STAR WARS?: THE RISE OF THE SPACE FORCE

By: Sarah Nelson, Volume 104 Staff Member

George Lucas’s “Episode IV – A New Hope” served as the impetus for what would become the second-highest grossing movie franchise of all time: Star Wars.[1] The 1977 would-be saga that enthralled audiences worldwide featured Jedi Knights and Dark Lords of the Sith engaging in an ongoing war.[2] Even those who have never seen A New Hope or one of the eight subsequent Star Wars episodes likely know that they are set “[a] long time ago in a galaxy far, far away,”[3] where these Jedi Knights and Sith Lords are hegemonized by the light and dark side of the “Force,” respectively. Their use of sophisticated lightsabers, droids, and spaceships all suggest that the space battles depicted in Star Wars are far more fantastical than realistic.

But are space battles so fantastical? Well, yes and no. On December 20, 2019—the same day that “Star Wars: Episode IX – The Rise of Skywalker” released in theaters[4]—President Trump signed the National Defense Authorization Act (NDAA).[5] The NDAA created the United States Space Force, the first independent military branch of its kind.[6] Consequently, this Post explores what the Space Force is and the reasons for its creation before turning to the inadequacy of the laws governing its mission.

I.  “THAT’S NOT HOW THE [SPACE] FORCE WORKS”

Star Wars characters often travel between various planets and moons,[7] making space the ultimate battleground. And while these intragalactic battles are improbable and unrealistic off-screen, technological advances necessitated a military branch devoted to advancing the United States’ national interests in a different type of space battle.[8]

The United States Department of Defense (DoD) released a fifteen-page report detailing this need and the mission of the Space Force.[9] There, the DoD posited that China and Russia are “explicitly pursuing space warfighting capabilities to neutralize U.S. space capabilities during a time of conflict.”[10] Electronic warfare—namely jamming[11] military satellite communications, imaging satellites, and global positioning and navigation satellite systems—emerged as a primary threat in recent years.[12] The use of anti-satellite (ASAT) weapons—missiles used to physically destroy satellites—surfaced as a potential threat as well.[13] Even India joined the space warfighting domain in 2019 when it successfully tested an ASAT weapon.[14] The President advocated for, and Congress established, the Space Force as a response to these growing threats.[15]

The Space Force’s official website defines the branch as “a military service that organizes, trains, and equips space forces in order to protect U.S. and allied interests in space and to provide space capabilities to the joint force.”[16] Space Force members will be responsible for acquiring military space systems, maturing the military doctrine for space power, and organizing space forces.[17] The DoD ultimately boasts that the Space Force “will unlock [the United States’] potential and lead to outcomes never before thought possible.”[18] But what laws will govern?

II. “A LONG TIME AGO [IN 1967] . . . .”

Star Wars superfans know that George Lucas conceived the idea for the prequel and sequel trilogies long before the idea came to fruition.[19] Technology at the time was simply inadequate to support his vision.[20] This Post argues that so are the current laws governing the Space Force. In fact, the treaty that serves as the backbone of all space law was created in 1967—a full ten years before the release of A New Hope.

The Outer Space Treaty of 1967 was created when space travel was in its infancy. It proscribes the use of weaponry[21] and “will be the first source of international law to consult in an analysis of permissible actions and objects in space.”[22] The treaty prohibits placement of nuclear weapons or other weapons of mass destruction in orbit, on the moon, or on other celestial bodies.[23] It also restricts parties’ use of the moon and other celestial bodies to peaceful purposes.[24]

But the Outer Space Treaty of 1967 spans a meager seventeen articles in length and provides only a simple, inadequate framework to regulate military operations in space.[25] By contrast, the Law of the Sea Treaty—the international agreement delineating the rights and responsibilities of parties with respect to their use of oceans—spans more than 300 articles.[26] And though the Outer Space Treaty of 1967 is supplemented by other treaties,[27] it does not sufficiently define the parameters of what our newly created Space Force can do. Advancements in technology and expanding capabilities in space raise new questions regarding permissible actions, to which the Outer Space Treaty of 1967 is silent. Notably, the treaty is silent in regard to an event where another nation launches a jamming attack or uses ASAT weapons against the United States in space (or vice versa): the treaty forbids only the placement of weapons of mass destruction on the moon and celestial bodies; it says nothing regarding an attack on satellites.[28] But the Space Force was created explicitly to develop “next-generation [space] capabilities.”[29] Thus, the lack of clear legal guidelines governing the Space Force mission is problematic.

Legal scholars agree that the Outer Space Treaty of 1967 is but a starting point for advancing and developing space law,[30] and it provides merely a foundation “upon which a comprehensive legal regime may be developed.”[31] While a comprehensive legal regime may not have been necessary in the past, this Post ultimately argues that the birth of the Space Force—the newest military branch in over sixty years[32]—serves as the appropriate time in which to further develop space law.[33] Emerging space law should address both the offensive and defensive use of weapons in the space domain. Specifically, it should define circumstances under which weapons can or should be used. Developing a comprehensive legal regime would create a framework sufficient to regulate the Space Force’s mission and would reduce the current uncertainty in conducting military operations in space.

[1] Top Grossing Movie Franchises of All Time, From ‘Harry Potter’ to ‘Star Wars,’ USA Today (July 26, 2019, 12:15 PM), https://www.usatoday.com/picture-gallery/entertainment/movies/2019/07/26/harry-potter-star-wars-more-top-grossing-movie-franchises-all-time/1838165001/ [https://perma.cc/APD2-Z8TQ].

[2] Star Wars: Episode IV – A New Hope (Lucasfilm 1977).

[3] Id.

[4] Star Wars: Episode IX – The Rise of Skywalker (Bad Robot Productions 2019).

[5] National Defense Authorization Act for Fiscal Year 2020, Pub. L. No. 116-92, 133 Stat. 1198.

[6] Id.; Kyle Mizokami, The Space Force Will Become the Sixth Branch of the U.S. Military, Popular Mechanics (Dec. 11, 2019), https://www.popularmechanics.com/military/a30184766/space-force-official/ [https://perma.cc/X3F2-FMEZ].

[7] Galaxy Building, From Alderaan to Utapau, Star Wars (Dec. 13, 2013), https://www.starwars.com/news/galaxy-building-from-alderaan-to-utapau [https://perma.cc/JAX5-PEDB].

[8] Dep’t of Defense, Final Report on Organizational and Management Structure for the National Security Space Components of the Department of Defense 1 (2018) [hereinafter Space Report].

[9] Id.

[10] Id. at 4.

[11] Jamming attacks involve overloading receivers with signals sent by another satellite. Ryan Esparza, Event Horizon: Examining Military and Weaponization Issues in Space by Utilizing the Outer Space Treaty and the Law of Armed Conflict, 83 J. Air L. & Com. 333, 351 (2018).

[12] Space Report, supra note 8, at 4.

[13] Id.

[14]  Ashley J. Tellis, India’s ASAT Test: An Incomplete Success, Carnegie Endowment for Int’l Peace (Apr. 15, 2019), https://carnegieendowment.org/2019/04/15/india-s-asat-test-incomplete-success-pub-78884 [https://perma.cc/X8CA-JZMF].

[15]  See Bill Gertz, Growing ASAT Threat Behind New Space Force, Wash. Free Beacon (Feb. 21, 2019, 5:00 AM), https://freebeacon.com/national-security/growing-asat-threat-behind-new-space-force/ [https://perma.cc/9J4R-CJ5L].

[16] What is the Mission of the U.S. Space Force?, United States Space Force, https://www.spaceforce.mil/About-Us/FAQs/Whats-the-Space-Force [https://perma.cc/W7RL-WW9S].

[17] Id.

[18] Space Report, supra note 8, at 15.

[19] See generally Interview: George Lucas, Newsletter of the Official Star Wars Fan Club (1980), https://www.jeditemplearchives.com/specialreports/banthatracks/archives/banthatracks08.pdf

[https://perma.cc/Z489-Z2YU] (featuring George Lucas discussing the hopeful production of “the nine-part Star Warsepic”). The Star Wars episodes comprising the original trilogy were released in 1977, 1980, and 1983, and the episodes comprising the prequel trilogy were not released until 1999, 2002, and 2005. Star Wars Films, Star Wars, https://www.starwars.com/films [https://perma.cc/WTE5-Q225].

[20] See The Untold Story of ILM, a Titan That Forever Changed Film, Wired (Dec. 21, 2015), https://www.wired.com/2015/05/inside-ilm/ [https://perma.cc/MH29-3DR4] (“I [George Lucas] never thought I’d do the Star Wars prequels . . . but once you had digital, there was no end to what you could do.”).

[21] Id.

[22]  Esparza, supra note 11, at 339.

[23] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, Jan. 27 1967, 18 U.S.T. 2410 [hereinafter Outer Space Treaty of 1967].

[24] Id.

[25] Id.

[26] United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S. 397.

[27] These supplemental treaties include the following: Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space, Apr. 22, 1968, 19 U.S.T. 7570; Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 24 U.S.T. 2389; The Convention on Registration of Objects Launched into Outer Space, Jan. 14, 1975, 28 U.S.T. 695; and The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, Dec. 18, 1979, 1363 U.N.T.S. 3.

Ryan Esparza, a recent graduate of the University of Mississippi School of Law, contends that the Law of Armed Conflict might also function to supplement the Outer Space Treaty of 1967 since it is “so expansive that it can provide clarity to the ambiguous areas left open . . . .” Esparza, supra note 11 at 357. However, the expansiveness and broadness of the Law of Armed Conflict would still highlight the need for more explicit and clearly-defined laws in space.

[28] Outer Space Treaty of 1967, supra note 23.

[29] Space Report, supra note 8, at 5.

[30] Esparza, supra note 11; Christopher J. Gawronski, Where No Law Has Gone Before: Space Resources, Subsequent Practice, and Humanity’s Future in Space, 79 Ohio St. L. J. 175, 177 (2018).

[31] Christopher J. Gawronski, Where No Law Has Gone Before: Space Resources, Subsequent Practice, and Humanity’s Future in Space, 79 Ohio St. L. J. 175, 177 (2018).

[32] Mizokami, supra note 6.

[33] “You can’t stop change, any more than you can stop the suns from setting.” Star Wars: Episode I – The Phantom Menace (Lucasfilm 1999).