The Influence of Law on Command of Space
Both China and the United States agree that the EP-3E aircraft and the Impeccable were operating outside China's territorial sea but within China's EEZ.184 Despite the unambiguous language of the UNCLOS treaty, China continues to pursue a strategy of gradually extending its strategic depth or sovereignty in order to support offshore defensive operations.185 China's adherence to this flawed legal interpretation, reinforced by aggressive military action, demonstrates that "through an orchestrated program of scholarly articles and symposia, China is working to shape international opinion in favor of [its preferred] interpretation of the Law of the Sea by shifting scholarly views and national perspectives away from long-accepted norms of freedom of navigation and toward interpretations of increased coastal state sovereign authority."186 By doing so, China is not only distorting the settled law of the sea, but perhaps also preparing to deploy a similar strategy in the space domain.
This is precisely the position taken by Bao Shixiu, a Senior Fellow at the Academy of Military Sciences of the People's Liberation Army of China. In his critique of the U.S. 2006 National Space Policy (NSP), Bao advances the notion of vertical sovereignty with the following curious statement: "[t]he NSP declares that U.S. space systems should be guaranteed safe passage over all countries without exception (such as 'interference' by other countries, even when done for the purpose of safeguarding their sovereignty and their space integrity).201 However, the statement in the NSP to which Bao refers is not limited solely to U.S. space systems. It reads: "The United States considers space systems to have the rights of passage through and operations in space without interference." Thus, the rights recognized in the U.S. space policy are applicable to all space systems, which is compatible with the Outer Space Treaty. However, the principal concern vis-A-vis potential Chinese claims of vertical sovereignty over portions of space above their territory lies not with a claim of complete sovereignty, but rather with the assertion that satellite navigation above Chinese territory is subject to Chinese "consent and control" as articulated by Professor Cheng. This space sovereignty position is directly analogous to China's assertion of sovereignty over the airspace above its seaborne EEZ.2° Recall that China alleges that military reconnaissance missions constitute an abuse of overflight rights.205 China may easily adapt and extend this same position to the space domain, applying it to overflight by American military satellites passing over Chinese territory. ￼￼
Legal scholar Ren Xiaofeng summarizes Beijing's sensitivity to reconnaissance and military activities in its exclusive economic zone (EEZ) and its adjacent airspace this way: "Freedom of navigation and overflight does not include the freedom to conduct military and reconnaissance activities. These things [military reconnaissance activities] amount to forms of military deterrence and intelligence gathering as battlefield preparation." These activities in the EEZ, according to Ren, connote preparation to use force against the coastal state. When Ren refers to the "adjacent airspace," he includes outer space and space reconnaissance.207
China's ostensible military objective for such action is denial, "the temporary elimination of some or all of a space system's capability to produce effects, usually without physical damage.208 This legal argument, if ultimately successful, would have the strategic effect of rendering American military satellites useless and could establish a lawful predicate for Chinese military action against those satellites.209 Given its increased military expenditures for research and development of counterspace 21 technology, China could contemplate action that would effectively blind the United States with regard to Chinese military actions. International acquiescence or acceptance of Chinese assertions of vertical sovereignty would effectively vitiate national means of verification of compliance regarding any existing or new arms reduction treaties, and would render meaningless any proposal to ban or limit weapons in space.
Reliance on the absence of an explicit airspace-space demarcation ignores historical context by attempting to identify a minimum altitude at which space begins. In fact, there is no controversy that all current satellite orbits transit within the space domain.211 Irrespective of the demarcation argument, Articles I and II of the Outer Space Treaty (OST) expressly refute any conception of vertical sovereignty.212 Article I designates outer space, including the moon and other celestial bodies, as "the province of all mankind." This language has been universally understood to mean that "all nations have a nonexclusive right to use and explore space.213 Article II further prohibits in space any "national appropriation by claim of sovereignty, by means of use or occupation, or by any other means." Thus, the OST clearly permits all uses of the space domain short of an appropriation by claim of sovereignty or the like.214
It therefore seems clear that the plain language of the OST prohibits any claim of vertical sovereignty in space. Sovereignty denotes supreme authority within a territory,2l5 "the right to command and correlatively the right to be obeyed," with the term "right" connoting legitimacy.216 Thus, a claim of sovereignty over space, or any portion thereof, seeks, in some measure, to extend a state's territorial sovereignty into the space domain.217 The holder of sovereignty derives its authority for sovereignty from some mutually acknowledged source of legitimacy.218 In space, the OST's explicit prohibition on appropriation removes the essential support for legitimate sovereignty.219
In this sense, the vertical sovereignty argument is akin to the 1976 Bogota Declaration that geostationary orbit was not part of outer space since its nature depends specifically on gravitational phenomena from earth.220 Thus, the Declaration further argued, those portions of geostationary orbit directly above equatorial states are sovereign territory of those states rather than part of outer space.221 The international community rejected this argument222 Likewise, it should reject the vertical sovereignty argument.