The Rise of International Space Law and Air Force Space Lawyers
When The Judge Advocate General’s (JAG) Corps came into existence seventy-five years ago in 1949, outer space was a new frontier. There were no satellites or astronauts. Later that year, the Air Force launched the first living mammal to reach the 100 km line now widely regarded as the practical boundary of outer space,[1] a rhesus monkey that flew aboard a V-2 rocket.[2]
Legal Status of Outer Space
The legal status of outer space was unclear. The 1944 Chicago Convention had established that each State had “sovereignty over the airspace above its territory,” but never defined the extent of airspace.[3] In 1951, an influential scholar argued that recent rocket flights of 400 km traveled above airspace, showing the need for new rules governing high altitude activity.[4] In 1955, the Air Force issued a requirement for reconnaissance satellites, but amid the Eisenhower administration’s “space for peace” prioritization and concerns that military orbital overflight might violate USSR sovereignty, the WS-117L satellite reconnaissance and protection program was underfunded.[5] Instead, a presidential advisory panel recommended scientific satellites be launched first to develop “freedom of space.”[6]
Then, on 4 October 1957, the USSR launched Sputnik 1 into low earth orbit. Rather than protest its U.S. overflight, President Eisenhower congratulated the Soviets and reaffirmed the United States intended to launch its own satellites.[7] The National Security Council observed that in “establish[ing] the principle of the freedom of outer space … the Soviets have now proved very helpful. Their earth satellite has overflown practically every nation on earth, and there have thus far been no protests.”[8]
U.S. satellite launches began with Explorer 1 on 31 January 1958 and accelerated swiftly.[9] In January 1959, the Air Force began launching Discoverer science missions as a cover for the CORONA reconnaissance program, using imaging satellites spun off from the WS-117L program.[10] U.S. signals intelligence, weather, missile warning, and communications satellites proliferated in the early 1960s.[11]
International Space Law
International space law developed rapidly. In December 1958, the United Nations (UN) General Assembly first established a Committee on the Peaceful Uses of Outer Space (COPUOS) to study legal problems arising from space exploration.[12] In 1963, with input from COPUOS, the General Assembly issued a declaration of nine legal principles for outer space, including that it was free for exploration and use by all States.[13] These principles were essentially codified in the 1967 Outer Space Treaty, which provides the core of international space law, along with the 1968 Rescue Agreement, the 1972 Liability Convention, and the 1975 Registration Convention.[14] Provisions governing some uses of outer space are also included in broader international agreements, such as the International Telecommunication Union Constitution, Convention, and Radio Regulations.[15]
Broad multilateral space treaties effectively ended with the failed 1979 Moon Agreement. Instead, States began creating specific legal regimes for major projects like the International Space Station, completing bilateral space agreements, and promoting non-binding norms of State behavior.[16] Prominent examples of recent norms-development activities include the 2019 COPUOS Guidelines for the Long-Term Sustainability of Outer Space Activities,[17] the 2020 Artemis Accords,[18] and the 2022 General Assembly Resolution on destructive direct-ascent anti-satellite missile testing.[19] The Department of Defense joined norms-development efforts in July 2021, publishing five tenets of responsible behavior in space.[20]
The demand for [legal] expertise will continue to grow as space becomes more congested, competitive, and contested.
Space Lawyers
JAG Corps attorneys have been practicing space law since its inception. Attorneys from the International Affairs Division advised on the Sputnik overflight and provided input for the U.S. response to proposed UN space treaties.[21] After publishing a seminal treatise on space law in 1959, Brigadier General Martin Menter became a recognized leader in the field, even serving as the Chairman of the American Bar Association’s Space Law Committee.[22] In 1979, the JAG Corps began sending judge advocates to obtain LL.M. degrees in space law at McGill University,[23] a program which today includes the Universities of Nebraska and Mississippi. JAG Corps legal practice expanded in 1988, following a Joint Chiefs of Staff directive requiring combatant commanders to have legal advisors available during planning and execution of military operations and exercises.[24] Since then, Air Force attorneys have served as space operations advisors at U.S. Space Command and U.S. Strategic Command, as well as service and functional components of those commands.
As the complexity of the space domain intensifies, the JAG Corps will continue to provide outstanding space lawyers to meet the challenges of tomorrow.
Today, twenty-two Air Force attorneys, including nine advisors for global offensive and defensive space operations, are assigned to U.S. Space Command, its two functional components, and its Air Force and Space Force service components. Twenty-nine are at the two Field Commands that organize, train, and equip the Space Force, forty-two are at six Space Force base legal offices, and five space law specialists serve at Headquarters Air Force. Combined, ninety-eight Air Force active duty and civilian attorneys directly support military space operations.
The demand for such expertise will continue to grow as space becomes more congested, competitive, and contested. As of April 2023, U.S. Space Command tracked 47,900 objects in space, including 9,220 satellites on orbit. Our strategic competitors have conducted nine known demonstrations of counterspace capabilities and 93% of their satellites on orbit are estimated to be capable of military use.[25] As the complexity of the space domain intensifies, the JAG Corps will continue to provide outstanding space lawyers to meet the challenges of tomorrow.
About the Author
Major Jonathan K. Sawmiller, USAF
(B.A., Boise State University, Boise, Idaho; J.D., University of Idaho, Moscow, Idaho; LL.M., University of Nebraska, Lincoln, Nebraska) is the Chief of Operations Law, United States Space Command, Peterson Space Force Base, Colorado.
Edited by: Major Allison K.W. Johnson (Editor-in-Chief), Major Victoria H. Clarke and Major Andrew H. Woodbury
Layout by: Thomasa Huffstutler
[1] Jonathan C. McDowell
, The Edge of Space: Revisiting the Karman Line,
Acta Astronautica at 668 (Oct. 2018).
[3] Convention on International Civil Aviation, art. 1, Dec. 7, 1944, T.I.A.S. 1591.
[4] John C. Cooper,
High Altitude Flight and National Sovereignty, 4
Int’l. L. Q. 411 (1951).
[10] NRO,
supra note 5 at 49.
[11] Programs included SAMOS, MIDAS, Vanguard, TIROS, Nimbus, DMSP-1, SCORE, Echo, Relay, Telstar, Syncom, and others.
[12] G.A. Res. 1348 (XIV) (Dec. 13, 1958).
[13] G.A. Res. 1962 (XVIII) (Dec. 13, 1963).
[15] Frans von der Dunk,
Legal Aspects of Satellite Communications, in
Handbook of Space Law 456 (Frans von der Dunk and Fabio Tronchetti, eds., 2015).
[16] Frans von der Dunk,
International Space Law, in
Handbook of Space Law 99-103 (Frans von der Dunk and Fabio Tronchetti, eds., 2015).
[17] Comm. on the Peaceful Uses of Outer Space, Rep. on its Sixty-Second Session, U.N. Doc. A/74/20 (2019).
[19] G.A. Res. 77/41 (Dec. 7, 2022).
[20] Dept. of Def., Directive 3100.10,
Space Policy 7 (Aug. 30, 2022).
[21] Patricia A. Kerns, The First 50
Years: U.S. Air Force Judge Advocate General’s Department 43 (2003).