Space has been designated for peaceful uses since US President Dwight D Eisenhower stated that principle in 1958.1 To be sure, States have accepted that "peaceful purposes" included military, commercial, and scientific uses. But there is now movement within the US military establishment to expand the military uses of space to include war-fighting capabilities, to go beyond "peaceful uses" and abandon the norm against placing weapons in space. Will the future see weapons in space?
A broad international consensus supports the creation of a legal ban against placing weapons in outer space. Still, little progress has been made towards achieving this ban, while space has become increasingly militarized and the US is taking steps to make space weapons a reality.
The Vision for 2020 document published by US Space Command in 1997 was the first post-Cold War indication of US intentions for space weaponization. Since then, the Bush administration has accelerated work on a proposed "layered" missile defence system; withdrawn from the Anti-Ballistic Missile Treaty (arguing that it would hinder testing); and announced plans to deploy the first phases of the system as early as 2004. Secretary of Defense Donald Rumsfeld has led the way in promoting military developments in space. As chair of the 2000 Commission to Assess United States National Security Space Management and Organization, he warned of a "space Pearl Harbor" if the US did not move to defend its space assets.
Space has been "militarized" since the earliest communications and surveillance satellites were launched into orbit, but there is no indication it has been "weaponized." Today, militaries worldwide rely heavily on satellites for command and control, communications, reconnaissance and monitoring, early warning, treaty verification, and navigation of vehicles and weapons with the Global Positioning System (GPS). Research and development is frequently funded by military money. States accept that "peaceful purposes' include military use -- even that which is not particularly peaceful -- and space is considered a sanctuary only in that no weapons are deployed there.
Space "weaponization" refers to the placement in orbit of devices that have a destructive capacity. Therefore, while satellites may be used for aggressive measures, such as GPS navigation for fighter jets or precision guided missile delivery, satellites themselves have no destructive capacity and their support of military operations is not considered weaponization.
A space weapon would use either directed energy (in the form of a laser, radio frequency or other exotic technology) or directed mass (kinetic force of impact or a conventional explosive) to destroy its target. That target could be space-based (as in a ballistic missile at mid-phase) or ground-, sea-, or air-based. The Canadian government assumes that a weapon is space-based if it "orbits the earth at least once, or has or will acquire a stable station at some point beyond earth orbit."2 Any legal mechanism to prohibit weapons in space must consider the possible development of unanticipated technologies.
Early on, the UN General Assembly recognized the threat from uncontrolled military expansion into space and in 1962 adopted the "Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space." This resolution became the basis of negotiations for a multilateral mechanism regulating the use of space, the Outer Space Treaty (OST), which entered into force in October 1967. It established the principle that outer space is a global commons, not open to national appropriation, and codified the phrase, "peaceful use of outer space," thus banning the placement of weapons of mass destruction in orbit and the establishment of military bases in space. The Limited Test Ban Treaty of 1963 banned nuclear weapons testing in outer space, and subsequent treaties and declarations have sought to regulate exploration and military activity in space. 3
In 1981 a UN General Assembly resolution, Prevention of an Arms Race in Outer Space (PAROS), tasked the Conference on Disarmament (CD) with negotiating a treaty to ban all space weapons. The CD made some progress on a draft treaty until disagreement between China and the US in 1995 prevented consensus on the creation of the Ad Hoc committee to continue negotiations. China insisted that it would only support final negotiations on a Fissile Material Control Treaty (FMCT) if PAROS was considered at the same time. The US has consistently opposed PAROS, arguing that there is no space race. China's insistence on linking the items, and US opposition to PAROS, blocked approval of a work program and the CD has remained effectively paralyzed since 1995.
Despite the stalemate in the CD, the UN General Assembly continues to support the PAROS mandate. At the 2002 session the vote was 156 in favor of PAROS, zero against, with Israel and the US abstaining.4 For 20 consecutive years the General Assembly has supported efforts to ban weapons from space.
The continued struggle in the CD to break the impasse and begin discussions on PAROS has led NGOs and some States to examine alternative processes. I will examine some of these options for creating a space weapons ban.
1. Multilateral Negotiations
Several proposals have been made to jump-start negotiations on a space weapons ban at the Conference on Disarmament. In 1998 Canada submitted a Working Paper Concerning CD Action on Outer Space, proposing that the CD establish an Ad Hoc Committee on Outer Space to commence negotiation of a convention. This early proposal suggested that the CD appoint a Special Coordinator to explore establishing an Ad Hoc Committee with a negotiating mandate."5 In February 1999 Canada reiterated this call.
China submitted a working paper in 2000, which, unlike Canada's, specified what should be included in a legal instrument preventing the weaponi- zation of outer space. In June 2002, Russia and China presented a joint Working Paper. Effectively a draft Treaty, it builds on the earlier Chinese proposal.
The majority of States remain committed to pursuing a space weapons ban through the CD, the official forum for multilateral arms control and disarmament treaty negotiations. Denmark, speaking on behalf of the EU, confirmed this after voting on the PAROS resolution at the First Committee of the UN General Assembly in October 2002:
"We want to reiterate that the Conference on Disarmament is the only international multilateral negotiating forum for disarmament. Therefore, it is within the CD that any decision should be taken regarding work on the prevention of an arms race in outer space."6
Efforts to break the CD deadlock include proposals in 2000 and 2003 by ambassadors calling for Ad Hoc committees on PAROS to elaborate a regime to prevent an arms race in outer space.
2. Step-by-Step Approach
Arguing that an all-or-nothing approach is likely to alienate the US from the outset, some have proposed an incremental approach toward banning space weapons.
John Rhinelander suggested three steps. First would come a multilateral agreement against interfering with "peaceful" assets orbiting in space. The second step would be to interpret the Outer Space Treaty as banning orbiting killer weapons, however armed, and perhaps to address space debris. Third would be a "comprehensive" step that would forbid attack vehicles in space and establish technical means of verifying a ban. 7
3. Interim Measures
Another gradual approach calls for interim measures to address major threats to peaceful space activity. Space debris already poses a serious threat to satellites and space travel, and testing of any space weapon would increase this threat vastly. The US is a leader in debris tracking and mitigation, and this could be an important area for international cooperation. 8
Confidence-building measures would be part of a space weapons treaty. For example, launch notifications would increase transparency with regard to space activity.
The application of "Space Traffic Control" to establish standard practices is another intermediary measure, similar to agreements for activity at sea, These could be created as executive agreements between national authorities, which do not require lengthy treaty negotiations.9
James Clay Moltz has proposed a compromise to break the deadlock by allowing limited missile defence. It would permit attacks on missiles traveling through space, as well as the testing of ground-, sea- and air-based interceptors in low orbit around the earth. However, in exchange for this concession, it would ban the use, testing, or deployment of weapons or interceptors above 500 miles; the stationing of weapons in orbit; testing or use of lasers from orbital objects; and the testing or use of other weapons against satellites or space-based objects.10
This strategy, intended to protect communications satellites in geo-stationary orbit and mediate use of low-earth orbit, might satisfy moderates in the debate. Internationally, Moltz thinks his proposal might offer China a way to limit some of the most threatening elements of missile defence, and Russia might also be receptive.11 But for those who oppose missile defence and seek a complete ban on weapons in space, this proposal is unacceptable.
5. Legal Options
There is extensive international law governing activity in outer space and constraining space weapons development.12 Jonathan Dean argues that to use weapons against any early warning, imaging, or intelligence satellite would violate the concept of non-interference with national technical means of verification, described in the SALT and START treaties. This provides a basis for General Assembly resolutions calling for non-interference with communications, weather and GPS satellites. Also, the General Assembly could call for an Advisory Opinion from the International Court of Justice to assess specific actions the US might take in pursuing space-based missile defence, for example. 13
Article VII of the OST makes treaty parties that launch objects into outer space liable for damage to the property of other treaty parties. Article IX states that if a State party is concerned that another might "cause potentially harmful interference with activities in the peaceful exploration and use of outer space," it may request consultations regarding that activity.14 Dean proposes that these obstacles could, and should, be put in the way of US plans to develop space weapons.15
Others have suggested that amending the Outer Space Treaty to expand its list of banned weapons systems would be possible, without the lengthy negotiations of a freestanding treaty. John Rhinelander and Philip Coyle argue "an amendment or permissible interpretation unanimously or overwhelmingly endorsed by the treaty's 96 members would be very significant, and could include an explicit prohibition on tests against targets in space."18
6. An "Ottawa Process"
Even if discussions commence on PAROS within the Conference on Disarmament, consensus-based negotiations will undoubtedly hinder agreement on a comprehensive space weapons ban in the near term. Many people, especially from the NGO sector, have called for independent negotiations outside the CD, or an "Ottawa Process," in the pattern of the Landmine Treaty negotiations.
7. The Space Preservation Treaty
The Space Preservation Act of 2002, tabled in the US Congress by Rep. Dennis Kucinich, calls on the US to prohibit the basing of weapons in space and the use of weapons to destroy objects in space that are in orbit. The act calls on the US to negotiate an international Space Preservation Treaty through the United Nations.17 Rebecca Johnson has argued that although this is a useful advocacy tool, it is unlikely to result in real legislation.
The options I have presented are not mutually exclusive. Indeed, a combination of approaches will likely be required to achieve a space weapons ban. There is currently international political will, including a strong commitment from Canada, to prevent the weaponization of space. Continued discussions on space arms control must be encouraged in the Conference on Disarmament, the UN General Assembly, and other international organizations.
For nearly 50 years a norm has been upheld ensuring that space is a global commons to be used for peaceful purposes and not for battle. These lines have become increasingly blurred. The development of ballistic missile defence threatens to violate this norm. It is necessary to consciously make the link between missile defence and the introduction of weapons into space.
Dependency on satellites is growing, and we must be concerned with the broad security of outer space assets. Measures such as debris mitigation, and "rules of the road" are important for maintaining access to outer space for peaceful purposes. This is a unique opportunity to prevent a problem, before its consequences have to be addressed.
Sarah Estabrooks is with Project Ploughshares in Waterloo.
1 Exchange between Dwight Eisenhower and Nikolai Bulganin, Chairman, Council of Ministers, USSR January 13, 1958. [Online] The Eisenhower Institute, in "The Historical Context" at www.eisenhowerinstitute.org/programs/globalpartnerships/fos/newfrontier/letters.htm.
2 Ambassador Christopher Westdal, Testimony on PAROS for Delivery by Ambassador Westdal at the "Disarmament Week" Seminar, New York, 11 October 2001.
3 Others are the Astronauts Rescue Agreement (1968), the Liability Convention (1972), the Registration Convention (1976) and the Moon Agreement (1984), as well as several General Assembly resolutions and the conditions of the SALT and START treaties.
4 UN General Assembly 2002, A/Res/57/57 Prevention of an Arms Race in Outer Space, 57th Session of the UN General Assembly, 22 November 02. [Online] Available from: www.reachingcriticalwill.org/1com/1com02/vote/voteindex.html.
5 CD/1487, 21 January 1998, Canada Working Paper Concerning CD Action on Outer Space.
6 Support statement by H.E. Ambassador Erling Harild Nielsen on behalf of the European Union referring to Draft resolution L.30, "Prevention of an arms race in outer space", United Nations, October 22, 2002.
7 Philip E. Coyle and John B. Rhinelander, "Drawing the Line: the Path to Controlling Weapons in Space", Disarmament Diplomacy, Vol. 66, September 2002, p 6.
9 Michael Krepon, "Lost in Space: the Misguided Drive Toward Antisatellite Weapons", Foreign Affairs May/June 2001.
10 James Clay Moltz, "Breaking the Deadlock on Space Arms Control", Arms Control Today Volume 32, Number 3, April 2002, p 8.
11 Ibid, p 9
12 Jonathan Dean, "Defenses in Space: Treaty Issues", in Future Security in Space: Commercial, Military, and Arms Control Trade-Offs, James Clay Moltz, ed. Occasional Paper No. 10, Center for Nonproliferation Studies and Mountbatten Centre for International Studies, 2003, pp 5-6.
13 Jonathan Dean, "The Current Legal Regime Governing the Use of Outer Space" conference paper presented at the Outer Space and Global Security Conference, November 26-27, 2002, Geneva.
14 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, 1967, Article IX.
15 Dean, "Defenses in Space: Treaty Issues", p 5.
16 Coyle and Rhinelander, p 6.
17 Space Preservation Act of 2002, HR 3616 IH, 107th Congress, 2nd Session.