THE LEGAL AND POLICY ENVIRONMENT OF A MILITARY RLVMatt Bille,* Mike Jennings, and Deb Bille
ANSER, Colorado Springs, CO
Abstract
The U.S. Air Force (USAF) sees its futurein the eventual development and deployment of amilitary reusable launch vehicle (RLV). As theService begins long-range planning to bring amilitary RLV on line in the 2010-15 time frame, itmust also plan how such a vehicle can be used: notjust from a technological point of view, but from apolitical one. U.S. policy, international law, armscontrol treaties, and other forces will shape theway this new system can be deployed and what itcan do. For example, can a military RLV overflyother nations without consent? Does it make adifference if the RLV is carrying weapons? Whatkinds of weapons and missions are allowable?Under existing treaties and laws, some limitationsdo exist. Accordingly, technological and politicaldevelopment must proceed simultaneously. TheAir Force must develop the vehicle within anunderstanding of its permissible uses, while thenational leadership must consider what uses for amilitary RLV should be protected or facilitated asspace law and policy are developed. Only with thiscomprehensive approach can we make theinformed decisions needed to build the military'smost important space system.
Introduction: The RLV Concept
The U. S. Air Force, according to itsleaders, is beginning a transition from an "airforce" to an "air and space force" and eventuallyto a "space and air force."1
For any military arm, the key to operatingin a new medium is the transportation that willallow routine, affordable access to the area ofoperations. Accordingly, the Air Force hasembarked on a technology development programwhich will lead to deploying some type of reusablelauncher. At this writing, the idea is far fromhaving a firm technological outline, and its formalname has not been established. For convenience,this paper refers to all such concepts under theunofficial name "military RLV."
Whatever its specific design, the futuremilitary RLV will be a fully reusable spacecraftallowing the kind of access to space that airplanescurrently provide for missions in the loweratmosphere. According to Air Force SpaceCommand's Long Range Plan, the Service's RLVwill be capable of a range of missions in addition tosimple Earth-to-orbit transportation.2
Such transportation is, in the USAFlexicon, part of the Space Support mission area.The Service's other space mission areas includeForce Applications (application of force fromspace against terrestrial targets), ForceEnhancement (providing services such asintelligence which "enhance" terrestrial militaryforces), and Space Control (maintaining freedom offlight for friendly spacecraft while denying it toadversaries). We will examine each of thesemission areas and determine what constraints, ifany, are imposed by international treaties, laws,and national policy.
Military RLVs and the Status of Space
There are no provisions in existing spacetreaties or international law which would prohibitdeployment of a military RLV. The use in spaceof military-owned vehicles and military astronautshas long been accepted.
Most projections for military RLV designsassume the vehicle will have the capability to carrysome type of armament (although this capabilitymay or may not be used). Hypothetically, thiscould include weapons for use against space targetsor targets on Earth. The specific implications ofthese possibilities are dealt with below.
While the RLV by itself presents noproblems, weapons, of whatever type, complicatethe subject. It is argued by some disarmamentproponents that the fundamental statement of
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space law, the 1967 Outer Space Treaty (OSP),severely restricts the military uses of space.3
The OSP provides that activities in outerspace ("outer" not being defined) must be "in theinterest of maintaining international peace andsecurity." The OSP does not explicitly banmilitary activities in space, although almost allmilitary activity on celestial bodies is forbidden.Also prohibited is the stationing of "nuclearweapons or other weapons of mass destruction" inorbit or elsewhere in space.
The OSP does not mention a right to self-defense activities in space. It does say in ArticleIII that space activities will be carried out inaccordance with international law, including theCharter of the United Nations. The Charter, inturn, does recognize the right to national self-defense.
Military RLVs and Arms Treaties
In addition to examining the treaties onspace law, it is important to establish whether amilitary RLV could be classified as a strategicweapon subject to control under the Strategic ArmsLimitation Treaty (START).4 The answer appearsto be that a military RLV does not fall into thecategories of "weapons" which START wasintended to control. START refers to bombers,intercontinental ballistic missiles, and submarine-launched ballistic missiles in the sections restrictingnuclear delivery vehicles.
Clearly, a military RLV is not a missile ofany type, so the only concern is whether it mightbe classified as a bomber. The pertinent text, fromthe START Definitions Annex, states that abomber is "an airplane of a type, any one of whichwas initially constructed or later converted to beequipped for bombs or air-to-surface missiles." Anairplane is defined as "a power-driven, heavier-than-air aircraft that derives its lift in flight chieflyfrom aerodynamic reactions on surfaces..."
While some military RLV proposals includewinged designs, none derives its lift "chiefly" fromaerodynamics, especially while in powered flight.If the question of compliance is raised by anotherSTART party, it may be necessary to present theappropriate equations to demonstrate that theRLVs lift comes mainly from thrust.
Neither the U.S. nor (so far as is known)any other power is currently considering an RLV asa platform for nuclear armaments. This maintainscompliance with Article 19 of START Treaty. InArticle 19, the parties promise not to "...flight-testwith nuclear armaments an aircraft that is not anairplane but that has a range of 8000 kilometers ormore." The definition of "aircraft" is "...anymanned machine that can derive support in theatmosphere from interaction with the air..."
While the RLV does not appear to be an"airplane" and thus would not be a "bomber" underSTART, it may (depending on the design used) bean "aircraft." Accordingly, the military RLV, ifmanned, may fall under the restrictions in STARTArticle 19, which would prohibit testing, equipping,or deploying an RLV with nuclear armaments,including long-range nuclear air-launched cruisemissiles. The bottom line is that, as long as thereare no plans to use an RLV in the nuclear role, theSTART effects on RLV development are minimal.
Where Can a Military RLV Operate?
In the narrow case of the USAF's projectedRLV, there are two flight profiles being considered.One is a "pop-up" maneuver in which the RLVejects a payload without ever leaving the airspaceover the United States. In this instar~% nooverflight questions would be raised. 'Ine otherflight profile involves sending the RLV into lowEarth Orbit (LEO). It is established byinternational custom and treaty that a spacecraft inLEO has the right to overfly land areas withoutinfringing on national sovereignty.
In a more general sense, deployment of thefirst military RLV does have the potential to renewdebate concerning the issue of where space begins.As noted above, it is currently accepted that spaceis analogous to the high seas, with free right ofinnocent passage for all vehicles. Where, though,is the boundary between free space and sovereignairspace?
Despite decades of debate and manyconflicting proposals, this issue is unsettled. Thereis a practical consensus that any vehicle in Earthorbit is in free space. However, there remains alarge region between the lowest practical orbitalaltitude (approximately 150 kilometers) and theupper bound for aircraft operation (around 30km,
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although the concept of an "aircraft" in thiscontext is somewhat flexible, thanks to vehicleslike the American X-15).
Until a clear demarcation is established, itmust be recognized that any RLV operation overnational airspace and below LEO may be challengedas illegal overflight. This problem exists regardlessof what payload the RLV may be carrying or whatmission it is executing. It is possible that, beforethe military RLV is deployed, the development ofother RLVs may already have led to an agreementsolving this problem, or at least to some acceptedpractice which provides useful guidelines. It is inthe interests of the United States to seek anunambiguous international agreement on this pointbefore technology forces the issue.
Space Command Mission Areas
Space Support
Space Support, or spacelift, is the leastcontroversial mission. There are several projects,public and private, underway which will produceRLVs. Deployment of an RLV by the militarywould not, by itself, present any exceptionaldifficulties. Carrying satellites into space, orferrying people and supplies to a space station, itposes no problems not already faced by currentvehicles such as the Space Shuttle.
Force Applications
Accomplishing the Force Applicationsmission from any space platform appears to bepermissible as long as the weapons carried are notnuclear. If any nuclear power was to consider usingRLVs for a nuclear role, this would be restricted bythe OSP and (if the nation were a START party)by START. Performing Force Applications usingconventionally-armed reentry vehicles, deployedeither in space or after atmospheric reentry,presents no apparent problems.
Some types of Force Applications missionscould conceivably be limited by the OSP'sprohibition on the stationing of "nuclear weaponsor other weapons of mass destruction" in space."Weapons of mass destruction" (WMD) hasbecome a common term in arms control. WhileWMD is not explicitly defined by international
agreements, the accepted meaning includes nuclear,chemical, and biological weapons.5
Again, this does not appear to be asignificant restriction. The U.S. has alreadydestroyed its biological weapons, and the ChemicalWeapons Convention, which will require the sameaction for chemicals, was ratified in April 1997.
If the Air Force opted to perform non-strategic Force Applications missions from a futureRLV, the only ambiguity would exist if the termWMD was expanded. As noted, there is noagreement explicitly defining this term now. If theU.S. deployed a new type of weapon from its RLV -for example, a space-to-ground radio-frequencybeam - another nation could conceivably claim thiswas a type of WMD. How this claim would beresolved, and what the proper forum would be, isuncertain.
Force Enhancement
Space Force Enhancement encompasses allthe types of non-weapon support now provided toair, sea, and land forces by satellites. This includescommunications, navigation, intelligence, etc.Save for any limitations imposed by the futuredemarcation of national air sovereignty, use of themilitary RLV for this mission area (for example, asa communications relay platform) poses nosignificant questions.
Space Control
Space Control is a highly controversialsubject. It includes two main areas of contention:ballistic missile defense (BMD) and antisatellite(ASAT) operations.
The basic document controlling BMD is the1972 AntiBallistic Missile Treaty (ABMT).6 Thisagreement, binding the U.S. and the successor statesto the Soviet Union (Russia, Ukraine, Belarus, andKazakhstan), prohibits the testing or deploymentof space-based ABM systems. Direct cueing ofABM interceptors from space-based sensors is alsoprohibited, although the use of space-based missilewarning and tracking systems is permitted.Accordingly, the military RLV could not be used asa platform for mounting an ABM system,regardless of whether that system used missiles ordirected-energy weapons.
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A more ambiguous point concerns thepossible deployment of space-based systems forTheater Missile Defense (TMD). TMD weaponsare not covered by the ABMT. It may be possiblein the future to develop a directed-energy weaponsmall enough to be carried on the military RLV.Using an RLV-based TMD system, which would bemaintained on the ground until needed, could offercost advantages compared to keeping a satellite-based system continually in orbit to cover allpossible regions of hostilities.
It is possible that use of an RLV as a TMDplatform might be prohibited. In September, 1997,the United States and Russia signed a new AgreedStatement amending the ABM Treaty. Thisagreement, based on the rationale that the ABMcapability of a space-based TMD weapon could notbe determined, provides that, "The sides will notdevelop, test, or deploy space-based TMDinterceptor missiles or components based on otherphysical principles that are capable of substitutingfor such interceptor missiles."7 This documentmust be ratified by the U.S. Senate and the RussianParliament before taking effect. At this writing,President Clinton has not submitted the agreementfor ratification.
It is safe to assume this proposedamendment reflects the policy of the currentAdministration, and that any suggestion to developthe miltary RLV as a TMD platform would berejected. However, any such RLV is too far fromthe development phase for such a policy to haveany immediate effect. It will be up to futureAdministrations to rule on this point.
The second area of space control is the useof antisatellite (ASAT) weapons. The military RLVis, in theory, an ideal ASAT platform. It couldrendezvous with and inspect potentially hostilesatellites. If a satellite were determined to be athreat to U.S. interests, the RLV could capture itand return it to Earth. Alternatively, the RLVcould fire kinetic or directed-energy weapons todestroy the satellite. A "middle ground" approachwould be to carry radio-frequency or other weaponsthat could temporarily jam or disable the satellitewithout causing permanent damage.
There is no prohibition in international lawagainst the development, testing, or deployment ofASATs. The use of any form of ASAT would be a
very serious step. Destroying or capturing asatellite would be analogous to an attack on a shipin international waters, and would likely be regardedby the satellite's owner as an act of war.
These concerns exist regardless of whetherthe ASAT has any connection to the military RLV.RLV developers must look into the future andattempt to guess whether the vehicle might beemployed in this role. The basic characteristics ofthe military RLV will be not be affected by whetherit is designed with a Space Control role in mind. Atsome point in the design process, though, it willmatter. If the RLV will perform ASAT duties, sub-systems such as targeting sensors and weapons mustbe designed in. It would be desirable for an ASAT-capable RLV to have greater ability to changeorbits and maneuver than may be needed for otherroles, although any limitations could probably becompensated for by increasing the range andintelligence of the weapons carried.
START does prohibit interference with"national technical means of verification,"meaning intelligence satellites used to verifySTART compliance. This does not prohibitdeveloping or testing an ASAT capability. It doesmean that such a capability cannot be used tonegate intelligence satellites belonging to otherSTART parties. In practice, this does not appearto be a significant restriction: presumably, the U.S.would only want to negate Russian satellites if theU.S. and Russia were at war, in which case STARTwould already be moot.
Regardless of treaties, would U.S.policymakers permit the military RLV to haveASAT capability? Development of an ASAT hasalways been controversial, even though the U.S.deployed a crude nuclear ASAT system in the1960s. When the air-launched Miniature HomingVehicle ASAT was successfully tested in 1985,Congress responded by forbidding future tests, andthe system was canceled in 1988.
There is some level of public opinion,encouraged by peace activists, that space is andshould remain a haven free of militarization - or atleast weaponization.8 In practice, this ideal statehas never existed. Military satellites have been inorbit for decades, providing vital communications,navigation, and reconnaissance support to forcesbelow them. In addition to the U.S. ASAT
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programs, the former Soviet Union repeatedlytested a ground-based ASAT. Intercontinentalballistic missiles have always been designed totransit space with nuclear warheads on board.
Whether there are operational ASATs leftin Russia is not known with certainty. Alsounknown is whether any other nations with spacecapability have initiated ASAT development. Atreaty banning ASATs has been proposed manytimes (beginning with an American offer in 1977),but without success. The chief objection to such atreaty is that, while ASAT testing can be detected,the existence of an ASAT is unverifiable withoutextensive on-site inspection: every booster capableof lofting a simple explosive warhead into anorbital or suborbital trajectory is a potentialASAT.9
The opinions of the public andpolicymakers, especially in the media-consciousU.S., are not always based on such practicalconsiderations. The termination of both U.S.ASAT programs came during the Cold War, whenthe need for such systems was presumably moreapparent than it is now. While Air Force planningdocuments consistently cite the need for spacecontrol capabilities, including ASAT,10 thecontroversy created by the 1997 U.S. test of aground-based laser against a satellite, mainly todetermine the vulnerability of satellites to suchweapons, is an indication of the political difficultiessurrounding this subject.
The most that can be said at this point isthat development of the military RLV in an ASATrole is technically legal but politically volatile.Whether such a use will be practical by the time themilitary RLV is built will depend on the evolvingworld situation, the composition of the U.S.government, and many other factors too complexto predict.
Summary
The deployment of the military RLV as aspace transportation vehicle violates no law,treaty, or custom. Use of the vehicle in twomission areas - Space Support and Space ForceEnhancement - presents no difficulties. ForceApplications roles, while not contemplated today,are a problem only if there is any thought of usingthe RLV to carry nuclear weapons.
Space Control is the most contentious area.One clear restriction is in place now: the militaryRLV could not launch, carry, or direct ABMweapons. If the proposed amendment to theABMT is approved, a similar restriction will barthe military RLV from playing an active role inTMD.
The military RLV's use in an ASAT rolewill depend on the legal and political status ofASATs in general. If such weapons are prohibitedby treaty or by U.S. public policy, then no type ofsystem, including an RLV, will be deployed for sucha role. If ASATs, or some sort of standby ASATcapability, remain legal and are endorsed by U.S.political leaders, the military RLV is a veryattractive option.
Conclusion
The military RLV will be developed inaccordance with a variety of legal and politicalrestrictions. Only two restrictions, banning theABM role and the carrying of WMD, are firmlycemented in place today. Otherwise, the militaryRLV is free to perform any mission the U.S.leadership deems desirable and the vehicle'sdesigners can accommodate.
The U.S. intends to perform an analysis byits interagency START Compliance Review Groupat each stage of military RLV development. Thatis a necessary step, but may not be the only steprequired. As the military RLV program proceeds,the political and military leadership will need tomonitor the entire legal environment - treaties,laws, and domestic political guidance - and weigh it,along with the needs dictated by military doctrine,in giving continuous guidance to the engineersdeveloping future space systems for nationaldefense.
DISCLAIMER: All opinions in this paper aresolely those of the authors. This paper does notreflect the positions of Analytic Services Inc.(ANSER), the U.S. Air Force, the Department ofDefense, or the U.S. Government.
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1 Estes, Howell, General. 1997. "From theCommander," 1997Stakeholders' Report, AirForce Space Command, p. 3.2 AFSPC/XPX, 1997. "AFSPC Long RangePlan - Update," 31 December 1997.3 Treaty an Principles Governing the Activities ofStates in the Exploration and Use of OuterSpace, Including the Moon and Other CelestialBodies, signed 27 January 1967.4 Treaty Between the United States Of Americaand the Union Of Soviet Socialist Republics Onthe Reduction and Limitation Of StrategicOffensive Arms, signed 31 July 1991.5 Treverton, Gregory, and Bruce Bennett. 1997."Integrating Counterproliferationinto DefensePlanning," RAND Issue Paper.6 Treaty Between the United States of America andthe Union of Soviet Socialist Republics on theLimitation of Anti-Ballistic Missile Systems,signed 26 May 1972.7 Second Agreed Statement of September 26,1997, Relating to the ABM Treaty.8 For an example of this viewpoint, see Caldicott,H., "An Urgent Message,"http://www.janrainwater.com/Cassini.htm, June1997.9 Stine, G. Harry, Confrontation in Space,Prentice-Hall, 1981.10 "Controlled Space," Inside the Air Farce, 4April 1997, p.l.
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