Recent voices have urged the United States to violate the Outer Space Treaty (OST), the binding principles of humanity’s use of outer space, by engrossing private industry for advancing U.S. space militarization with kinetic anti-satellite (ASAT) systems and space-to-ground missile shields. These proposals not only ignore the duty of the OST to operate with “due regard to the corresponding interests of all other States Parties,” they openly challenge it and risk transforming Earth’s orbit into a wasteland of debris.
Durability of due regard, why it matters and why militarization undermines it
It is important to note that the U.S. has recognized the international obligation to the OST, specifically the principle of due regard, and recently reaffirmed this commitment in the 2020 Artemis Accords. To understand why, one must first appreciate the significance of the term “due regard” within international law. While not directly connected to space law, the evolution of this concept in maritime law illustrates how international law adapted to the complex shared domain of space. The shift from “reasonable regard” to the stricter “due regard” in the 1982 version of the United Nations Convention on the Law of the Sea (UNCLOS) reflects an increasing expectation for states to carefully consider their actions’ impact on others. If one is confused between these two standards, it is important to note these are not strictly defined terms but rather broader doctrines.
But to provide a simple definition, “reasonable regard” implies a general obligation to avoid interference with others’ activities, while “due regard” imposes a higher standard of care, requiring proactive measures to prevent harm and ensure cooperation. In space law, the intentional choice to include “due regard” in the OST signifies a need for states to carefully consider the potential impact of their actions on others without setting a hardline model. In principle, due regard’s application in the OST requires parties to take preventative measures against interference and engage in continuous cooperation to mitigate risks.
Contradicting this duty, recent proposals to expand U.S. military space practices with kinetic ASATs and orbital bombardment systems justify this aggression by suggesting that the resulting orbital debris contamination and other risks can be dismissed due to reduced launch costs, scalable satellite production and the debris removal technology of private industry. It is unwise to assume that commercial technological advancements can be directly adapted for military use in space. This skepticism is supported by two critical factors. First, statistical limitations in current space debris collision models prevent accurate assessments of intentional weaponized attacks on satellites and other orbital assets. Current models primarily focus on accidental collisions rather than deliberate threats. Second, proportional challenges arise as efforts to develop debris-removal technologies struggle to keep pace with the rapid proliferation of satellites and increasing orbital congestion. As a result, it remains uncertain whether these technologies would effectively address the growing risks associated with militarization in space that would further spike this rapid production model.
However, taking an optimistic view of viability, ongoing kinetic ASATs and permanent orbital bombardment systems introduce risk to the international use of space, not only with intentional destruction of satellites creating debris, but also incentivizing rivals to accelerate their own space militarization programs in response. Once again, militarizing space would not only ignore the duty of due regard to engage in cooperative measures to mitigate risks, but would also represent proactive measures to undermine it with systems specifically created to interfere with other states’ use of space.
U.S. invites oversight challengers in modern space governance
The U.S., despite its historical commitment to space responsibility, has at times threatened the principle of due regard principle with multiple ASAT tests. However, there were outside restrictions that limited these actions, including technological and monetary challenges for the U.S. government that are not as applicable today. Unfortunately, as those technological and financial challenges have lessened, so too has legislative oversight. The 1980s’ Strategic Defense Initiative (SDI) faced significant technological and monetary hurdles, but the Congress of the time was also more willing to scrutinize impropriety. Today, private satellite constellation swift deployments and quick developments of the military-industrial complex may effectively act unseen, because of a more and more sidelined Congress and now-destabilized regulatory state from several executive orders and the Supreme Court’s decision in Loper Bright Enterprises v. Raimondo overturning the Chevron Doctrine. Thus, the pro-militarization vision of orbital strike systems currently would centralize power within an unchecked executive, ignoring the due regard doctrine, while also promoting commercial actors who assist this military complex, rather than those who would seek to follow proper regulation of orbital debris creation or interference.
A path forward remains: reclaim international leadership through the durability of due regard
Given these challenges, the U.S. must reaffirm its commitment to the principle of due regard as a leader in space governance, not reject it for a militarized agenda. The government must be urged to clarify a set regulatory authority over orbital debris mitigation and advocate internationally for other nations to avoid harmful debris creation caused by ASAT testing and lowered regulations. This will push the private sector to embrace sustainable practices over short-term gains of a privatized military agenda. This commitment not only fulfills the legal obligation of the OST, as the U.S. agreed upon within the Artemis Accord, but it also ensures durability in space as a shared resource for generations of all mankind to come. While the U.S. government unquestionably bears responsibility to protect national interests — as detractors rightly emphasize — the specific methods being advocated (kinetic ASAT testing and expansive space-to-ground missile constellations) suffer from critical flaws in both policy and execution. Alternative systems like cyber defenses, laser countermeasures and signal-jamming technologies could achieve comparable military objectives without generating the long-term orbital debris inherent to kinetic ASAT strikes or Incentivizing adversaries to further congest orbital pathways with retaliatory space-to-ground missile shield systems.
To put it plainly, space is not the new battlefield of world powers. Instead, it is the shared interest of all where due regard dominates. By rejecting this militarization agenda and championing sustainability, the U.S. would lead a coalition of responsible actors — ensuring Earth’s orbit remains usable for science, commerce and future generations.
Michael Garetto-Balmer is a third-year law student and member of the Global Space Law Center Research Council at Cleveland State University College of Law.
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