Outer Space Treaty May Ban Strike Weapons
To the Editor:
In his excellent article on space arms control (ACT,
April 2002), James Clay Moltz recommended five core provisions
for a new, international space arms control agreement. We believe
that the Outer Space Treaty of 1967 may already address the third
and arguably most important recommendation: no stationing of strike
weapons of any sort in low-Earth orbit, including kinetic kill vehicles
and lasers.
The Outer Space Treaty was the second multilateral “nonarmament”
treaty, following the model of the Antarctica Treaty of 1959. The
Eisenhower administration, which negotiated the latter and laid
down principles for the former, focused on the objective of prohibiting
military competition in Antarctica and space before it occurred.
A 1957 proposal by the Eisenhower administration, which was endorsed
by Canada, France, and the United Kingdom, sought “to assure
that the sending of objects through space will be exclusively for
peaceful purposes.” This objective was then agreed internationally
in a unanimous 1963 UN General Assembly declaration of legal principles,
which stated that “the use of space shall be carried on for
the benefit and in the interests of all mankind….”
The Outer Space Treaty was intended to implement this principle.
Its first article says that the use of space “shall be carried
out for the benefit and in the interests of all countries.”
The only weapons it explicitly bans from orbiting around Earth are
nuclear and other weapons of mass destruction because they were
the primary concern in 1967. Indeed, the negotiating history shows
that this prohibition focused on the immediate concern (i.e., nuclear)
of the parties in the 1960s—stemming in part from the Cuban
missile crisis—but that it did not obviate the broader peaceful-purpose
principle of the 1957 proposal.
In fact, the Outer Space Treaty contains one overall rule: space
shall be preserved for peaceful purposes for all countries. It requires
any state considering activities that “would cause potentially
harmful interference” with other states’ activities to
undertake appropriate consultations. Similarly, other states may
request consultations.
Further provisions for consultation were included to give the parties
realistic opportunities to achieve post-1967 agreements on what
the general provisions should mean in the future. For instance,
if a state decided to test and possibly orbit in space an anti-satellite
weapon (ASAT) utilizing a laser or kinetic kill vehicle, other states-parties
to the space treaty could request consultations. They could conclude
that the treaty prohibits the orbiting of the proposed ASAT. We
believe that such an interpretation could be a permissible interpretation
of the treaty. Indeed, space testing or deployment of other future
strike weapons that are inconsistent with “the benefit and
in the interests of all countries,” within the meaning of the
Outer Space Treaty, might produce a similar interpretation.
The fact that in the 1970s and 1980s both the Soviet Union and
the United States toyed with ideas for space weapons that were not
weapons of mass destruction does not reverse the overall rule that
space should be preserved for peaceful purposes for all countries.
There was no agreement by the parties to the space treaty in the
1970s and 1980s to limit the broad rule on preserving space for
peaceful purposes.
The parties to the space treaty could decide whether to adopt a
position on Earth-orbiting ASATs as a formal interpretation, after
a review of state practices since 1967 and the negotiating history
of the treaty. Unanimity among parties is not required for any formal
interpretations, but a large majority of parties adopting a particular
position would be persuasive. Similarly, the United Nations, acting
through its First Committee and then through the General Assembly
(which recommended the Outer Space Treaty in the first place), could
pass a resolution formally interpreting it. If there were significant
dissent, pursuant to the UN Charter the General Assembly could request
an advisory opinion from the International Court of Justice at The
Hague confirming this interpretation.
Such an interpretation could not cover all missile defense basing
options. For example, the Anti-Ballistic Missile (ABM) Treaty bans
land- and air-based missile defenses. The Outer Space Treaty clearly
does not deal with them. Furthermore, this interpretation could
not prohibit nonstrike Earth-orbiting or geostationary communications
or reconnaissance satellites that were well known and in use in
1967. Nevertheless, the interpretation could cover Earth-orbiting
weapons designed to strike satellites or missiles. The almost 100
states that are party to the space treaty will have to decide whether
they are prepared to seek such an interpretation.
George Bunn
General counsel to the Arms Control and Disarmament Agency during
the Outer Space Treaty negotiations and director emeritus of the
Arms Control Association and the Lawyers Alliance for World Security
John B. Rhinelander
Deputy legal adviser at the Department of State during the ABM Treaty
negotiations, legal adviser to the U.S. SALT I delegation, Arms
Control Association director, and vice chairman of the Lawyers
Alliance for World Security
|
