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Rules for the Heavens

The Coming Revolution In Space and the Laws of War

Great powers are increasing their competition in space. Though Russia and the United States have long relied on satellites for surveillance of rival nations’ militaries and the detection of missile launches, the democratization of space through technological advancements has allowed other nations to assert greater control. This Article addresses whether the United States and other nations should develop the space-based weapons that these policies promise, or whether they should cooperate to develop new international agreements to ban them. In some areas of space, proposals for regulation have already come too late. The U.S.’s nuclear deterrent itself depends crucially on space: ballistic missiles leave and then re-enter the atmosphere, giving them a global reach without serious defense. As more nations develop nuclear weapons and intercontinental ballistic missile (ICBM) technology, outer space will become even more important as an arena for defense against weapons of mass destruction (WMD) proliferation. North Korea’s progress on ICBM and nuclear technology, for example, will prompt even greater investment in space-based missile defense systems.

This Article makes two contributions. First, it argues against a growing academic consensus in favor of a prohibition on military activities in space. It argues that these scholars over-read existing legal instruments and practice. While nations crafted international agreements to bar WMDs in outer space, they carefully left unregulated reconnaissance and communications satellites, space-based conventional weapons, antisatellite systems, and even WMDs that transit through space, such as ballistic missiles. Second, this Article develops insights into space warfare with tools developed for the analysis of crisis bargaining between nations. It argues that states can use force in space for self-defense and to resolve international disputes with less harm than current strategies. Space weapons raise the same questions as other new technologies, but also realize the same benefits: greater precision, fewer casualties and destruction, and more effective crisis bargaining between states.

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