Air University Press

Report Part Title: Current Space Law And Policy

Report Part Author(s): Jane Gibson and Jeremy Powell
Report Title: AU-18 Space Primer
Report Author(s): Air Command and Staff College and Space Research Electives Seminars
Air University Press (2009)

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 Chapter 3

Current Space Law And Policy

Maj Jane Gibson, USAF; and LCDR Jeremy Powell, USN

Space policy defines the overarching goals and principles of the US space pro-
gram. International and domestic laws and regulations, national interests, and
security objectives shape the US space program. This chapter examines the inter-
national and domestic legal parameters within which the United States conducts
its space programs and outlines the basic tenets of US space policy. The laws gov-
erning the utilization of the space domain remain largely unchanged since the
former Soviet Union and the United States entered the “space race” in the 1950s.
This is of growing concern as the number of nations seeking access to space in-
creases. Space policy formulation is a critical element of the US national planning
process, as it governs all aspects of the US role in space. Furthermore, fiscal con-
siderations both shape and constrain space policy. This chapter details Depart-
ment of Defense (DOD), Army, Navy, and Air Force space policies, derived from the
National Space Policy. It concludes with an analysis of the doctrinal principles that
guide the conduct of military space activities.

International Space Law

The term space law refers to a body of law drawn from a variety of sources and con-
sisting of two basic types of law governing space-related activities: international and
domestic. The former refers to rights and obligations the United States has agreed to
through multilateral or bilateral international treaties and agreements. The latter re-
fers to domestic legislation by Congress and regulations promulgated by executive
agencies of the US government.
Table 3-1, at the end of this chapter, summarizes key international treaties and
agreements that affect the scope and character of US military space activities. The pri-
mary international forum for the development of laws and principles governing outer
space is the United Nations Office for Outer Space Affairs (UNOOSA).1 Though the term
outer space has been used since 1967, the Legal Subcommittee of the United Nations
Committee on the Peaceful Uses of Outer Space has not established the definition or
delimitation of outer space, but rather leaves the definition to the member states. In
recent years, this has repeatedly been a topic for discussion at each session. Jerry Sell-
ers offers this definition from Understanding Space: “For awarding astronaut wings,
NASA defines space at an altitude of 92.6 km (57.5 mi). For our purposes, space begins
where satellites can maintain orbit—about 130 km (81 mi).”2 Listed below are some of
the more important basic principles and rules from the Treaty on Principles Governing
the Activities of States in the Exploration and Use of Outer Space, including the Moon
and Other Celestial Bodies, which was signed on 27 January 1967.3

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CURRENT SPACE LAW AND POLICY

International law applies to outer space. Such law includes the United Nations Char-
ter, which requires all UN members to settle disputes by peaceful means and prohibits
the threat to use, or actual use of, force against the territorial integrity or political in-
dependence of another state. The charter also recognizes a state’s inherent right to act
in individual or collective self-defense.
Outer space, the moon, and other celestial bodies are not subject to appropriation by
claim of sovereignty, use, or occupation, or any other means. In 1976 eight equatorial
countries claimed sovereignty over the geostationary orbital arc above their territory.
Most other countries, including all major space powers, rejected the claim.
Outer space is free for use by all countries. This principle relates to the nonappro-
priation principle and is analogous to the right of innocent passage on the high seas.
Outer space will be used for peaceful purposes only. Most Western nations, including
the United States, equate peaceful purposes with nonaggressive ones. Consequently,
all nonaggressive military use of space is permissible, except for specific prohibitions
of certain activities noted elsewhere in this section.
Astronauts are “peaceful envoys of mankind.” If forced to make an emergency land-
ing, they should not be harmed or held hostage, and they must be returned to the
launching country as soon as possible. Upon request, the spacecraft also should be
returned if possible, and the launching country will pay the costs involved.
Objects launched into space must be registered with the UN. Basic orbital parameters,
launch origin, launch date, and a brief explanation of the purpose of the satellite are
required, although the UN set no time limit for providing this information.
A country retains jurisdiction and control over its registered space objects. This rule
applies regardless of the condition of the objects.
A country is responsible for regulating, and is ultimately liable for, the outer space ac-
tivities of its citizens. In outer space, liability for damage is based on fault; therefore,
assessing blame for objects colliding would be extremely difficult. The launching coun-
try is absolutely liable for damage caused on Earth.
Nuclear weapons tests and other nuclear explosions in outer space are prohibited. Be-
fore this prohibition, the United States conducted two atmospheric nuclear detonation
tests. In 1958 the United States exploded three small nuclear devices in outer space in
Project Argus.4 The purpose of these tests was to assess the impact of an electromag-
netic pulse caused by high-altitude nuclear explosions on radio transmissions and ra-
dar operations and to increase understanding of the geomagnetic field and the behavior
of charged particles within.5 In 1962 the United States planned to conduct further ex-
periments with the ionosphere in Project Starfish. This project involved one device below
the limit of outer space and two larger devices “at several hundred kilometers height.”6
Only one missile actually reached its projected altitude; the other two resulted in launch
failures. The High-Frequency Active Auroral Research Program (HAARP) found this pro-
jection of the results: “In this experiment the inner Van Allen Belt will be practically
destroyed for a period of time; particles from the belt will be transported to the atmo-
sphere. It is anticipated that the earth’s magnetic field will be disturbed over long dis-
tances for several hours, preventing radio communication. The explosion of the inner
radiation belt will create an artificial dome of polar light that will be visible from Los An-
geles.”7 The actual successful test did expand the belt formed by the Argus experiment.
Nuclear weapons and other weapons of mass destruction (such as chemical and bio-
logical weapons) may not be placed into orbit, installed on celestial bodies, or stationed
in space in any other manner.

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 CURRENT SPACE LAW AND POLICY

A country may not test any kind of weapon, nor establish military bases, installations,
or fortifications, nor conduct military maneuvers on celestial bodies. The use of military
personnel for scientific research or other peaceful purposes is permissible.
Interfering with national technical means of verification is prohibited provided such
systems are operating in accordance with generally recognized principles of interna-
tional law and are in fact being used to verify provisions of specific treaties.
The United States adheres to the premise in international law that any act not spe-
cifically prohibited is permissible. Thus, even though the list (see table 3-1 at the end
of the chapter) of prohibited acts is sizable, there are few legal restrictions on the use
of space for nonaggressive military purposes. As a result, international law implicitly
permits the performance of such traditional military functions as surveillance, recon-
naissance, navigation, meteorology, and communications. It permits the deployment of
military space stations along with testing and deployment in Earth orbit of nonnuclear
weapon systems. This includes antisatellite weapons, space-to-ground conventional
weapons, the use of space for individual and collective self-defense, and any conceiv-
able activity not specifically prohibited or otherwise constrained.
Another widely accepted premise is that treaties usually regulate activities between
signatories only during peacetime. This rule holds true unless a treaty expressly states
that its provisions apply or become operative during hostilities, or the signatories can
deduce this from the nature of the treaty itself. In other words, countries presume that
armed conflict will result in the suspension or termination of a treaty’s provisions.
Good examples are treaties whose purpose is to disarm or limit quantities of arms
maintained by the signatories. Therefore, during hostilities, the scope of permissible
military space activities may broaden significantly.
In the past, the only significant competitor to the United States was the former So-
viet Union. Today, several nations have entered the space domain and have national
legislation governing their space-related activities. Those countries include Argentina,
Australia, Canada, Finland, France, Germany, Hungary, Indonesia, Japan, New Zea-
land, Philippines, Republic of Korea, Russian Federation, Slovakia, Sweden, South
Africa, Tunisia, Ukraine, the United Kingdom, and the United States.8

Domestic Space Law

Domestic law has always shaped military space activities via the spending authori-
zation and budget appropriation process. For example, in the mid-1980s, Congress
deleted funding for further testing of the Air Force’s direct-ascent antisatellite
(ASAT) weapon, and the program was cancelled for lack of funds. In addition, a
number of laws not designed solely to address space have applicability. For in-
stance, under the Communications Act of 1934 (amended by the Telecommunica-
tions Act of 1996), the president has the authority to gain control of private com-
munications assets owned by US corporations during times of crisis.9 Since the
1960s, this authority has included both the ground and space segments of domes-
tically owned communications satellites.
The Reagan administration placed emphasis on the creation of a third sector of space
activity, commercial space, in addition to the traditional military and civil sectors. Con-
gress passed the Commercial Space Launch Act of 1984 to facilitate the development
of a commercial launch industry in the United States. From a DOD perspective, the

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CURRENT SPACE LAW AND POLICY

importance of this legislation lay in its authorization for commercial customers to use
DOD launch facilities on a reimbursable basis.10 DOD is now overseeing commercial
operations from its facilities and placing commercial payloads in the launch queue.
The intertwining of the commercial space industry and DOD space programs whenever
possible provides a benefit to both parties.
The Commercial Space Act of 1998 furthered this policy of getting the government
out of the launch business and required a DOD study of the projected launch services
through 2007.11 It also called on the DOD to identify the “technical, structural, and
legal impediments associated with making launch sites or test ranges in the United
States viable and competitive.” It also required the government to purchase space
transportation services instead of building and operating its own vehicles, required
NASA to privatize the space shuttle, and allowed excess intercontinental ballistic mis-
siles (ICBM) to be used as low-cost space boosters. An amendment to the act was pro-
posed in 2003, but it did not pass the House of Representatives. Results of the study
mandated by the act are pending.

National Space Policy

A nation’s space policy is extremely important, especially as it relates to space law

and space doctrine. In order to understand present US space policy and attempt to
predict its future, an examination of its evolution is necessary. While policy provides
space goals and a national framework, national interests and national security objec-
tives actually shape the policy. This framework will lead towards building and meeting
future US requirements and subsequent national space strategies.

Early Policy
The launch of Sputnik I on 4 October 1957 had an immediate and dramatic impact
on the formulation of US space policy. Although the military had expressed an interest
in space technology as early as the mid-1940s, a viable program failed to emerge for
several reasons: intense interservice rivalry, military preoccupation with the develop-
ment of ballistic missiles, and national leadership that did not initially appreciate the
strategic and international implications of emerging satellite technology. Once national
leadership gained this appreciation, it became committed to an open and purely scien-
tific space program.
The emergence of Sputnik I transposed this line of thought. Besides clearly demon-
strating that the Soviets had the missile technology to deliver payloads at global ranges,
Sputnik led to a much wider appreciation of orbital possibilities. The result was the first
official US government statement that space was of military significance. This state-
ment, issued on 26 March 1958 by Pres. Dwight D. Eisenhower’s Science Advisory
Committee, declared that the development of space technology and the maintenance of
national prestige were important for the defense of the United States.12
The first official national space policy was the National Aeronautics and Space Act of
1958. This act stated that the policy of the United States was to devote space activities
to peaceful purposes for the benefit of all humankind. It mandated separate civilian
and national-security space programs and created a new agency, the National Aero-
nautics and Space Administration (NASA), to direct and control all US space activities,

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 CURRENT SPACE LAW AND POLICY

except those “peculiar to or primarily associated with the development of weapons sys-
tems, military operations, or the defense of the United States.” The Department of De-
fense was to be responsible for these latter activities.13
The National Aeronautics and Space Act of 1958 established a mechanism for coor-
dinating and integrating military and civilian research and development. It encouraged
significant international cooperation in space and called for preserving the role of the
United States as a leader in space technology and its application. Thus, the policy
framework for a viable space program was in place. The principles enunciated by the
act became basic tenets of the US space program. These tenets included peaceful focus
on the use of space, separation of civilian and military space activities, emphasis on
international cooperation, and preservation of a space role. All presidential space di-
rectives issued since 1958 have reaffirmed these basic tenets.
A space program of substance still did not exist however, and the Eisenhower ad-
ministration’s approach to implementing the new space policy was conservative, cau-
tious, and constrained. The government consistently disapproved of the early DOD
and NASA plans for manned space flight programs. Instead the administration pre-
ferred to concentrate on unmanned, largely scientific missions and to proceed with
those missions at a measured pace. It was left to subsequent administrations to give
the policy substance.

Intervening Years
Two presidential announcements, one by John F. Kennedy on 25 March 1961 and
the second by Richard M. Nixon on 7 March 1970, were instrumental in providing the
focus for the US space program. As the Army Space Reference Text notes,
The Kennedy statement came during a period of intense national introspection. The Soviet
Union launched and successfully recovered the world’s first cosmonaut. Although Yuri
Gagarin spent just 89 minutes in orbit, his accomplishment electrified the world. This
caused the United States to question its scientific and engineering skills as well as its en-
tire educational system. The American response articulated by President Kennedy as a
national challenge to land a man on the Moon and return him safely to Earth defined US
space goals for the remainder of the decade.14

Prestige and international leadership were clearly the main objectives of the Ken-
nedy space program. However, the generous funding that accompanied the Apollo pro-
gram had important collateral benefits as well. It permitted the buildup of US space
technology and the establishment of an across-the-board space capability that in-
cluded planetary exploration, scientific endeavors, commercial applications, and mili-
tary support systems.
President Johnson’s years in office saw the commencement of work on nuclear
ASATs and the cancellation of the DynaSoar (Dynamic Ascent and Soaring) Flight pro-
gram. This program, which began in 1958, was a 35-foot glider with a small delta wing
and was to be boosted into orbit by a Titan III rocket. The program was determined to
be unnecessary in light of NASA’s manned spacecraft program.
According to the Army Space Reference Text, “as the 1960s drew to a close, a combi-
nation of factors including domestic unrest, an unpopular foreign war and inflationary
pressures forced the nation to reassess the importance of the space program. Against
this backdrop, President Nixon made his long-awaited space policy announcement in
March 1970. His announcement was a carefully considered and worded statement that

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CURRENT SPACE LAW AND POLICY

was clearly aware of political realities and the mood of Congress and the public.”15 In
part, it stated that “space expenditures must take their proper place within a rigorous
system of national priorities. . . . Operations in space from here on in must become a
normal and regular part of national life. Therefore, they must be planned in conjunc-
tion with all of the other undertakings important to us.”16
The Army Space Reference Text continues, “Although spectacular lunar and plane-
tary voyages continued until 1975 as a result of budgetary decisions made during the
1960s, the Nixon administration considered the space program of intermediate priority
and could not justify increased investment or the initiation of large new projects. Space
was viewed as a medium for exploiting and extending the previously realized techno-
logical and scientific gains. The emphasis was on practical space applications” to
benefit American society.17
During the Nixon years, the space world saw three notable events:
• On 5 January 1972, Nixon approved the development of the space shuttle.
• The National Aeronautics and Space Council (started by the Space Act of 1958)
was inactivated.
• The Gemini B/Manned Orbiting Laboratory (MOL) was shelved due to lack of ur-
gency and funding.

Within the DOD, this accentuation on practicality translated into reduced em-
phasis on manned spaceflight but led to the initial operating capability for many of
the space missions performed today. The Defense Satellite Communications Sys-
tem, Defense Support Program, Defense Meteorological Satellite Program (DMSP),
and the Navy’s Transit Navigation Satellite Program (later to evolve as the global
positioning system) were all initial versions of the systems developed and fielded
during this period.
One major new space initiative undertaken during the l970s eventually had far
greater impact on the national space program than planners had originally envi-
sioned—the Space Transportation System (STS), or space shuttle. The shuttle’s goal
was routine and low-cost access to orbit for both civil and military sectors. However, as
development progressed, the program experienced large cost and schedule overruns.
These problems caused the US space program to lose much of its early momentum, as
the high costs would adversely affect other space-development efforts, both civil and
military. In addition, schedule slippage meant a complete absence of American astro-
nauts in space for the remainder of the decade.

Carter Administration Space Policy

Pres. Jimmy Carter’s administration conducted a series of interdepartmental studies
to address the malaise that had befallen the nation’s space effort. The studies addressed
apparent fragmentation and possible redundancy among civil and national security sec-
tors of the US space program. The administration also sought to develop a coherent rec-
ommendation for a new national space policy. These efforts resulted in two 1978 Presi-
dential Directives (PD): PD-37, National Space Policy, and PD-42, Civil Space Policy.
PD-37 reaffirmed the basic policy principles contained in the National Aeronautics
and Space Act of 1958. It identified the broad objectives of the US space program, in-
cluding the specific guidelines governing civil and national security space activities.

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 CURRENT SPACE LAW AND POLICY

PD-37 was important from a military perspective because it contained the initial
tentative indications that a shift was occurring in the national security establish-
ment’s view on space. Traditionally, the military had seen space as a force enhancer,
or an environment in which to deploy systems to increase the effectiveness of land,
sea, and air forces. Although the focus of the Carter policy was clearly on restricting
the use of weapons in space, PD-37 reflected an appreciation of the importance of
space systems to national survival, a recognition of the Soviet threat to those sys-
tems, and a willingness to push ahead with development of an antisatellite capability
in the absence of verifiable and comprehensive international agreements restricting
such systems. In other words, the administration was beginning to view space as a
potential war‑fighting medium.
PD-42 was directed exclusively at the civil space sector to guide US efforts over the
next decade. However, it was devoid of any long-term space goals, expecting the nation
to pursue a balanced evolutionary strategy of space applications, space science, and
exploration activities. The absence of a more visionary policy reflected the continuing
developmental problems with the shuttle and the resulting commitment of larger-than-
expected resources.

Reagan Administration Space Policy

Pres. Ronald Reagan’s administration published comprehensive space policy state-
ments in 1982 and 1988. The first policy statement, pronounced on 4 July 1982 and
embodied in National Security Decision Directive (NSDD) 42, reaffirmed the basic te-
nets of previous (Carter) US space policy. It also placed considerable emphasis on the
STS as the primary space launch system for both national security and civil govern-
ment missions. In addition, it introduced the basic goals of promoting and expanding
the investment and involvement of the private sector in space. Space-related activities
comprise a third element of US space operations, which complement the national se-
curity and civil sectors.
The single statement of national policy from this period that most influenced military
space activities and illuminated the transition to a potential space war-fighting frame-
work is NSDD-85, dated 25 March 1983. Within this document, President Reagan
stated his long-term objective to eliminate the threat of nuclear-armed ballistic mis-
siles through the creation of strategic defensive forces. This NSDD coincided with the
establishment of the Strategic Defense Initiative Organization (SDIO) and represented
a significant step in the evolution of US space policy. Since 1958, the United States
had, for a variety of reasons, refrained from crossing an imaginary line from space sys-
tems designed to operate as force enhancers to establishing a war-fighting capability
in space. The ASAT initiative of the Carter administration was a narrow response to a
specific Soviet threat. However, the Strategic Defense Initiative program represented a
significant expansion in DOD’s assigned role in the space arena.
The second comprehensive national space policy incorporated the results of a num-
ber of developments that had occurred since 1982, notably the US commitment in
1984 to build a space station and the space shuttle Challenger. For the first time, the
national space program viewed the commercial space sector as equal to the traditional
national security and civil space sectors. Moreover, the new policy dramatically re-
treated from its previous dependence on the STS and injected new life into expendable
launch vehicle programs. In the national security sector, this policy was the first to

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CURRENT SPACE LAW AND POLICY

address space control and force application at length, further developing the transition
to war-fighting capabilities in space.
In 1988, the last year of the Reagan presidency, Congress passed a law allowing
creation of a National Space Council (NSPC), a cabinet-level organization designed to
coordinate national policy among the three space sectors. The incoming administration
would officially establish and very effectively use the NSPC.

G. H. W. Bush Administration Space Policy

Released in November 1989 as National Security Directive (NSD) 30, and up-
dated in a 5 September 1990 supplement, the Bush administration’s national
space policy retained the goals and emphasis of the final Reagan administration
policy. The Bush policy resulted from an NSPC review to clarify, strengthen, and
streamline space policy, and has been further enhanced by a series of National
Space Policy Directives (NSPD) on various topics. Areas most affected by the body
of Bush policy documentation included:
• US commercial space policy guidelines.
•  Provision of a framework for the National Space Launch Strategy.
•  LANDSAT Remote-Sensing Strategy.
•  Space Exploration Initiative.
•  Space-Based Global Change Observation System, a key component of the nation’s
overall approach to global stewardship and one of the nation’s highest priority
science programs.

The policy reaffirmed the organization of US space activities into three complemen-
tary sectors: civil, national security, and commercial.18 The three sectors coordi-
nate their activities to ensure maximum information exchange and minimum du-
plication of effort.
The Bush policy proceeded to detail specific policy, implementing guidelines and actions
for each of the three space sectors and intersector activities. The civil sector was to engage
in all manners of space-related scientific research, develop space-related technologies for
government and commercial applications, and establish a permanent manned presence in
space. NASA remained the lead civil space agency, with NASA and the Departments of
Defense, Commerce, and Transportation working cooperatively with the commercial sector
to make government facilities and hardware available on a reimbursable basis.
According to the Bush policy, the United States would conduct those activities in
space that are necessary to national defense. Such activities contribute to security
objectives by: (1) deterring or, if necessary, defending against enemy attack; (2) assur-
ing that enemy forces cannot prevent our use of space; (3) negating, if necessary, hos-
tile space systems; and (4) enhancing operations of US and allied forces. In order to
accomplish these objectives, DOD would develop, operate, and maintain a robust space
force structure capable of satisfying the mission requirements of space support, force
enhancement, space control, and force application.19
Primarily directed at the civil and national security sectors, several policy require-
ments applied across sector divisions. These included such things as continuing the
technology development and operational capabilities of remote-sensing systems, space

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 CURRENT SPACE LAW AND POLICY

transportation systems, and space-based communications systems and the need to

minimize space debris.

Clinton Administration Space Policy

A repositioning of priorities in the Clinton administration was reflected by the decision
in August 1993 to merge various White House science and technology councils into one
National Science and Technology Council (NSTC), which would do most of the day-to-day
work through permanent or ad hoc interagency working groups. The National Space
Council was absorbed into the new NSTC, along with the National Critical Materials Coun-
cil and the Federal Coordinating Council for Science, Engineering, and Technology.
The White House structure for articulating national policy for science and technol-
ogy was put in place by the Presidential Review Directive (PRD)/NSTC series and the
Presidential Decision Directive (PDD)/NSTC series as established by PDD/NSTC 1.
Within four months during the summer of 1994, three additional policies were estab-
lished articulating Clinton’s space policy.
PDD/NSTC 2, “US Polar-Orbiting Operational Environmental Satellite Sys-
tems” (May 1994). PDD/NSTC 2 called for the Departments of Commerce and De-
fense “to integrate their programs into a single, converged, national polar-orbiting op-
erational environmental weather satellite system.”20 This began occurring in 1997. The
DMSP satellite program merged with the National Oceanic Atmospheric Administration
(NOAA) satellite program in May 1998. The new system formed by the merger of the two
programs was known as the Polar-Orbiting Environmental Satellite (POES) System.
PDD/NSTC 3, “LANDSAT Remote-Sensing Strategy” (May 1994). PDD/NSTC 3,
replacing Bush’s NSPD 5, assured the continuity of LANDSAT-type data of the same
quality and reduced the risk of data gap, that is, loss of Earth-sensing data due to a
lack of LANDSAT.
PDD/NSTC 4, “National Space Transportation Policy” (August 1994). PDD/
NSTC 4 superseded all previous policies for US space transportation and “established
national policy, guidelines, and implementation actions for the conduct of national
space transportation programs.”21 It also allocated space transportation responsibili-
ties among federal civil and military agencies.
PDD/NSTC 8, “National Space Policy” (May 1996). In September 1996, the Clinton
administration released its National Space Policy (dated May 1996), which had five goals:
•  Gain knowledge by exploration (1989).
•  Maintain national security (1989).
•  Enhance competitiveness and capabilities (new).
•  Get private sector investment (1989).
•  Promote international cooperation (1989).
These goals were very similar to those established in 1978 by President Carter, and
their heritage went back as far as the 1958 National Aeronautics and Space Act under
Eisenhower. For each major area of space covered in the 1996 National Space Policy
(civil, defense, intelligence, commercial, and intersector), a set of guidelines similar to
the ones in the 1989 National Space Policy was established.

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CURRENT SPACE LAW AND POLICY

G. W. Bush Administration Space Policy

President Bush declared his desire to restructure our defense and deterrence
capabilities to correspond to emerging threats in NSPD-23, National Missile De-
fense. It stated that the deployment of missile defenses was an essential compo-
nent of this broader effort.22
At the outset, the president directed his administration to examine the full range of
available technologies and basing modes for missile defenses that could protect the
United States, our deployed forces, and our friends and allies. Our policy was to de-
velop and deploy, at the earliest possible date, ballistic missile defenses drawing on the
best technologies available.
In August 2002 the administration proposed an evolutionary way ahead for the
deployment of missile defenses. The capabilities planned for operational use in
2004 and 2005 included ground-based interceptors, sea-based interceptors, ad-
ditional Patriot (PAC-3) units, and sensors based on land, at sea, and in space. In
addition, the United States worked with allies to upgrade key early-warning radars
as part of our capabilities. The Department of Defense began to implement this ap-
proach and moved forward with plans to deploy a set of initial missile defense ca-
pabilities beginning in 2004.
The US government began a broad review of US space policies in 2002 in order to
adjust to the domestic and international developments in recent years that had af-
fected US space capabilities. One important component of this review focused on the
relationship between the United States government and the commercial remote-sensing
industry. The last policy covering this area had been issued in 1994. Since that time,
there had been significant changes to this critical area of US national and economic
security. A new commercial remote-sensing space policy was the first product of the
ongoing National Space Policy Review.
The fundamental goal of the US commercial remote-sensing space policy was “to
advance and protect U.S. national security and foreign policy interests by maintain-
ing the nation’s leadership in remote-sensing space activities, and by sustaining and
enhancing the U.S. remote sensing industry. Doing so will also foster economic
growth, contribute to environmental stewardship, and enable scientific and techno-
logical excellence.”23
To support this goal, the policy declared that the US government would do the following:
•  Rely to the maximum practical extent on US commercial remote-sensing space
capabilities for filling imagery and geospatial needs for military, intelligence, for-
eign policy, homeland security, and civil users;
•  Focus US government remote-sensing space systems on meeting needs that can-
not be effectively, affordably, and reliably satisfied by commercial providers be-
cause of economic factors, civil mission needs, national security concerns, or
foreign policy concerns;
•  Develop a long-term, sustainable relationship between the US government and
the US commercial remote-sensing space industry;
•  Provide a timely and responsive regulatory environment for licensing the opera-
tions and exports of commercial remote-sensing space systems; and
•  Enable US industry to compete successfully as a provider of remote-sensing space
capabilities for foreign governments and foreign commercial users, while ensuring

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 CURRENT SPACE LAW AND POLICY

appropriate measures are implemented to protect US national security and for-

eign policy interests.24

Current National Space Policy

The most current National Space Policy was signed in August 2006 and super-
sedes all previous policies. This policy recognizes the advantages that space has
given the United States for nearly five decades, and it also recognizes the vulner-
abilities of space and the need to protect our interests in this vital medium: “Those
who effectively utilize space will enjoy added prosperity and security and will hold
a substantial advantage over those who do not. Freedom of action in space is as
important to the United States as air power and sea power. In order to increase
knowledge, discovery, economic prosperity, and to enhance the national security,
the United States must have robust, effective, and efficient space capabilities.”25
Solidifying US resolve to support international treaties regarding the use of space
(see table 3-1 at the end of the chapter), the principles of the current space policy
mirror those treaties.
The fundamental goals of this policy are to:
• Strengthen the nation’s space leadership and ensure that space capabilities are
available in time to further US national security, homeland security, and foreign
policy objectives;
• Enable unhindered US operations in and through space to defend our interests
there;
•  Implement and sustain an innovative human and robotic exploration program
with the objective of extending human presence across the solar system;
• Increase the benefits of civil exploration, scientific discovery, and environmen-
tal activities;
• Enable a dynamic, globally competitive domestic commercial space sector in order
to promote innovation, strengthen US leadership, and protect national, home-
land, and economic security;
• Enable a robust science and technology base supporting national security, home-
land security, and civil space activities; and
• Encourage international cooperation with foreign nations and/or consortia on
space activities that are of mutual benefit and that further the peaceful explora-
tion and use of space, as well as to advance national security, homeland security,
and foreign policy objectives.26
In general, the National Space Policy takes into account not only the engagement of
the US military in activities worldwide for the past 15 years, but also recognizes the
need to retain space superiority in the face of other nations’ advancements in the space
realm. The current policy clearly defines the roles of the secretary of defense and the
director of national intelligence to achieve the military goals of the policy. It also pro-
vides guidelines for civil space activities by specifying the roles of the secretaries of
commerce and interior and the administrator of NASA.
The utility of space has been proven both militarily and in the civil sector. Space as-
sets have been crucial in recent years to domestic and international disaster relief

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CURRENT SPACE LAW AND POLICY

efforts. The Bush administration clearly understood the need for space, and its policy
emphasized the importance placed on this domain.

Department of Defense Space Policy

Though a new National Space Policy took effect in 2006, the current DOD Space
Policy is dated 1999. On 9 July 1999 the secretary of defense released the most current
revision to the DOD Space Policy; the previous one is dated 1987. This DOD Space
Policy incorporates new policies and guidance promulgated since 1987 and includes
the National Space Policy issued by President Clinton in October 1998. It sets the free-
dom of space as a vital area and establishes definitions of the four mission areas using
the terms space combat, combat support, service support, and space as a medium—just
like air, sea, and land.
Major changes address the transformation of the international security environ-
ment; the promulgation of new national security and national military strategies;
changes in the resources allocated to national defense; changes in force structure; les-
sons learned from the operational employment of space forces; the global spread of
space systems, technology, and information; advances in military and information
technologies; the growth of commercial space activities; enhanced intersector coopera-
tion; and increased international cooperation.
In addition, the DOD Space Policy establishes a comprehensive policy framework for
the conduct of space and space-related activities. US Space Command is listed as the
point of contact for DOD military space. The DOD policy also calls for integrating space
into military operations doctrine. The DOD Space Policy is published as DOD Directive
3100.10, Space Policy, dated 9 July 1999.27

Army Space Policy

The Army space policy was approved in April 2003 and can be found in Field Manual
(FM) 3-14, Space Support to Army Operations, which describes the Army’s commitment
to space capabilities:
The Army space policy clearly indicates the commitment to develop and use space, includ-
ing the following:
•  Operating space systems
•  Providing space forces
•  Developing and using equipment for space operations
•  Executing terrestrial-based space control
•  Providing appropriate doctrine and tactics, techniques, and procedures
The Army space policy confirms that Army access to, and use of, space capabilities is essential
to operational success. Army space and space-related activities enhance operational support
to warfighters and contribute to successful execution of Army missions.
It is clear that the national space policy, DoD space policy, and Army space policy reflect
the critical importance of space for current and future U.S. military operations. Space is
already an integral part of Army operations and will continue to contribute to the increas-
ing effectiveness of the Army and joint land warfighting dominance. The Army’s use of
space and its effort to further develop space capabilities for land warfare has been very
effective. The intent of this doctrine is to capture and codify the elements of that success
and provide the basis for continuing success.28

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 CURRENT SPACE LAW AND POLICY

Navy Space Policy

The US Navy defines its space policy in Secretary of the Navy (SECNAV) Instruction
5400.39C, Department of the Navy Space Policy. The policy was approved in 2004, and
the implementation plan was sent to the force in May 2005. The policy describes the role
of the Department of the Navy (DON) in integrating space capabilities into the Navy:
The United States Navy and Marine Corps must maintain their ability to tactically exploit
the capabilities provided by space systems and participate in all appropriate aspects of the
changed NSS [National Security Space] environment in order to function as an integrated
member of the Nation’s joint warfighting team. Consequently, the DON must continually
reassess its approach and investment to ensure that naval forces receive the maximum
benefit of space-based capabilities. The DON will: (1) integrate the essential capabilities
provided by space systems at every appropriate level throughout the naval force; and (2)
shape the outcome of joint deliberations on future space system capabilities to ensure the
combat effectiveness of naval forces.29

Air Force Space Policy

The earliest recorded statement of Air Force policy regarding space occurred on 15
January 1948, when Gen Hoyt S. Vandenberg stated, “The USAF, as the service dealing
primarily with air weapons, especially strategic, has logical responsibility for the satel-
lite.”30 As reflected in General Vandenberg’s statement, Air Force leaders have tradi-
tionally viewed space as an atmosphere in which the Air Force would have principal
mission responsibilities. This view was perhaps best articulated by former Air Force
chief of staff Gen Thomas D. White, when he coined the term aerospace during testi-
mony before the House Committee on Science and Astronautics in February 1959:
“Since there is no dividing line, no natural barrier separating these two areas (air and
space), there can be no operational boundary between them. Thus, air and space com-
prise a single continuous operational field in which the Air Force must continue to
function. The area is aerospace.”31
Because of this early positioning, the Air Force assumed the predominant space role
within DOD. Air Force space policy has evolved as that role expanded. However, the
policy was not formally documented until 1988. In late 1987 and early 1988, the Air
Force convened the Blue Ribbon Panel, a senior-level working group comprised of both
space and aviation professionals who evaluated whether the service should continue to
seek the leadership role for DOD space activities, and if so, how best to proceed.
The panel strongly affirmed the desirability of operating in space to accomplish Air
Force missions and achieve wider national security objectives. It also developed a list
of recommendations for making the most effective use of the space arena in future Air
Force operations. On 2 December 1988, the Air Force formally adopted the Blue Rib-
bon Panel’s fundamental assumptions and codified them in a new space policy docu-
ment. With only a few minor modifications to accommodate organizational change
within the service, this document remains the current statement of comprehensive Air
Force space policy. The tenets of that policy are discussed below.
Space power will be as decisive in future combat as airpower is today. This long-term
vision recognizes the inherent advantages that space operations bring to military en-
deavors and looks forward to a time when technology, experience, and widespread ac-
ceptance allow the United States to make full use of those advantages.
The United States must be prepared for the evolution of space power from combat sup-
port to the full spectrum of military capabilities. The Air Force believes that space is a

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CURRENT SPACE LAW AND POLICY

military operating arena just as land, sea, and air are. Expansion of the space-control
and force-application mission areas is necessary and desirable to take full advantage
of space for effective accomplishment of national security objectives.
The Air Force will make a solid corporate commitment to integrate space through-
out the Air Force. To use space effectively, the Air Force must fully institutionalize
space operations. There can be no separation of a “space Air Force” and an “avia-
tion Air Force.” Combat power is greatest and most effective when operations in
the two mediums are closely integrated. In an effort to accomplish this integration,
the Air Force became devoted to incorporating space into its doctrine; normalizing
space responsibilities within the Air Staff; instituting personnel cross-flow mea-
sures to expand space expertise throughout the service; encouraging space-related
mission solutions and expertise at all major commands and air component com-
mands; and consolidating space system requirements, advocacy, and operations in
Air Force Space Command.
The United States, DOD, and Air Force all have a policy for the military space mis-
sion areas of space control, force application, force enhancement, and space support,
with implementation guidelines for each area. Updated DOD and Air Force space poli-
cies are expected shortly in light of the new National Space Policy.
US national space policy has, for the most part, kept pace with the growth of its
US space program and is now one of the most well-documented areas of govern-
ment policy. It clearly articulates goals that are both challenging and within the
realm of possibility.

Summary

According to Air Force Doctrine Document (AFDD) 2-2, Space Operations, “Our space
forces perform functions that are critical for the joint force—intelligence, surveillance
and reconnaissance; command and control; positioning, navigation, and timing;
weather services; counterspace; communications; and spacelift. As our reliance on
space increases, so too must our ability to integrate space capabilities throughout joint
operations. To retain the US military’s asymmetric advantage based on space superior-
ity, our Air Force must fully exploit and defend the space domain.”32
Our responsibilities in space include a large and growing number of functions that
contribute to the defense of the United States. Space operations are important ele-
ments of a credible deterrent. They have proven their value in resolving conflicts on
terms acceptable to the United States. We consider military operations in space as be-
ing among our prime national security responsibilities and conduct these operations
according to the letter and spirit of existing treaties and international law. As our space
program has matured over a period of nearly four decades, our policy and doctrine
have reflected ever increasing roles and responsibilities and have particularly expanded
their emphasis on space as a war-fighting medium.

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 CURRENT SPACE LAW AND POLICY

Table 3-1. International treaties, agreements, and conventions that limit military
activities in spacea

Agreement Principle/Constraint
United Nations Charter (1947) Made applicable to space by the Outer Space Treaty of 1967
Prohibits states from threatening to use, or actually using, force against the
territorial integrity or political independence of another state (Article 2[4]).
Recognizes a state’s inherent right to act in individual or collective self-
defense when attacked. Customary international law recognizes a broader
right to self-defense, one that does not require a state to wait until it is
actually attacked before responding. This right to act preemptively is known
as the right of anticipatory self-defense (Article 51).
Limited Test Ban Treaty (1963) Bans nuclear weapon tests in the atmosphere, in outer space, and underwater.
States may not conduct nuclear weapon tests or other nuclear explosions
(i.e., peaceful nuclear explosions) in outer space or assist or encourage
others to conduct such tests or explosions (Article I).
Outer Space Treaty (1967) Outer space, including the moon and other celestial bodies, is free for use
by all states (Article I).
Outer space and celestial bodies are not subject to national appropriation
by claim of sovereignty, use, occupation, or other means (Article II).
Space activities shall be conducted in accordance with international law,
including the UN Charter (Article III).
The moon and other celestial bodies are to be used exclusively for
peaceful purposes (Article IV).
Nuclear weapons and other weapons of mass destruction (such as
chemical and biological weapons) may not be placed in orbit, installed on
celestial bodies, or stationed in space in any other manner (Article IV).
A state may not conduct military maneuvers; establish military bases,
fortifications, or installations; or test any type of weapon on celestial
bodies. Use of military personnel for scientific research or other peaceful
purpose is permitted (Article IV).
States are responsible for governmental and private space activities and
must supervise and regulate private activities (Article VI).
States are internationally liable for damage to another state (and its
citizens) caused by its space objects (including privately owned ones)
(Article VII).
States retain jurisdiction and control over space objects while they are in
space or on celestial bodies (Article VIII).
States must conduct international consultations before proceeding with
activities that would cause potentially harmful interference with activities of
other parties (Article IX).
States must carry out their use and exploration of space in such a way
as to avoid harmful contamination of outer space, the moon, and other
celestial bodies, as well as to avoid the introduction of extraterrestrial
matter that could adversely affect the environment of the earth (Article IX).
Stations, installations, equipment, and space vehicles on the moon and
other celestial bodies are open to inspection by other countries on a basis
of reciprocity (Article XII).
Agreement on the Rescue and Expands on the language of Article V of the Outer Space Treaty, which
Return of Astronauts and Objects declares astronauts are to be regarded as “Envoys of Mankind” and be
Launched into Outer Space (1968) rendered “all possible assistance.”
Calls for a state in which a spacecraft crashes or a state operating in
space that is in a position to assist astronauts in distress to conduct rescue
operations (if it is a manned craft) and to speedily return astronauts to the
launching state. Hardware need only be returned to the launching state
upon request and need not be returned promptly.

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CURRENT SPACE LAW AND POLICY

Table 3-1. International treaties, agreements, and conventions that limit military
activities in spacea (continued)

Agreement Principle/Constraint
Antiballistic Missile (ABM) Treaty Prohibits development, testing, or deployment of space-based ABM
between the United States and systems or components (Article V).
USSR (1972) Prohibits deployment of ABM systems or components except as authorized
in the treaty (Article I).
Prohibits interference with the national technical means a party uses to
verify compliance with the treaty (Article XII).
Liability Convention (1972) A launching state is absolutely liable for damage by its space object to
people or property on the earth or in its atmosphere (Article II).
Liability for damage caused elsewhere than on Earth to another state’s
space object, or to persons or property on board such a space object, is
determined by fault (Article III).
Convention on Registration (1974) Requires a party to maintain a registry of objects it launches into Earth orbit
or beyond (Article II).
Information of each registered object must be furnished to the UN as soon
as practical, including basic orbital parameters and general function of the
object (Article IV).
Environmental Modification Prohibits military or other hostile use of environmental modification
Convention (1980) techniques as a means of destruction, damage, or injury to any other state
if such use has widespread, long-lasting, or severe effects (Article I).

a 
The texts and information on these treaties and agreements can be found at www.un.org. See the section on international law—treaties
at http://untreaty.un.org/English/treaty.asp. Another great reference is the Archimedes Space Law and Policy Library at http://www
.permanent.com/archimedes/LawLibrary.html.

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 CURRENT SPACE LAW AND POLICY

Notes
1.  UNOOSA, “Space Law: Frequently Asked Questions,” http://www.unoosa.org/oosa/en/FAQ/splawfaq
.html (accessed 1 April 2009).
2.  Jerry Jon Sellers, Understanding Space: An Introduction to Astronautics, 2nd ed. (Boston: McGraw Hill,
2004), 73.
3.  “Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, Including the Moon and Other Celestial Bodies,” 27 January 1967, available in UN Publication
ST/SPACE/11 (New York: United Nations, 2002), http://www.unoosa.org/oosa/SpaceLaw/outerspt
.html (accessed 2 April 2009).
4.  Rosalie Bertell, “Background of the HAARP Project,” http://www.earthpulse.com/src/subcategory
.asp?catid=1&subcatid=1 (accessed 2 April 2009).
5.  Ibid.
6.  Ibid.
7.  Ibid.
8.  UNOOSA, “Space Law: Frequently Asked Questions.”
9.  Communications Act of 1934 as Amended by the Telecommunications Act of 1996, http://www.fcc.gov/
Reports/1934new.pdf (accessed 22 May 2009).
10.  Bonnie E. Fought, “Legal Aspects of the Commercialization of Space Transportation Systems,” Berkeley
Technology Law Journal 3, no. 2 (Spring 1988), http://www.law.berkeley.edu/journals/btlj/articles/vol3/
fought.html (accessed 19 May 2009).
11.  Commercial Space Act of 1998, Public Law 105-303, HR 1702 (28 October 1998), http://www
.nasa.gov/offices/ogc/commercial/CommercialSpaceActof1998.html (accessed 2 April 2009).
12.  President’s Science Advisory Committee, “Introduction to Outer Space,” NASA Historical Reference
Collection, 26 March 1958, http://history.nasa.gov/sputnik/16.html (accessed 3 April 2009).
13.  National Aeronautics and Space Act, Public Law 85-568, 72 Stat. 426 (29 July 1958), http://www
.nasa.gov/offices/ogc/about/space_act1.html (accessed 3 April 2009).
14.  Army, Army Space Reference Text, July 1993.
15.  Ibid.
16.  Richard M. Nixon, “Statement about the Future of the United States Space Program,” 7 March 1970,
http://www.nixonlibraryfoundation.org/index.php?src=gendocs&link=papers_1970 (accessed 2 April 2009).
17.  Army, Army Space Reference Text.
18.  Ibid.
19.  White House, National Space Policy Directives and Executive Charter, 2 November 1989.
20.  NOAA, “National Polar-Orbiting Operational Environment Satellite System (NPOESS),” updated Au-
gust 2002, http://www.publicaffairs.noaa.gov/grounders/npoess.html (accessed 15 May 2009).
21.  NASA, “Explanation of Executive Branch Policy Directives,” http://www.au.af.mil/au/awc/awcgate/
explain.htm (accessed 15 May 2009).
22.  White House, National Security Presidential Directive (NSPD) 23, Missile Defense Policy, 17 De-
cember 2002.
23.  White House, “US Commercial Remote Sensing Policy,” 25 April 2003, 2.
24.  Ibid.
25.  White House, “US National Space Policy,” 31 August 2006, 1.
26.  Ibid., 2.
27.  DOD Directive 3100.10, Space Policy, 9 July 1999, http://www.dtic.mil/whs/directives/corres/pdf/
310010p.pdf (accessed 15 May 2009).
28.  Army FM 3-14, Space Support to Army Operations, 18 May 2005, 15.
29.  SECNAV Instruction 5400.39c, Department of the Navy Space Policy, 6 April 2004.
30.  Quoted in Paul B. Stares, Space Weapons and US Strategy (London: Croom Helm, 1985), 28.
31.  Delbert R. Terril, Jr., Air Force Role in Developing International Outer Space Law (Maxwell AFB, AL: Air
University Press, 1999), 36.
32.  AFDD 2-2, Space Operations, 27 November 2006, ii.

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