Incremental Steps for Achieving Space Security: The Need for a New Way of Thinking to Enhance the Legal Regime for Space

I. INTRODUCTION II. AN EXAMINATION OF THE CURRENT LEGAL REGIME FOR SPACE IS NECESSARY TO DETERMINE HOW TO IMPROVE IT A. The Origins of the Space Regime B. The Evolution of the Space Environment 1. New Actors Due to the Commercialization of Space 2. The Reality of Space Weapons C. The Inability to Attain Consensus on Major Definitional Aspects of Weaponization 1. What Is a Space Weapon? 2. The Ambiguity of Peaceful Purposes 3. The Lack of Limitations on Dual-Use Technologies III. THE CURRENT LEGAL REGIME FOR SPACE CAN ONLY BE ENHANCED IF U.S. INTERESTS AND CONCERNS ARE ADEQUATELY ADDRESSED A. In Order to Counter the Inevitability Argument, Arms Controllers Must Acknowledge That Norms Alone Will Be Insufficient in the Future 1. The Self-Fulfilling Prophecy of the Need for Space-Based Military Defense 2. The True Need: A Legal Regime with Teeth B. The Arms Control Community Must Reconcile the Specter of an Increasing Number of Space Threats with a Nation's Inviolable Right to Self-Defense 1. Application of Self-Defense in Outer Space: The Issue of Protective Jurisdiction 2. Is the U.S. Threat Assessment Exaggerated? C. Can Space Weaponization Provide Stability and Control? 1. The Quest for Space Dominance 2. Cost/Benefit Analysis of Space Weaponization 3. Partial Space Weaponization IV. INCREMENTAL, PRACTICAL STEPS AND THE SPIRIT OF COMPROMISE ARE NECESSARY TO ENHANCE THE CURRENT LEGAL REGIME BEYOND A STRICTLY RULE-BASED REGIME FOR THE SAKE OF SPACE SECURITY A. A New Forum of Discussion B. Strengthening the OST C. Confidence Building: Transparency and Monitoring Space Security Policy V. CONCLUSION I. INTRODUCTION Although the realm of outer space has long represented the future of humankind, the development of space technology and the subsequent proliferation of space participants in recent years--encompassing civil, commercial, and military realms--has served notice to the world that the future is rapidly approaching. That said, with the potential weaponization of space on the horizon, (1) policymakers and pundits around the world are quick to acknowledge that the realm of outer space is the next strategic frontier for international security. (2) Unfortunately, the concept of space security today is still as amorphous as the realm of space is vast. For instance, the public for the most part has failed to differentiate between the militarization and the weaponization of space. (3) Ever since the launching of the first military communication satellites into orbit, the realm of space has been militarized. (4) This reality is evidenced by the fact that militaries around the globe rely heavily on satellites for command and control, reconnaissance and monitoring, early warning, treaty verification, and navigation with the Global Positioning System (GPS). (5) While the realm of outer space may be heavily militarized, it is not yet weaponized. (6) Despite this lack of public awareness, the reality of the situation is that the technological superiority and the insecurities of the United States are the true driving forces of the space security dilemma. Ever since the attacks of 9/11, the U.S. government has felt the need to maintain a heightened sense of awareness of the nation's security, or lack thereof, as evidenced by the establishment of the Department of Homeland Security and the accompanying Homeland Security Advisory System. (7) Over the course of President George W. Bush's Administration, the debate conducted in the late 1950s regarding the military uses of space has re-emerged between the hawkish advocates of missile defense and the dovish members of the space arms control community. …