Future Security in Space: Treaty Issues
Jonathan Dean 
The conclusion of this paper is that the present rather anarchic coexistence of military and commercial assets on the space frontier may come to an end within the next 5-10 years. This could happen if a new stage, weaponization of space, begins, and is followed by promulgation by the space weaponizing power of its own rules of the road for space. Or it could happen if the present near-anarchy is replaced by a new international rule of law, be it a formal treaty or political agreements.
In any event, there cannot be much doubt that the weaponization of space will begin in the foreseeable future unless it is hindered by organized, effective international opposition or the current US administration is replaced by an administration willing to cancel projects for weaponization of space in the face of considerable opposition from domestic proponents of weaponization.
This issue is not a theoretical one. Development of two specific space-based weapons, a kinetic kill weapon and a space-based laser, is official policy of the US as part of its missile defense project. It is not a priority, but it has a specific development program and a budget of many millions projected over the next several years. The first space tests are scheduled to take place in five to six years, with deployment five to six years thereafter. This action is backed by repeatedly endorsed official doctrine of the requirement for US supremacy in space and for doing what is needed to achieve that supremacy.
It is sometimes argued that space weapons won't work and therefore that concern over this subject is misplaced. This is a misleading argument. There are real doubts that some forms of missile defense will be effective, but this does not prevent justifiable concerns over the effects of US deployment of nationwide missile defenses. The deployment of the first weapon in space within the next five-six years will cross the fateful line into the competitive weaponization of space.
It can be argued that, before these two missile defense weapons are orbited, the weaponization of space will begin with the deployment of the first ground-based interceptor missile in Alaska in 2004. It will be possible to use this system to destroy or incapacitate satellites moving in fixed orbit more easily than destroying an incoming missile. These interceptors will in practice be anti-satellite weapons, or ASATs. Beyond this, in May 2002, the House Armed Services Committee placed an unsolicited sum of $7 million in the fiscal 2003 budget for the Defense Department calling for continued development of a ground-based ASAT.
As weaponization appears to loom closer, there have appeared several suggestions for partial measures, "rules of the road" or confidence-building measures which would restrict weaponization or mitigate its effects if it comes. Some examples are: keep out zones around satellites; non-interference and protection for manned space flight and manned space vehicles; pre-launch notification and verification. In a recent article, James Clay Moltz has suggested a mixed regime of some weaponization and some reassurance measures.[1]
Regardless of their motives, those advocating mixed regimes appear to assume that the weaponization of space is inevitable and that we might as well make the best of it. Must we take this outcome for granted? It would be far more desirable to reach agreement on a treaty prohibiting the weaponization of space, while also assuring use of space for both military and civilian observation and communications, with their own rules of the road governing this non-weaponized situation. I do not think this possibility can or should be ruled out. Furthermore, it should be possible to enter into dialogue with the United States to negotiate widely beneficial confidence-building measures while leaving open for later discussion the question of whether space-based weapons shall be permitted or banned.
Existing Legal Structure
My job here is to review the existing legal structure relating to space weapons. As you know, the principal treaty covering weapons in space is the 1967 Outer Space Treaty, which prohibits the orbiting or stationing in space of weapons of mass destruction, but not other weapons. I will return to the Outer Space Treaty in a moment. Five other treaties address outer space. They include the Limited Test Ban Treaty of 1963, which prohibits nuclear tests (and any other nuclear explosion) in the atmosphere or in outer space; the Astronauts Rescue Agreement of 1968; the Liability Convention of 1972; the Registration Convention of 1976; and the Moon Agreement of 1984.[2] These last four treaties elaborate aspects of the 1967 treaty.
In addition, there are five relevant General Assembly resolutions, among them the Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of Outer Space (1963) and the Declaration on International Cooperation in the Exploration and Use of Outer Space for the Use and Benefit and in the Interest of All States (1996), and also resolutions on Direct Television Broadcasting, on Remote Sensing of the Earth from Outer Space, and on the Use of Nuclear Power in Outer Space.[3] On June 13, 2002, when US withdrawal from the Anti-Ballistic Missile (ABM) Treaty becomes effective, there will no longer be a treaty prohibition against testing or deploying in space weapons other than weapons of mass destruction. Lt. General Ronald Kadish of the Missile Defense Agency has announced that excavation at Fort Greeley will begin the next day for the missile defense installation there.
A sixth treaty is relevant to space weapons. The concept of non-interference with national technical means of verification first appeared in the SALT I Treaty of 1972 and was taken over into the START I Treaty, which has been prolonged to 2009, the INF Treaty and the Conventional Forces in Europe Treaty. The intent of this measure is to preserve from attack or interference technical means of verification, including space orbiting means. As I read it, it would be a violation of the provisions on non-interference with national means of verification in the START I and INF Treaties to use weapons against any early warning, imaging, or intelligence satellite and, by extension, against any ocean surveillance, signals, intelligence, or communications satellite of the US or Russia. This obligation was made multilateral in the CFE Treaty.
The 1967 Outer Space Treaty
The 1967 Outer Space Treaty is based on "the common interest of all mankind in the ... use of space for peaceful purposes". The treaty forbids the orbiting or stationing in space of weapons of mass destruction and prohibits the use of the moon or other celestial bodies for other than peaceful purposes. The treaty contains four explicit references to the peaceful use of outer space.
This language points to the fact that, during the thirty-year existence of the Outer Space Treaty, a powerful norm has emerged against the weaponization of space, for keeping armed conflict out of space, and for ensuring the peaceful use of space. This conclusion is documented by UN General Assembly resolutions each year for the past 21 years calling for maintaining peaceful uses of space and opposing its weaponization. Most of these resolutions have been unanimous and without opposition, although the United States and a few other governments have abstained.
In the most recent version of December 2001, the General Assembly once again passed, by 156 votes to zero opposed, a resolution calling for negotiation in the Geneva Conference on Disarmament of a treaty to prevent an arms race in outer space. This time, there were four abstentions to the resolution. The now customary trio of the United States, Micronesia, and Israel was joined by a fourth state, Georgia. The resolution asks all treaty parties to refrain from actions contrary to the peaceful use of outer space and calls for negotiation in the Conference on Disarmament on multilateral agreements to prevent an arms race in outer space.
These repeated, nearly unanimous resolutions, against which even the United States does not vote, are not only evidence for the existence of a norm against the weaponization of space. They also indicate a very widespread desire to expand existing multilateral agreements to make explicit a prohibition against all weapons in space.
Article IV of the Outer Space Treaty prohibits placing in orbit around the earth any objects carrying nuclear weapons or other weapons of mass destruction. It also prohibits the testing and, I would argue, the deployment of any kind of weapon on the moon or other celestial bodies. There is no provision for verification. As is well known, the 1967 Treaty does not prohibit the orbiting in space of weapons other than nuclear weapons or other weapons of mass destruction.[4]
However, the Outer Space Treaty is not without useful features relevant to the possible weaponization of space. Article VII makes treaty parties that launch objects into outer space liable for damage to the property of another treaty party - this is spelled out in the Liability Convention of 1972.
The Liability Convention foresees the establishment of a Claims Commission to determine the extent of liability for damage by the space objects of one country to the space objects or property of another state. Article IX of the Outer Space Treaty provides for consultations if any treaty party believes an activity planned by another treaty party would cause "potentially harmful interference with activities in the peaceful exploration and use of outer space".
Beyond this, the General Assembly could by majority vote request an Advisory Opinion from the International Court of Justice if either the peaceful uses language of the 1967 Treaty or these two articles on liability and consultation come under dispute as the space-based component of the missile defense system advances. In fact, requests for consultation under Article IX, or also a General Assembly request for an advisory opinion, can and should come now to make world opinion aware of this issue before the damage has been done, and to motivate the United States government to study the issue seriously, including the possibility of rules of the road. The request for consultation under Article IX can come from any party or group of parties to the 1967 Treaty.
In addition, George Bunn and John Rhinelander point out in a letter to the editor in the June 2002 issue of Arms Control Today, that parties to the Treaty could convene and issue an interpretation that the US testing or orbiting of space weapons was contrary to the peaceful uses language of the Treaty, in effect amending it to preclude any weaponization. The General Assembly could pass a resolution endorsing this interpretation.
Presumably, Russia, or the United States, or any state party to the CFE Treaty could also take legal action based on treaty provisions prohibiting interference with national technical means of verification. Legal action could also be taken in US courts by US commercial users of space satellites if these satellites were endangered by US space weapons. In theory, legal action might also be taken by private corporations at the Hague Court of Arbitration if the defendant state is willing to permit this. In short, existing space law provides numerous opportunities to remind the United States that weaponization of space could be a complex and difficult process, to make it worthwhile for the US government to negotiate on confidence-building measures, or, if necessary, to block early weaponizing measures.
It is relevant to this subject that there have been press reports that the US Defense Science Board has expressed interest in re-examining the possibility of using nuclear warheads with missile interceptors. Explosion of nuclear weapons in the atmosphere or in space is explicitly forbidden by the Limited Test Ban Treaty. Action by the Defense Department to carry out this idea would be a violation of the Limited Test Ban Treaty and would in addition lead to a multitude of suits and injunctions under the Liability Convention. The same applies to the GALOSH missile defense system around Moscow, which continues to be armed with nuclear warheads.
Prospects for Expansion of the Legal Regime
Driven by US moves to weaponize space, it appears likely that the legal regime covering space weapons will expand in the next several years for a variety of reasons.
One possibility, of course, is action to fill in the gap in the 1967 Outer Space Treaty and to prohibit any weaponization of space. Russia and China have proposed comprehensive treaties prohibiting weapons in space. In 2001, China presented component concepts of a draft treaty on this topic in the Conference on Disarmament (CD) and in June, 2002, China and Russia present a joint draft in the CD. The prospects for a comprehensive treaty depend in large part on the willingness of China, Russia and other large countries to undertake a major international effort supported by NGOs in the face of US opposition.
For this effort to succeed, China, Russia and other major states, including the EU members, would have to conclude that preventing the weaponization of space was a first priority national interest, justifying the sacrifice of other important national interests in a stand-off with the United States. They do not appear to have reached this conclusion yet. However, they still may reach this conclusion at some future point, especially if the United States continues to make major increases in funding for its missile defense program. But otherwise, it is plausible that these countries may seek some compromise with the United States which could result in a mixed regime of some weaponization and some regulation.
Second, the same difficulty of prevailing on the world's most powerful state, the USA, to categorically renounce its plans to place weapons in space has already led to suggestions from think tanks and NGO's, like the proposals of Professor Moltz, which concede weaponization and argue for a mixed regime of partial weaponization backed by limits and controls. Think tanks and NGO's may be joined in this approach by commercial users of space who have thus far held back from taking a position in this controversy.
Finally, if the US policy of placing weapons in space proceeds and results in de facto space supremacy for the US, the United States itself is likely to attempt to reach agreement with other spacefaring governments on rules of the road, like keep-away zones, to blunt some of their criticisms, and, in the final analysis, to prevent situations where the US may be forced against its will to use its space weapons.
The combination of all these pressures seems quite likely to bring additional agreements, both formal and informal, related to weapons in space and ASATs. The present quasi-anarchy of space law is likely to give way to a network of rules while preparations for weaponization proceed. This process and the discussion which will accompany it will also help to inform the American electorate and perhaps incline it to back a preventive or corrective policy when the present US administration is replaced after the next two to six years by its successor. The expanding legal regime in space will in any case benefit from maximum information of the American and world public and maximum public discussion.
There is another, more hopeful, possibility: the protests and objections of foreign governments and military and commercial users of satellites may cause the United States to hold back from proceeding with the weaponization of space even while it resists pressures to negotiate a treaty prohibiting weaponization. This may be the best outcome we can hope for at this time, but it will require continued energetic opposition to weapons in space.
There is a possible comparison between the issue of weaponization of space and the emergence of nuclear weapons. Efforts to ban nuclear weapons completely slowly gave way to the efforts to tame these weapons. Efforts to control and tame space weapons are coming earlier in the cycle and space weaponization may emerge more slowly with a longer interval before the first use of these devices as weapons than was the time between Trinity and Hiroshima. Consequently, there may be more time to play out the recurrent contest between human capacity to invent new weapons and the efforts of human society to control them. Let us hope that this time is well used.
This paper was written for the Conference on Future Security in Space convened by the Mountbatten Center/Monterey Institute on May 28-29, 2002, and has been revised for the INESAP Information Bulletin.
James Clay Moltz, Breaking the Deadlock on Space Arms Control, Arms Control Today, April 2002.- The Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (the "Rescue Agreement), opened for signature on 22 April 1968, entered into force on 3 December 1968, 87 ratifications; The Convention on International Liability for Damage Caused by Space Objects (the "Liability Convention"), opened for signature on 29 March 1972, entered into force on 1 September 1972, 81 ratifications; The Convention on Registration of Objects Launched into Outer Space (the "Registration Convention"), opened for signature on 14 January 1975, entered into force on 15 September 1976, 43 ratifications); The Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (the "Moon Agreement"), opened for signature on 18 December 1979, entered into force on 11 July 1984, 9 ratifications (as of 1 February 2001).
- The Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of Outer Space (General Assembly resolution 1962 (XVIII) of 13 December 1963); The Principles Governing the Use by States of Artificial Earth Satellites for International Direct Television Broadcasting (resolution 37/92 of 10 December 1982); The Principles Relating to Remote Sensing of the Earth from Outer Space (resolution 41/65 of 3 December 1986); The Principles Relevant to the Use of Nuclear Power Sources in Outer Space (resolution 47/68 of 14 December 1992); The Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries (resolution 51/122 of 13 December 1996).
- Article IV of the 1967 Treaty states: "States Parties to the Treaty undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner". This language would appear to preclude orbiting weapons around the moon, but Article III of the 1979 Moon Treaty makes this prohibition explicit.
