Chicago Journal of International Law


Since the terrorist attacks of September 11, 2001, the War on Terror has affected US defense policy in lands as far flung as Afghanistan, Southeast Asia, and Iraq. Recently, President George W. Bush has expanded the scope of the War on Terror into a new area: space. On August 31, 2006, President Bush authorized the new National Space Policy ("NSP06"), an assertion of the US's right to defend itself in outer space. In it, the US reserves the right to "deny, if necessary, adversaries the use of space capabilities hostile to [US] interests." It also declares that "[p]roposed arms control agreements must not impair the rights of the [US] to conduct... activities in space for [US] national interests." The NSP06 thus grants the US wide unilateral discretion to protect its national interests in space. Predictably, the international response has not been enthusiastic. A London Times editorial piece summed up the consensus view on the NSP06: "SPACE: no longer the final frontier but the [fifty-first] state of the United States."3 Russia claims that the US "want[s] to dictate to others who else is allowed to go there" and has called the NSP06 "the first step toward a serious deepening of the military confrontation in space." Meanwhile, China recently launched its first antisatellite missile in January 2007 in an apparent response to the US's increasingly assertive position in space. The US's aggressive assertion of space rights through the NSP06 has spurred strong responses from China and Russia, the primary rivals of the US for space power. The NSP06 may be unpopular, but is it illegal? This Development argues that it is not. Although a backdrop of international treaties requires peaceful, nonmilitary use of outer space and the moon, these treaties do not bar space regulation as proposed by the NSP06. In addition, customary international law of space also suggests that the NSP06 is legal. Section II grounds the NSP06 in the historical context of space competition from the Cold War to the War on Terror, as well as in general national security policy since the September 11th attacks. It further argues that the current space treaty regime does not invalidate the NSP06. Section III analyzes the customary international law of space and posits that it also would not conflict with the NSP06. Section IV concludes by investigating implications of the NSP06's legality in light of current international politics.