Space Preservation Treaty: A Comment
Ian Kenyon 
The author was requested to offer comments on the proposal for a Space Preservation Treaty, which forms an attachment to the Space Preservation Act of 2002[1], introduced in the US House of Representatives by Representative Kucinich January 23, 2002. Whilst completely sharing the objective of preventing weaponisation of outer space, he disagrees on both text and tactics. In his view any draft treaty text proposed as a means to the desired end needs to follow accepted practice. Tactics need to be based on political and technical realities.
Text
The text of the Space Preservation Act of 2000 seems completely appropriate to its purpose (the author does not pretend expertise in US Congressional practice). However the draft Space Preservation Treaty departs in several ways from the norms developed in the Conference on Disarmament and elsewhere in the last fifty years. The following commentary looks at the text section by section, identifying problems and offering solutions.
Preamble
Should emphasise more the primary objectives and less the quotation of UN Resolutions. Account should be taken of the fact that states find difficulty in endorsing through such a preamble UN Resolutions which they did not support in the United Nations. The United States has consistently abstained on resolutions on Prevention of an Arms Race in Outer Space.
Article I
This part of the draft contains ideas which would normally be separated out into different articles.
(Para 1) The first article would normally be restricted to the basic prohibitions in standard language:
"Each State Party to this convention undertakes never under any circumstances:
To use in space weapons intended to destroy or damage other objects in space or on the surface of the earth or in its atmosphere;
To deploy such weapons in space;
To develop, manufacture, or otherwise acquire such weapons intended for deployment in space; or
To encourage or assist any other state or other entity in carrying out any of the above activities".
(Para2) It seems strange to have a requirement in a treaty text requiring its own negotiation. With regard to the requirement for Signatory States to work toward obtaining additional signatures and ratifications, consideration could be given to the requirement in Article XIV of the Comprehensive Test Ban Treaty, which calls for regular conferences of signatory states for this purpose
(Para 3) The reporting duties of the Depositary would usually come in the Article appointing him. This is usually at the end of the text after the substantive issues.
(Para 4) Affirmation of the right of all to share in peaceful use of space would normally merit an Article of its own.
Article II
(Para 1) This, which is a slightly modified version of Article IV of the Outer Space Treaty of 1967, seems to add detail to the prohibitions of Article I. If it is necessary to specify nuclear weapons etc. this could be done in Article I or in the definitions article.
(Para 2) These permissions for non-prohibited purposes should be in the appropriate article, perhaps combined with those from I(3) above.
Article III
This non-proliferation requirement is important enough to include in Article I.
Article IV
The creation of an Agency for such a purpose will be a major undertaking. Its role will need to be carefully thought through. For example, the ability to inspect objects in space would need a space launch capability (possibly contracted from member states) and a large budget. Even the demand to inspect space launcher payloads before launch is likely to be very difficult to negotiate. This article should perhaps be replaced by a requirement for a special conference to be convened at entry into force of the treaty to decide the nature of the Agency.
Article V
The definitions Article is almost invariably placed immediately after the Article(s) containing the main prohibitions. This needs much tighter drafting. For example, sub paragraph 2 does not say that the "space based weapon" is a device based in space capable of the activities listed. You cannot rely on the expression within the quotation marks to provide part of its own definition, as has been done here.
Article VII
(Para 1) This does not work under international law. Treaties apply to their Parties. Some limited responsibilities are assumed by signatories prior to ratification. (Under the Vienna Convention, signatory states should do nothing which is contrary to the objectives of a treaty even though they are not bound by its provisions until after ratification). Some treaties of near universal adherence, in force for a long period, are considered to be "customary international law" but this has little meaning in practice.
(Paras 2 & 3) These belong in a separate Article on Amendments.
Other Articles
he remaining text seems to have been taken from a standard treaty text.
Timescales
Experience would suggest that the various timelines set out in the text are too short.
Why require the Depositary to report to the UN General Assembly every 90 days when the GA meets only once per year in regular session?
A Review Conference every two years is unnecessarily onerous. Most arms control treaties are reviewed every five years (or, after the first review, as the Parties see necessity).
Tactics
The military use of space is important to many states for reconnaissance, communications, and navigation, often using civilian satellites. It is important to distinguish this from "space-based weapons".
Any agreement to refrain from the use of destructive capabilities in space, for "offensive" or "defensive" purposes, will be meaningless without the involvement of the United States, as they possess the greater part of the existing world capability.
This means winning the domestic political fight inside the United States before much useful work can be done on the practicalities. External public opinion can help but must be clearly focussed on sensible objectives, including recognition of the security concerns of the US Government.
HR 3616 IH, 107th Congress, 2nd Session.
