Defining and Regulating the Weaponization of Space
Total Page：16
File Type：pdf, Size：1020Kb
International Space Station viewed over Earth’s horizon (NASA) Defining and Regulating the Weaponization of Space By David C. DeFrieze The creative conquest of space will serve as a wonderful substitute for war. —JAMES SMITH MCDONNELL Founder, McDonnell Aircraft Corporation pace is a contested, congested, commercial purposes. Accordingly, the cooperation. Since the beginnings of and competitive domain. Each weaponization of space has increasingly humanity’s venture into space, the S year the international commu- become an issue of concern. Space is international community has made nity relies ever more on space-based an international common and is thus attempts to define and regulate the technology for defense, civil, and easier to protect through international placement and use of weapons there, but with only limited success. This article discusses the international David C. DeFrieze is an Attorney for the U.S. Army Contracting Command, Aberdeen Proving interest in controlling the weaponization Ground, Maryland. of space and prior attempts to define and 110 Features / The Weaponization of Space JFQ 74, 3rd Quarter 2014 regulate it.1 It then offers an approach to international discussions. Finally, orderly of Force against Outer Space Objects better achieve the international coopera- regulation of space weaponization can (PPWT). This proposal attempted to tion needed to meet global concerns over help avoid a costly and potentially dev- define and prohibit the proliferation of space weapons. astating arms race. Space, after all, is a weapons in space and provided defini- congested and contested domain. If we tions of prohibited weapons. The PPWT Increasing Reliance on Space do not establish order there, the struggle defines a weapon in outer space as “any The international community has a for availability of limited assets may ren- device placed in outer space, based on any great interest in maintaining space as der it a cause for Earth-bound conflicts. physical principle, which has been spe- a peaceful arena and a secure place to For these and other reasons, the interna- cially produced or converted to destroy, conduct international activity. This has tional community has been attempting to damage or disrupt the normal function- been recognized in treaties and policy regulate the use of space, and specifically ing of objects in outer space, on the statements involving almost all countries to define and regulate the weaponization Earth or in the Earth’s atmosphere, or with an interest in space. The Treaty of space. to eliminate a population or components on Principles Governing the Activities of the biosphere which are important of States in the Exploration and Use Treaties and Proposals to human existence or inflict damage of Outer Space, including the Moon The Outer Space Treaty. In 1966, on them.”7 The United States rejected and Other Celestial Bodies (the Outer efforts began in the United Nations the PPWT in 2008, but both China and Space Treaty) sets forth as its opening (UN) to establish an agreement to Russia continue to propose this treaty.8 statement, “The exploration and use of regulate activity in space resulting in UN Resolution. The Prevention of outer space, including the Moon and the Outer Space Treaty being signed in an Arms Race in Outer Space (PAROS) other celestial bodies, shall be carried 1967. Relevant provisions included the is a UN resolution seeking a ban on the out for the benefit and in the interests overarching interest stated in Article weaponization of space. It was origi- of all countries, irrespective of their I that the use of outer space shall be nally proposed in the 1980s from an ad degree of economic or scientific devel- for the benefit and use of all countries; hoc committee of the Conference on opment, and shall be the province of Article III that activities shall be carried Disarmament. The proposal was rein- all mankind.”2 Such interest in peaceful out in accordance with international troduced in recent years and is voted on uses of space is understandable; it is a law; Article IV that no nuclear weapons annually, with the United States being fragile environment. Physics dictates or weapons of mass destruction shall the only country to oppose it.9 that satellite orbits and space launches be placed in orbit around the Earth European Union Policy Proposal. In are easy to observe and understand. or placed on any celestial body; and 2008 the European Union proposed a Like sand castles, spacecraft are difficult Articles VI and VII that responsibility “Space Code of Conduct,” a voluntary to build but easy to destroy. Yet much and liability shall be placed for damage set of rules regarding matters such as of the world increasingly relies on space caused by an object launched or by its space debris and operation of crafts or for such peaceful purposes as communi- components on Earth.3 This treaty laid satellites in space. It was rejected by most cations (cell phones, satellite television the foundation for international coop- significant space nations including the and radio, banking transactions), trans- eration and further treaties between United States, China, Russia, and India.10 portation (GPS and air traffic control), states.4 However, the ban on weapons The international community has environmental management, observa- in space was limited to nuclear and rejected all three of these proposals in one tions relating to resources, weather other weapons of mass destruction as form or another. Specific reasons are dif- analysis and predictions, climate change, these types of weapons were of most ficult to assess since security and political surveillance of natural disasters, and concern during the Cold War era when issues cloud the true intent. However, it minimally invasive verification of inter- the treaty was created.5 This treaty only is conjectured that concerns lie in the un- national treaties. Furthermore, com- addressed weapons that were “placed known aspects of space and the desire of mercial industry currently has a greater in orbit” or on a celestial body, and countries not to unduly limit themselves presence in space than state actors, and liability was not clearly spelled out. A on future access, especially considering global economic development is tied to relevant treaty addressing liabilities for emerging technologies and defensive the peaceful space capabilities identified. damages caused in space is the Con- needs. Specific definitions of what physical The peaceful side of military power is vention on International Liability for properties or specific functions an object also reliant on space. Self-defense against Damage Caused by Space Objects.6 in outer space contains would be too military buildup, invasion, or missile Chinese and Russian Proposal. specific considering all the potential tech- attack is enhanced by surveillance from In February 2008, China and Russia nological developments that might arise. space. Such visibility of aggressive military jointly submitted to the UN Conference actions can serve as a deterrent against on Disarmament a draft Treaty on Problems aggression by providing targeted nations Prevention of the Placement of Weapons If the international community were time to react and verify their concerns in in Outer Space and of the Threat or Use to rely solely on the definition of JFQ 74, 3rd Quarter 2014 DeFrieze 111 “weapon” as set forth in the Chinese credibility, and equity to disputes relating adequate to address all concerns, these and Russian proposal, other means to responsibility. Finally, there must be two treaties alone provide a foundation of destruction could still be used. We a means of enforcement; if there is no for allocating responsibility and liability cannot outlaw hammers because they consequence once responsibility for viola- for unnecessary aggression and improper could be used as a blunt instrument to tions is fixed, the behavior of states will behavior in space. What is currently lack- kill, nor can we prevent killing by out- not be molded to foster the cooperation ing is a means to monitor, adjudicate, and lawing only items exclusively designed and protections desired. enforce these responsibilities. to kill because those bent on killing will Regulating Interests and Behaviors. Monitoring, Adjudication, and still have hammers. We must therefore The attempts to outlaw certain types Enforcement. According to a distin- outlaw the killing and attempts to kill. of technology in space are not without guished speaker on a space law panel, Similarly, we cannot punish only the value. As identified earlier, the original “International disputes on space matters possession of articles designed to kill Outer Space Treaty forbids the placement have most often been settled through others as people with hammers could of nuclear weapons and weapons of mass diplomatic channels rather than by court still commit the offense. It is widely rec- destruction in space. Like certain U.S. decisions. Therefore, judicially deter- ognized that any definition of what con- gun control laws, the reasonableness of mined resolutions to many matters of stitutes a weapon in outer space must these prohibitions lies in balancing the space law have yet to be developed.”16 be driven in terms of what the object is potential damage with the peaceful pur- While such international matters are used to do (that is, its instrumentality) poses these objects can cause. While an certainly difficult and complicated, the rather than its physical properties. This argument can be made that these objects ability to monitor and adjudicate viola- makes common sense as one could not are placed in space for “deterrence or tions is not without precedent. The define a weapon on Earth by physical defense,” any aggressive use would create World Trade Organization (WTO) cur- properties or what specific functions it massive destruction or loss of life, and rently serves similar functions relating is capable of. When discussing weapons there would be no time to mitigate or to international trade.