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. The WTO got and aggression, we need to look at halt the damage. its start in 1945 after World War II in the interests to be protected and find As noted earlier, however, beyond an attempt to reduce the tariffs and na- a means of enforcing those interests massively destructive technologies, the tionalist/protectionist practices that had rather than the means chosen to assault best approach to controlling the weap- permeated the international community those interests. onization of space is by regulating and since the Great Depression.17 WTO func- According to John Pike, “The profes- punishing behavior. The Outer Space tions include: sion of arms remains the old art of killing Treaty initiated this approach by mak- facilitating negotiations between people and breaking their things.”11 A ing states liable for damage caused by •• nations for development and man with a hammer can smash the neigh- an object launched.12 This concept was enhancement of international bor’s property or injure the neighbor’s further developed in the Convention agreements family. In our society, there are civil pen- on International Liability for Damage implementing and monitoring alties to compensate the injured person Caused by Space. According to that •• through ensuring visibility, compli- and criminal sanctions to protect society treaty, the “term ‘damage’ means loss of ance with regulations, and periodic as a whole, including taking away the life, personal injury or other impairment reviews of policies and practices criminal’s freedom. With the commons of of health; or loss of or damage to property settling disputes as well as interpret- space, there is currently no international of States or of persons, natural or juridical, •• ing terms and responsibilities of “police force” armed with a means to or property of international intergovern- agreements enforce. Similarly, like the argument over mental organizations.”13 This treaty does building capacity, that is, assisting gun control, if we outlaw all guns, only well at laying out liabilities for signing •• developing countries with technol- criminals will have guns and the rest will states: they are absolutely liable for dam- ogy, disputes, establishing standards, be helpless against them. It is therefore age caused on the surface of the Earth and increasing their opportunities in impossible to protect vital concerns over or to aircraft, and liable for other dam- the industry.18 defense and security by defining and age only if due to fault. However, it also regulating against a “weapon” in space. exonerates a party if the damage is due to A similar international organization Instead we need to define and protect the “gross negligence or from an act or omis- with expertise and credibility in outer interests to be achieved and the behavior sion done with intent to cause damage on space issues could serve a similar role and that is considered unacceptable. the part of a claimant State or of natural go a long way toward helping regulate Once interests and behaviors are or juridical persons it represents.”14 This the behavior of states and nonstate actors defined, there must be a mechanism to provision presumably addresses defensive in space. The most logical organization identify who is responsible when poor actions taken to counter aggression.15 to take on this mission is the UN, with a behavior is observed, and a tribunal or While there may be differing opinions standing committee under the Convention adjudicator to provide professionalism, as to whether the specific language is on Disarmament, driven by the legal
112 Features / The Weaponization of Space JFQ 74, 3rd Quarter 2014 Countries that signed and ratified Outer Space Treaty as of January 1, 2013, are indicated in green, countries that only signed in yellow, and those that did not sign in grey
subcommittee of the UN Committee on member from each state and a mutually countries are reliant on world trade to Peaceful Uses of Outer Space. As noted by agreed chairman. It is noted, however, support their economies, and as much of Frans von der Dunk, expert and professor that a state can withdraw from the treaty the space arena is morphing into com- of space law at the University of Nebraska, with a year’s notice under Article XXVIII. mercial and commercial-like transactions, “Despite its shortcomings, [the United This claims adjudication system is the WTO would be a familiar forum for Nations] still presents us with the only similar to a binding arbitration approach. imposing measurable economic trade more or less global organization having The weakness in this system is enforce- sanctions to punish the liable state, and considerable experience in such issues.”19 ment. Currently, a state might refuse in part would compensate the damaged The UN Committee on the Peaceful to recognize any claim or engage in the state.21 Enforcement under these condi- Uses of Outer Space has 69 members, UN claims adjudication process. Even tions is not reliant on voluntary payment, and all UN nations can join. However, if a state agrees to adjudicate a claim for but the sum can be extracted by the their authorities and responsibilities would damages, forcing it to pay still rests in international community. As in all stand- need to be bolstered and resourced, and diplomatic channels. The more chal- ing tribunals, precedent would provide a more concrete means of enforcement lenging or expensive the issue, the less clarity of what is considered a violation would need to be in place. Over time, the likely it is that a state will be willing to and what the likely consequences would capabilities, credibility, and effectiveness of diplomatically agree to payment and will be for offending actions. Intentional the UN committee would grow, similar to use politics and arguments of unrelated offenses can have a “punitive damages” the WTO. inequities to justify its nonpayment. approach to increase the economic im- The Convention on International Under such circumstances, the fear of pact to the offending states. Additionally, Liability already provides a basic frame- retribution for irresponsible or aggressive as expertise and experience grow, the work for filing and adjudicating claims for actions in space is undermined and thus costs for even large egregious actions damages caused by objects launched into is less likely to create conforming state such as the 2007 China antisatellite mis- space. Under Articles IX and XI, states behavior.20 sile test debris field might be calculated can file a claim either with the launch- It is for this reason, and the fact and placed as an economic threat to any ing state or the Secretary-General of the that damages are paid by economic and nation contemplating such action. United Nations, or they can use the court monetary means, that a solution might system of the alleged offending state. be to invoke the enforcement power of Conclusion Under Articles XIV and XV, if diplomacy the WTO as a last resort forum if valid Nations have gone a long way to does not settle the claim, states can mutu- adjudicated claims go unpaid and diplo- identify and deter the weaponization ally establish a claims commission with a matic avenues fail. As all space-capable of space. In short, the concerns over
JFQ 74, 3rd Quarter 2014 DeFrieze 113 Astronaut conducts space walk weaponization involve the potentially Current international agreements do of the World Trade Organization to destructive nature of space weapons. not offer an enforceable means of address and collect on unresolved adju- It is impossible to define what consti- addressing claims for destructive activ- dicated state liabilities. JFQ tutes a space weapon, and controlling ity, for while there is a forum for adju- an arms race based on definitions of dication, participation and enforcement what constitutes a weapon is doomed continue to rely heavily on diplomacy. Notes to failure with the exception of those A standing committee is needed to 1 weapons clearly posing a substantial provide a credible, knowledgeable, The discussion of weaponization of space and the reasons for individual state objections risk to humanity, such as nuclear and and equitable forum for regulating, to defining and limiting weapons in space are other weapons of mass destruction. For monitoring, and adjudicating claims and limited in this article because security and all other concerns, we should attempt disputes relating to the damage caused political intent are not publicly discussed and to regulate and control the destructive by objects launched into space, whether can only be addressed through speculation. behavior of nations rather than attempt- they are designed for destruction or As Nancy Gallagher and John D. Steinbruner state, “Because the leading edge of technical ac- ing to limit their technology. It is how not. A logical place for this commit- complishment is obscured by security classifica- they use their technology that matters. tee would be the United Nations. As tion, even the most detached public assessment We will never completely prevent coun- current deterrence and enforcement of is subject to some uncertainty.” See Nancy tries from engaging in war. However, adjudicated claims currently rest solely Gallagher and John D. Steinbruner, Reconsider- we can bolster peaceful dispute meth- in diplomatic, or in extreme cases mili- ing the Rules for Space Security (Cambridge, MA: American Academy of Arts and Sciences, odologies to prevent escalation of such tary, channels, a third option is needed 2008), 33. conflicts and provide deterrence against such as using the current economic 2 Treaty on Principles Governing the Activi- aggressive or irresponsible behavior. deterrence and enforcement capability ties of States in the Exploration and Use of
114 Features / The Weaponization of Space JFQ 74, 3rd Quarter 2014 Outer Space, Including the Moon and Other Celestial Bodies,” opened for signature January 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205, available at
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