International Network of Engineers and Scientists Against Proliferation

Space Weapons Ban: Thoughts on a New Treaty

Robert E. White  (extract*)

For a new treaty on the prevention of an arms race in outer space (PAROS) to be developed it is considered important that the two issues of missile defence and weapons in space be kept separate in the sense that in developing a treaty to ban weapons in space, no attempt is made in the same treaty to address missile defence directly.

A ban on weapons in space could well impinge on missile defence depending on the proscriptions built into the new treaty. The reason for so arguing is that there are very different questions involved in the two issues, and very different time scales. No-one is at present proposing a treaty to ban missile defence, but many of voices are calling for a new space treaty.

This new treaty can be quite specific since there appears to be a considerable body of law relating to commercial and other non-military activities in space.^[1] The proposed new treaty would also offer an alternative to the need to deploy weapons in space to protect national space assets, as the US sees necessary at present.

It might seem pointless to proceed with developing a new treaty which the US in particular is unlikely to accept, at least willingly. However, there are precedents for proceeding on such a path and succeeding. The very rapid success of the recent treaty banning landmines is a very striking and important example. It is widely recognised that the driving force behind this 1997 treaty was a diverse coalition of over 1500 non-governmental organisations (NGOs) in 90 countries, the International Campaign to Ban Landmines (ICBL) formed in 1992. This coalition and its coordinator, Jody Williams, were awarded the 1997 Nobel Peace Prize for starting "a process which in the space of a few years changed a ban on antipersonnel mines from a vision to a feasible reality".

Also even though the US has refused to ratify the Comprehensive Test Ban Treaty, work is proceeding to implement the treaty. The British American Security Information Council (BASIC) reports in March 2001 that "... consultations among about 80 signatory states for implementing the treaty continue apace. Despite the persistent problems, the 13th session of the PrepCom was ground-breaking, wrapping up work in an unprecedented two days. The PrepCom which was established in March 1997, is in charge of implementing the treaty's verification system".^[2]

New Zealand is involved in, and is contributing to, this verification system and its implementation which is proceeding.

The approach proposed here is to develop the treaty, get it supported by the bulk of the international community, both governments and civil society, as should happen without any difficulty if the treaty is carefully and properly set out, and then leave it to the US and any other abstainers to respond to this situation positively, or be seen as pariahs by the international community.

Many NGO groups should support such a treaty. The Abolition 2000 coalition which includes over 2000 groups should definitely support it, as would the Global Network Against Weapons and Nuclear Power in Space and associated groups, which are active in many countries. Many other NGOs devoted to preventing any arms race and eliminating all weapons of mass destruction should also give this project support. It is also hoped that support from the New Agenda Coalition and Middle Power Initiative groups in the UN would be forthcoming for the treaty and its passage.

Problems of Definition

Any new space treaty of the sort being considered will need to address a number of fundamental questions. These are considered next, and involve a number of technical terms which will have to be defined. These include:

(a) 'Peaceful' in Peaceful Purposes

'Peaceful' is here defined as meaning 'non-aggressive'. (See the full working paper for the line of argumentation for this definition.)

(b) The Boundary of Outer Space - 100 km Above Sea Level

It is vital for a new treaty to define 'outer space'. It seems clear on legal grounds alone that outer space is distinct from airspace, the region used by normal aircraft to give a crude definition. While airspace is subject to national appropriation, nations claim national rights in the airspace above their country, it appears to be accepted universally that outer space is not subject to national appropriation. The Outer Space Treaty for a start prohibits this in Article 2, and legal opinion confirms this.^[3] So we have two adjoining regions covered by different law.

One argument that makes this clear is that the airspace above the earth rotates with the earth, so any country always sees the same airspace above it. However, as the earth rotates, a given country sees ever changing regions of space pass overhead. There is no fixed region of space permanently above it to which it could claim national rights. There must be a boundary set to airspace somewhere. However, Cheng in a 1960 paper challenged this argument.^[4]

A range of arguments is to be found as to where this boundary should be set.^[5] The overall outcome from examining these is here claimed to support a boundary set at 100 kilometres (km) above sea level.

Jasentuliyana presents material that illustrates the differences in opinion about setting a boundary for outer space, and the lengthy debates that have resulted, in the UN Committee on the Peaceful Uses of Outer Space (UNCOPUOS) for example.^[6] He gives no definite proposals for where any boundary should be set.

Jasani discusses proposals made within the UN on where airspace ends.^[7] These are all based essentially on certain atmospheric effects on any craft travelling through the atmosphere. He says that an altitude of 110 km above sea level "has often been discussed" as the boundary height.

Cheng has discussed this question extensively.^[8] Using a similar argument based on navigation by conventional aircraft he set a boundary at somewhere between 40 and 120 km in a 1965 paper, and argued that attitudes toward the right of passage of orbiting satellites also favoured a "fairly low limit".^[9] In lectures given in 1979 and published in 1981 he presents arguments based on the lowest perigee or altitude of satellites launched between 1957 and 1975 to suggest a boundary at around 96 to 110 km, and cites 1979 Soviet proposals supporting a boundary no higher than 110 km.^[10] He wrote again in 1980 about this problem and presents an extended discussion of it,^[11] including more support for a boundary at around 100 to 110 km.^[12]

Diederiks-Verschoor examines the boundary question.^[13] He presents a range of criteria that could be used to fix the boundary, and a range of arguments favouring various approaches from a definite boundary to no fixed boundary, the boundary being set according to the circumstances surrounding the various activities in space. However, the evidence he does present for where a boundary might be set do support a boundary at 100 km being acceptable.

A 1984 publication, Space Activities and Emerging International Law, edited by Matte, reports developing countries favouring acceptance of a boundary at 100 to 110 km above sea level,^[14] and argues the matter quite fully.^[15] Considerations based on the nature of the atmosphere are discussed in considerable detail, and other factors that relate to establishing the boundary such as the lowest heights that might occur in future satellite orbital paths. Very low orbit satellites tend to be very short lived however, as he points out. He does present material reinforcing the proposal that the boundary be set at 100 km, although all the above authors do reproduce some of the same material, so caution is needed in weighing the support for 100 km. The Soviets repeated their proposal for a boundary "at an altitude not exceeding 110 km above sea level" in a Working Paper submitted to the COPUOS in 1983.^[16]

Oberg in Space Power Theory gives the most recent discussion of the boundary question seen.^[17] He says that "Originally by precedent, and now by long habit, the de facto limit of sovereignty [over airspace] is based on a physical feature of orbital flight; it is considered to be below the altitude of the lowest possible short-term stable orbit (about 160 km), while being above the altitude of the highest aircraft and balloons (about 30 km). For numerical aesthetics, a figure of exactly 100 km has long been discussed but not officially accepted. The US Air Force (USAF), for example, uses 80 km as the altitude required for the award of 'Astronaut Rating'. Soviet delegates to the United Nations repeatedly called for a figure of '110 km or less'. During ascent to orbit, NASA's space shuttles complete their main engine burn at an altitude of about 84 km, and NASA uses 400,000 ft (122 km) to define 'entry interface' when returning shuttles first begin to encounter aerodynamic forces. Descending shuttles have passed above other nations (such as Canada) at altitudes of 80 km or less without asking permission."^[18]

The claim that a boundary height of 100 km should be proposed for a new treaty is based on this material.

(c) 'Weapon', 'Weapons System', 'Components of a Weapons System'

A definition of 'weapon' will be needed for a new treaty that aims to prohibit weapons from space. The French propose that "any satellite or space object in orbit around the earth or any other celestial body which has at least one active function capable, by direct action, of destroying, seriously damaging or intentionally interfering with the operation of any device located on earth or above the earth within the atmosphere or in outer space should be regarded as a weapon in space."^[19]

Canada has proposed a definition of sorts in a paper to the UN conference on Disarmament, in which the authors say "There is currently no arms race in outer space. Canada accepts the current military uses of outer space for surveillance, intelligence-gathering and communications. Our focus is on the non-weaponization of outer space, i.e. no positioning of actual weapons in outer space...

By 'weapon' we mean e.g. 'any device or component of a system designed to inflict physical harm through deposition of mass and/or energy on any other object."^[20]

This definition is more a definition of weapons generally than a definition specifically confined to weapons designed for use in space.

Extending some accepted definition to cover weapon systems and components thereof should not be difficult. The French definition could easily be extended to read, "any satellite or space object, or system or combination of systems, in orbit ..." (see below regarding the use of the term 'deploy').

A new treaty will need to ban not only the use of weapons within and from space, but also the use of weapons into space. Including their use into space involves banning anti-satellite weapons, and this will be required if countries with assets in space are to be persuaded to give up their right to defend those assets with actual weapons.

This raises the further question of the use of weapons in or from space that are not intended to be stationed in space. Anti-satellite weapons are one such class of weapons. It is possible to conceive of missiles launched from earth and intended to operate in other ways and against other targets than satellites, against orbiting space vehicles or platforms of the type discussed in the US Space Command's Long Range Plan for example.^[21] Oberg considers such ground-to-space or air-to-space weapons possible.^[22] A new treaty will also have to ban such devices being used in space.

There is a considerable problem here with missile defence interceptors designed to destroy an incoming ballistic missile in its mid-course phase while it is still in space. This is a case of a ground based weapon being used in space. To avoid conflict with missile defence systems it may well be necessary to distinguish between weapons that act against targets that are not deployed in space but are only traversing space and will not remain in any form of stable orbit, and those designed to act against systems deployed in space.

New space law will have to set out demarcation lines to differentiate between military objects in outer space that are not considered to be weapons, and those that are classed as weapons. There are several hundred satellites already orbiting in space and many have a military purpose in part or whole. It is not conceivable that these will be removed to comply with any new space law. How these are to be classified will have to be clarified. It would seem that there are precedents from non-space military systems that could be useful here. Command, control and communication devices, and radars would not generally be classed as 'weapons', able to inflict direct physical damage on animate or inanimate objects, yet they contribute to the actions of weapons or weapons systems.

(d) 'Deploy in Space' Rather Than 'Place in Orbit'

The Outer Space Treaty requires signatory states to undertake not to 'place in orbit' weapons of mass destruction. This 1967 treaty was written in times of very different technology from that available now, when the only objects in space were satellites in orbit. We now have the space shuttle which is capable of entering space, going into orbit if required, and returning to earth, and the devices being considered by the US Space Command for its weapons and weapons platforms are likely to be equally versatile. Space operations vehicles and space platforms, and space based lasers and similar weapons, are all certain to require high degrees of flexibility in their operation.

The term 'place in orbit' is no longer relevant in a space treaty of the sort being considered. It is proposed that instead this treaty should use the term 'deploy' in reference to weapons. Here, 'Deploy' means 'position ready for use'.

The new treaty would then contain an article to the effect that states party to the treaty undertake not to deploy in space, to operate in or from space, any system or combination of systems constituting a weapon as defined in this treaty.

They would further undertake not to deploy any system or combination of systems constituting a weapon as defined in this treaty, and designed to operate into space from the earth or from within the atmosphere. This is designed to cover the possible types of weapons that could act from earth like anti-satellite weapons, or from within the atmosphere, discussed above.

(e) Aggressive Actions

This new treaty should prohibit both the use of weapons, and any other type of aggressive action, and the threat of weapons use or the threat of any other type of aggressive action, in accordance with the UN Charter and other international agreements where the use and threat of use are equally prohibited. If space is to be used only for peaceful purposes, interpreted as non-aggressive purposes, it is clear that aggressive actions must be prohibited by this new treaty. This could provide an alternative approach to the question of defining what the new treaty does and does not prohibit.

Rather than prohibiting specifically defined weapons, it could prohibit all aggressive activities, to be defined, including the use of any devices or techniques that result in aggressive actions, such as weapons defined in a quite general way as the Canadians propose for example. A possible definition could be something like: "Aggressive Action: Any action by any individual or group of individuals, or by any state or group of states, within, into or from outer space that is prejudicial in any sense to the wellbeing of any other individual or group of individuals, or state or group of states, is termed an aggressive action."

The reference to individuals or groups of individuals is intended to apply to industrially controlled space assets where industrial sabotage could pose a future problem. Even though the new treaty is directed at space weapons, all acts of aggression should be prohibited if space is to be a region of exclusively peaceful activity.

Deploying devices in space, or on earth or in the atmosphere and designed to act into space, that are capable of, or intended for aggressive actions, thus constituting a weapon or weapons, would be deemed aggressive actions because even if not used they pose a threat of aggressive actions. All such actions would be prohibited under the new space treaty.

A definition of 'aggressive' as activities or systems that can undertake and accomplish an attack means it is not the intention that counts, it is the objective capability.^[23] Cheng also stated that aggressive acts are contrary to international law and the Charter of the UN, particularly Article 2 (4) of the Charter, and that this applies universally throughout space.^[24]

There are problems relating to aggressive actions that will have to be solved. For example, the use by one country of military surveillance satellites to overfly a second country and observe activities, military or otherwise, in that country without permission from the government of that country could well be seen as an aggressive action by the second country.

Verification Measures

We also need to work out effective verification measures to be incorporated in a new space treaty. Two recent publications address this problem. The United Nations Institute for Disarmament Research (UNIDIR) announced in its newsletter, No.39 a book entitled Building Confidence in Outer Space Activities edited by P. Alves, Head of Political Affairs, UNIDIR. It "sets out to clarify some of the prerequisites and modalities of a confidence-building process in outer space". It examines the role of earth-to-space monitoring in enhancing the safety of outer space activities and preventing the deployment of weapons in that environment. The book concludes by proposing the creation of an International Earth-to-Space Monitoring Network. "It is the result of efforts by several experts on outer space matters..." This book has not yet been seen but looks extremely useful.^[25]

The second publication is a paper by Jürgen Scheffran in Disarmament Diplomacy for March 2001.^[26] Dr Scheffran is a physicist and senior researcher at the Technical University Darmstadt, Germany, and co-founder of the International Network of Engineers and Scientists Against Proliferation.^[27] While his paper is directed primarily at the problem of missile defence systems, Scheffran also discusses the related problem of weapons in space, and verification methods for both ballistic missiles and space launch vehicles.

He discusses a variety of technical and non-technical means for monitoring ballistic missiles which should be applicable to monitoring space launches, or launches of devices intended to be used in space from the atmosphere. He sees inspections of launch and other related sites, random short notice inspections, and challenge inspections of declared or undeclared sites as vital for a satisfactory verification programme. Pre-launch inspections would ensure that no undesirable payload is used. This would all require a cooperative situation between states party to a new space treaty. There are non-intrusive techniques for determining payload types that should not involve disclosure of commercially sensitive information he says. Under a comprehensive space launch notification agreement, any non-notified launch would be prohibited and detection of launch facilities other than agreed launch pads would indicate a violation of the agreement. Such launch sites can be detected using existing space-based technology unless they are well concealed. Scheffran has written extensively in this area, and his paper is well referenced. It warrants detailed study when setting out the bases for a comprehensive monitoring and verification system.

The Treaty Articles

The preamble to, and articles in, the new treaty will need careful and detailed thought. What follows are merely suggestions concerning some of the considerations and matters these articles should address.

The new treaty should at least:

1.In its preamble, follow the 1967 treaty modified in accordance with considerations voiced in the recent UN resolutions for example and other relevant recent statements of concern.

2.Reaffirm the major considerations in the preamble to, and the articles contained in, the 1967 Outer Space Treaty. In particular, space - including the Moon and all other celestial bodies - is to be used only for peaceful purposes. Space is an international region and not subject to national appropriation by claim of sovereignty, by means of use or occupation or by any other means. Space is available to all on an equal basis. Space is subject to international law including the UN Charter. Other aspects of that treaty to be included as seen appropriate and subject to any necessary modification to acknowledge changes since 1967.

3.Prohibit all acts of aggression.

4.Ban the testing, production, deployment or use of weapons in space. The new treaty should contain an article to the effect that states party to the treaty undertake not to deploy in space, to operate in or from space, any system or combination of systems constituting a weapon as defined in this treaty.

5.Ban the testing, production, deployment or use of weapons designed to act into space. They would further undertake not to deploy any system or combination of systems constituting a weapon as defined in this treaty, and designed to operate into space from the earth or from within the atmosphere.

6.Require the notification of all planned space activities with details of their nature and intent, and of all launches of objects into space. The 1967 treaty should be consulted here.

7.Establish monitoring and verification procedures, and a monitoring/verification control organisation. Possible means for verification have been outlined. The pattern set by the monitoring programme for the CTBT could provide a useful model here.

8.Include an article on 'permissible activities' - to help distinguish between activities that are prohibited and those that are not.

9.Include provision for appropriate national implementation measures - and the designation or establishment of organisations to ensure that states party to the treaty implement it consistently and effectively.

10.Include a disputes resolution mechanism - for consultations, clarifications and resolution of disputes to address any suspicions or disputes that might arise. This could, for example, deal with instances of non-destructive interference with the space assets of one country by some other party. Non-destructive interference can result from a satellite being subject to intense radiation of various types which interferes with its functioning without destroying the satellite, as one instance of non-destructive interference. Such an action would constitute an aggressive act. This mechanism could also deal with accidental damage to e.g. satellites by space debris, by collision or in some other way.

11.Contain appropriate confidence building measures - to enhance mutual trust among states party to the treaty.

12.Contain articles dealing with the procedural articles found in international legal instruments - dealing with amendment, length of validity, signature, ratification, entry into force, depository, and authentic texts, and any other similar issues.^[28]

In July 1984, a draft treaty was drawn up at a conference of scientists against the militarisation of space in Goettingen which is relevant for comparison.^[29]

Some interesting recent statements of US views on the issue of weapons in space and future space law can be found on the web site of the Global Network.^[30]

* This article is an extract from: Robert E. White, Preserving Space for Peaceful Use: A Case for a New Space Treaty, Centre for Peace Studies, University ofAuckland, Working Paper N0. 10, ISBN 0-908881-17-7, July 2001.

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1. See the references given in this article as well as material provided by the UNCOPUOS at the website of the UN Office of Outer Space Affairs (OOSA) at www.oosa.unvienna.org/index.html.
2. British American Security Information Council (BASIC), Newsletter. No.77, 10 March 2001, ISSN 0966-9175; www.basicint.org.
3. See the references given in this article.
4. Cheng Bin, Studies in International Space Law, Clarendon Press, Oxford,, 1997, pp. 34-35.
5. See the references given in this article.
6. Jasentuliyana N., International Space Law and the United Nations, Kluwer Law International, The Hague, 1999.
7. Jasani B (ed.), Outer Space: A Source of Conflict or Cooperation?, United Nations University Press, Tokyo, 1991, pp.7-8.
8. Cheng Bin, op.cit.
9. Ibid, pp. 81-84.
10. Ibid, pp. 393-397.
11. Ibid, Chapter 14.
12. Ibid, pp. 425-448.
13. Diederiks-Verschoor I. H., An Introduction to Space Law, Kluwer Law International, The Hague, 2nd revised edition, 1999, Chapter 2.
14. Matte N. M. (ed.), Space Activities and Emerging International Law, Centre for Research of Air and Space Law, McGill University, Montreal, 1984, p. 240.
15. Ibid, Chapter 6.
16. UN Doc. A/AC.105/C.2/L.139, 1983.
17. Oberg J., Space Power Theory, pp.79-80.
18. Ibid, p. 80.
19. Arms Control, Disarmament and Non-Proliferation: French Policy, Ministry of Defence, Paris, 2000, pp. 60-64.
20. UN Document CD/1569, 4 February 1999.
21. United States Space Command, Long Range Plan, 1998; www.spacecom.mil/LRP/TOC.htm.
22. Oberg, op.cit., p. 18.
23. See Section 1.2 (b) of the full article from which this extract is taken.
24. Cheng Bin, op.cit., p. 521.
25. Alves P. G., Building Conficence in Outer Space Activities, Dartmouth Publishers, ISBN 1-85521-630-2.
26. Scheffran J., Moving Beyond Missile Defence: The Search for Alternatives to the Missile Race, Disarmament Diplomacy, March 2001, pp.21-26.
27. See www.inesap.org and www.mbmd.org.
28. Proposals 8-12 are from a Chines Working Paper, CD/1606, 9 February, 2000.
29. Fischer H., Labusch R., Maus E. Scheffran J., Prosposed Treaty on the Limitation of the Military Use of Outer Space, 1984.
30. www.space4peace.org

Further readings:
-	Rengger N., Campbell J., Treaties and Alliances of the World, 6th edition, Catermill International Ltd., London, 1995.
-	Weeramantry C G, The Illegality of Nuclear Weapons: Opinion of Judge C G Weeramantry in: The International Court of Justice Reports, 1996, p. 225, pp. 429-555, Vishva Lehka Printers.
-	Zwaan T. L., (ed.), Space Law: Views of the Future, Kluwer Law and Taxation Publishers, Deventer, 1988.