Disarmament Diplomacy 81

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					DISARMAMENT DIPLOMACY 81
          - CONTENTS –
         AN INTERNATIONAL LAW PERSPECTIVE
         ON COMMON SECURITY IN OUTER SPACE

Detlev Wolter

    The 1967 Outer Space Treaty (OST∗) requires                   These clauses were introduced in outer space law
that the exploration and use of outer space be                at the onset of the space age in 1957 by a joint draft
conducted in the “interest of all states” and for the         UN General Assembly Resolution of the United
“benefit of all mankind”. In view of the looming risk         States, France and Great Britain. These states had a
of the weaponisation of space, the enhancement and            prime security-oriented objective – to ensure that
institutionalisation of this norm have become vitally         outer space be used not only in the security interest
important. Toward this end, agreement on a Treaty             of one or a group of states, but for the benefit of all
on Common Security in Outer Space, explicitly                 states and for humankind as a whole. However, in its
prohibiting the placement of destructive weapons in           concrete interpretation, the peaceful purpose clause
outer space, together with the creation of a                  has become blurred by conflicting interpretations: a
corresponding implementing agency overseeing its              “maximalist” approach, which seeks to prohibit any
faithful enactment, would ensure that outer space             military use of outer space; and a “minimalist”
remains an area of peace and collaboration, and a             school that views the term “peaceful” as referring
common heritage of humankind.                                 solely to the use of direct force in outer space.
    My forthcoming book Common Security in Outer                  This dichotomy can be overcome by interpreting
Space and International Law, published by UNIDIR,             the term “peaceful purpose” in light of both the
explores this issue in detail and argues that, if             mankind clause (based on the principle of the
pursued unilaterally and without the consent of the           common heritage of mankind) and the cooperation
international community, a multilayered missile               principle as applied to the security field, as well as
defence with space-based interceptors would violate           by developing legal standards of peaceful use of
two essential precepts of the Outer Space Treaty –            outer space in the interests of the international
the “peaceful purpose” standard and the “mankind              community as a whole.
clause”.                                                          State practice, including the annual resolutions by
Space and international law                                   the UN General Assembly on preventing an arms
                                                              race in outer space since 1980, bears evidence that
    The legal status of outer space is as a territory         the international community has so far only accepted
beyond national jurisdiction and an internationalised         passive military uses of outer space, through
commons. According to the Outer Space Treaty, this            activities such as reconnaissance, navigation and
requires that its use and exploration have to be in the       communication, for example. There is still
“interest of all states” and “for the benefit of all          widespread rejection of further moves towards active
mankind” [Article I]. Applied to the security field           military uses with destructive effect in the common
this status implies that security in space has to be by       space, which are viewed as transgressing the
definition the “common” or “cooperative security” of          accepted understandings.
all states. The “mankind” clause in Article I and the
                                                                  In its advisory opinion of 1996 on the Legality of
principle of cooperation and due account of the
                                                              the Use or Threat of Use of Nuclear Weapons the
interests of all states in Articles IX and X are the
                                                              International Court of Justice concluded that the
structural elements of the status of outer space as a
                                                              obligation of the nuclear weapons powers to achieve
“common heritage of mankind”. These form the
                                                              complete nuclear disarmament according to Article
legal basis for setting up a regime of
                                                              VI of the Nuclear Non-Proliferation Treaty (NPT) is
“cooperative/common security” in outer space.
                                                              an obligation to conclude, and not only to negotiate,
    In view of the imminent risk of transgressing the         a nuclear disamament and non-proliferation
borderline between the current passive military uses          agreement. The UN General Assembly has expressly
of outer space, largely accepted by the international         stated that the obligations of the NPT apply to outer
community, and the envisaged active military uses             space as well.
with destructive effect i n              outer space
                                                                  The unilateral pursuit of space-based missile
(“weaponisation of space”), the substantive
                                                              defences, with the risk of the weaponisation of space,
procedural and institutional concretisation of the
                                                              would run counter to the disarmament obligations of
mankind clause, the cooperation principle, and the
                                                              the nuclear powers. The Anti-Ballistic Missile
peaceful purpose clause in Articles I and IX has
                                                              (ABM) Treaty that prohibited the development and
become very urgent.
                                                              deployment of space-based ABM systems was a

Disarmament Diplomacy 81                                  2                                             Winter 2005
bilateral concretisation of the multilateral peaceful          for an active nonproliferation policy of the
purpose standard which has effect erga omnes and               international community. The main elements of such
which, after its renunciation, has to be replaced by           a CSO Treaty can be categorised as follows:
new cooperative security arrangements safeguarding             1. Principles of cooperative security in outerspace:
the security interests of the international community            • Transparency and confidence-building;
in the use of outer space for the benefit of all
                                                                 • Defensive force configuration;
humankind.
                                                                 • Nonproliferation and disarmament;
Common Security                                                  • Protection against unauthorised and accidental
    “Common security” is increasingly accepted as                 missile attacks and attacks in violation of non-
the over-riding principle for international security in           proliferation regimes.
the post-Cold War era. In the face of the changing
character of security threats, it is the new strategic         2. Prohibition of active military uses of destructive
imperative. While “common security” – despite                  effect in outer space.
having several foundations in general international            3.   Destruction of existing ASAT systems.
law – cannot yet be regarded as a mandatory legal
principle, the enhanced “common interest”                      4.   Confidence-building measures.
obligations of the Outer Space Treaty render the               5. Protective regime for civil space objects and
pursuit of cooperative/common security in outer                passive military uses of a non-destructive nature in
space a legal obligation in the implementation of the          outer space.
peaceful purpose standard in the use of the common
                                                               6. Implementation, monitoring and verification by
space in the interest of all states and of humankind as
a whole.                                                       an International Satellite Monitoring Agency.
    The Joint US-Russian Declaration adopted at the            7. Codification of further legal standards for the
Summit of May 23-24, 2002 contained undertakings               peaceful uses of outer space.
by both sides to far-reaching cooperation to meet                 Having overcome the East-West confrontation,
common security challenges, in particular with                 the international community should not fall behind
regard to questions related to the national missle             the peaceful purpose standards in the use of outer
defense issue. In effect, both powers – having                 space that were respected by both major space
overcome the Cold War – agreed to embark on a                  powers even at the height of the Cold War. In a
cooperative strategic transition towards common                commendably far-sighted manner, the Outer Space
security. Without such a cooperative approach and              Treaty, with its mankind clause and the peaceful
without an adequate multilateral framework                     purpose standard, laid the foundation for the
safeguarding the security interests of the                     establishment of a regime of common security in
international community with regard to the use of              outer space. It did so in order to prevent the
outer space, the legal principle of the peaceful use of        transgression towards active military uses of
outer space risks loosing its practical relevance as a         destructive effect in outer space and to secure a Pax
limitation of military uses of extraterrestrial space in       cosmica in the common space.
view of de facto developments.
    According to the US National Missile Defense               ∗
                                                                 Unless otherwise stated, articles refer to the 1967 Treaty on
A c t of 1997 the objective of space-based missile             Principles Governing the Activities of States in the Exploration and
                                                               Use of Outer Space, Including the Moon and Other Celestial
defence is to protect against unauthorised nuclear             Bodies.Outer Space Treaty, usually known as the Outer Space Treaty.
attacks and against limited nuclear attacks of so-
called ‘rogue states’. Such an objective could not be
achieved without causing an arms race in space and             Dr Detlev Wolter has been a career diplomat in the German
stimulating nuclear proliferation on Earth, unless it          Foreign Service since 1987. In 2003 became Political
were implemented in the framework of a cooperative             Counsellor at the Permanent Mission of Germany to the
security regime for outer space.                               United Nations in New York. He served as Chair of the Group
                                                               of Interested States in Practical Disarmament from 2004 and
    The adequate concretisation of the peaceful                was Vice-President of the First Committee of the UN General
purpose standard and the mankind clause in the                 Assembly in 2005.
Outer Space Treaty as applied to the security field            This review summarises the arguments from his most recent
would thus be the negotiation of a multilateral                publication, “Common Security in Outer Space and
“Treaty on Common Security in Outer Space” (CSO-               International Law” published by UNIDIR, Geneva in late
Treaty). Such a treaty would lay the groundwork for            2005 [www.unidir.org] The German edition of Common
a “cooperative strategic transition” towards rendering         Security in Outer Space and International Law was awarded
                                                               the prestigious Helmuth James von Moltke Prize by the
nuclear deterrence obsolete, thus replacing “Mutual
                                                               German Society for Military Law and International
Assured Destruction” by “Mutual Assured Security”              Humanitarian Law in 2005.
and adopting “strategic reassurance measures” which
would keep outer space free of weapons and allow


Disarmament Diplomacy 81                                   3                                                       Winter 2005