Year Ahead – U.S. Department of Defense and Space Force Commercial Space Strategies

Editors’ note: We are pleased to announce that Articles of War has recently added several thematic editors to our staff. Each editor has contributed a post to this year’s Year Ahead series with thoughts on issues or situations they recommend our readers track over the coming months in their respective field of the law of war. We will resume our usual publications at the conclusion of this series.

The 2024 U.S. Department of Defense (DoD) and Space Force commercial space strategies have built upon a tradition of maximizing private sector innovation and efficiency while focusing on resiliency and emphasizing the use of the private sector for those mission areas where outsourcing is the most appropriate. If these commercial strategies are followed, the United States and its allies will field more innovative, resilient, and state of the art space systems to address critical needs. While legal concerns over the extensive use of the private sector exist, the strategies provide a framework to focus acquisitions on integrating with the most appropriate mission areas. As questions of law are mitigated, expect the pace of DoD’s commercial acquisitions for space security to continue accelerating into 2025 and beyond

Background

In the mid-twentieth century, States, rather than private sector actors, had the monopoly on outer space access. The Soviet Union took an early lead in what has been referred to as the “Space Race” because of technological differences between its intercontinental ballistic missile program and that of its primary Cold War adversary. While the United States miniaturized warheads and emphasized accuracy of missiles, the Soviets required heavier rockets for heavier nuclear warheads and thereby had a corresponding space launch advantage. On October 4, 1957, the Soviet Union successfully launched Sputnik I into orbit, followed by Sputnik II in November the same year. On January 31, 1958, United States launched its first satellite, Explorer 1, into orbit.

Facilitated by government launches, the United States’ private sector has been operating satellites since 1961, beginning with an amateur satellite. The 1962 Communications Satellite Act provided a regulatory framework. This enabled U.S. commercial satellites to continuously operate in orbit from the early years of the Space Race.

The 1967 Outer Space Treaty, the 1972 Liability Convention, and the 1975 Registration Convention built off principles articulated in a 1963 UN General Assembly resolution to address the private sector’s role in space. This created a legal regime whereby States are responsible for their space objects and corresponding activities. State responsibility attaches for all “national activities in outer space,” which includes activities by government agencies and non-government entities. Additionally, State liability attaches when an object is launched from the territory or facility of a State, when the launch is acquired by a State, or when the object is registered to a State. This is significant because States bear international responsibility for the activities of their private sector actors in space and are thereby responsible for corresponding breaches of international law.

Since these space treaties were formed, the private sector’s role has grown beyond satellite operations. In 1982, the State launch monopoly was broken when Space Services Inc. of America launched the first private rocket into orbit. The Reagan administration recognized benefits from the private sector’s role in civil space activities and issued a series of policy directives to expand private sector involvement in space. In 1984, the Commercial Space Launch Act was passed to formally encourage and regulate private sector space launches and services. Later, the Commercial Space Act of 1998 overhauled the law and added new measures to foster the commercial sector in space. The year 2023 saw 180 private sector space launches worldwide, far exceeding the 30 government launches, mainly from Russian and Indian agencies.

U.S. National Security Space Policies and Strategies

For decades, the official policy of the U.S. government has been to maximize the role of the commercial sector in space, to include uses for national security. In 1991’s Operation Desert Storm, the United States needed to lease significant commercial capabilities to support communication demands. These demands increased significantly in subsequent military operations. Time has proven that it is simply not feasible for DoD to meet mission needs without the commercial space sector.

In 2003, the White House issued a commercial remote sensing policy directing the government to maximize reliance on “U.S. commercial remote sensing space capabilities for filling imagery and geospatial needs for military, intelligence, foreign policy, homeland security, and civil users.” This encouraged private sector development while allowing the government to focus on acquiring more exquisite capabilities.

The 2006 Space Policy similarly focused on using the commercial sector to the “maximum practical extent” to decrease costs and “encourage an innovative commercial sector.” The 2010 policy maintained the same basic approach and rationale. In 2018, the first Trump administration issued a policy directive to streamline regulations on the commercial use of space to “promote economic growth; minimize uncertainty for taxpayers, investors, and private industry; protect national security, public-safety, and foreign policy interests; and encourage American leadership in space commerce.” The rationale was echoed again in the 2020 Space Policy. The December 2021 Space Priorities Framework emphasized the commercial space sector’s importance for the growth of U.S. industry and creation of American jobs. The DoD Directive on space policy from 2022 and its updated version in 2024, encouraged commercial space integration expressly based on the commercial sector’s innovation and efficiency

The 2023 Department of the Air Force Space Policy also addressed the commercial sector, discussing its role in establishing safe and responsible behavioral norms for the international community. Like the previously mentioned policies, it discussed encouraging investment in the private space sector and the need to protect it from aggression. The document, however, took the next logical step in policy development. It called for broad national security space architecture, that would “take full advantage of the speed, innovation, and capabilities offered by the commercial space sector to achieve strategic advantage and support [combatant commander] objectives during times of peace, competition, crisis, and conflict.” Commercial capabilities for the Department of the Air Force would need to be resilient by design. While previous policies emphasized innovation and efficiency as the rationale for utilizing the commercial space sector, the 2023 Department of the Air Force policy acknowledged the need to integrate it into security planning and the corresponding benefits from doing so.

The 2024 DoD Commercial Space Integration Strategy further advanced policy goals beyond cost efficiency and innovation. It emphasized the need to increase integration of the commercial space sector into the national security space architecture because the “integration will help deny adversaries the benefits of attacks against national security space systems and contribute to a safe, secure, stable, and sustainable space domain.” Similarly, the Space Force’s 2024 Commercial Space Strategy discusses leveraging “the commercial sector’s innovative capabilities, scalable production, and rapid technology refresh rates to enhance the resilience of national security space architectures, strengthen deterrence, and support” commanders and partners.

The Question of Direct Participation in Hostilities

While integrating commercial capabilities into military operations in space brings strategic advantages, it also raises questions about the legal status of civilian operators of space systems relied upon for combat operations. Specifically, it raises questions about direct participation in hostilities. Civilians who take a direct part in hostilities forfeit their protection from being made the object of attack. Additionally, they do not necessarily enjoy the same “combatant immunity” as military forces (meaning military members’ “warlike acts done under military authority” and consistent with the law of war are not individual crimes or offenses and do not create civil liability). According to the DoD Law of War Manual, the concept of direct participation in hostilities includes actions that are, “by their nature and purpose, intended to cause actual harm to the enemy” (§ 5.8.3). The legal concept extends beyond engaging in combat to include acts that are “an integral part of combat operations or that effectively and substantially contribute to an adversary’s ability to conduct or sustain combat operations.” The United States does not explicitly prohibit civilians from directly participating in combat.

DoD policy incorporates legal concerns by prohibiting government contractors from performing inherently governmental functions, which includes command and control functions over military forces or combat operations. The “authority to plan, prepare, and execute operations to actively seek out, close with, and destroy a hostile force or other military objective by means of, among other things, the employment of firepower and other destructive and disruptive capabilities” is inherently governmental. The operation of weapon systems against enemy forces is also specifically designated as reserved for uniformed military personnel. Commanders are also directed to consider operational risks from using any civilians in mission critical areas.

While contractors cannot direct the collection of intelligence because doing so would be inherently governmental, they may operate intelligence collection platforms. Still, the remote operation of intelligence collection assets may fall under the definition of direct participation in hostilities because of the importance of the information to battlefield operations. Intelligence collection has not traditionally been considered as inherently governmental. In fact, civilians, both government employees and contractors, have long been involved in intelligence operations.

The 2024 DoD and U.S. Space Force Commercial Space Strategies appear to have addressed the concerns over direct participation in hostilities by using the lens of inherently governmental functions when addressing mission area roles. The DoD strategy designates certain mission areas as “Government Primary Mission Areas.” These include the combat power projection and electronic warfare mission areas more likely to involve combat operations or the operation of weapon systems. The Space Force strategy complements this by listing certain mission areas as “considered suitable for commercial integration” while acknowledging the need for “preserving critical and inherently governmental functions.”

The list of “suitable functions” for commercial integration are satellite communications; space domain awareness (i.e., the understanding of the space operational environment); space access, mobility, and logistics; tactical surveillance, reconnaissance, and tracking; space-based environmental monitoring; cyberspace operations; positioning, navigation, and timing (PNT); and command and control capabilities. The last function on the list is phrased as the “capabilities” rather than the actual command and control function, which would be inherently governmental. The notable omissions from the U.S. Space Force list are mission areas like combat power projection and electronic warfare.

The Question of Distinction

Additionally, questions about the application to the law of war principle of distinction have arisen over the U.S. policies on using commercial capabilities for military space operations. The relevant portion of the distinction rule in question requires parties to “physically separate, as feasible, their military objectives from the civilian population and other protected persons and objects . . .” (§ 2.5.3). Civilian objects are protected objects unless used for military purposes. Thus, belligerents violate their duties when it is feasible to be separate or distinct from civilians and civilian objects, and they elect to intermingle or become indistinguishable instead.

The legal analysis of the distinction question fundamentally revolves around feasibility. U.S. Transportation Command has leveraged civilian air and maritime lift capabilities into force design for decades. It relies on the Department of Transportation’s Voluntary Sealift Agreement program and Maritime Security Program for DoD sealift and security augmentation needs. It also relies on the Civil Reserve Air Fleet of selected contractually committed aircraft to augment DoD airlift requirements during emergencies. The military also relies on privately owned undersea cables for communications. Finally, the U.S. system of interstate highways, managed by the Department of Transportation, is used by millions of civilians daily and is of primary importance to national defense; it would not be feasible to create a separate military highway system.

In space, it is simply no longer feasible for the military to exclusively use its own satellites for communication and imagery, and potentially prevent civilians from relying upon DoD PNT systems such as the Global Positioning System (GPS). Like interstate highways, GPS is critical to the military and civilian sectors. In 2000, the United States discontinued the “selective availability” or degradation of GPS signals to be more responsive to civil and commercial users worldwide. While GPS is important for military capabilities like navigation and precision strike, it has become essential to the information infrastructure globally. It is relied upon for agriculture, surveying, banking, emergency responses and power grids worldwide. Ironically, even the Russian military relies upon GPS as their aircraft have been found with GPS receivers taped to dashboards.

The U.S. military cannot feasibly rely on government satellite systems alone. In 2013, the DoD relied on the private sector for 40% of its satellite communication requirements at a cost of $640 million per year. In 2024, the U.S. Space Force’s Commercial Satellite Communications Office projected awarding $1.7 billion for satellite communications contracts. The bandwidth demands of the military mandate private sector solutions. In turn, the military can seek to protect and defend valuable commercial satellites in space. As General Stephen Whiting, Commander, U.S. Space Command, recently acknowledged, private space systems now have a place on the command’s critical asset list.

Innovation is another factor undermining the idea of the feasibility of DoD exclusive reliance on its own systems. As the Aerospace Corporation reported, the U.S. Government takes over 10 years to develop, build and launch highly complex space systems whereas these lengthy timetables can be circumvented by purchasing commercial off-the-shelf capabilities. The United States cannot afford long development and fielding times for critical space capabilities. Potential adversaries like the Peoples Republic of China are rapidly and dramatically expanding space and counterspace capabilities, many of which are specifically designed to negate the United States’ ability to project power and effectively intervene during potential conflicts around Taiwan or the South China Sea.

Other countries also need the commercial sector for their military requirements. Ukraine, a country with virtually no organized space capabilities, has successfully integrated the commercial space sector into its fight against Russia. Furthermore, commercial satellite imagery can be shared with allies, unlike highly classified government imagery.

The Question of Intent to Endanger Protected Objects

Another law of war rule related to the principle of distinction is that parties to an armed conflict may not use protected civilian objects to shield military objectives from attacks. According to the DoD Law of War Manual, “the rule does not prohibit a party from using what would otherwise be a civilian object for military purposes …” (§ 5.16.1). Instead, the “essence of this rule is to refrain from deliberately endangering protected persons or objects for the purpose of deterring enemy military operations” (§ 5.16.2). In other words, the rule allows civilian objects to be used for military purposes and recognizes that the civilians and civilian objects assume risks by supporting military operations. The DoD’s use of commercial space systems is not intended to complicate adversary targeting based on legal questions about a satellite’s protected or immune status. Rather, the targeting complications gained through the use of commercial space capabilities would be based on distribution, proliferation, and rapid replacement capabilities. Adversary targeting can also be complicated by leveraging requirements on DoD use of the commercial sector like state of the art encryption, security, and hardening.

In the context of the Ukraine war, Russian restraint in space does not appear to be based on legal concerns. Russian officials have said that commercial satellites used for military purposes may be legitimate targets.

Conclusion

Encouraging the private sector’s development of space capabilities has been bipartisan, so expect the DoD to continue pushing for commercial solutions in the future. The DoD strategies realistically reflect the security environment, U.S. policy on appropriate contractor roles, and compliance with law of war principles.

In 2025, expect more U.S. allies and partners to learn from the Ukrainian war and recognize that they can enhance their operational and intelligence capabilities by leveraging the commercial space capabilities integrated into the U.S. national security architecture. Overall, this will enhance U.S.-allied integration and information sharing. The U.S. and partners will also need to take active measures to ensure security of these commercial space systems to deny their use by adversaries. By integrating the private sector’s rapid innovation and fielding of space capabilities, the U.S. and its allies may be able to thwart the rapidly expanding space capabilities of adversaries.

The views expressed are those of the author and do not reflect the official guidance or position of the Department of the Air Force, United States Department of Defense (DoD), or the U.S. Government. The appearance of external hyperlinks does not constitute endorsement by the DoD of the linked websites, or the information products or services contained therein. The DoD does not exercise any editorial, security, or other control over the information you may find at these locations.

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Col Ted Richard serves as the Staff Judge Advocate for Space Operations Command at Peterson Space Force Base in Colorado.

Photo credit: SpaceX, Unsplash