International Law حقوق بین الملل

Common Security in Outer Space and International Law:  A European Perspective

Detlev Wolter*

Europe and Common Security

Europe has enjoyed an unprecedented level of rapprochement, cooperation and common security since the end of World War Two.  This is due to the lesson learned that overall security requires the willingness to put the common objective of mutual, cooperative security above the particular security interests of States.  From this common understanding, the avenue was wide open for European integration and the gradual convergence of trade, economic, and social as well as increasingly of foreign and defence policies.  A common European Foreign and Defence Policy is taking shape.  It is today unthinkable that Member States of the European Union would ever raise their arms against each other.  Europe has been able to project its successful model of common security to a broader context as well.  In the Organization for Security and Cooperation in Europe (OSCE), the weaving of a close web of political, economic, rule of law and human rights cooperation in the three baskets helped to overcome the East-West ideological and security divide. On this stable ground and in the interest of pursuing common security in the OSCE, the challenges of ensuring peaceful independence of the Baltic States and of including former Eastern bloc States into NATO and the European Union were successfully tackled.  The European Union is now increasingly active as a global player in support of effective multilateralism, respect for international law, conflict prevention and civilian conflict management.  

European perspectives on space security are thus deeply engrained in the successful experience of common security.  European space activities are devoted exclusively to peaceful purposes.  The Statute of the European Space Agency (Article II) stipulates:

… [The] purpose of the Agency shall be to provide for and promote, for exclusively peaceful purposes, cooperation among European States in space research and technology and their space applications, with a view to their being used for scientific purposes and for operational space applications systems….

European military uses of outer space are thus strictly limited to purely passive military uses of a non-destructive nature, such as those of surveillance, reconnaissance, and communication satellites.  No European nation is engaged in active military space uses of a destructive nature.  All European states support the annual Resolution of the United Nations General Assembly on the Prevention of an Arms Race in Outer Space.  Given its growing economic, political and security interests in preserving outer space as an exclusively peaceful domain, Europe should undertake more vigorous efforts to develop its own independent space surveillance capabilities which could then be shared in a global surveillance mechanism under the auspices of the United Nations.

Europe is now called upon to define its interest in the strictly peaceful use of outer space and the prevention of the weaponization of outer space on the basis of its increasing economic, commercial and security interests in space.  When it comes to establishing the future space security system, the European Union should offer its success story of pursuing common security in the interest of the international community.  The European model of space security should focus on enhancing those cooperative elements for a space order that make it attractive for every space-faring nation.  These elements should be elaborated, drafted and implemented in close cooperation with the other leading space nations.  The main tenets of such a space security order should encompass in particular a comprehensive immunity system for civilian and military satellites of a non-destructive capacity, a code of conduct, “rules of the road,” and traffic rules as well as regulations to avoid and manage space debris.  Such a comprehensive common space security order would protect the security, economic and commercial space interests of the entire space community, and in addition ensure the peaceful use of the global commons in the interest and for the benefit of all mankind.

The Basis for a Space Security Order

The legal, political and conceptual basis of such a system of common security for outer space draws on the 1967 Outer Space Treaty as the “magna carta” of space law, the 1982 “Common Security” report of the Palme Commission, and the state practice and various draft treaty proposals on space security submitted in the Conference on Disarmament in Geneva.[i]

Outer space as a common territory beyond national jurisdiction is a “global commons” par excellence.  Security must therefore be common, cooperative security, based on the rule of law and respect for international space law in the interest of all states and mankind as a whole. 

The legal status of outer space as determined in the Outer Space Treaty (OST) of 1967 requires that the use and exploration of space have to be in the “interest of all states” and “for the benefit of all mankind” (Article I OST).  And thus emerges an implication, indeed an obligation, of all states to embrace “common” or “cooperative security” as the only option for truly guaranteeing the peaceful use of space.  Such a cooperative regime finds its legal basis established in the mankind clause in Article I of the OST and the principle of cooperation and due account of the interests of all states in Articles IX and X of the OST, which are the principal elements attributing the status of outer space as a “common heritage of mankind.”

However, in view of the risks of transgressing the line between the current passive military uses of space and the envisaged active military uses of a destructive nature in outer space (“weaponization of space”), the substantive and procedural institutionalisation of the mankind clause, the cooperation principle and the peaceful purpose clause as expressed in Articles I and IX of the OST becomes increasingly pressing.

These clauses were introduced in outer space law at the onset of the space age in 1957 by a joint draft UN General Assembly Resolution of the United States, France and Great Britain.  These states had the same prime objective as the international community as a whole - to ensure that outer space would not be monopolized by the security interests of one or a group of states but rather be used for the benefit of all states and for mankind as a whole.  The peaceful purpose standard as well as the mankind-clause were then codified in the 1967 Outer Space Treaty.  However, a controversy still continuing until today arose over the interpretation of the peaceful-purpose clause.  The unproductive dichotomy when interpreting the peaceful purpose clause either through the “maximalist” school, according to which any military use of outer space is prohibited, or the "minimalist" approach, viewing the term "peaceful" as only a confirmation of the prohibition of the use of force in outer space, needs to be overcome.  The solution lies in interpreting the term "peaceful purpose" in light of both the mankind clause of the common heritage of mankind principle and the cooperation principle as applied to the security field, as well as by developing legal standards of peaceful use of outer space in the interests of the international community as a whole.

State practice, including the annual resolutions since 1981 by the UN General Assembly on preventing an arms race in outer space, bears evidence that the international community has so far only accepted passive military uses of outer space by reconnaissance, navigation and communication satellites but rejects the unilateral transgression towards active military uses with destructive effects in the common space.  Steps to deploy a multi-layered missile defence with space-based interceptors would violate the peaceful purpose standard and the mankind clause if pursued unilaterally and without the consent of the international community.  The objective of Missile Defence which, according to the U.S. National Missile Defense Act of 1997, is to protect against unauthorized nuclear attacks and against limited nuclear attacks of so-called “rogue states,” can be achieved without deployment of space-based weapons systems.  Indeed, if pursued in the framework of a cooperative security regime for outer space, an arms race in space that would further stimulate nuclear proliferation on Earth can be prevented.

In its advisory opinion of 1996 on the Legality of Nuclear Weapons, the International Court of Justice concluded that the obligation of the nuclear weapons powers to achieve complete nuclear disarmament according to Article VI of the Nuclear Non-Proliferation Treaty (NPT) is an obligation to conclude, and not only to negotiate, a nuclear disarmament and non-proliferation agreement.  The UN General Assembly has expressly stated that the obligations of the NPT apply to outer space as well.  The unilateral pursuit of a space-based missile defence, with the risk of the weaponization of space, would run counter to the disarmament obligations of the nuclear powers.  The bilateral Anti-Ballistic Missile (ABM) Treaty that prohibits the development and deployment of space-based ABM systems implemented the multilateral peaceful purpose standard which has effect erga omnes. Therefore, after its renunciation, the ABM Treaty has to be replaced by new cooperative security arrangements safeguarding the security interests of the international community in the use of outer space for the benefit of all mankind.

Seeking Common Security

In the face of the changing character of security threats, “common security” is the new strategic imperative of the post-Cold War era.  Even though general international law contains on several accounts the foundation for “common security,” it cannot yet be regarded as a mandatory legal principle.  However, the enhanced “common interest” obligations of the Outer Space Treaty render the pursuit of cooperative/common security in outer space a legal obligation in the implementation of the peaceful purpose standard in the use of the common space in the interest of all states and mankind as a whole.  The Joint U.S.-Russian Declaration adopted at the American-Russian summit on May 23-24, 2002, according to which both sides agreed to a far-reaching cooperation to meet common security challenges, in particular with regard to questions related to the national missile defence issue, opens the prospect that the former rivalling powers are willing to embark on a cooperative strategic transition towards common security.  Without such a cooperative approach and without an adequate multilateral framework safeguarding the security interests of the international community with regard to the use of outer space, the legal principle of the peaceful use of outer space risks losing its practical relevance as a limitation of military uses of extraterrestrial space and would become obsolete in view of developments de facto.

The negotiation of a multilateral “Treaty on Common Security in Outer Space” (CSO Treaty) would be an appropriate way to implement the peaceful purpose standard and the mankind clause as manifested in the Outer Space Treaty.  In addition, such a treaty would lay the groundwork for a cooperative strategic transition towards rendering nuclear deterrence obsolete, thus replacing “Mutual Assured Destruction” by “Mutual Assured Security.”  Further adoption of “strategic reassurance measures,” as stipulated in such a treaty, would keep outer space free of weapons and allow for an active non-proliferation policy of the international community.

The main elements of such a CSO Treaty can be categorized as follows:

1.        Principles of cooperative security in outer space:

·        Transparency and confidence-building;

·        Defensive force configuration;

·        Non-proliferation and disarmament;

·        Protection against unauthorized and accidental missile attacks and attacks in violation of non-proliferation regimes;

2.         Prohibition of active military uses of a

destructive effect in outer space;

3.      Destruction of existing ASAT systems;

4.      Confidence-building measures;

5.      Protective immunity regime for civil space

objects and passive military uses of a 

non-destructive nature in outer space;

6.      Implementation: monitoring and verification

by an International Satellite Monitoring

Agency; and

7.      Codification of further legal standards of

peaceful use of outer space.

The international community should not fall behind the peaceful purpose standards in the use of outer space that were respected by both major space powers even at the height of the Cold War era. The Outer Space Treaty, with its mankind clause and the peaceful purpose standard, has in a far-sighted manner laid the foundation for the establishment of a regime of common security in outer space in order to prevent the transgression towards active military uses of a destructive nature in outer space and to secure a peaceful future in the common space.

Building on its 50 years of successful experience in common security, Europe should take an initiative to present a proposal for a cooperative space security order that will be the basis for a “pax cosmica” in the interest of mankind as a whole. The 50^th anniversary in 2007 of mankind’s first endeavour in space, and the fortieth anniversary of the far-sighted Outer Space Treaty governing man’s activity in space, would be an appropriate moment to launch such an initiative.

* The author expresses his personal views.

Notes

[i] For more detail see Detlev Wolter, “Common Security in Outer Space and International Law,” (Geneva: United Nations, UNIDIR/2005/29, 2006); id., “Grundlagen ‘Gemeinsamer Sicherheit’ im Weltraum nach universellem Völkerrecht,” (Berlin: Duncker & Humblot, 2003).