Vice President Mike PenceMichael (Mike) Richard PenceTrump endorses challenger to Hogan ally in Maryland governor's race Pence to headline New Hampshire event focused on Biden spending plan The Hill's Morning Report - Presented by ExxonMobil - Arbery case, Biden spending bill each test views of justice MORE’s call last Thursday for the creation of a U.S. Space Force to achieve “American dominance in space” reflects a risky agenda on the part of the Trump administration, one that could propel the world into a global arms race in outer space. Echoing a speech that President TrumpDonald TrumpJan. 6 panel faces double-edged sword with Alex Jones, Roger Stone Trump goes after Woodward, Costa over China Republicans seem set to win the midterms — unless they defeat themselves MORE gave in June, Pence declared space a “warfighting domain” and asserted the need for American superiority in that arena.
The Pentagon has opposed creating a space force, and it is of questionable military benefit. Defense Secretary James MattisJames Norman Mattis The US can't go back to business as usual with Pakistan The Hill's Morning Report - Presented by Facebook - Senate nears surprise deal on short-term debt ceiling hike Overnight Defense & National Security — Pentagon chiefs to Congress: Don't default MORE registered his opposition to the idea last year, stating that the measure would impair the Department of Defense’s ability to integrate its joint warfighting functions. Congress also has not been enthusiastic, preferring the lesser measure of a “space command” within the military’s operational command structure. What, then, is the administration’s reason for this proposal?
Currently, outer space is “militarized” but not yet “weaponized.” Militaries around the globe make heavy use of satellite technology — such as surveillance and global positioning — but so far they have refrained from placing weapons on satellites in outer space or using them directly for warfighting. The administration’s ad hoc push for space dominance risks upsetting a delicate balance: space now hovers precariously at the brink of weaponization and it would take only one major country defecting from the current system of peaceful self-constraint to drive us into a major arms race in outer space.
The current peaceful equipoise is largely because of the remarkable success of the 1967 Outer Space Treaty, an international agreement with which more than 100 signatory countries have been compliant. Under this treaty, space is considered a “province of mankind” that is not owned or controlled by any single nation. Article IV of the treaty provides that celestial bodies be used “for peaceful purposes only,” and objects in orbit carrying nuclear or weapons of mass destruction are strictly prohibited. Article II of the treaty makes clear that outer space “is not subject to national appropriation by claim of sovereignty.”
Seeking military dominance in space, coupled with encouraging appropriation of space for commercial purposes, puts us at loggerheads with our traditional allies, upsets stable and well-established treaty obligations, and moves the world closer to a highly dangerous arms race in outer space.
It is important to distinguish the idea of a Space Force from the pursuit of military and economic superiority in space. There may not be anything intrinsically wrong with the idea of a Space Force, or in somewhat more moderate form, a “Space Corps,” similar to the Marine Corps, or a “Space Command,” as Congress has called for in the 2019 National Defense Authorization Act, which President Trump signed into law last Monday. The merits of a stand-alone space unit depend on how its mission is conceived and how it fits into broader U.S. policy objectives in outer space, but a thoughtful, coherent and measured inter-agency space policy has yet to emerge. The danger comes from the aim of dominance, not the particular way in which dominance is sought. In addition to potentially touching off an arms race of planetary proportions, there could be an economic race over space resources, comparable to the emerging fight over the Arctic or over deep-sea fishing rights. The combination of space weaponization and space commercialization easily could thrust us into a new cold war (or worse). A hot war in outer space is unthinkable, and we cannot let it occur.
Although the president is the commander in chief, he lacks the legal authority to create a Space Force on his own. Because Congress has the authority to make “rules and regulations,” and also has the “power of the purse,” President Trump needs Congress both to create and to fund any future Space Force.
What Congress should demand as it considers the administration’s proposal is a comprehensive inter-agency space policy that takes into account all of the competing and complex interests in space. This is the process that Congress followed when passed the 1947 National Security Act, which created the Air Force. Congress also should reaffirm the U.S. commitment to the 1967 Outer Space Treaty. Any other course could send us down the path of a major military confrontation in space.
Claire Finkelstein is the Algernon Biddle Professor of Law and Professor of Philosophy, and director of the Center for Ethics and the Rule of Law at the University of Pennsylvania.
Mark Nevitt is the Sharswood Fellow at University of Pennsylvania Law School. A former tactical jet aviator, his Navy JAG assignments included serving as a criminal defense counsel in California, international law and ethics attorney with the U.S. Navy’s Sixth Fleet in Naples, Italy, deputy director for administrative law for the Office of the Judge Advocate General at the Pentagon, and the Department of Defense's Regional Environmental Counsel in Norfolk, Virginia.