease the instability of the nuclear standoff in functioning in intelligence gathering, arms control monitoring, and crisis management tasks.80 Where the destruction of enemy space assets would prove beneficial in the advent of wars between space-capable nation-states, the cost of initiating a nuclear exchange would eclipse this benefit. The weaponization of space would not be beneficial for nation-states as it would create a blindfolded Mexican standoff that would strain tensions and fears between nation-states by destabilizing the nuclear standoff between the nation-states possessing nuclear arms.
78 See Jervis, Robert, Coopera/on Under the Security Dilemma. World Poli;cs 30, no. 2. (New York: Cambridge

University Press, Jan. 1978): 167.

79 See Moltz, James Clay, The Poli/cs of Space Security: Strategic Restraint and the Pursuit of Na/onal Interests

(Stanford University Press: 2008). and Moltz, James Clay. The Past, Present, and Future of Space Security. Brown Journal of World Aairs 14, no. 1 (Fall 2007): 187-195.
80 See chapter 3 of Stares, Paul B., Space and Na;onal Security (Washington, D.C.: The Brookings Ins/tu/on, 1987).

and Richelson, Jerey, Americas Space Sen;nels: DSP Satellites and Na;onal Security (University Press of Kansas, 1999). for a list of peace/me uses for satellites.

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The weaponization of space acts as a threat to not only targeted actors and assets in space, but indirectly all actors and assets in space. The buildup of debris in space from both natural and manmade sources is a great concern for the high-velocity environment and can damage or destroy assets placed into orbit from hypervelocity impacts. One of these manmade sources is the intentional creation of debris in orbit by the testing or use of destructive ASAT weapons. With their high speed in orbit, even relatively small pieces of debris can damage or destroy satellites in a collision. Since debris at high altitudes can stay in orbit for decades or longer, it accumulates as more is produced.81 This indiscriminate and environmentally destructive power makes ASAT weapons a danger to all nation-states space assets, including ones own, and if enough assets are destroyed, can perpetuate a cycle of debris creation. This threat of environmental degradation and self-perpetuating rogue space debris collisions can close off access to space for both humans and material assets for decades at a time. In a study released in 1995, it was found that, in total, 177 impacts with space debris has occurred on the windshield of US Space Shuttles alone since the programs inception in 1981 until the STS-65 mission in July 1994. Of all these impacts, 45 were severe enough to warrant the replacement of the Space Shuttle windshield.82 Table 5 illustrates the details of 11 debris impacts with various Space Shuttles investigated using a scanning electron microscope. Note that two of the impacts were caused by free falling chips of paint. The weaponization of space will

81 See Wright, David, Space Debris, Physics Today 60, no. 10 (Oct. 2007): 35-36. 82 See Edelstein, Karen S., Orbital Impacts and the Space Shu_le Windshield. Lyndon B. Johnson Space Center.

Na/onal Aeronau/cs and Space Administra/on. ES2/Structures and Dynamics Branch. NASA-TM-110594. 1995. Available from h_p://ntrs.nasa.gov/archive/nasa/casi.ntrs.nasa.gov/19950019959_1995119959.pdf; Internet; Accessed 25 May 2010.

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pollute space with excessive debris that cause deadly hypervelocity impacts and ruin and halt safe access to the common of space for all actors and all purposes, be they militaristic or not. Contrary to arguments supporting the cost-effectiveness of PMSCs, the weaponization of space is not cost-effective, whether private or not. Space travel is an expensive endeavor. The average price of for launch vehicles from October 2009 to April 2010 is estimated at $103.83 million each.83 See Table 6 for details. Space warfare would be more expensive. As all space assets are operated from control stations on Earth, conventional Earth-based force projection would be a much cheaper alternative to the same end of denying an enemy the advantages of space. While the rocket science and rocket engineering of launching satellites into space has improved over the years, this may not be the case for KillSat technology, which was tested by the Soviet Union up until 1982 and found to be successful only 45 percent of the time. 84 See Table 2 for details. KillSat technology has not been tested since then and even if the rocket science may have improved over the years, the rocket engineering has not. 85 The weaponization of space also endangers the emerging lucrative commercial markets in space and space industries private firms have been so anxious to develop. The weaponizaiton of space is also normatively deplorable and negatively affects influence. National populations, who depend upon satellites for a wealth of different tasks, would

83 Averaged from a total use of $3.12 billion between 30 launches with disclosed prices taken from Semi-Annual

Launch Report: First Half of 2010. Federal Avia/on Administra/on. Available from h_p://www.faa.gov/about/ oce_org/headquarters_oces/ast/media/semi_annual_launch_report_051810.pdf; Internet; Accessed 17 May 2010.
84 Taken from Yusof, Nordin, Space Warfare: High-Tech War of the Future Genera;on. Universi/ Teknologi

Malaysia (Johor Bahru: First Prin/ng, 1999): 669.

85 Rocket science is the technology while rocket engineering is the technical knowledge in building and opera/ng

space assets as dened in chapter 5 of Johnson-Freese, Joan, Space as a Strategic Asset (New York: Columbia University Press, 2007).

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voice strong disagreement with the deployment, testing or use of space weapons in that it would destroy the fragile environment and halt access to it for both satellite use and human exploration. Space has always been normatively viewed as a peaceful common for the use of all people and nations, typified by the Outer Space Treatys (OST) statement recognizing the common interest of all mankind in the progress of the exploration.86 The symbolic victory afforded to nationstates with fleets of KillSats would be eclipsed by public and international negative reaction, as was the case when the PRC and the US tested Earth-to-space ASAT weapons and destroyed the Feng Yun 1C and USA 193 satellites. 87 By establishing and employing PMSCs for space security, nation-states will diversify the array of actors that can engage in space warfare, which will add an unstable element to the delicate balance created by mutual understandings between nation-states in outer space. The consequences of this diversified array of actors is (1) the spread of new wars to outer space, (2) the empowerment of unruly perpetrators and (3) the control issues inherent in the establishment of PMSCs in a new arena of nation-state interaction. While there currently exists the prospect of fighting a modern war in space, as the destruction of satellites works to sever lines of communications through nation-states and is high-tech and expensive enough only to be useful against other nation-states, the emergence of a private market for force in space will
86 See Treaty on Principles Governing the Ac/vi/es of States in the Explora/on and Use of Outer Space, Including

the Moon and Other Celes/al Bodies, United Na/ons General Assembly Resolu/on 2222 (XXI) (January 1967).
87 See Concern over Chinas Missile Test. BBC News. Bri/sh Broadcas/ng Corpora/on (Last updated: 19 Jan.

2007). Available from h_p://news.bbc.co.uk/2/hi/asia-pacic/6276543.stm; Internet; Accessed 19 May 2010. and China Conrms Satellite Downed.BBC News. Bri/sh Broadcas/ng Corpora/on (Last updated: 23 Jan. 2007). Available from h_p://news.bbc.co.uk/2/hi/asia-pacic/6289519.stm; Internet. and US Missile Hits Toxic Satellite. BBC News. Bri/sh Broadcas/ng Corpora/on (Last updated: 21 Jan. 2008). Available from h_p:// news.bbc.co.uk/2/hi/7254540.stm; Internet. and Chinese An/-Satellite Test Sparks Concern: U.S. and Other Countries React to Reports about Orbital Weapon. msnbc.com Sta and News Service Reports. MSNBC (Last updated: 18 Jan. 2007). Available from h_p://www.msnbc.msn.com/id/16689558/; Internet; All accessed 19 May 2010.

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introduce aspects of new wars into outer space. 88 This emergent domain of new wars will be characterized by non-state actors fighting on behalf of nation-states against other nation-states and non-state actors in ways that will transform conventional assumptions, strategies and attitudes on space war and conventional wars fought on Terra. 89 This transformation in space war will require policy makers to rewrite traditional and well understood doctrines for new and experimental ones. The instability of venturing into this undiscovered country poses unacceptable risks to nation-states that prefer stability, predictability, controllability in policy. The privatization of force in space empowers formerly excluded unruly perpetrators of instability and warfare like (1) rogue nation-states, (2) terrorist groups, (3) criminal organizations and (4) deviant individuals. While rogue nation-states may benefit from the freedom of action and power space-capable PMSCs are able to offer, it is not beneficial for all other nation-states to empower those nation-states that refuse civil participation in the international community, ignore established conventions, undermine the influence of major nation-states and expand their power at whatever cost.90 The proliferation of space-capable PMSCs also empowers transitional, rogue nation-states that seek space power but lack the domestic means to project it with an alternative at the right price. However, all nation-states would be threatened by the empowerment of terrorist groups, criminal organizations and deviant individuals who would undermine the centrality of the nation-state in the control of raw space power.

88 For a deni/on of modern war, see Creveld, Mar/n van, The Future of War. found in Patman, Robert G.,

Security in a Post-Cold War World (New York: St. Mar/ns Press, 1999).
89 For a deni/on of new wars, see chapter 6 of Neack, Laura, Elusive Security: States First, People Last (Rowman

and Li_leeld, 2007).

90 See chapter 1 of Mandel, Robert, Deadly Transfers and the Global Playground: Transna;onal Security Threats in

a Disorderly World (Connec/cut: Praeger, 1999).

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The control issues inherent in the establishment of PMSCs in a new arena of nation-state interaction are (1) nation-state dependency on PMSCs and their power over national security agendas, (2) the uncontrollability and accountability issues of PMSCs, (3) the loss of transparency, (4) passive, long-term consequences of the contagion of rocket science and rocket engineering and (5) that PMSCs are not a good alternative to national forces in terms of control. An issue of contention between scholars on PMSCs has been the ability to define and differentiate different forms of private security operators.91 Whether they are defined as PMSCs, mercenaries or privateers, the privatized actors of space wars ranging from fictional benevolent liberators like Captain Han Solo to ruthless profiteers like bounty hunter Boba Fett of Star Wars, they have wide ranging effects on control, nation-state power and the formulation of international order in space. The more nation-states resort to utilizing PMSCs, the more they will expect their services and become dependent upon them. This dependency is compounded by the fact that by becoming an integral part of one of the fundamental tenets of nation-hood, the use and control of applied violence, PMSCs also tie themselves into the nation-states that utilize their services to the extent that the differentiation between the public and private sectors for force in a nation-state become blurred and difficult to differentiate and thus control.92 The use of PMSCs has been found to influence the sovereignty of individual nation-states on (1) domestic political change, (2) empowering outside sources of influence and (3) making certain nation-states victim to the
91 For a discussion on the dieren/a/on between PMSCs and mercenaries, see Gumedze, S., Pouring Old Wine

into New Bo_les? The Debate around Mercenaries and Private Military and Security Companies. found in Gumedze, S., Ed., Elimina;on of Mercenarism in Africa: A Need for a New Con;nental Approach (Pretoria: Ins/tute for Security Studies, July 2008).
92 See Tilly, Charles, War Making and State Making as Organized Crime. found in Evans, Peter and others, eds.,

Bringing the State Back In (Cambridge: Cambridge University Press, 1985).

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actions of more central, powerful and influential nation-states in the international system.93 In addition, the utilization of PMSCs foments a conflicting duality between the organizational and political security sector reforms of nation-states. While PMSCs are not involved directly with political security sector reform, they still have influence on the organizational aspects of security sector reform by recasting institutional reform, police and military training and providing expertise on military and organizational strategy, design and structure of defense departments, national militaries and police forces as well as expertise on future force levels. This influence is not limited to nation-states, but can also affect regional and international entities.94 The disconnect created from this duality ensures that politicians and policy makers continue to think of national militaries in ways that do not fit how they are built, operated, controlled and used. This duality empowers nationally and internationally destabilizing executive administrations with adventurous foreign policies while weakening stabilizing national legislatures.95 Control issues over the use of PMSCs arise from transparency and accountability as well. Government collection and distribution of information regarding PMSCs in use today is spread between many sectors and lacks centrality and thus the ability of nation-states to punish bad behavior and reward proper behavior by PMSCs is lost.96 As private organizations, PMSCs can
93 This globalizing argument is centered in analyses by Crocker, Chester A., Colonialism in Military Dependence:

The Colonial Legacy in Africa. The Journal of Modern African Studies 12, No. 2 (New York: Cambridge University Press, June 1974) 265-286.
94 See Krahmann, Elke, Transi/onal States in Search of Support: Private Military Companies and Security Sector

Reform. found in Chesterman, Simon and Chia Lehnardt, eds., From Mercenaries to Market: The Rise and Regula;on of Private Military Companies (Oxford University Press, 2007). 94-112.
95 See Chapter 7 of Avant, Deborah D., The Market for Force: The Consequences of Priva;zing Security (Cambridge:

Cambridge University Press, 2005).

96 See Krahmann, Elke, Transi/onal States in Search of Support: Private Military Companies and Security Sector

Reform. found in Chesterman, Simon and Chia Lehnardt, eds., From Mercenaries to Market: The Rise and Regula;on of Private Military Companies (Oxford University Press, 2007). 94-112.

45

operate secretly and separately from the nation-states that hire them. The chain of command that national militaries are responsible to is not applied to PMSCs. As they are international, and there is lack of overarching international legislation on them, PMSCs are able to dodge and avoid punitive actions taken by individual nation-states against them for improper conduct. 97 In the case of space-capable PMSCs, transparency and accountability is also irrevocably damaged by their disguising KillSats as ComSats. The uncontrollability of space-capable PMSCs also has passive, long-term consequences in the contagion of rocket science and rocket engineering. The contagion of the technology of rocket science can be characterized as dangerous transfers and transnational flows of (1) clandestine arms, (2) hazardous materials and (3) information disruptions which constitute major security threats to national and international (1) political authority and political/military stability, (2) environmental sustainability and (3) organizational communication and socioeconomic cohesion respectively. In addition, these transnational flows surge within and between nationstates internationally in many geographical regions, making them difficult to locate and control. These dangerous transnational flows are most threatening not in the hands of individuals or nation-states, but organized groups such as rogue nation-states, terrorist groups and criminal organizations empowered by internationalized and space-capable PMSC operators utilizing flags of convenience.98 As the registration and regulation of vessels is the responsibility of respective nation-states on the high seas, as it is in outer space as well, there has emerged a market for nation-states that offer their flags as a matter of convenience for private firms looking for lower
97 See Scoville, Ryan M., Toward an Accountability-Based Deni/on of Mercenary. Georgetown Journal of

Interna;onal Law 37 (2005-2006): 541-581.

98 See chapter 2 of Mandel, Robert, Deadly Transfers and the Global Playground: Transna;onal Security Threats in

a Disorderly World (Connec/cut: Praeger, 1999).

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costs and looser regulations that offer these (lack of) services for competitive prices. Flying flags of convenience poses challenges to jurisdictions, weaponization prevention and further the hiding of corporate identities, loss of control and anarchy.99 An ironic example being landlocked Mongolias issuing of maritime flags for nominal fees and full profits.100 The proliferation of space-capable PMSCs could allow any of these actors to hire space control under any flag. It should also be noted that PMSCs are not a good alternative to national forces in many respects. Telecommunications have been privatized in similar respects, but their failure leads to considerable frustration while the failures of PMSCs lead to severe consequences and loss of life. They create inefficient redundancy in influencing nation-states to form a multilayered and wide ranging public and private military apparatus unnecessary in many contexts and strategic situations.101 Privatized military forces also lack a holistic approach to military situations that require tasks beyond the use of naked force. In general, PMSCs lack (1) the direct ties with nation-states and international organizations that are the root of the organizational and political transformations that resolve conflicts and affect security sector reform, (2) the influence, authority and legitimacy to direct and implement these changes and (3) direct military-to-military ties between nation-states cooperating or competing against one another.102
99 See Gianni, Ma_hew, Real and Present Danger: Flag State Failure and Mari/me Security and Safety. World

Wide Fund for Nature and Interna/onal Transport Workers Federa/on (Oslo/London: June 2008). Available from h_p://www.globalpolicy.org/images/pdfs/06agstate.pdf; Internet; Accessed 20 May 2010.
100 See Brooke, James, Landlocked Mongolias Seafaring Tradi/on. Global Policy Forum. New York Times (2 July

2004). Available from h_p://www.globalpolicy.org/component/content/ar/cle/172/29941.html; Internet; Accessed 20 May 2010.

101 See chapter 2 of Mandel, Robert., Armies Without States: The Priva;za;on of Security (Boulder: Lynne Rienner,

2002).
102 See Krahmann, Elke, Transi/onal States in Search of Support: Private Military Companies and Security Sector

Reform. found in Chesterman, Simon and Chia Lehnardt, eds., From Mercenaries to Market: The Rise and Regula;on of Private Military Companies (Oxford University Press, 2007). 94-112.

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The weaponization of outer space, the creation of fleets of KillSats, the privatization of space security and the initiation of an arms race in space weakens the power, centrality and cooperation of nation-states further in a realm characterized by lack of governance. This lack of governance is perpetuated by PMSCs in that they (1) undermine the legitimacy of the nationstate, (2) are linked to ungovernance and (3) pose a great threat to the developing international order in space. As mentioned earlier, the fundamental tenets of the nation-state are legitimized (1) war-making; to eliminate rivals outside a territory where they are seen as the owners of force, (2) state-making; to eliminate domestic rivals inside this territory, (3) protection; to eliminate the rivals of their subjects and (4) extraction of resources to further these ends. 103 Centralized public security, and a publics viewing of it as legitimate, is thus central to the nation-state. The use of PMSCs undermines the institution of legitimate public security by (1) providing more effective but short-term solutions to long-term control issues and damaging the nation-states monopoly on the use of force, (2) gaining increasing influence as users of force within a nation-state, while being outside its control, (3) changing the form and nature of authority within a nation-state and (4) replacing the cultural and symbolic value of the institutions of sovereign public military. 104 In space, PMSCs could influence nation-states and their centrality to the developing international order in space while nation-states would not be able to influence PMSCs in return. The use of PMSCs is also linked to ungovernance in that in some cases it is caused by ungovernance while reciprocally contributing to its proliferation in turn. Following the end of the Cold War and with military cutbacks worldwide, there was created a supply for private military
103 See Tilly, Charles, War Making and State Making as Organized Crime. found in Evans, Peter and others, eds.,

Bringing the State Back In (Cambridge: Cambridge University Press, 1985).

104 See Leander, Anna, Eroding State Authority? Private Military Companies and the Legi/mate Use of

Force (Rome: Centro Militare di Studi Strategici, 2006).

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forces in the unemployed soldiers of yesterdays world war. The diminishing world security enforcement and control interests between the Cold War Soviet and US rivals created a gap in international funding and intervention which led to pockets of regional ungovernance that work as the primary demand for PMSCs.105 While PMSCs are used to restore order in regions where order has been lost, their services are short-term and do not assist in the state-making, protection and extraction aspects of a nation-state necessary for governance. Fundamentally, PMSCs also perpetuate ungovernance by undermining the nation-states centralized and legitimate use of violence.106 This is reinforced by PMSCs self-perpetuating the supply and demand of private force by creating demand in undermining the establishment of governance while creating supply in the market that emerges from more ungoverned spaces.107 This lack of governance is perpetuated by PMSCs also in that they pose a great threat to the developing international order in outer space. The empowerment of so many actors, including non-state actors, will create a durable disorder of instability with many conflicting interests coming to a head in space.108 With the establishment of a security dilemma in space, inherent in privatizing security there, will come an irreversible drive for weaponization and an arms race in outer space. This will undermine international cooperation and trust in space, which is fundamental in establishing governance in the ungoverned realm. Nation-states that may have
105 See chapter 3 of Mandel, Robert., Armies Without States: The Priva;za;on of Security (Boulder: Lynne Rienner,

2002). and Avant, Deborah D., The Market for Force: The Consequences of Priva;zing Security (Cambridge: Cambridge University Press, 2005).
106 See Leander, Anna, Global Ungovernance: Mercenaries, States and the Control over Violence. Copenhagen

Peace Research Ins/tute (June 2001).

107 See Leander, Anna, The Market for Force and Public Security: The Destabilizing Consequences of Private

Military Companies. Journal of Peace Research 42, no. 5 (2005): 605-622.

108 See chapter 7 of Avant, Deborah D., The Market for Force: The Consequences of Priva;zing Security (Cambridge:

Cambridge University Press, 2005).

49

been forced to cooperate with other nation-states to pursue action in space will now have another avenue of new privatized actors to consult, which also undermines the unity of legislating nationstates against non-state actors in ungoverned outer space. Most importantly, this loss of trust and cooperation between nation-states and formation of mistrust and arms races amongst them will make future legislation and cooperative international governance of space impossible. 6. RECOMMENDATIONS Having reviewed why space security will be privatized because nation-states would think the creation of KillSats under PMSCs would be beneficial while showing why the privatization of space security must not occur, this section concludes by arguing that the solution is establishing an international legal regime for the ungoverned common of outer space. Going full circle, we see that it is essential that the legislation of outer space takes place for multiple reasons and that the legislation of outer space takes place now. In this section, I shall (1) summarize existing pertinent legislation on space and (2) describe what type, form and methods of legislation are needed to halt the privatization of space security and create a stable space regime. The existing pertinent legislation on outer space can be divided into (1) peacetime and (2) wartime national and international legislation. The core of existing international space legislation is referred to as the Corpus Iuris Spacialis (CIS), comprising of (1) the OST, which disallows the stationing of nuclear weapons and weapons of mass destruction in space and grants rights to selfdefense, (2) the Rescue and Return Agreement, which assigns responsibilities to launching authorities, (3) The Liability Convention, which establishes private liability laws, (4) the Registration Treaty, which assigns responsibilities and states of registry and (5) the Moon

50

Treaty, which establishes the moon and other bodies as the common heritage of mankind.109 The most widely endorsed treaty of the international CIS is the OST, which has been ratified by 98 nation-states with an additional 27 having only signed it as of January 2008. 110 While there are 11 nation-states that have indicated an interest in adopting national space legislation in the future, there are currently only 10 nation-states that have employed national space legislation.111 Within this international legal framework, the peacetime space legislation has both law and lacks of law on (1) private ownership rights, (2) nation-state liability and (3) space institutions and conduct. Under the current regime of the OST, although there are no private rights in outer space, there is private ownership that is the responsibility of launching nationstates. However, there exist multiple gaps in questions regarding where the jurisdiction of nationstates applies to the manufacture of space assets, whether states decide to apply their own national private laws to space assets originating from their lands and the rights and obligations of non-state actors in this legislation.112 In terms of public, private, civil and military legislation in outer space, nation-states are liable and are expected to uphold the responsibilities and restraints set forth under the OST to their respective territories and civilian and private citizenry in that regard. Under the auspices of national space legislation, people or organizations looking to launch assets into space must first
109 See chapter 4 and 5 of Haanappel, P.P.C., The Law and Policy of Air Space and Outer Space: A Compara;ve

Approach (The Hague: Kluwer Law Interna/onal, 2003).

110 See Treaty on Principles Governing the Ac/vi/es of States in the Explora/on and Use of Outer Space, Including

the Moon and Other Celes/al Bodies, United Na/ons General Assembly Resolu/on 2222 (XXI) (January 1967).
111 See Gerhard, Michael, Na/onal Legisla/on Perspec/ves for Regula/ng Private Space Ac/vi/es. found in

Benk, M. and Kai-Uwe Schrogl, eds., Space Law: Current Problems and Perspec;ves for Future Regula;on (Utrecht: Eleven Interna/onal, 2005).
112 See chapter 2 of Haanappel, P.P.C., The Law and Policy of Air Space and Outer Space: A Compara;ve Approach

(The Hague: Kluwer Law Interna/onal, 2003).

51

receive a license to do so by their respective nation-states which requires third-party liability insurance and cross-waivers of liability with other accomplices. Only the aforementioned 10 nation-states with national space legislation require this. 113 The requirement of third-party liability insurance ensures the inability of firms to engage in license shopping. However, prices vary from one to another, ranging from French Arianespaces 60 million ($73m) to Australian legislations 450 million ($550m) requirement.114 There are many national and international institutions, like the International Telecommunications Union, that coalesce to bring about order in outer space where little exists. In the vacuum created by the lack of international legislation in space, international commercial institutions have pieced together mutual and unlegislated rules of the road, such as the European Unions (EU) Draft Code of Conduct for Outer Space Activities, that work to strengthen existing United Nations legislation while complementing it further by institutionalizing effective and efficient practices where nation-states have not.115 In addition, while commercial satellite operators originally depended on the data available from the US Joint Space Operations Center and US Air Force satellite observation systems, shortcomings in accuracy and lag-time for these systems prompted these non-state actors to begin the development of their own satellite tracking Data Center.116
113 See chapter 7 of Ibid. 114 Based on exchange rates as of June 2, 2010; see Gerhard, Michael, Na/onal Legisla/on Perspec/ves for

Regula/ng Private Space Ac/vi/es. found in Benk, M. and Kai-Uwe Schrogl, eds., Space Law: Current Problems and Perspec;ves for Future Regula;on (Utrecht: Eleven Interna/onal, 2005).
115 See Council Conclusions and Drar Code of Conduct for Outer Space Ac/vi/es. Council of the European Union.

17175/08. PESC1697,CODUN61 (Brussels: 17 Dec. 2008).

116 See Rathgeber, Wolfgang and others, Space Security and the European Code of Conduct for Outer Space

Ac/vi/es. found in Vignard, Kers/n, A Safer Space Environment?. Disarmament Forum 4. United Na/ons Ins/tute for Disarmament Research (Geneva: United Na/ons, 2009): 33-42.

52

Within this same international legal framework, the wartime space legislation has both law and lacks of law on (1) overarching arms control legislation and (2) non-state actors. In the OST, signatory nations have agreed that the deployment and use of nuclear weapons and weapons of mass destruction outside the atmosphere is prohibited. 117 However, this does not apply to conventional weapons used on or against space assets from Terra or space. The remaining four treaties that make up the CIS with the OST do not restrain nation-states from weaponization either. Within this contemporary framework of international legislation on the subject, so long as none of these [space assets] carry weapons of mass destruction or violate territorial airspace, they would not be in direct violation of existing rules of space and air law.118 Legislation on the complete deweaponization of space has been attempted before in the international Space Preservation Treaty (SPT), which was intended to expand on the OST, but it inevitably failed.119 And while the OST forbids the use of space for things other than peaceful, it does allow for the self-defense of national assets in space, which frees nation-states to weaponize space by how they decided to define self-defense. Other treaties have also limited the use of force marginally in space and are listed in Table 7. While the CIS was established in a time when the majority of all space assets were still either Soviet or US owned, there are some provisions for legislating the safe and proper conduct of non-state actors in space. The treaties require signatory nation-states to establish licensing and

117 See Treaty on Principles Governing the Ac/vi/es of States in the Explora/on and Use of Outer Space, Including

the Moon and Other Celes/al Bodies, United Na/ons General Assembly Resolu/on 2222 (XXI) (January 1967).
118 See Schauer, William H., OUTER SPACE: The Boundless Commons?. Journal of Interna;onal Aairs 31, no. 1

(Spring 1977): 79.

119 See Space Preserva/on Treaty, Available from h_p://www.peaceinspace.com/sp_treaty.shtml; Internet;

Accessed 27 May 2010.

53

regulation of space assets. However, the CIS specifically assigns this responsibility to nationstates that deem themselves the appropriate state party or launching authority.120 This loophole can lead to confusion and abuse. The type, form and methods of legislation that are needed to halt the privatization of space security and establish a stabilizing international legal regime in space are (1) national security sector reform, (2) international institutions and (3) monitors.121 The progression of these three fields can, in turn, spur on the creation of a meaningful, enforceable and overarching international licensing and regulatory regime in the form of a new and comprehensive OST. The establishment of governance in space ameliorates threats from the (1) weaponization of space, (2) chaos from the lack of a space traffic control authority and (3) space debris.122 While there are limited forms of law and cooperation on the latter two points, this section will concentrate on legislation to limit war in space. With the creation of overarching international legislation on space weaponization, the framework would exist in which the patchy amalgamation of existing cooperation on space traffic and debris control could be codified into an overarching international body of space law.123

120 See chapter 4 of Haanappel, P.P.C., The Law and Policy of Air Space and Outer Space: A Compara;ve Approach

(The Hague: Kluwer Law Interna/onal, 2003).

121 A similar scheme is proposed for legisla/on on mercenarism by Krahmann, Elke, Transi/onal States in Search

of Support: Private Military Companies and Security Sector Reform. found in Chesterman, Simon and Chia Lehnardt, eds., From Mercenaries to Market: The Rise and Regula;on of Private Military Companies (Oxford University Press, 2007). 94-112.
122 See MacDonald, Bruce W., Steps to Strategic Security and Stability in Space: A View from the United States.

found in Vignard, Kers/n, A Safer Space Environment?. Disarmament Forum 4. United Na/ons Ins/tute for Disarmament Research (Geneva: United Na/ons, 2009): 17-26.
123 For an example of coopera/on of space, see Council Conclusions and Drar Code of Conduct for Outer Space

Ac/vi/es. Council of the European Union. 17175/08. PESC1697,CODUN61 (Brussels: 17 Dec. 2008).

54

National security sector reform must move away from aggressive space nationalist strategies of confrontation and space control that seeks dominance at any cost, as epitomized under the US George W. Bush presidency.124 In terms of military interests, national security sector reform could still retain cost-effective defense in space by creating satellite redundancy schemes, developing rules to minimize the damage a space war could incur on other aspects of space and pursuing a go slow, limited approach to the weaponization of space, as championed by the technological determinist movement in space security. In terms of national interests, the social interactionism school of space security posits that the security sector must reevaluate national interests and defend national commercial aims, consumer safety and market stability in outer space.125 Taking a constructivist approach, national security sector reform would also have to consider what values a nation-state represents, which in the case of the US would be promoting democracy, freedom from tyranny and free trade by creating an environment of assurance over one of domination in outer space. These reforms would open the doors for national integration into existing international institutions that could work as stepping stones to a comprehensive institution and legal regime for outer space. The establishment of a nondiscriminatory international body of law is critical to create an environment of assurance and ensure that single nation-states do not undermine common space security for lone profit. Building off the existing structures of international space institutions and organizations such as the EUs Draft Code of Conduct for Outer Space Activities,

124 See Rumsfeld, Donald H. and others, Commission to Assess United States Na/onal Security Space Management

and Organiza/on. Wri_en in Accordance with Sec/on 1623 of the United States Na/onal Defense Authoriza/on Act for Fiscal Year 2000 (11 Jan. 2001).
125 See chapter 8 of Moltz, James Clay, The Poli;cs of Space Security: Strategic Restraint and the Pursuit of Na;onal

Interests (Stanford University Press: 2008).

55

Inmarsat, Intelsat and the International Telecommunications Union and the many rules of the road they have developed, nation-states can standardize and codify tried and true practices already in place. These non-state groups can also inspire international integration with enhanced (1) representation from non-state technical bodies and administrations and (2) operating principles based on economic and commercial interests in international institutions and law. While the contributions of these commercial entities will not bring about the deweaponization of space, they can exert influence, expertise and representation for the commercial space sector that makes up such a large part of interaction in space, as a neutral third party whose interests lies in the sustaining of the peaceful space market. 126 These private commercial actors should also be afforded a barebones frame of international private rights in space. Along with private interest representation and rights, there should be private responsibilities that make non-state actors, and not just nation-states, liable for infractions of internationalized space law. However, the separation of liability from nation-states and non-state actors can only be achieved with a common international licensing, registration and third-party liability insurance scheme. This framework empowers both secures nation-states and empowers non-state actors in space for the proper distribution of rights, obligations, jurisdiction and control as well as the protection of third party rights in a jointly utilized common.127 Legislation needed to halt the privatization of space security, ensure compliance to an international legal framework and ensure stability in space would have to be observed and
126 See Lellouche, Pierre and others, Satellite Warfare: A Challenge for the Interna/onal Community. Report by

the French Ins/tute for Interna/onal Rela/ons. United Na/ons Ins/tute for Disarmament Research (Geneva: United Na/ons, 1987).
127 See Schmidt-Tedd, Bernhard and Michael Gerhard, Registra/on of Space Objects: Which are the Advantages

for States Resul/ng from Registra/on?. found in Benk, M. and Kai-Uwe Schrogl, eds., Space Law: Current Problems and Perspec;ves for Future Regula;on (Utrecht: Eleven Interna/onal, 2005): 121-140.

56

enforced based on an international network of monitors. A comprehensive monitoring and verification system could be implemented (1) on Earth through the institutions mentioned above, (2) in space by the international community and (3) in space by private firms and organizations as well. The establishment of a common licensing and registration scheme would make private firms subject to regular updates, inspections and lawful operation internationally. While space arms proliferation is difficult to hinder and arms monitors are generally ineffective on Terra, the securing of the transparent outer space itself through verification and monitoring can work as inspiration for future progress on Earth. 128 Highly advanced space monitoring systems that exist in the PRC, Russia and the US could be utilized independent of one another to verify and ensure cooperation and compliance.129 Private initiatives in space to ensure safety in space by commercial satellite operators can also be utilized as another source of independent monitoring. The development of the Data Center will (1) make transparent information regarding general satellite orbits, movements and frequencies, (2) convert and reformat data across nation-states, (3) standardize terminology, (4) establish common procedures for both routine and emergency situations and (5) share contact information amongst satellite providers and operators.130 The progression of these three fields can, in turn, spur on the creation of a meaningful, enforceable and overarching international licensing and regulatory regime in the form of a new and comprehensive OST or SPT. While the abolition of ASAT capabilities would be difficult
128 See chapter 1 of Mandel, Robert, Deadly Transfers and the Global Playground: Transna;onal Security Threats in

a Disorderly World (Connec/cut: Praeger, 1999).

129 See Baines, Philip J. and Adam Ct, Promising Condence- and Security- Building Measures for Space

Security. found in Vignard, Kers/n, A Safer Space Environment?. Disarmament Forum 4. United Na/ons Ins/tute for Disarmament Research (Geneva: United Na/ons, 2009): 5-16.
130 See Rathgeber, Wolfgang and others, Space Security and the European Code of Conduct for Outer Space

Ac/vi/es. found in Vignard, Kers/n, A Safer Space Environment?. Disarmament Forum 4. United Na/ons Ins/tute for Disarmament Research (Geneva: United Na/ons, 2009): 33-42.

57

considering three superpowers have already invested considerable time and resources into their development and cannot singly disarm against their own security concerns, a good stepping stone would be moratoriums on KillSat deployment, testing and use. Referring to the OSTs clause on the right of nation-states to self-defense in outer space, legal experts can argue that while Earthto-space weapons may be considered defensive, space-to-space ASAT weapons like KillSats are certainly not. The abolition of dual-use KillSats would stem the profitability of space war for private firms and the advantages of PMSC use in outer space for nation-states. A policy of restraint from stationing space-to-space and space-to-Earth weapons in outer space would not infringe on contemporary Earth-to-space based ASAT and ballistic missile defense programs. The adoption of a new overarching and comprehensive OST would not be impractical or unrealistic as national space laws already resemble the OST.131 7. SUMMARY AND CONCLUSION This paper has shown that the establishment of an international governing legal regime in the ungoverned common of outer space is more possible today than ever before due to (1) linkages from complex interdependence, (2) a comparative political calm, (3) the stable laissezfaire unipolar regime on Terra and in space, (4) central nation-state power, and (5) the influence of a multilateral US. However, it is found that the establishment of an international governing legal regime in the ungoverned common of outer space will not be a reality in the future due to the decay of cooperation in the eventual (1) increasing weaponization of space between nationstates, (2) scarcity of lanes and frequencies, (3) volatility of increased numbers of actors, and (4) privatization of space security. The paper built off the last speculation that nation-states could
131 See chapter 1 of Haanappel, P.P.C., The Law and Policy of Air Space and Outer Space: A Compara;ve Approach

(The Hague: Kluwer Law Interna/onal, 2003).

58

employ space-capable PMSCs by justifying (1) why nation-states would desire to do so and (2) why it would not be in the interest of nation-states to do so. This paper then offered an array of recommendations on the type, form and methods of legislation needed to build up the contemporary body of space law into an overarching international legal regime in order to promote safety, stability, cooperation and most importantly, prevent the creation and proliferation of space-capable PMSCs now and in the future. While the chaos of marauding space fleets pitched in bloody and destructive conflicts spanning the miasma of outer space are the stuff of science fiction, if we allow Icarus to plummet in our indecisive hesitation, science fiction will no longer be known for the lighthearted smiles of today, but the burning tears of the billions who look back on a time before the sky had fallen. 8. TABLES TABLE 1: Satellites in Support of the Persian Gulf War132 FUNCTION COMMUNCATIONS (Military Systems) SATELLITE OR SYSTEM Defense Satellite Communications System (DSCS) Fleet Satellite Communications System (FLTSATCOM) Air Force Satellite Communications System (AFSATCOM) Satellite Data System Macsat NATO (NATO) Skynet (U.K.) Telecom/Syracuse (France)

132 Taken from Smith, Marcia S. Military and Civilian Satellites in Support of Allied Forces in the Persian Gulf War.

CRDC-ID: CRS-1991-SPR-0025. U.S. Congressional Research Service. Science Policy Research Division. (Feb. 27, 1991): 11-12.

59

COMMUNICATIONS (Civilian/Commercial Systems)

NAVIGATION (Military and Civilian) WEATHER (Military) WEATHER (Civilian)

LAND REMOTE SENSING (Civilian/ Commercial) INTELLIGENCE GATHERING (Military)

EARLY WARNING (Military)

Tracking and Data Relay Satellite System International Telecommunications Satellite Organization (INTELSAT) International Maritime Telecommunications Satellite Organization (INMARSAT) Other illustrative examples: European Telecommunications Satellite Organization (EUTELSAT) Arab Telecommunications Satellite Organization (ARABSAT) Panamsat NAVSTAR Global Positioning System (GPS) Defense Meteorological Satellite Program (DMSP) National Oceanographic and Atmosphere Administration (NOAA) Geostationary Operational Environmental Satellite (GOES) Meteosat Operational Programme (MOP) European system that may be supporting Desert Storm Landsat (U.S.) SPOT (France) Resurs (Soviet Union) Photographic Reconnaissance: KH-11 Advanced KH-11 Space-Based Radar: Lacrosse Electronic/Signals Intelligence: Magnum Chalet White Cloud Vortex? Advanced KH-11? Defense Support Program (DSP)

TABLE 2: Soviet Anti-Satellite (ASAT) Tests (1968-1982).133

133 Taken from Yusof, Nordin. Space Warfare: High-Tech War of the Future Genera;on. Universi/ Teknologi

Malaysia (Johor Bahru: First Prin/ng, 1999): 669.

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Test Number 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

Date 20 Oct 68 1 Nov 68 23 Oct 70 30 Oct 70 25 Feb 71 4 Apr 71 3 Dec 71 16 Feb 76 13 Apr 76 21 Jul 76 21 Dec 76 23 May 77 17 Jun 77 26 Oct 77 21 Dec 77 19 May 78 18 Apr 80 2 Feb 81 14 Mar 81 18 Jun 82

Attempted Intercept Altitude 525 535 530 535 585 1005 230 575 590 16307 570 1710 15757 150 995 985 1000 1005 1005 1005

Mission Type 2 rev 2 rev 2 rev 2 rev 2 rev 2 rev 2 rev 1 rev 1 rev 2 rev 2 rev 1 rev 1 rev 2 rev 2 rev 2 rev 2 rev 2 rev 2 rev 2 rev

Probable Outcome Failure Success Failure Success Success Success Success Failure Success Failure Failure Failure Success Success Failure Failure Failure Failure Success Failure

Table 3: Launch Successes (s) and Failures (f), 1957-1999134

Year

US

CIS/USSR

EU

PRC

Japan

India

Isr.

NK

Total ()

Year

134 Note that specic sta/s/cs from Australia, Brazil, France and the United Kingdom are not posted for lack of

space, however, totals are based o their sta/s/cs as well. Taken from Space Launch Vehicle Reliability. Crosslink. Aerospace Corpora/on. Available from h_p://www.aero.org/publica/ons/crosslink/winter2001/03.html; Internet; Accessed 1 June 2010.

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Year s 1957 1958 1959 1960 1961 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 0 5 11 16 22 48 37 56 61 72 58 43 38 28 31 31 23 23 27 24 23 32 16 12 18 18 22 21 17 6 8 11 18 f 1 18 8 13 19 11 9 8 9 5 3 5 3 2 4 2 2 2 4 2 3 1 0 3 1 0 0 1 1 3 1 1 0 s 2 1 3 5 6 20 17 30 48 43 68 74 69 81 83 74 86 81 89 98 98 87 87 87 97 100 97 97 97 91 95 90 74 f 0 4 1 6 3 2 7 6 6 11 8 8 15 7 9 5 4 4 4 2 4 4 3 3 2 9 3 1 4 5 3 5 1 s f s f s f s f s f s f s 2 6 14 21 28 68 54 86 110 116 129 117 107 113 119 106 109 105 124 125 123 123 106 102 121 120 126 127 120 103 110 115 101 f 1 22 9 19 22 13 16 14 15 18 12 14 20 12 15 7 8 8 8 6 7 5 5 7 4 10 3 3 6 9 5 7 1

Year 1957 1958 1959 1960 1961 1962 1963 1964 1965 1966 1967 1968 1969 1970 1971 1972 1973 1974 1975 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989

0 0 0 0 0 0 0 0 0 0 0 1 0 2 0 2 4 3 2 2 7 7

1 1 1 1 0 0 0 0 0 0 0 0 1 0 1 0 0 1 1 0 0 0

1 1 0 0 0 3 2 0 1 0 0 1 1 1 2 1 2 2 4 0

0 0 0 1 2 0 1 0 0 1 0 0 0 0 1 0 0 0 0 0

0 0 0 0 1 2 1 0 1 2 1 2 3 2 2 3 1 3 3 2 2 3 2 2

2 1 0 1 1 0 0 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0

0 1 0 0 1 0 0 0 0 0 0

1 0 1 0 0 0 0 0 1 1 0

1 0

0 0

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1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 T() 57-99 60- 99 70- 99 80- 99 90- 99

26 17 28 23 26 26 32 37 34 27 1152 87.5% 89.2% 92.9% 93.4% 93.6%

1 2 1 2 1 4 1 1 2 4 164

74 59 54 46 48 31 23 27 24 28 2589 93.5% 93.5% 95.5% 95.9% 95.0%

5 2 1 2 1 2 4 2 1 2 181

5 8 7 7 6 11 10 12 11 10 117

1 0 0 0 2 0 1 0 0 0 12

5 0 3 1 5 2 2 6 6 4 56

0 1 1 0 0 1 2 0 0 0 11

3 2 1 1 2 1 1 2 1 0 52 85.2 85.2 91.2 92.5 82.4

0 0 0 0 0 1 0 0 1 1 9

0 0 1 0 2 0 1 0 0 1 7

0 0 0 1 0 0 0 1 0 0 6

1 0 0 0 0 1 0 0 0 0 3

0 114 0 86 0 94 0 78 0 89 0 72 0 69 0 84 1 0 1 76 0 0 0 70 1 0 1 3988 0.0 0.0 0.0 0.0 0.0 91.1% 91.7% 94.1% 94.5% 93.4%

7 5 3 5 4 8 8 5 6 8 390

1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 T() 57-99 60- 99 70- 99 80- 99 90- 99

90.7% 90.7% 92.1% 93.5% 95.6%

83.6% 83.6% 83.6% 88.9% 87.2%

53.8 53.8 53.8 58.3 71.4

75.0 75.0 75.0 75.0 66.7

Table 4: Examples of Space-Related Dual-Use Technology135 Generic Technology Application Communications satellites Civil Use Fixed satellite service Broadcasting satellite service Mobile satellite service Land, maritime, and aeronautical mobile intersatellite services Military Use Fixed satellite service Broadcasting satellite service Mobile satellite service Land, maritime, and aeronautical mobile intersatellite services Dual Use? Yes Yes Yes Yes

135 Taken from Johnson-Freese, Joan. Space as a Strategic Asset, (New York: Columbia University Press, 2007): 31.

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Satellite remote sensing/imaging

Satellite navigation systems Rocket propulsion

Earth resource Reconnaisance Yes observations Environmental Environmental Yes monitoring monitoring Meteorological services Meteorological services Yes Atmosphereic research Geophysics and No geodesy Precision targeting Oceanography Yes Cartography Oceanography Cartography Yes Nuclear test detection Yes and surveillance No Treaty compliance Early-warning system verification Treaty compliance No verification Yes Navigation services Navigation services Yes Space launch systems Space propulsion systems Sounding rockets Orbital reaction control systems Space launch systems Yes Space propulsion Yes systems Sounding rockets Yes Orbital reaction control Yes systems Ballistic Missiles No Antiballistic missiles No Antisatellite systems No Interceptor propulsion No Escape/evasion systems No Search and rescue Search and rescue Yes services services Astronomical research No Astrophysics research No Comet research No Space sciences and No microgravity research Exploration Exploration Yes Planet research No Solar physics research No Environmental Environmental Yes definition definition Technology demos Technology demos Yes

Satellite search and rescue systems Space science and exploration

Technology demos

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Telemetry, tracking, and Telemetry, Tracking, control systems and control systems Monitoring and data collection Permanent manned Observation orbiting stations laboratories Mission staging

Telemetry, Tracking, and control systems Monitoring and data collection Observation laboratories Mission Staging

Yes Yes Yes Yes

Table 5: Details of 11 debris impacts with various Space Shuttles investigated using a scanning electron microscope 136 Mission STS-7 STS 41D STS 41G STS 41G STS 61B STS-30 STS-31 STS-50 STS-50 STS-50 Window Right middle Left side Left side Right forward Left side Right side Right side Right forward Right side L. Overhead Pit Dia. .14 .075 .053 .089 .02 .10 .055 .28 .033 .0605 Pit Depth .0171 .008 .007 .0113 .0009 .0115 .01 .0224 .00286 .00447 Origin Paint chip Debris Debris Micrometeoroid Micrometeoroid Unknown Unknown Titanium (debris) Unknown Micrometeoroid

136 Taken from Edelstein, Karen S., Orbital Impacts and the Space Shu_le Windshield. Lyndon B. Johnson Space

Center. Na/onal Aeronau/cs and Space Administra/on. ES2/Structures and Dynamics Branch. NASA-TM-110594. 1995. Available from h_p://ntrs.nasa.gov/archive/nasa/casi.ntrs.nasa.gov/19950019959_1995119959.pdf; Internet; Accessed 25 May 2010.

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STS-59

side hatch

.44

.0222

Paint chip

Table 6: October 2009-April 2010 Launch Events 137

137 Taken from Semi-Annual Launch Report: First Half of 2010. Federal Avia/on Administra/on. Available from

h_p://www.faa.gov/about/oce_org/headquarters_oces/ast/media/semi_annual_launch_report_051810.pdf; Internet; Accessed 17 May 2010.

66

67

Table 7: The Space Arms Control Regime, 1987138 Prohibition Nuclear detonations Deployment of nuclear weapons and weapons of mass destruction Deployment of fractional orbital missiles Testing, development, and deployment of antiballistic missile systems or components Use of force in space Harmful interference with national technical means of verification or specified systems Agreement(s) Limited Test Ban Treaty of 1963, article 1 Outer Space Treaty of 1967, article 4; SALT II Treaty, article 9 SALT II Treaty, articles 7, 9 Antiballistic Missile Treaty of 1972, article 5 Outer Space Treaty of 1967, article 3 Antiballistic Missile Treaty of 1972, article 12; Direct Communications Link improvement agreements of 1971 and 1984, article 2; International Telecommunications Convention of 1973, article 35; SALT II Treaty, article 15 Environmental Modification Convention of 1977, articles 1, 2

Use of environment modification techniques

138 Taken from Stares, Paul B., Space and Na;onal Security (Washington, D.C.: The Brookings Ins/tu/on, 1987):

147.

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9. FIGURES Figure 1: Distribution of all satellites in orbit based on ownership, organized top-down from largest to smallest139

Figure 2: Distribution of all satellites in orbit based on nationality, organized top-down from largest to smallest140

139 Note that the categories of ownership under a value of 28 (e.g. Commercial/Gov/Mil) are not included. Taken

from Grimwood, Terri. UCS Satellite Database. Union of Concerned Scien/sts (17 Mar. 2006). (Last updated April 1, 2010). Available from h_p://www.ucsusa.org/nuclear_weapons_and_global_security/space_weapons/ technical_issues/ucs-satellite-database.html; Internet; Accessed 17 May 2010.
140 Taken from Grimwood, Terri, UCS Satellite Database, Union of Concerned Scien/sts (March 17, 2006). h_p://

www.ucsusa.org/nuclear_weapons_and_global_security/space_weapons/technical_issues/ucs-satellite- database.html (Last updated April 1, 2010) (Accessed May 17, 2010).

69

Figure 3: The number of successful and failed launches for the space-faring nations of the world between 1957 and 1999141

141 Taken from Space Launch Vehicle Reliability. Crosslink. Aerospace Corpora/on. Available from h_p://

www.aero.org/publica/ons/crosslink/winter2001/03.html; Internet; Accessed 1 May 2010.

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