The rocket that NASA aimed at the Moon last week did not produce the public relations bonanza the agency was hoping for--a cloud of dust visible to amateur earth astronomers. But early accounts suggest the explosions did produce a wealth of scientific data on the presence and distribution of water-ice in the dust, which is an important practical factor if humans are ever to spend much time there. The presence of accessible lunar water would mean not having to haul all our own H2O out of Earth's deep gravity well.
The LCROSS mission is an important and expensive scientific experiment. Nonetheless, comments on Web sites such as Scientific American and Nature indicate that quite a few people thought the whole venture to be some sort of outer-space vandalism. Some even wondered whether NASA might have acted illegally or violated an international law or treaty by setting out to "bomb the Moon."
The answer is no. But while many might be surprised--dismayed, even--to hear that there is such a thing as "space law," there are treaties governing activities in outer space, including the Moon. The United States has joined four international agreements that regulate different questions about space activities. The Outer Space Treaty (dating back to 1967, not long before the first lunar landing) covers many aspects of humans in space, including the peaceful uses of space. The U.S. has joined subsequent treaties that respond to today's intensive use of Earth orbit. One treaty, for example, covers the rescue and return of astronauts who, in an emergency, might come down anywhere on Earth; another establishes the liability of parties who put things into space for damage they might cause if they come down again without burning up; and another sets up a registry for identification of objects in Earth orbit. These are all practical arrangements for dealing with a world that is highly dependent upon satellites for communications, weather monitoring and many other crucial functions.
But lawyers look for the unexpected as well as the expected, so is there any reason to think that NASA's LCROSS blast might have violated the Outer Space Treaty, even inadvertently? The treaty prohibits the testing of weapons, the placement of weapons or military bases on the Moon or other "celestial bodies," and prohibits the placement of nuclear weapons or weapons of mass destruction anywhere in space, and specifically in orbit around the Earth. But merely exploding lunar rock, even with a rocket hull, where the scientific mission is clear, is not the "weaponization" of space.
Even though NASA's moon-bashing does not raise legal questions, serious questions involving space weaponry, are still with us--and much closer to home. Satellites play a vital role in U.S. military communications, and an even more vital role in the world's economy. Attacks on satellites might paralyze both.
China raised serious concerns in 2007 by testing its ability to target a dead satellite with a missile from Earth; everyone understood the satellite might, under other circumstances, have been live. The United States, in 2008, used its antimissile Aegis system to hit a failed U.S. spy satellite as it was falling back to Earth. Yet these demonstrations, or even their use in actual war, are not actually prohibited, or even addressed, by the Outer Space Treaty. Responding to this gap, the Obama administration has signaled what looks to be an attempt to get ahead of the space-war issue. Soon after the inauguration, the White House Web site spoke of "seeking a worldwide ban on weapons that interfere with military and commercial satellites." The concern is understandable; no military in the world is as dependent upon satellite communication as the U.S.; all the industrialized world, and even much of the rest, depends upon the integrity of satellite communications for everything from banking and finance to power grid management.
This kind of orbital weapons threat--not blasts at the Moon--raises the real issues of weapons in space today. While the threat was once imagined to be (as in the 007 movies) nuclear weapons in orbit, today the leading threat is to global communications and control of instruments crucial to economic and social systems, by means of weapons aimed against satellites. Nor does the threat necessarily require any specially designed weapon; satellites are horribly delicate and unprotected against kinetic force, and essentially anything with an engine and some maneuverability, including other satellites present for otherwise ordinary and nonthreatening uses, can create a threat to them. Think IEDs (improvised explosive devices) in space.
It bears noting that, even under the non-bellicose President Carter, the U.S. declared that an attack upon satellite systems would be considered grounds for war. Nonetheless, treaties can make clear where the lines are and can make it harder for nations to prepare, secretly, to cross them.
Protecting against an antisatellite program is easier if the program indeed has to be kept secret or at least not overtly deployed until a conflict is underway. It is a lot harder if such a system is perfectly legal, and testing and even deployment can be done in the open. Avoiding that outcome is presumably what the Obama administration seeks--some code of conduct against testing, and deployment of anti-satellite weapons, whether launched from space or from the ground "against" space, coupled with a ban on attacking satellites.
Big players, including China and Russia, understand that they stand to lose big-time if the satellites on which they, too, depend are taken out. They also understand that, in both military and socio-economic terms, the US stands to lose much, much more, and so has more to gain than they from an agreement. All things equal, response in kind has some deterrent effect against them, creating some incentive to enter treaty arrangements.
But that still leaves rogue states such as Iran or North Korea. Both are achieving crude capabilities--yet not seriously challenged by the United States and others--that could destroy important parts of the satellite system while not necessarily incurring any great costs to themselves. Even the capability of launching such a system holds the world hostage to a set of unknown threats.
A diplomatic agreement among the leading nations is not an easy thing; one wishes the Obama administration well. But dealing with the rogue states who might gain the technology but will not be moved by treaties is probably more important--and certainly more difficult. It's not about blasts aimed at the Moon. It's about orbiting IEDs in space.
Kenneth Anderson teaches international law at American University and is a fellow of the Hoover Institution Task Force on National Security and Law. Glenn Harlan Reynolds teaches space law at University of Tennessee, and is publisher of Instapundit blog and a columnist for Popular Mechanics.