Kevin Cresswell discusses the need for a broader definition to WMD and robust Laws of Armed Conflict for Space.
“Some People will not want to hear this … But – Absolutely- we’re going to fight in space”
U.S. Space Command Commander-in-Chief General Joseph W. Ashy, 1996.
The shift in the nature of space exploration: from government-directed to public-private consortiums, is igniting a developed space economy, estimated to be worth in excess of $3 Trillion in the next 25 years. There is no question that with the deployment of spy satellites and weapons testing, Low Earth Orbit is becoming militarized.
There is no current, explicit prohibition on ‘militarizing’ space, except the banning of weapons of mass destruction and specifically that the use of the Moon and other celestial bodies should be for exclusively peaceful purposes. That is detailed in the ineffectual Moon treaty, signed by 16 countries, but not ratified by the three states that are involved in human spaceflight. Therefore, it has little relevancy in international law.
Outer space is everything in excess of 100 km above the Earth’s surface. It is the new stage for the theater of technological show of force. In foreign policy terms here on Earth, “weapons of mass destruction” (WMD), is a term used to encompass nuclear, chemical, and biological weapons, with radiological weapons remaining hypothetical for the time being. The legal community internationally uses this conventional definition of WMD, despite being no treaty law authoritative definition of WMD.
The current legality of nuclear weapons under international law remains a matter for debate. The 1996 Advisory Opinion by the International Court of Justice (ICJ) on the legality of the threat or use of nuclear weapons raised as many questions as it answered – effectively no blanket prohibition currently exists. As exploration expands, this definition will need to broaden its scope to include new threats.
NASA is currently planning a new habitation platform to orbit the Moon, designed as a forward operating base and jump off platform for future planned extraterrestrial exploration. It will serve as a solar powered logistics hub, COMCEN, field laboratory, and barracks for government employed astronauts as well as a ‘MT’ section holding area for rovers and other robots.
Other space weapons under development include Chemical Lasers, Particle Beams and Space Planes for military application. Widely discussed is a constellation of laser systems being developed for either space-based or ground-based weapons. All three are a type of chemical laser that involves the mixing of chemicals inside the weapon to create a laser beam. This would have the potential for a credible air and ballistic defense system for the United States. Of course, in the wrong hands or with technology theft, such a system could quickly become offensive. While a space-based laser system is still about 20 years from being realized, there are three lasers being considered for it, including hydrogen fluoride (HF), deuterium fluoride (DF) and chemical oxygen iodine (COIL).
New micro-organisms in a sterile space environment will multiply and thrive, and cosmic radiation may also help them to mutate faster. Four strains of bacteria, three of which were previously unknown to science, have been found on the space station in recent years. In interstellar space, with extreme temperatures and densities, ‘noble gases’ can act differently than they do on Earth.
As the CBRN threat grows on Earth, this has produced a need for improvements to modeling, detection, and monitoring of these events on the Earth but not yet at outer space.
There are no dedicated satellites for CBRN purposes, yet a wide range of possibilities for satellite data to contribute to this field, from atmospheric composition and chemical detection to cloud cover and land mapping. Within the next decade, satellites should begin to provide valuable augmentations to CBRN event detection and monitoring.
Outer space is of such vital importance for both military and civilian functions that it is important to lay the framework for international space law now, otherwise, the lessons from the genesis of the Internet in the early 1960’s – which led to its accelerated and rapid commercialization and adoption of browsers and the World Wide Web with little mandate – will be lost. With a lack of regulation in place, it is only now that governments everywhere are attempting to retake control of the internet, and therefore the law of space in terms of WMD needs drafting now to avoid a post event crisis.
The Outer Space Treaty was considered by the Legal Subcommittee of the United Nations in 1966 and an agreement was reached in the General Assembly in the same year. Three depository nations – the Russian Federation, the United Kingdom and the United States of America – signed it into force in October 1967. This Treaty provides the basic framework for current international space law.
Article III states that international law, including weapons law, applies in outer space. Article IV requires no State party should place nuclear or mass destruction weapons in Earth’s orbit, not to install such weapons on celestial bodies and not to station them in outer space. Testing any weapons on celestial bodies is also forbidden. This does not prohibit the use of conventional space weapons that have a nuclear power source; the deployment of conventional weapons in outer space; or nuclear or mass destruction weapons entering outer space as part of the trajectory of an inter-continental ballistic missile. An object carrying a WMD traversing outer space is not prohibited by the present state of the law.
Any State that is acquiring a space weapon must conduct a legal review of that weapon to determine whether the principles and rules of weapons law prohibit the use of that weapon or restrict its circumstances of lawful use. The authors clearly did not envisage the ability and scope of commercial enterprise in the future as the articles apply only to states and there is no agreed procedure for review and no obligation to share it with the public.
“An object carrying a WMD traversing outer space is not prohibited by the present state of the Outer Space Treaty“
The 1963 Partial Test Ban Treaty prohibits the conducting of “any nuclear weapon test explosion, or any other nuclear explosion” in “the atmosphere, beyond its limits, including outer space”.
Imagine a hypothetical scenario wherein nuclear weapons would have to be used to avert an apocalyptic meteor headed for the Earth. Would we have universal consensus to effectively manage this? What if a state or sponsored commercial entity, used outer space to develop new disease-causing biological agents, to kill or incapacitate humans, animals, or plants as an act of war on earth?
In the words of General Ashy: “We’re going to fight from space and we’re going to fight into space…. We will engage terrestrial targets someday—ships, airplanes, land targets—from space.”
We need an all-encompassing Space law of Armed Conflict to govern this. It is difficult to imagine a realistic incidence where a state would ever choose to resort to using nuclear weapons in space at all, but anything is a possibility and rogue states implementing such a plan cannot be excluded. There is little doubt that such use here in an Earth-based nuclear war would not only be environmentally devastating but, once the threshold of tit for tat is crossed neither side will comprehend how to stop a catastrophic event and civilization on Earth. New laws of Armed Conflict for Space are necessary to prevent such an apocalypse.
About the Author
Kevin Cresswell has over 40 years law enforcement, military, intelligence and commercial business development experience in the defense and security sector. He is a dual national of the UK and US and a global consultant based in Los Angeles, California.
