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The Secretary of Defense signed an unclassified memorandum on July 9, 2021 directing the Department of Defense to perform DoD outer space operations in line with principles of responsible behavior. The memorandum, which has yet to be formally announced and released to the public, reportedly contains the following directives:

  • Operate in, from, to, and through space with due regard to others and in a professional manner.
  • Limit the generation of long-lived space debris.
  • Avoid the creation of harmful interference.
  • Maintain safe separation and safe trajectory.
  • Communicate and make notifications to enhance the safety and stability of the domain.

To achieve these principles, the memorandum is purported to direct the commander of USSPACECOM to develop guidelines and harmonize these standards throughout the DoD. However, the question remains what approach will be taken to implement these tenets in an operational context. An indication might be found in a recent address by General Dickenson, commander of USSPACECOM, during a luncheon before the Navy League’s Sea-Air-Space expo at National Harbor, Maryland, on Aug. 3rd where he remarked on the directives within the July 9th memorandum and analogized challenges of the U.S. Navy in the maritime domain and the role of USSPACECOM in the space domain, noting: “We each share a vast area. In the maritime domain, it’s 10,000 miles across the Pacific Ocean,” General Dickinson said. “For us, it’s out to the moon and beyond. Both are concerned with respective domains that are very vast, and very difficult, complex and unforgiving.”  General Dickinson further remarked, “Success hinges upon an understanding of the specific challenges space poses.”

While these statements in of themselves do not explicitly point to a specific approach to creating operational norms for outer space, they do raise the question whether the Office of the Secretary of Defense and by extension USSPACECOM will become overly reliant on analogizing the maritime domain to implement the tenets outlined in the July 9th memorandum to form the core of doctrine for future operations in outer space. If this is indeed the intent, the approach is fundamentally flawed given outer space is a unique environment and similarities to the maritime domain are specious.

Outer space is not a global commons

The concept of global commons extends to the sovereignless regions of the Earth, including international airspace, Antarctica and the oceans. The U.S. for decades has recognized that outer space, including the Moon and the celestial bodies, are not part of the global commons even though other states consider outer space inclusive to the global commons. Creating operational doctrine, which uses the maritime domain as an analogy, places the constraints of a global commons on a domain that is not part of the global commons and limits the potential of outer space as a warfighting domain. This has the effect of creating a gestalt that brings into question standing U.S. policy and give credence to international agreements the U.S. has expressly denounced. This in turn could affect other U.S. space activities outside of the operational realm, including the activities of non-governmental organizations.

Outer space is analogous to Antarctica, not the oceans

If outer space is comparable to any terrestrial domain, it would be Antarctica, which is in and of itself another unique domain. The Outer Space Treaty of 1967 is a sibling to the Antarctic Agreement of 1959 and the principles of the latter are reflected in the former and recognized by the federal court. Given this similarity, the operational requirements of the maritime domain are dissimilar enough that it brings into question the veracity of analogizing them with future operational requirements for outer space.

The legal structure of outer space is based on treaty, not custom

The maritime domain benefits from the experience of hundreds of years of practice, which has resulted in protocols and customary international law. Conversely, outer space leapt from customary international law to treaty law within a decade, with the latter being interpreted through state practice. The question is whether applying maritime principles to outer space operations will harmonize or fit in with the current structure of outer space governance. Even if it is not the intent of the DoD to superimpose the archetype of the maritime domain into outer space operations, the messaging analogizing both domains create the political impression that the U.S. does not fully understand the nuances of the outer space domain, which could be used by geopolitical rivals to leverage the U.S. into unfavorable international agreements and counter DoD operations in outer space.

Outer space as a warfighting domain will be operationally different from surface warfare

Applying maritime and surface warfare principles to the warfighting domain of outer space will hinder both lessons that will be learned through experience and insights leading to standards unique to the outer space environment. This in turn will create principles that will not only limit U.S. operational capabilities in outer space but also create assumptions about how geopolitical adversaries, including the PRC and the Russian Federation will behave leading up to and in the initial stages of a conflict.

Developing outer space as a warfighting domain requires an operational approach taken in the context of what we don’t know instead of conceptualizing it in the context of what we know or think we know from terrestrial domains. Creating operational norms or other standards of behavior though the analogy of maritime law and surface warfare will lead to misconceptions and underestimate the true legal, operational characteristics and requirements of the outer space domain and neglect strategies to counter operational doctrine of geopolitical adversaries.

Conclusion

Outer space is a unique domain and must be treated distinctively from other domains. Creating norms and guidelines for operations in outer space must be thought through in the context of the domain itself while resisting the urge to analogize terrestrial domains. That isn’t to say the maritime domain or terrestrial domains cannot be used as a starting point to creating tenets and operational standards in outer space, but once taken it must be removed so analogy to the oceans and other terrestrial domains do not become a crutch that prevents the full operational potential of outer space to be realized.

Michael Listner

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