Books in Review - An International Law Perspective on Common Security in Outer Space

31 December 2005

An International Law Perspective on Common Security in Outer Space

Detlev Wolter

The 1967 Outer Space Treaty (OST*) requires that the exploration and use of outer space be conducted in the "interest of all states" and for the "benefit of all mankind". In view of the looming risk of the weaponisation of space, the enhancement and institutionalisation of this norm have become vitally important. Toward this end, agreement on a Treaty on Common Security in Outer Space, explicitly prohibiting the placement of destructive weapons in outer space, together with the creation of a corresponding implementing agency overseeing its faithful enactment, would ensure that outer space remains an area of peace and collaboration, and a common heritage of humankind.

My forthcoming book Common Security in Outer Space and International Law, published by UNIDIR, explores this issue in detail and argues that, if pursued unilaterally and without the consent of the international community, a multilayered missile defence with space-based interceptors would violate two essential precepts of the Outer Space Treaty - the "peaceful purpose" standard and the "mankind clause".

Space and international law

The legal status of outer space is as a territory beyond national jurisdiction and an internationalised commons. According to the Outer Space Treaty, this requires that its use and exploration have to be in the "interest of all states" and "for the benefit of all mankind" [Article I]. Applied to the security field this status implies that security in space has to be by definition the "common" or "cooperative security" of all states. The "mankind" clause in Article I and the principle of cooperation and due account of the interests of all states in Articles IX and X are the structural elements of the status of outer space as a "common heritage of mankind". These form the legal basis for setting up a regime of "cooperative/common security" in outer space.

In view of the imminent risk of transgressing the borderline between the current passive military uses of outer space, largely accepted by the international community, and the envisaged active military uses with destructive effect in outer space ("weaponisation of space"), the substantive procedural and institutional concretisation of the mankind clause, the cooperation principle, and the peaceful purpose clause in Articles I and IX has become very urgent.

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 a prime security-oriented objective - to ensure that outer space be used not only in the security interest of one or a group of states, but for the benefit of all states and for humankind as a whole. However, in its concrete interpretation, the peaceful purpose clause has become blurred by conflicting interpretations: a "maximalist" approach, which seeks to prohibit any military use of outer space; and a "minimalist" school that views the term "peaceful" as referring solely to the use of direct force in outer space.

This dichotomy can be overcome by interpreting the term "peaceful purpose" in light of both the mankind clause (based on the principle of the common heritage of mankind) 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 by the UN General Assembly on preventing an arms race in outer space since 1980, bears evidence that the international community has so far only accepted passive military uses of outer space, through activities such as reconnaissance, navigation and communication, for example. There is still widespread rejection of further moves towards active military uses with destructive effect in the common space, which are viewed as transgressing the accepted understandings.

In its advisory opinion of 1996 on the Legality of the Use or Threat of Use 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 space-based missile defences, with the risk of the weaponisation of space, would run counter to the disarmament obligations of the nuclear powers. The Anti-Ballistic Missile (ABM) Treaty that prohibited the development and deployment of space-based ABM systems was a bilateral concretisation of the multilateral peaceful purpose standard which has effect erga omnes and which, after its renunciation, 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 humankind.

Common Security

"Common security" is increasingly accepted as the over-riding principle for international security in the post-Cold War era. In the face of the changing character of security threats, it is the new strategic imperative. While "common security" - despite having several foundations in general international law - cannot yet be regarded as a mandatory legal principle, 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 of humankind as a whole.

The Joint US-Russian Declaration adopted at the Summit of May 23-24, 2002 contained undertakings by both sides to far-reaching cooperation to meet common security challenges, in particular with regard to questions related to the national missile defence issue. In effect, both powers - having overcome the Cold War - agreed 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 loosing its practical relevance as a limitation of military uses of extraterrestrial space in view of de facto developments.

According to the US National Missile Defense Act of 1997 the objective of space-based missile defence is to protect against unauthorised nuclear 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 stimulating nuclear proliferation on Earth, unless it were implemented in the framework of a cooperative security regime for outer space.

The adequate concretisation of the peaceful purpose standard and the mankind clause in the Outer Space Treaty as applied to the security field would thus be the negotiation of a multilateral "Treaty on Common Security in Outer Space" (CSO-Treaty). 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" and adopting "strategic reassurance measures" which would keep outer space free of weapons and allow for an active nonproliferation policy of the international community. The main elements of such a CSO Treaty can be categorised as follows:

1. Principles of cooperative security in outer space:

  • Transparency and confidence-building;
  • Defensive force configuration;
  • Nonproliferation and disarmament;
  • Protection against unauthorised and accidental missile attacks and attacks in violation of non-proliferation regimes.

2. Prohibition of active military uses of destructive effect in outer space.

3. Destruction of existing ASAT systems.

4. Confidence-building measures.

5. Protective 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.

7. Codification of further legal standards for the peaceful uses of outer space.

Having overcome the East-West confrontation, 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. In a commendably far-sighted manner, the Outer Space Treaty, with its mankind clause and the peaceful purpose standard, laid the foundation for the establishment of a regime of common security in outer space. It did so in order to prevent the transgression towards active military uses of destructive effect in outer space and to secure a Pax cosmica in the common space.

* Unless otherwise stated, articles refer to the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies.Outer Space Treaty, usually known as the Outer Space Treaty.

This review summarises the main arguments from Dr Detlev Wolter's book "Common Security in Outer Space and International Law", published by UNIDIR, Geneva in late 2005. []. Dr Wolter has been a career diplomat in the German Foreign Service since 1987 and is currently Head of Dvision, EU Policy and Law, State Chancellery Brandenburg. In 2003 Dr Wolter became Political Counsellor at the Permanent Mission of Germany to the United Nations in New York. He served as Chair of the Group of Interested States in Practical Disarmament from 2004 and was Vice-President of the First Committee of the UN General Assembly in 2005. The book and this article express the author's personal views. The German edition of Common Security in Outer Space and International Law was awarded the prestigious Helmuth James von Moltke Prize by the German Society for Military Law and International Humanitarian Law in 2005.