Recap and Podcast: 2nd Annual U.S. Space Command Legal Conference

In early April U.S. Space Command (USSPACECOM) held its second annual conference, and – wow – what a range of challenging topics!  If you missed this year’s, I have good news for you: thanks to the efforts of Air Force Major Jeremy Grunert, we not only have a recap of the event, we also have links so you can watch/listen to the full presentations.  I hasten to add that the conference was co-hosted by U.S. Air Force Academy’s Law, Technology, and Warfare Research Cell (LTWRC).

The theme of this year’s conference was “Responsible Behavior in Outer Space,” so much attention was paid to Secretary Austin’s “Tenets of Responsible Behavior in Space,” released in July 2021.  In that context, among the issues addressed was the problem of “space debris” that threatens all kinds of space operations. 

Panels also wrestled with the precise meaning–in the space context–of such treaty terms as “due regard” and “harmful interference.”  Additionally, the implications of “soft law” as applied to outer space were discussed, and much more!

Space activities are increasingly relevant to current military operations …and the challenges are complex (take a look at the Defense Intelligence Agency’s recently released study, “Challenges to Security in Space 2022“).

Obviously, we all need to get our heads into this legal discipline, and listening to these presentations and panels is an ideal way to get current.  Here’s Maj. Grunert’s recap (just click the headings bolded in blue to get to the videos):

2nd Annual U.S. Space Command Legal Conference

By Maj. Jeremy Grunert, USAF

Between 4 and 6 April 2022, the U.S. Air Force Academy’s Law, Technology, and Warfare Research Cell (LTWRC) and the U.S. Space Command (USSPACECOM) Office of the Staff Judge Advocate co-hosted USSPACECOM’s second annual legal conference. While last year’s legal conference was held remotely, the 2022 legal conference was a hybrid event with two days of unclassified events held at the Air Force Academy’s Polaris Hall and a classified day held at Peterson Space Force Base.

The theme of the 2022 USSPACECOM Legal Conference was “Responsible Behavior in Outer Space,” and used Secretary of Defense Lloyd Austin’s “Tenets of Responsible Behavior,” released in July 2021, as a guide for its topics and multi-expert discussion panels.

Major Jeremy Grunert, U.S. Air Force JAG attorney and Assistant Professor in the Air Force Academy’s Department of Law, developed the following recap of the substantive sessions. This recap is not meant to comprehensively cover each session, nor do the comments / descriptions offered by either Major Grunert or the speakers and panelists described below reflect any official position of the United States Government, the Department of Defense, the Department of the Air Force, or any other organization. The views expressed by the conference’s participants are their own, unless otherwise stated.

Welcome Remarks from General James Dickinson, Commander, USSPACECOM (U.S. Army)

In his welcome remarks for conference attendees, General Dickinson emphasized the importance of “responsible behavior” in outer space and noted that the conference highlighted the intersection of law, policy, and military operations related to the space domain. He cited recent irresponsible behavior by China and Russia as examples of why “responsible behavior” must be promoted, including the uncontrolled reentry of a Chinese Long March rocket in May 2021 and Russia’s November 2021 test of a direct-ascent anti-satellite missile, which created a debris field of approximately 1500 pieces of debris. 

General Dickinson briefly mentioned a number of other security threats related to the outer space domain, including China’s testing of hypersonic missiles, the possible desire of Russia to target commercial Starlink satellites providing internet services to Ukraine, and the general threat of space debris. He also discussed the creation of the Department of Defense’s “Tenets of Responsible Behavior in Outer Space” and emphasized the fact that such tenets, along with the general development of international law and norms, are critical for maintaining the safety and security of the space environment.

Keynote Remarks from Ms. Jessica Tok, Senior Space Multilateral Affairs Advisor (Office of the Secretary of Defense, Space Policy)

The introductory keynote presentation of the conference featured Ms. Jessica Tok, the Senior Space Multilateral Affairs Advisor for the Office of the Secretary of Defense, Space Policy. Ms. Tok discussed recent US Government reorganization related to outer space, including the resurrection of USSPACECOM itself, the development of the Space Force, and new, space-focused positions within the Department of Defense.

Ms. Tok described the United States’ focus on the development of norms as a method by which we can push the development of space law, even in the non-binding sense, forward—even when there is little stomach internationally for new binding agreements and when there has not been any major space disaster involving loss of life that would trigger a wider recognition of the need for binding regulation. She described recent US policy guidance, including the Department of Defense’s “Tenets of Responsible Behavior” and the Biden Administration’s December 2021 “Space Priorities Framework.”

Ms. Tok posited that there is a long-standing US interest in promoting shared understandings of responsible space behaviors for the safety, stability, and long-term sustainability of outer space. Developing norms is more beneficial than trying to modify existing treaties, which could have unexpected negative consequences.

Ms. Tok lauded the longevity and broad applicability of the existing binding space treaties, noting that efforts to establish norms are not attempts to radically change the treaties’ provisions, but, rather, to better actualize them. Ultimately, she argued that even non-binding norms of behavior can reduce risks to international peace and security and contribute to a safer space environment for all.

Panel: Due Regard and Responsible Behavior, Moderated by Colonel Ted Richard (Space Operations Command), and Featuring Major General David Miller (USSPACECOM), Ms. Robin Dickey (Aerospace Corporation), Mr. David Edmondson (UK Foreign, Commonwealth & Development Office), and Ms. Katie Feistel (RAND) 

In the “Due Regard & Responsible Behavior in Outer Space – How Do We Operate With Regard to Others” panel, the first multi-expert panel of the conference, panelists Major General Miller, Ms. Dickey, Mr. Edmondson, Ms. Feistel grapple with the idea of “due regard.”

Cited in Article IX of the Outer Space Treaty (“States Parties . . . shall conduct all their activities in outer space . . . with due regard to the corresponding interests of all other States Parties”), the concept of “due regard” is undefined in international outer space law. What does it mean, and how can this concept be applied in a meaningful way?

After an introduction to the topic by Colonel Ted Richard, the Staff Judge Advocate for the U.S. Space Force’s Space Operations Command and panel moderator, Maj Gen Miller began panel discussions by noting that investigations into the meaning of these critical terms couldn’t have come at a more opportune time and that the new U.S. space military forces—USSPACECOM and the U.S. Space Force—would be emphasizing cooperation and the leveraging of the ideas and views of multinational allies, as well as commercial partners in developing practical applications of these concepts.

“Due regard,” from Maj Gen Miller’s perspective, is critical to avoid escalation of potential conflicts in space and to ensure others, both potential competitors and allies, of the non-threatening nature of the United States’ actions and intentions.

Ms. Dickey noted that the idea of “norms” of responsible space behavior sits at the intersection of law, policy, standards, and voluntary action, and that part of the difficulty related to norms is getting general agreement within the international space community with respect to standards of behavior. She posited that norms are, to some degree, a balance between the wider benefits such norms can provide to all space actors and the limitations on State freedom of action space operators give up in order to take part in such norms.

Ms. Dickey went on to discuss a number of questions the US must ask itself when attempting to develop norms: first, how to decide what sorts of norms / ideas to propose? second, who to approach internationally with your idea for the norm (do you start with allies? Do you go to the State your most concerned about? Etc.)? Third, what mechanisms can the US use to establish commitment to the norm(s)? and, finally, what is your ultimate goal with respect to the number of actors needed to make your proposal a true “norm?”

Mr. Edmondson began his remarks by describing the United Kingdom’s holistic view of security domains, and that space systems play a wider role in national security and integrated deterrence and defense that isn’t entirely separable from other considerations. He noted that both novel and previously-existing technologies play a role in space-related considerations and that “due regard” and “responsible behavior” play a significant role in mitigating the national security aspects of outer space.

Mr. Edmondson discussed “responsible behavior” as a method to avoid miscalculation, reduce tensions, and increase communication between space actors. He then described the United Kingdom’s efforts at the United Nations’ to encourage the development of responsible behavior through the resolutions it has been sponsoring in the First Committee.

Finally, Ms. Feistel opened her remarks by comparing outer space to other domains and, specifically, discussing “due regard” as it is understood in regard to the Law of the Sea and the air domain. This includes, for example, a balance between the nature/importance of the rights of the parties involved and the scope of impairment of those rights in an incident triggering potential conflict between the parties.

Ms. Feistel went on to draw a tragedy-of-the-commons comparison of outer space with the phenomena of climate change and how actors behaving in their own self-interest absent restrictions or norms can negatively affect the environment. She addressed the topic of space debris specifically, the threat it poses within the space environment, and the way irresponsible behavior and lack of “due regard” (such as ASAT testing) contributes to the problem.

The panelists answered a range of moderator and audience questions on such topics as: why the United States is pushing for “tenets” of responsible behavior now; how “due regard” relates to the development of norms and responsible behavior in space; how “due regard” and responsible behavior apply to frequency / electromagnetic spectrum jamming; and a variety of other topics.

Panel: Limiting Long-Term Space Debris, Moderated by Major Brian Green (STARCOM), and Featuring Dr. Everett Dolman (USAF Air Command & Staff College), Dr. Laura Grego (MIT), Dr. Francesca Letizia (ESA Space Debris Office), and Mr. Douglas Ligor (RAND)

In the last panel of the conference’s first day, Major Brian Green, of the United States Space Force’s Space Training and Readiness Command, moderated a discussion between Dr. Everett Dolman, Dr. Laura Grego, Dr. Francesca Letizia, and Mr. Douglas Ligor.

Dr. Dolman initiated the discussion with comments about the threat of space debris, estimating that there is approximately 10,000 tons of debris in orbit (although also commenting that the Conference graphic depicting space debris was a fanciful over-exaggeration of the problem!).  Dr. Grego described the space debris issue as a terrible environmental problem—something that is easy to create and hard to fix.

Commenting on the mass of debris described by Dr. Dolman, Dr. Grego noted that the number of debris pieces, rather than mass alone, poses dangers, since even small pieces of debris can cause catastrophic damage. She described the interplay of large and small debris pieces as creating a very difficult environment in which to maneuver active space objects and that, while debris mitigation guidelines are beneficial, there isn’t a good method of debris removal as of yet. She also noted that any space debris gains are generally minor compared to potential debris-creating events, and that an irresponsible act like an ASAT test could undo significant efforts at debris mitigation.

Mr. Ligor reiterated that the reason to tackle the space debris problem is that we rely more and more on outer space-based services and capabilities every day—for military, national security, commercial, industry, navigation, financial transactions, communications, etc. Kessler syndrome (i.e. the collapse of an orbit into a self-perpetuating cascade of debris creation) would be harmful not just to one country or people, but the entire world. He also noted that the discussion of responsible behavior vis-à-vis space debris was critical, because misperceptions caused by irresponsible acts could cause on-orbit events to escalate, thereby worsening the debris problem significantly.

Dr. Letizia described two inter-connected dimensions to the space debris problem—a short-term dimension, involving the costs and negative externalities involved in the immediate-term need to track debris and maneuver active satellites to avoid collisions, and the long-term dimension, involving the extrapolating costs of these sorts of maneuvers and mitigation efforts over the long-term. The longer we wait to address the space debris problem, the more costly the problem will become.

The panelists answered a range of moderator and audience questions on such topics as: the state of active satellites vs. debris on-orbit; whether cislunar space and lunar operations could be threatened by growing debris in those orbits; what it means for space debris to be “long-lived;” what measures ought to be taken (beyond those currently in existence) to address the problem of space debris; and others.

Keynote Remarks from Professor Jack Beard, University of Nebraska-Lincoln College of Law

Kicking off the second day (5 April 2022) of the conference, Professor Jack Beard of the University of Nebraska-Lincoln College of Law gave a keynote address about the limitations of so-called “soft law” and its general inability to constrain international actors in meaningful ways. He described what “soft law” is (UN Resolutions, best practices, non-binding principles/guidelines, etc.), and what he believes its proponents want it to be—namely, a prelude to the development of binding customary law.

Professor Beard lauded the Department of Defense’s “Tenets of Responsible Behavior in Outer Space” for being precisely what they are titled—tenets—and for the fact that the language of the memorandum directing compliance with these states “until otherwise directed.”

Professor Beard emphasized that “soft law” is not law in a traditional sense, and that there are risks, misconceptions, and dangers associated with relying on such shifting ideas to constrain State behavior. Indeed, the belief that “soft law” is easy and can serve as a quick win-win for the parties involved may muddle the legal environment related to the issues at play in unforeseen ways, without any method of regulation, true rules, or enforcement.

Professor Beard discussed the Obama Administration’s 2011 National Space Strategy, the Proposed International Code of Conduct, and a number of other things in relation to their role in the U.S. willingness to accept and engage in the development of “soft law” regimes.

Panel: Harmful Interference, Moderated by Colonel Sarah Mountin (SpOC-West and CFSCC), and Featuring Brigadier General Richard Zellmann (USSPACECOM), Mr. Andrew D’Uva (Providence Access Company), Professor David Koplow (Georgetown University Law Center), and Dr. Michael Mineiro (HawkEye 360, Inc.)

In the “Harmful Interference: What Is It and How Do Space Operators Avoid It?” panel, Colonel Sarah Mountin, the Deputy Staff Judge Advocate of Space Operations Command – West and the Combined Force Space Component Command, moderated a discussion between Brigadier General Richard Zellmann, Mr. Andrew D’Uva, Professor David Koplow, and Dr. Michael Minero.

BG Zellmann began the conversation by noting that, while the panel would be discussing “harmful interference” and ways in which to potential avoid it, defining the term is extremely difficult because a wide range of actors will have different interpretations of what “harmful interference” means—i.e. the US definition may differ from the Chinese definition, and both, in turn, may differ from definitions offered by commercial entities.

BG Zellmann went on to discuss the Department of Defense’s “Tenets of Responsible Behavior” in outer space, describing the United States’ role as aiming to be “exemplars” of that behavior in the hope of encouraging others to follow its lead. The behaviors described in the tenets are necessarily broad in the hope they will appeal to a wider range of stakeholders.

BG Zellmann described “harmful interference” as being important because, as outer space is increasingly congested and a wider range of potential competitors are employing space systems, recognizing and understand intent and the possible ways in which others can interfere with your own space systems increases in significance. He characterized transparency and compliance with responsible behaviors as essential for helping to ultimately determine the nature of “harmful interference.”

Dr. Mineiro emphasized that law is a means to an end and not an end in itself, and that norms—even if they are originally non-binding, but are written down in, for example, an “agreement on principles”—hold value in the sense that they actually do influence and set parameters for State behavior. While he agreed that defining “harmful interference” was difficult, he also argued that there are sufficient tools and concepts in both outer space law and other areas of law to help us clarify legitimate and illegitimate outer space behaviors.

Dr. Mineiro compared, for example, concepts within the field of aviation law to the interplay of Article IX of the Outer Space Treaty’s “due regard” principle with Article VI’s application of responsibility for the actions of non-state actors in space and overarching concepts of responsibilities and behaviors. He ultimately suggested that norms empower States by offering frameworks for the communication of what is and is not appropriate behavior.

Mr. D’Uva noted that, while there are multiple potential definitions of “harmful interference” (as BG Zellmann stated), there are certain legal areas—such as concepts of “harmful interference” in the radio frequency and ITU sense—that are better understood. These would generally involve intentionality on the part of the interferer. Physical interference, though, may be more difficult define because you won’t necessarily know what’s harmful until harm is caused.

Mr. D’Uva posited that physical closeness of space objects, for example, could potentially cause such interference. To combat this, the commercial world, at least, has created a system—fed by data from its participants—to deconflict satellite maneuvers and other potentially harmful activities. Mr. D’Uva argued that, while norms in the State sense may be viewed as having limited value vis-à-vis States’ interactions with one another (as Professor Beard argued), norms are extremely valuable in the commercial world and can influence commercial space actor behavior in significant ways that can carry over into State behavior.

Professor Koplow focused most of his comments on the international laws of war, arguing that much of US space policy is unwise, if not illegal, due to its over-reliance on commercial and private actors in its government and military space activities. He asserted that this mixing of government/intelligence/military space activities and private/commercial space actors likely violated the Laws of Wars, causing distinction problems [note: distinction is the Law of War principle that belligerents should only target military objects and, generally, should not target civilian objects].

Professor Koplow noted that the point of this sort of diffusion of capabilities among both military and civilian space systems was for the express purposes of making it harder for adversaries to target those capabilities, something, he argued, that could invite a broader range of “harmful interference” with all types of space systems.

The panelists answered a range of moderator and audience questions.

Panel: Space Traffic Management, Moderated by Major Melissa Ken (US Air Force Academy), and Featuring Major General DeAnna Burt (CFSCC/USSPACECOM), Dr. Minoo Rathnasabapathy (Space Enable Group, MIT), Professor Dale Stephens (University of Adelaide), and Dr. Brian Weeden (Secure World Foundation)

The “Traffic Management in Space – Improving Stability with Safe Separation, Trajectories, Communications, and Notification” panel, moderated by Major Melissa Ken of the United States Air Force Academy’s Department of Law, featured Major General DeAnna Burt, Dr. Minoo Rathnasabapathy, Professor Dale Stephens, and Dr. Brian Weeden.

Maj Gen Burt described “space traffic management” as meaning that someone has authority to tell others (generally speaking) what to do. For example, USSPACECOM, using its space tracking network, can tell operators of live satellites on a potential collision course how they might maneuver to avoid danger. Maj Gen Burt cited President Trump’s SPD-3 and the responsibilities of the Department of Commerce with respect to space traffic management, emphasizing the importance of normalizing the management of the domain for the safety of all.

Dr. Rathnasabapathy noted that the significant rise in the number of space actors and commercial space activities, as compared to the relatively slow pace of regulatory guidelines and norms, makes solving issues related to space traffic management critical. She emphasized that the international nature of space operations requires widely adopted standards and well-defined norms, as well as international consensus with respect to technological and safety standards.

Dr. Weeden provided a brief political history of American space traffic management / space situational awareness efforts. He discussed the Obama Administration’s National Space Policy and its emphasis on long-term sustainability and safe space operations, as well as the way in which the later years of the Obama Administration laid the groundwork for important definitions and concepts related to space traffic management.

 Dr. Weeden also discussed the Department of Commerce’s role in the process, as described in the Trump Administration’s SPD-3, and efforts to develop a non-military space object tracking / monitoring system.

Professor Stephens discussed the difficulties of determining intentions in space, citing a number of recent examples of behavior that seems contrary to concepts of responsible behavior in outer space. Intention is important, because without the ability to determine or communicate intention, avoiding collisions on orbit becomes more difficult.

Professor Stephens compared naval operations and expectations with respect to intent-determination and collision avoidance to the outer space domain, suggesting that lessons could be learned from this comparison applicable to regulating such issues in outer space.

The panelists answered a range of moderator and audience questions on such topics as: whether existing space law and structures are sufficient to address space traffic management problems; how we accomplish transparency of communication with respect to space situational awareness data; whether an intergovernmental space traffic management system is possible; and others.

Panel: Senior Legal Counsel Perspectives, Moderated by Colonel Todd Pennington (SJA/USSPACECOM), and Featuring Lieutenant General Jeffrey Rockwell (The Judge Advocate General, U.S. Air Force), Air Vice-Marshal Tamara Jennings (Director of Legal Services, U.K. Royal Air Force), and Dr. Marco Ferrazzani (Chief Legal Counsel / Head of Legal Services Department, ESA)

In the closing panel of the conference, Colonel Todd Pennington, the Staff Judge Advocate for USSPACECOM, moderated three senior legal experts from American, British, and European space institutions. The first panelist, Lieutenant General Jeffrey Rockwell, is The Judge Advocate General of the U.S. Department of the Air Force—the senior-ranking JAG officer of the U.S. Air Force and the U.S. Space Force. The second, Air Vice-Marshal Tamara Jennings is the Director of Legal Service for the United Kingdom’s Royal Air Force—again, the senior-ranking legal officer of the service. Finally, Dr. Marco Ferrazzani, a space legal expert and internationally educated and renowned lawyer, who serves as the Chief Legal Counsel and Head of the Legal Services Department for the European Space Agency.

In his opening remarks, Lt Gen Rockwell noted that, though U.S. military interest in space seems new to many, the U.S. Air Force has been operating in space for a long time. He went on to discuss the creation of the U.S. Space Force, the importance of the new service developing its own unique identity, and the excitement and technical / bureaucratic efforts that have gone into developing the new Force.

 From a legal perspective, Lt Gen Rockwell noted that, while “space law” certainly exists, it may be better for practitioners operating in the space domain to consider themselves as not necessarily practicing space law, but, rather, the “application of law”—international, commercial, regulatory, etc.—in space.

AVM Jennings, in her opening remarks, commented on the importance of international partnerships and alliances, and noted that the conference events were an excellent way to exchange ideas and hear what other partner-nations find important. She discussed the state of British outer space-related military and law-making developments, including the recent releases of the UK’s national space strategy and Defence Space Strategy, as well as the development of the British military’s Space Command.

AVM Jennings also discussed the nature of non-binding “soft-law” and the question of whether such “law” could really be counted on to constrain State action. Ultimately, she suggested that State Practice in outer space could be a firmer way of developing customary international law for State behavior.

Finally, Dr. Ferrazzani discussed the nature of the European Space Agency and the ways in which, from a legal perspective, it works with its constituent member-states to develop space practices and legal norms for European space operations—including in the realm of “responsible behavior.” He characterized the Department of Defense’s publication of “Tenets of Responsible Behavior” as a welcome development, but also noted that proposed “responsible behavior” intersect with one another and with other areas of law, creating a multi-dimensional legal framework.

As one example of how this principle applies in the field of space law, Dr. Ferrazzani presented a chart depicting how different “levels” of law (the UN Charter, specific space treaties, international institutions, national laws, etc.) apply within the field. He also discussed the ways in which ESA is voluntarily complying with “responsible” space behaviors, both for the protection of the orbital environment (i.e. with respect to space debris creation/mitigation) and the terrestrial environment (for example, with respect to space-related methods to combat climate change).

After their initial remarks, the three panelists discussed a variety of questions related to “responsible behavior” and space legal matters, including questions concerning the development of customary law, the relationship between “law” and “justice” in the space environment, and enforcement mechanisms for outer space law, among others.

The conference also included the following sessions:

• • Two sets of U.S. Air Force Academy cadet presentations. The first, during the morning of Tuesday, 5 April, featured Cadet Second Class Taylor Belyeu and Cadet Second Class Desmond Rodriguez. The Second, during the lunch hour of Tuesday, 5 April, featured Cadet Third Class Ruben Banks, Cadet First Class Kyle Samuels, and Cadet Third Class Mark Walker Brunner.
  • A one-hour ethics CLE session on technology and ethics law presented by Major Melissa Ken, Assistant Professor, Department of Law, U.S. Air Force Academy.

About the author:

Major Jeremy Grunert is an officer in the United States Air Force Judge Advocate General’s (JAG) Corps. In this capacity, he has served as a military prosecutor and legal advisor at assignments in Afghanistan, Qatar, Turkey, the United Kingdom, and the United States. Major Grunert is currently assigned to the United States Air Force Academy, where he serves as an Assistant Professor in the Department of Law, where he teaches the Academy’s core “Law for Air Force Officers” course and the newly-developed “Space Law” course. Major Grunert is also the Chief of Space for the Academy’s Law, Technology, and Warfare Research Cell; in this capacity, he served as the Conference Director for the USSPACECOM Legal Conference, which LTWRC co-hosted with the USSPACECOM Legal Office.

Disclaimers

The views and opinions expressed in this post are the author’s and do not necessarily reflect reflect any position of the U.S. Space Force, the U.S. Department of Defense, U.S. Government, or any other organization. Similarly, the views expressed by the conference’s participants were solely their own unless stated otherwise.

The views and opinion expressed also do not necessarily reflect the views of myself, the Center on Law, Ethics and National Security, or Duke University (see also here)

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!