Abandoning Treaties: Is the Outer Space Treaty Next?
Treaties are being abandoned or violated at an unprecedented rate. Not since the 1930s prelude to World War II have treaty obligations between and among nation-states so alarmingly unraveled. Is the 1967 Outer Space Treaty—the foundation of international space law—next to be dismantled?
October 17, 2019 at 12:00 PM
4 minute read
Treaties are being abandoned or violated at an unprecedented rate. Not since the 1930s prelude to World War II have treaty obligations between and among nation-states so alarmingly unraveled.
Britain's Brexit speaks history.
Russia, four to five years ago, began violating the 1987 Intermediate-Range Nuclear Force Treaty by testing a new cruise missile, which it has now deployed. The United States has followed suit, testing a new missile and withdrawing from the Treaty.
China, a party to the 1994 Convention on the Law of the Sea, has violated its terms by building islands in the South China Sea, militarizing them and claiming the surrounding waters as territorial. Then China refused to abide by a UN tribunal that ruled in 2016 that it had no legal basis for such territorial claims.
The Philippines and several African countries have recently withdrawn or moved to withdraw from the International Criminal Court.
The United States on June 1, 2017 announced it would withdraw from the Paris Climate Treaty. (Pursuant to Treaty provision, Nov. 4, 2020 is the earliest official withdrawal date, which the U.S. has said it will formally respect.) In 2018, the U.S. withdrew from the Iran nuclear agreement negotiated by the five permanent members of the UN Security Council plus Germany and the European Union.
Is the 1967 Outer Space Treaty—the foundation of international space law—next to be dismantled? The Treaty's main provision, Article IV, prohibits: (1) placing, installing, or stationing in orbit around the earth or on any celestial body a nuclear weapon or any weapon of mass destruction (presumably chemical and biological weapons); (2) establishing a military base, installation or fortification on a celestial body; and (3) conducting any military maneuvers, including "testing of any type of weapons" on a celestial body.
The Treaty has 109 parties, including all declared nuclear weapon countries, the five UN Security Council permanent members, India, Pakistan, North Korea, plus Israel.
The Treaty is short, having nine preamble statements and 17 substantive articles, yet it stresses—by repeating seven times—that space is to be used for "peaceful purposes". As such, the spirit of the Treaty engenders an inclusive interpretation prohibiting all weapons, not just those of mass destruction, in outer space.
Here is the issue: On Aug. 29, 2019, President Trump officially reestablished the U.S. Space Command. (The Command was originally created in 1985 to coordinate the use of outer space by the U.S. military, but it became a low priority item when the 9/11 attack shifted focus to homeland security and counter-terrorism.) Its stated mission is to "deter aggression and conflict, defend U.S. and allied freedom of action, (and) deliver space combat power." Satellites of course are essential for both military and civilian communications, that is, for both security and the economy.
The president warned, "our adversaries are weaponizing Earth's orbits." In fact, the United States, Russia and China can each threaten the others' satellites and will increasingly be able to do so as each is making advances in new ground-to-ground and space-to-space weapons. (India has recently tested a ground-to-ground anti-satellite missile, making it the fourth country to do so.)
What to do? The United States and Russia have not had meaningful arms control discussions in more than six years. The United States, Russia and China have never had such discussions. Reaffirming the Outer Space Treaty making it clear that space is exclusively for peaceful pursuit is in everyone's interest. The United States should welcome ideological and economic competition with Russia and China. Unregulated weapons competition is, on the other hand, self-destructive.
David Lenefsky practices law in Manhattan. He was formerly Project Director for Arms Control at the United Nations Association-USA.
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