Space Wars and The Demilitarization Of Outer Space

We are talking the possibility of space wars, but we do not have any idea what outer space is.  Perhaps this issue has been held in abeyance for diplomatic convenience.  But the fact remains we just don’t know what we are talking about.  Perhaps that is why the world is in a mess.  And perhaps Oscar Wilde was right?

 by Dr. Ruwantissa Abeyratne

Nothing that matters is of the slightest consequence ~  Oscar Wilde

( January 28, 2017, Montreal, Sri Lanka Guardian) In a recent interview, Madeline Albright, former Secretary of State said: “the world is a mess”.  Ms. Albright was mostly referring to the chaos around the world – from the Middle East to terrorism and hinted that unlike during the cold war where a nuclear war was a possibility there was only that to worry about.  However, with untrammelled connectivity and technological advancement many countries have nuclear capability. Mikhail Gorbachev, former President of the Soviet Union has warned that a new arms race means “the nuclear threat once again seems real…and it “looks as if the world is preparing for war” and called upon Presidents Trump and Putin to champion a resolution at the UN Security Council to guard against a nuclear conflict.  Scientists have warned against “accidental, unauthorised, or inadvertent nuclear exchange between the United States and Russia”, and expressed fear and concern that two countries have 800 warheads (over 90% of the world’s nuclear arsenal) on high alert, ready to launch.  President elect Trump (as he then was) had tweeted in December last year: “the United States must greatly strengthen and expand its nuclear capability until such time as the world comes to its senses regarding nukes”.

On the other side of the world is North Korea which is sending all sorts of signals.  Thae Yong Ho, a former minister at the North Korean Embassy in London who defected in August 2016, has said in an interview that if President Kim Jong Un is threatened in any way, he could launch missiles with nuclear warheads destined for the United States and other strategic places.  Right now, the world couldn’t be scarier.

Should there be a war on a global scale, there could be little doubt that nuclear missiles would be used.  These are self-guided missiles that could travel through air space or outer space on a suborbital trajectory (not to mention the possibility of the launch of nuclear missiles from outer space).  Inter-continental ballistic missiles have long range capabilities to travel around the world. The scariest part is the militarization of outer space that has led to much controversy.

We have come far from the 1957 Russian launch of the Sputnik which first orbited the Earth.  Now we have New Space – a movement composed of several themes: disruptive technology, entrepreneurship; privately held companies; individual access to and settlement of space and exploitation of space reserves. 

One of the key discussions leading toward international cooperation in outer space activities is the prevention of weaponization of outer space, on which numerous agreements were entered into in the 1960s and 1970s, the most prominent of which are the Partial Test Ban Treaty and the Outer Space Treaty.  The story goes as far back as 20 November 1959, where the United Nations General Assembly, by Resolution 1378 (XIV)  called upon Governments to make every effort to achieve a constructive solution of the problem of general and complete disarmament, and expressed the hope that measures leading towards the goal of general and complete disarmament under effective international control would be worked out in detail and agreed upon in the shortest possible time, Arguably one of the most significant pronouncements on the issue was in United Nations General Assembly Resolution 52/37 which reaffirmed that the legal regime applicable to outer space by itself does not guarantee the prevention of an arms race in outer space.

Fundamental to international cooperation in the exploration of outer space is demilitarization.  This is based on the basic premise that it is the will of States that the exploration and use of outer space, including the Moon and other celestial bodies, shall be for peaceful purposes and shall be carried out for the benefit and in the interest of all countries, irrespective of their degree of economic or scientific development and Article 2 of  he United Nations Charter that States must refrain from using threat and force against other States.  In Resolution 52/37 of December 1997, The United Nations General Assembly reaffirmed the importance and urgency of preventing an arms race in outer space, and the readiness of all States to contribute to that common objective, in conformity with the provisions of the Outer Space Treaty and called upon States, in particular  those with major space capabilities, to contribute actively to the objective of the peaceful use of outer space and of the prevention of an arms race in outer space and to refrain from actions contrary to that objective and to the relevant existing treaties in the interest of maintaining international peace and security and promoting international cooperation.

In December 2001 The General Assembly adopted Resolution 56/23 wherein the General Assembly emphasized the paramount importance of strict compliance with existing arms limitation and disarmament agreements relevant to outer space, including bilateral agreements, and with the existing legal regime concerning the use of outer space, and noted that wide participation in the legal regime applicable to outer space could contribute to enhancing its effectiveness.  There were earlier Resolutions which conveyed the same message, as well as later Resolutions on the same subject of prevention of an arms race in outer space.

In December 2014, the General Assembly adopted Resolution 69/85 where the Assembly noted  inter alia that the Assembly was deeply convinced of the common interest of all humankind in promoting and expanding the exploration and use of outer space, as the province of all humankind, for peaceful purposes and in continuing efforts to extend to all States the benefits derived therefrom, and also of the importance of international cooperation in that field, for which the United Nations should continue to provide a focal point.  The Assembly expressed its serious concern   about the devastating impact of disasters, and sated stated that it was desirous of enhancing international coordination and cooperation at the global level in disaster management and emergency response through greater access to and use of space based services and geospatial information for all countries and facilitating capacity building and institutional strengthening for disaster management, in particular in developing countries.

The above discussion reflects a gradual but steady progress of the United Nations toward ensuring international cooperation in the peaceful uses of outer space.  Notwithstanding this emphasis on various diplomatic efforts at gathering the key players with a view to encouraging them to share technology, techniques and research on outer space activities to the benefit of all humankind equitably, and the sporadic focus on the importance of developing the norms of space law, there has been restraint on addressing the semantics of delimitation of outer space.  In early 2013 The Committee on the Peaceful Uses of Outer Space of the United Nations prepared a paper on States responses to one of three questions asked of them, on whether their governments had given consideration to the possibility of defining a lower limit of outer space and/or upper limit of airspace, recognizing at the same time the possibility of enacting special international legislation relating to a mission carried out by an object in both airspace and outer space.  The reason for this is obvious; there is no clear agreement, since the launch of Sputnik in 1957, 60 years on, as to what constitutes airspace and at what point in altitude outer space starts.

As the foregoing discussion reflects, this has not been for want of work by the United Nations.  The sheer contentious nature of the subject has only led to argumentation and, as some have termed it, a comedy of errors.

We are talking the possibility of space wars, but we do not have any idea what outer space is.  Perhaps this issue has been held in abeyance for diplomatic convenience.  But the fact remains we just don’t know what we are talking about.  Perhaps that is why the world is in a mess.  And perhaps Oscar Wilde was right?

The author is former Senior Legal Officer at the International Civil Aviation Organization.  Having published over 30 books and 400 journal articles on aerospace law during his aviation career which spans 35 years, he now runs his own consultancy firm in Montreal.  His book Regulation of Commercial Space Transport: The Astrocizing of ICAO published by Springer in 2014 discusses in depth some   issues raised in this article .



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