Bulletin of the Atomic Scientists: Alternatives to a Space Weapons Treaty

by Chris Borgen

The Bulletin of the Atomic Scientists has a provocative essay by Brian Weeden critiquing the idea that the U.S. should sign on to a treaty banning the weaponization of space.  The author’s point is not so much that he thinks there should be unregulated military use of space, but rather whether a treaty is the best way to go about addressing the policy issues. Ultimately, this essay provides an interesting case study in using “hard law” versus “soft law” in pursuit of a foreign policy goal.

One concern he has is the impasse over defining what is or is not a space “weapon”:

For example, some within the space arms control community applauded the introduction by Russia and China in February 2008 of a draft treaty to the Conference on Disarmament that purports to ban space weapons. But that treaty only addresses objects that are in orbit. It doesn’t cover ground-based antisatellite weapons. Thus, if implemented, the treaty would prohibit any space-based missile defense interceptors–an essential part of the U.S. missile defense system–while allowing for the continued research and development of Russian and Chinese antisatellite missiles. This leads to the impression that the goal of the proposed treaty is to hamstring the U.S. missile defense capability while allowing its potential adversaries to retain their capability to counter U.S. space superiority.

Debate over the definition of a space weapon isn’t new. The Soviet Union once considered the space shuttle to be a space weapon because it could be used to capture, destroy, or inspect satellites. More recently, an argument was put forth that space-based solar power satellites would be a space weapon, because the method of transmitting energy to the ground (whether laser or microwave) could be used to interfere with satellites or objects on the ground, even if it wasn’t powerful enough to destroy them.

Weeden goes on to argue:

Instead of focusing on banning all space weapons, perhaps the goal should be to preserve the long-term sustainability of outer space, so that all of humanity can use it for peaceful purposes and socioeconomic benefits. If that’s the case, then there are a multitude of international efforts and mechanisms to achieve such a goal that already have strong international support.

International law focuses on two concepts: (1) finding areas of common interest between states; and (2) states consenting to be bound under a legal regime on those common areas. Any international treaty or other mechanism dealing with space security issues needs to be focused on these two principles.

Due to definitional and other difficulties, Weeden favors finding non-treaty alternatives. In particular, he  suggests that focusing not so much on weapons but rather on developing principles that would allow for the unimpeded and safe use of space. I’ll leave it to his essay to explain in greater depth the possible codes of conduct, principles, etc. that could be implemented to allow for best practices for spacecraft operations and information sharing to prevent satellite collisions and avoid other hazards.  This is rather a different approach than banning weapons in space. But, he writes,

These three developments not only break the current international deadlock on a new space security regime, they also provide the two fundamental requirements for a legally binding treaty–definitions and verification. Along the way, they also would serve to increase the safety of space activities and serve as confidence-building measures between states. All of this taken together will greatly decrease the chances of armed conflict in Earth orbit, as more and more states realize the dangers involved and the benefits from peace and cooperation.

While some may see these initiatives individually as falling short of a treaty banning space weapons, together they will accomplish many of the same goals in a more practical and effective manner, and they may lay the foundations for an eventual treaty should the international community still need one.

I found this post especially interesting as a way to think through the comparative advantages and disadvantages of using a “hard law” or a “soft law” approach to problem solving.  While I think Weeden’s suggestions of soft law approaches are useful, and are worthy of pursuit, I am not convinced that they should be pursued first, instead of a space weapons treaty (should we decide that a large-scale ban is a foreign policy goal).

http://opiniojuris.org/2009/04/29/bulletin-of-the-atomic-scientists-alternatives-to-a-space-weapons-treaty/

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