Common Security in Outer Space and International Law
Detlev Wolter 
The legal status of outer space as a territory beyond national jurisdiction and an internationalized commons according to the Outer Space Treaty (OST) of 1967 requires that its use and exploration have to be in the "interest of all states" and "for the benefit of all mankind" (Article I OST). Applied to the security field this status implies that security in space has to be by definition the "common" or "cooperative security" of all states. The mankind clause in Article I OST and the principle of cooperation and due account of the interests of all states in Articles IX and X OST are the structural elements of the status of outer space as a "common heritage of mankind" form the legal basis for setting up a regime of "cooperative/common security" in outer space.
In view of the imminent risk of transgressing the borderline between the current passive military uses of outer space accepted by the international community and the envisaged active military uses with destructive effect in outer space ("weaponization of space") the substantive procedural and institutional concretization of the mankind clause, of the cooperation principle, and of the peaceful purpose clause in Articles I and IX OST becomes urgent.
These clauses were introduced in outer space law at the onset of the space age in 1957 by a joint draft UN General Assembly Resolution of the United States, France and Great Britain. These states had a prime security-oriented objective—to ensure that outer space be used not only in the security interest of one or a group of states but for the benefit of all states and for mankind as a whole. However, in its concrete interpretation, the peaceful purpose clause has been afflicted by the dichotomy of a "maximalist" school, according to which any military use of outer space is prohibited and a "minimalist" approach viewing the term "peaceful" as only a confirmation of the prohibition of the use of force in outer space.
This dichotomy can be overcome by interpreting the term "peaceful purpose" in light of both the mankind clause of the common heritage of mankind principle and the cooperation principle as applied to the security field as well as by developing legal standards of peaceful use of outer space in the interests of the international community as a whole. State practice, including the annual resolutions by the UN General Assembly on preventing an arms race in outer space since 1980, bears evidence that the international community has so far only accepted passive military uses of outer space by reconnaissance, navigation and communication satellites but rejects the unilateral transgression towards active military uses with destructive effect in the common space.
Steps to deploy a multilayered missile defence with space-based interceptors would violate the peaceful purpose standard and the mankind clause if pursued unilaterally and without the consent of the international community. The objective of space-based Missile Defence which, according to the US National Missile Defense Act of 1997 is to protect against unauthorized nuclear attacks and against limited nuclear attacks of socalled 'rogue states', can only be achieved without causing an arms race in space and stimulating nuclear proliferation on Earth if is implemented in the framework of a cooperative security regime for outer space.
In its advisory opinion of 1996 on the Legality of Nuclear Weapons the International Court of Justice concluded that the obligation of the nuclear weapons powers to achieve complete nuclear disarmament according to Article VI of the Nuclear Non-Proliferation Treaty (NPT) is an obligation to conclude, and not only to negotiate, a nuclear disamament and non-proliferation agreement. The UN General Assembly has expressly stated that the obligations of the NPT apply to outer space as well. The unilateral pursuit of a space-based missile defence, with the risk of the weaponization of space, would run counter to the disarmament obligations of the nuclear powers. The bilateral Anti-Ballistic Missile (ABM) Treaty that prohibits the development and deployment of space-based ABM systems is a bilateral concretization of the multilateral peaceful purpose standard which has effect erga omnes and which, after its renunciation, has to be replaced by new cooperative security arrangements safeguarding the security interests of the international community in the use of outer space for the benefit of all mankind.
"Common security" is the corresponding principle for international security in the post-Cold War era. In the face of the changing character of security threats, it is the new strategic imperative. While "common security"—despite having several foundations in general international law—cannot yet be regarded as a mandatory legal principle, the enhanced "common interest" obligations of the Outer Space Treaty render the pursuit of cooperative/common security in outer space a legal obligation in the implementation of the peaceful purpose standard in the use of the common space in the interest of all states and mankind as a whole. The Joint US-Russian Declaration adopted at the American-Russian summit of 23rd/24th May 2002, according to which both sides agreed to a far-reaching cooperation to meet common security challenges, in particular with regard to questions related to the national missle defense issue, opens the prospect that both powers—having overcome the Cold War—are willing to embark on a cooperative strategic transition towards common security. Without such a cooperative approach and without an adequate multilateral framework safeguarding the security interests of the international community with regard to the use of outer space, the legal principle of the peaceful use of outer space risks loosing its practical relevance as a limitation of military uses of extraterrestrial space in view of developments de facto.
The adequate concretization of the peaceful purpose standard and the mankind clause in the Outer Space Treaty as applied to the security field would thus be the negotiation of a multilateral "Treaty on Common Security in Outer Space" (CSO-Treaty). Such a treaty would lay the groundwork for a "cooperative strategic transition" towards rendering nuclear deterrence obsolete, thus replacing "Mutual Assured Destruction" by "Mutual Assured Security" and adopting "strategic reassurance measures" which would keep outer space free of weapons and allow for an active non-proliferation policy of the international community. The main elements of such a CSO Treaty can be categorized as follows:
1. Principles of cooperative security in outer space
Transparency and confidence-building
Defensive force configuration
Non-proliferation and disarmament
Protection against unauthorized and accidental missile attacks and attacks in violation of non-proliferation regimes
2. Prohibition of active military uses of destructive effect in outer space
3. Destruction of existing ASAT systems
4. Confidence-building measures
5. Protective regime for civil space objects and passive military uses of a non-destructive nature in outer space
6. Implementation: monitoring und verification by an International Satellite Monitoring Agency
7. Codification of further legal standards of peaceful use of outer space.
Having overcome the East-West confrontation, the international community should not fall behind the peaceful purpose standards in the use of outer space that were respected by both major space powers even at the height of the Cold War era. The Outer Space Treaty, with its mankind clause and the peaceful purpose standard, has in a far-sighted manner laid the foundation for the establishment of a regime of common security in outer space in order to prevent the transgression towards active military uses of destructive effect in outer space and to secure a Pax cosmica in the common space.
This text summaries the presentation given at "International Arms Control, Transparency and Verification in a European Russian Framework of Cooperative Security" organized by INESAP and the Nuclear Age Peace Foundation on January 24-26, 2003, in Berlin, Germany.
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