Acting Against the Weaponization of Space
The following is a presentation given by Ambassador (ret.) Jonathan Dean at the United Nations on May 19, 2005.
Today I am going to take a quick look at how the legal regime governing activities in space could be used to provide protection to the space assets of all spacefaring countries and thus an alternative to weaponization. I will also describe how, if the U.S. administration shows no interesting participating in measures like this and perseveres in moving toward weaponization of space, the legal regime could be used to block or delay these moves.
All of these measures are peaceful, that is, non-violent, and low cost because they involve using existing treaties or institutions.
The basic law governing space is the 1967 Outer Space Treaty. The Outer Space Treaty was concluded at a time of mounting U.S.-Soviet nuclear confrontation, when the two governments feared the consequences of extending their nuclear rivalry into space. They joined other UN member states in deciding that space must be used for peaceful purposes only. These worries about the dangers of weapons competition in space are equally valid today.
Article IV of the Outer Space Treaty prohibits the orbiting of weapons of mass destruction in space. It also prohibits the testing or deployment of any kind of weapon on the moon or other celestial bodies. The Limited Test Ban Treaty of 1963 prohibits nuclear tests or any other nuclear explosion underwater, in the atmosphere, or in outer space, so nuclear weapons can neither be stationed, orbited or tested in outer space.
As we know, the Outer Space Treaty does not prohibit weapons other than weapons of mass destruction, and people have been trying to fill that gap ever since. This means in practice that nuclear weapons mounted on missiles may transit space and that weapons other than nuclear, chemical or biological weapons may be placed in space orbit and used to attack targets in space or on earth. Countries could also create armed military bases on orbiting satellites. There is no longer any restriction on ground-, sea-, air- or space-based anti-missile weapons; no agreement limiting anti-satellite weapons was ever reached.
In addition to the 1967 Outer Space Treaty and to the 1963 Limited Test Ban Treaty, five other treaties address outer space. The main ones for our purposes are the Liability Convention of 1972, which establishes procedures for determining the liability of a country that damages or destroys the space objects of another country and the Registration Convention of 1976, which requires the registration of objects launched into space.
Also relevant is the statute of the International Telecommunications Union, which allocates radio frequencies and orbital slots for satellites.
The Outer Space Treaty has some provisions that could be useful in the event of a dispute over weaponization of space. Article VII of the Treaty makes treaty parties that launch objects into space liable for the damage they do to the space assets of another power. The procedure for claims is spelled out in the Liability Convention of 1972, which foresees the establishment of claims commissions to determine the extent of damage and liability. The Secretary General of the UN can appoint a claims commission if the offending country does not want to cooperate.
Article IX of the Outer Space Treaty provides for consultations with other governments if a treaty party believes that an activity planned by another treaty party could cause potentially harmful interference with activities in the peaceful exploration and use of outer space. This language is directly applicable to weapons in space.
These provisions create a wide scope for possible action against moves to weaponize space. A group of parties to the Outer Space Treaty could inform the U.S. in a friendly way that they are concerned by potential development of space weapons in the U.S. missile defense program – say the Near Field Infra Red Experiment or the space test bed for kinetic kill vehicles – and that they are considering a request for consultation under Article IX of the Treaty. This would be a polite but serious warning of complications to come. Or a group of treaty parties could ask for a consultation on similar grounds and they could repeat the request if they are not satisfied with the outcome of the first consultation.
The General Assembly can request an advisory opinion of the International Court of Justice in the Hague as to whether U.S. actions moving toward weaponization are in compliance with the Outer Space Treaty, including the Treaty’s four specific references to the objective of peaceful use of outer space.
The General Assembly could also ask for an advisory opinion from the Court as to whether space-based laser weapons, with their capacity to rapidly destroy people and objects all around the globe, should not be considered weapons of mass destruction and therefore prohibited under the Outer Space Treaty. The General Assembly, which has voted for 22 years with margins like 175 to zero on resolutions calling for a treaty to prevent an arms race in space, would very probably favor such requests.
If the U.S. refuses to comply with some of these actions, parties could request an injunction based on the Outer Space Treaty from the International Court of Justice to stop the deployment of weapons in outer space. The United States record of compliance with injunctions and verdicts of the International Court of Justice is a mixed one, but failure to comply would, like the requests for consultation, mobilize world opinion on this subject and bring considerable political costs for the administration. There is room for a lot of ruckus here at low cost to the complainants.
I have mentioned the International Telecommunications Union. The radio frequencies and orbital slots it allocates are limited and increasingly crowded, especially those in geosynchronous orbit. The statute of the ITU has a provision prohibiting harmful interference with satellite communication. This provision could be invoked in the event of frequent jamming or weapons deployment by the U.S. The overall shortage of orbital slots could also lead to cooperation among other governments to hinder the U.S., already by far the biggest user, from gaining more orbital slots or frequencies.
The annual resolutions of the First Committee of the General Assembly are a fruitful source of useful action to protect space assets. These resolutions are not treaties but they are steps on the road to treaties. For example, the 1963 General Assembly resolution titled “Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of Outer Space” preceded the Outer Space Treaty and laid out most of its content. It is important that several possible resolutions might create motivation for the USA to join with other UN members in common action as a substitute for deploying weapons in space.
One such action would be to expand and formalize the concept of non-interference with national means of verification. This concept first appeared in the SALT Treaty of 1972 and has been applied to several treaties since, including the multilateral Conventional Forces in Europe Treaty. This measure prohibits interference with space-based satellites for early-warning and imaging.
The concept of non-interference with verification satellites could be extended to cover non-interference against all satellites in the form of a General Assembly resolution. The resolution would call on the governments of all UN member states to commit themselves through their vote for the resolution to non-interference, including no use of force, against all unarmed satellites of all states orbiting in space. A resolution like this should include a penalty clause for non-compliance with referral to the Security Council. Even if it did not, in the event of non-compliance, corrective action could be taken in the Security Council. This resolution would be a rudimentary space treaty, and presumably one which the U.S. could sign on to, with a clause limiting validity of its adherence to a fixed period of five or ten years or a six-month withdrawal clause in case of violation. In general, the United States has such dominance in the space field that it can afford to try measures like this and then still be far ahead if it decides the measure is not working and pulls out. Even if the U .S. refused to participate, a resolution like this would be worthwhile and provide a measure of protection against space weapons.
Russia and the NATO countries, which are signatories of the Conventional Forces in Europe Treaty, could also request an injunction against U.S. space weapon activities in the International Court of Justice on the grounds that they were interfering with national means of verification.
Another useful First Committee resolution would be one containing voluntary declarations not to be the first to deploy weapons in space. Last year, Russia became the first space-faring country to make such a declaration in the First Committee. If several spacefaring countries joined in a declaration like this, this action would form a rudimentary space weapons treaty. The U.S. could also afford to sign this commitment again with a limited duration. The commitment would be valid only as long as no country deployed a weapon. It would be worthwhile to include in it agreement to cooperate with other governments in developing effective method of verifying the commitment. If other spacefaring countries sign onto this resolution, this action would counter the main argument for the weaponization of space, the concern that, unless the U.S. acts to seize the initiative to weaponize space, other governments will surely do so.
First Committee resolutions could be used as a vehicle for a proposed code of conduct on space like the one suggested by Michael Krepon of the Stimson Center covering such things as avoiding collisions and simulated attacks, information exchange, transparency and advance notification. This action too would be greatly to the advantage of the U.S., which is far ahead of other countries in the number of orbiting satellites.
These points could either become add-on paragraphs to the annual resolution on prevention of an arms race in space or separate First Committee resolutions.
A First Committee resolution could also be used as a vehicle for popularizing the components of a possible treaty against weapons in space which have been advanced for discussion by China and Russia in Geneva.
We hope that the United States will finally respond, perhaps during the NPT Review Conference, to China’s important compromise move at the Conference on Disarmament nearly two years ago in dropping its previous insistence on negotiating a treaty against weapons in outer space in favor of engaging in discussion of this topic. The United States is on record as supporting discussion of this topic, but not negotiation.
If the United States does not move on this issue, many people are considering going to the General Assembly for a mandate to begin negotiations outside the Conference on Disarmament on a treaty to ban all weapons in outer space.
This step may become necessary in the future, but two less far-reaching intermediate steps are worth serious consideration. First, the conceptual components of a possible treaty against weapons in space advanced by China and Russia in Geneva could be incorporated in a First Committee resolution which would welcome the concepts and urge that they be discussed on a worldwide basis – without specifying a venue for that discussion or urging negotiation of the components at this stage.
This approach and the attendant publicity would give governments and the world public a better idea than action confined to the CD in Geneva of what would be involved in a treaty against the weaponization of space. It could increase governmental and public interest in weapons in space, and it could increase pressure on the U.S. to discuss the topic with China and other states. Second, a further step might be for Russia, China and other interested states to develop the full text of a treaty against weaponization from the existing components and to present the text for international discussion through a First Committee resolution. This approach would enable the sponsors to test world reaction to a treaty draft and to act to increase public and governmental support for the draft without first committing to a separate negotiation outside the Conference on Disarmament.
In the course of this short talk, I have described over a dozen specific actions which are low cost, use existing law or institutions, and which could be highly effective in providing alternatives, less risky ways of protecting space assets or in mobilizing world political and public opinion against the weaponization of space.
I devoutly hope that both governments and NGOs will actively discuss these measures and that they will be actively used, because one thing is certain: There are no commanding heights in space which, once seized, can assure enduring advantage or dominance or which might prevent an arms race in space. None. The United States is not safer today for having initiated the development of the ultimate weapon sixty years ago and for having sought to maintain sole possession of these weapons. To the contrary, the American government and the American people worry day and night that these weapons may come back at them and at others. This same fate will in time attend the possible weaponization of space. That is why it is a vital interest of all governments and all peoples to prevent that weaponization.
