ARTICLES
Large Constellations of Small Satellites: The Good, the Bad, the Ugly, and the Illegal
by David A. Koplow
The most exciting and far-reaching contemporary developments regarding human activities in outer space arise from the recent drastic reductions in the costs of building, launching, and operating satellites, and from the concomitant sudden emergence of large constellations of small, inexpensive, privately-owned spacecraft. These satellites—devoted to highly remunerative functions such as communications (bringing high-speed, affordable internet to underserved constituencies), remote sensing (facilitating land use planning, weather forecasting, and emergency search and rescue), and support for military operations (in Ukraine and elsewhere)—already number in the thousands and will soon reach the tens of thousands.
But in addition to generating billions of dollars of revenue, these new constellations also raise a series of profound and unprecedented legal, economic, and social problems. The first concerns congestion of the most favored low-altitude orbital slots and the associated dangers of interference, collisions, and debris. This is a classic “tragedy of the commons,” where each participant is incentivized to exploit a shared resource too intensively, without husbanding it for the longer term. A second problem arises from the interference that the new satellite swarms cause for astronomy. An overflying satellite will disrupt an observatory’s ability to peer into far-distant space in pursuit of scientific discoveries. The satellite’s passage leaves an obnoxious white streak across the telescope’s images, obscuring the effort to collect and interpret faint data. Third, the growing armada of private satellites is increasingly used for military and intelligence purposes, obliterating the fundamental requirement under the longstanding international law of armed conflict to preserve a vital “distinction” between military and civilian objects and to achieve physical “separation” between those types of assets.
This Article examines the growing number of soon-to-be-ubiquitous constellations of small satellites and the three aforementioned special problems they pose. It also suggests some legal reforms to combat the dilemmas and temper an otherwise dangerous renewal of an unconstrained and unproductive international race to space. Among the recommendations are a call for the prompt development of additional legally-binding and non-legally-binding standards for allocating orderly access to shared space, measures of accommodation for rivalrous users of space, and greater separation of military and civilian space assets.
by Karen C. Sokol
Foreign relations and national security law scholars devote significant attention to the expansion of executive power resulting from broad delegations of statutory authority or inaction by Congress and from the considerable deference that courts often afford the executive in cases challenging its actions in the spheres of foreign affairs and national security. Recent decisions of the Roberts Court, however, make clear that scholars should pay just as much—and in some respects perhaps more— attention to the expansion of judicial power. In this essay, I show why by comparing the Court’s statutory analyses in two cases from the first full term of the current six-justice conservative majority and explicating the larger jurisprudential shift that they portend and its import for the future of statutory foreign affairs and national security governance in the 21st century. The vision of the distribution of federal powers that the Court telegraphs in these two decisions—one involving a grant of executive authority in the Clean Air Act and the other a check on executive authority in the Foreign Intelligence Surveillance Act—does not bode well for statutory foreign affairs governance in a democracy and in an increasingly complex global landscape. I use my critique of the Court’s “structural” constitutional avoidance reasoning in statutory interpretation—that is, based on federal separation of powers—to provide a fresh perspective on the role of the Court in foreign affairs and national security governance.
Performative Economic Sanctions: How Sanctions Work Without Economic Harm
by Katniss Xuejiao Li
This Article proposes and develops a concept of performative economic sanctions, challenging the traditional notion that sanctions must inflict eco- nomic harm to be effective. It examines the sanctions practices of China and Russia, unveiling a strategic approach that is different from the conventional model of coercive sanctions. Unlike typical sanctions which aimed at economic harm on the targets, performative sanctions leverage rhetoric that appeals to nationalist sentiments, alongside a discrepancy between laws as written and their enforcement. Through an in-depth analysis of publicly available sanctions measures in these two authoritarian regimes, this Article reveals that, although these measures may appear threatening on paper, the actual economic impact of the sanctions is often minimal. This strategic approach allows both states to signal their opposition to Western sanctions and influence the actions of multi- national companies, all while minimizing economic repercussions for both the imposers of the sanctions and their targets.
The analysis reveals that both China and Russia have legislated (anti)sanc- tions laws with coercive potential, such as asset freezes; however, the actual enforcement of these laws does not result in substantial economic harm to their targets. This observation raises questions about the effectiveness of sanctions as purely economic tools and introduces the concept of performative sanctions. These sanctions serve to project a strong stance against external pressures and communicate with domestic audiences, utilizing the discrepancy between the harsh language of laws and their lenient enforcement to create a narrative of national resilience and defiance.
Furthermore, the Article argues that performative sanctions allow China and Russia to navigate two potential challenges when projecting defiance against Western sanctions: maintaining multinational companies within their economies and upholding the principle of non-intervention. This approach sug- gests a strategic use of sanctions that avoids direct economic repercussions, thus offering new perspectives for countries in weaker global economic posi- tions or those adhering to non-intervention principles. Finally, the exploration of performative sanctions in this paper is not limited to authoritarian states or those in less favorable positions in the global supply chain. It also hints at sim- ilar practices in liberal democracies with strong economies, such as the United States, where there is a discrepancy between stringent policies and their actual enforcement. This paper sets the stage for further research into how states across different political and economic landscapes strategically employ per- formative sanctions, expanding our understanding of economic statecraft in the contemporary global order.
BOOK REVIEW
by Aziza Ahmed
Throughout his campaign for presidency, Trump called for a ban on Muslims entering the United States. As President, he kept his word. Only days after he took office, the new administration released the first version of the Executive Order: Protecting the Nation From Foreign Terrorist Entry Into the United States.1
The first Executive Order, however, did not say the word Muslim. Instead, it listed only Muslim-majority countries as necessary for restrictions on entry. The Executive Order also trafficked in stereotypes about Muslims, such as the need to ban people who engage in acts of “bigotry or hatred,” including honor killings.2 As scholars note, honor killings are often popularly understood as being linked to the “Middle East and South Asia.”3
Lawyers and civil rights advocates objected to the ban. Protests at airports drew significant attention as droves of lawyers and activists stepped up to help people arriving into the United States. Recognizing this new form of hostility towards Muslims, signs went up in stores and restaurants around the United States, often featuring a woman wearing a hijab: “Everyone is Welcome Here.”
Eventually, litigation challenging the Executive Order made it to the Supreme Court. Plaintiffs, including the Muslim Association of Hawaii and individual Muslims, challenged the constitutionality of the law.4 In Trump v. Hawaii, the Supreme Court found the Executive Order constitutional. Chief Justice Roberts’ majority opinion dismisses the claims by the Plaintiffs that the Executive Orders were driven by anti-Muslim animus. The justices separate Trump’s comments about Muslims from the Executive Order itself. They “look behind” the Executive Order and use rational basis review to uphold the order on the grounds that vetting immigrants could be “plausibly related to the Government’s stated objective to protect the country and improve vetting processes” as an “independent justification” for its legality.5 For progressives, the unwillingness to read religious (and racial) animus into the law was a form of constitutional “gaslighting.”6 In her dissent, Justice Sotomayor (writing for herself and Justice Ginsburg) concludes: “Based on the evidence in the record, a reasonable observer would conclude that the Proclamation was motivated by anti-Muslim animus.”7
The invocation of security by the Administration made it possible for the administration to achieve its objectives.8 The obscuring of race and religion served an important purpose: it allowed the Executive Order to take on the veneer of legitimate, “rational” lawmaking and evade accusations of racism or religious bias, masking the longstanding project of using race and religion to cast some as outsiders to American culture and society.
How does one disrupt a notion of national security that maintains the status quo racial order? Matiagai Sirleaf’s volume, Race and National Security, bravely intervenes to answer this question. The volume forces readers to acknowledge the histories and assumptions of national security law that are structured by a belief in racial hierarchy. As the example of the Muslim ban shows, and as Sirleaf notes, “race and racial justice is hidden in plain sight.”9 In this review, I highlight what I see as two of the volume’s main contributions: institutional erasure of race and racial harm in the discourse on national security and a redefinition of national security. Focusing on these two aspects of the volume help to illuminate how contributors see race is a primary lens through which to read the formation of the field of national security, its current operation, and its impact.