Protecting critical American military satellites against attack by potential Chinese ASAT systems might require pre-emptive action by the US. (credit: Lockheed Martin)
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China’s new space threat and the justification of US pre-emptive self-defense
by Brian Chow
Monday, January 18, 2016
Comments (15) 
The US has long been avoiding the sensitive issue of pre-emptive self-defense in space, which is exercised before a space attack has actually started. However, facing a new game-changing threat under development in China and Russia, the US must address the issue and let the world know its position now. Bringing the issue up on the eve of pre-emption would be too late and could lead to a war both sides would want to avoid.
| China could deter US intervention by demonstrating that its space stalkers could almost simultaneously attack several critical satellites from such a close proximity that the US would not have time to save them—if it waited until the attacks had actually started. |
In November 2015, the US-China Economic and Security Review Commission released its 2015 Annual Report to the Congress. It stated that “since 2008, China has tested increasingly complex space proximity capabilities.” It confirmed what it and the Department of Defense have been suggesting, that “China’s recent space activities indicate that it is developing co-orbital antisatellite systems to target U.S. space assets. These systems consist of a satellite armed with a weapon such as an explosive charge, fragmentation device, kinetic energy weapon, laser, radio frequency weapon, jammer, or robotic arm.” It also confirmed that, in July 2013, “once all three were in orbit, the satellite with the robotic arm grappled one of the other satellites, which was acting as a target satellite.” A robotic arm could be used to disable a satellite while producing little space debris.
Space objects capable of close proximity operations and particularly equipped with a robotic arm could pose a game-changing threat. These space objects could be placed in orbit during peacetime. During a crisis, such as China seizing Taiwan or territorial disputes in the South China Sea, these space objects could be maneuvered to tailgate US satellites. China could deter US intervention by demonstrating that its space stalkers could almost simultaneously attack several critical satellites from such a close proximity that the US would not have time to save them—if it waited until the attacks had actually started.
In my DefenseNews commentaries, “Avoiding Space War Needs a New Approach” and “Fund Pre-emptive Self-Defense in Space,” I considered that the US needs the right of pre-emptive self-defense and described programs that should be funded to enable this capability. In this commentary, I explain the most important point: why this pre-emption is justified, not just needed and feasible.
The self-defense doctrine in the US National Security Space Strategy has always been based on Article 51 of the United Nations Charter: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if armed attack occurs against a Member of the United Nations.” Legal scholars who are proponents of a restrictive interpretation of “armed attack occurs,” allow self-defense only after attack has started. Other legal scholars take a broad view that the Charter does not “impair the inherent right” embedded in the customary international laws, which allow pre-emptive self-defense if certain conditions are met. Typical conditions were suggested as far back as 1842 by US Secretary of State Daniel Webster in the Caroline case. Subsequently, jurists like Roberto Ago in 1980 came to a similar set of conditions: “necessity,” “proportionality,” and “immediacy.”
| Once an adversary realizes that it could not use space stalkers to deter US intervention, it might not pose the threat in the first place, and a space Pearl Harbor could be avoided. |
The premise stated in the 2002 US National Security Strategy applies to space as well: “For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack.” Pre-emptive self-defense against space stalkers is necessary because US cannot defend with, as Ago stated, “measures not involving the use of armed force.” It is proportional because, as I proposed, the pre-emption is not allowed to go beyond what is needed to disable this attack. It must take place immediately, as the attack is ready and can be imminent.
Pre-emption against space stalkers would comply with the broad view of Article 51. For those insisting on its restrictive interpretation, US should respond that such an interpretation drafted in October 1945 understandably could not anticipate and counter the space stalker threat 70 years later. Article 51 was designed against armed attack that takes time to prepare and gives warning by the massing of soldiers and weapon systems for an attack. The defender would have alternative responses, including the referral of the threat to the United Nations for peaceful resolution. However, in the case of space stalkers, there is no time for referral and no other ways than pre-emption to neutralize the imminent threat.
On the other hand, pre-emptive self-defense would only be allowed when the number of space stalkers exceeds an innocuous threshold number, such as two, three, or four, which should be jointly determined and announced in peacetime by the Department of Defense and the Office of the Director of National Intelligence. The number should be so chosen that there is no peaceful reason to tailgate this many satellites at the same time. Thus, the pre-emption against space stalkers numbered above threshold is clearly self-defense, not a pretext for aggression.
Once an adversary realizes that it could not use space stalkers to deter US intervention, it might not pose the threat in the first place, and a space Pearl Harbor could be avoided.
I think most reasonable people would agree that self-defense applies in space, including preemption. But the devil, as always, is in the details.
At the moment, there's no consensus in the international community about self-defense in space, let alone preemption. Most (but not all) countries agree it exists, but there's no clarity on what it entails and what the boundaries are. I think there's a clear need to have a broader national and international discussion to work out those details, something my organization has already begun to look at: http://swfound.org/media/205308/scenario-workshop...
A lot depends on what types of preemptive attacks are being considered. If a co-orbital ASAT maneuvers from its standby location into an trajectory that conjuncts with a critical U.S. military satellite, I think most would agree that preemptively interfering with or even destroying the ASAT using some sort of point defense could be justified. But preemption that includes placing space-based interceptors in orbit would probably be considered untenable by most countries, and using preemption to protect allied or commercial satellites would be very murky.
A more pragmatic approach might be to focus on the Rules of Engagement (ROE) for how military satellites of the US and its adversaries interact in space. In the air and maritime domains there are well-established norms for how military aircraft and vessels interact that both minimize mistakes and accidents while allowing for self-defense. Perhaps something like a space version of the incidents at sea agreement could be worked out between the US and Russia and China:http://www.state.gov/t/isn/4791.htm
At the moment, there's no consensus in the international community about self-defense in space, let alone preemption. Most (but not all) countries agree it exists, but there's no clarity on what it entails and what the boundaries are. I think there's a clear need to have a broader national and international discussion to work out those details, something my organization has already begun to look at: http://swfound.org/media/205308/scenario-workshop...
A lot depends on what types of preemptive attacks are being considered. If a co-orbital ASAT maneuvers from its standby location into an trajectory that conjuncts with a critical U.S. military satellite, I think most would agree that preemptively interfering with or even destroying the ASAT using some sort of point defense could be justified. But preemption that includes placing space-based interceptors in orbit would probably be considered untenable by most countries, and using preemption to protect allied or commercial satellites would be very murky.
A more pragmatic approach might be to focus on the Rules of Engagement (ROE) for how military satellites of the US and its adversaries interact in space. In the air and maritime domains there are well-established norms for how military aircraft and vessels interact that both minimize mistakes and accidents while allowing for self-defense. Perhaps something like a space version of the incidents at sea agreement could be worked out between the US and Russia and China:http://www.state.gov/t/isn/4791.htm
Why would placing space-based interceptors on orbit be considered untenable?
Partly because either Russia or China would seem them as undermining their nuclear deterrent, and partly because they could just as easily be used offensively as defensively. Which is why all the major space security initiatives from Russia and China focus on placement of weapons in space.
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