Canada is again a serious player on space security. One case in point is a thoughtful paper submitted to the Conference on Disarmament in Geneva last June (CD/1865, “Working Paper on the Merits of Certain Draft Transparency and Confidence-Building Measures and Treaty Proposals for Space Security”).
This Working Paper begins with a reminder of how closely the Outer Space Treaty’s terms were foreshadowed in the prior Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, which was adopted by the United Nations on December 13, 1963. The inference here is clear: When domestic and international politics are not conducive to ambitious treaty making, focusing on guiding principles as well as transparency and confidence-building measures constitutes a sound diplomatic strategy. Multiple use space technologies, such as BMD programs that could have ASAT applications, are also not conducive at present to treaty making.
So how might the international community best update core principles and norms of space security? The European Union has tabled a draft Code of Conduct for responsible space-faring nations which could serve, with subsequent inputs from other nations, as a basis for updated principles and norms. Over time, norms that become customary practices could evolve into more formal arrangements.
One critical element of the EU draft is a provision of “no harmful interference.” This principle is not new – it can be found in the Outer Space Treaty itself, and in a succession of strategic arms control and reduction treaties, including the recently completed New Start accord. Under these agreements, signatories are obligated not to interfere with satellites used to monitor compliance with treaty provisions.
Norms for space matter because many nations know how to interfere with satellites. Restraint or interference can become contagious, whether during peacetime, crises, or the conduct of warfare. It is in the U.S. national security to affirm the norm of no purposeful, harmful interference due to America’s heavy reliance on space. Because of the contagious, pernicious effects of interference, other major space-faring nations might also see the wisdom of affirming this norm.
Not all states abide by international norms, confirming their outlier status. For example, Iran and Libya have interfered with satellites broadcasting information to which they objected. A Code of Conduct could help clarify malpractices and facilitate remedial action, when warranted. But what, exactly, does “no harmful interference” mean in a contemporary context? And how does this injunction relate to “space weapons” that are hard to define and confirm? If an international norm of no purposeful, harmful interference is to be strengthened, is it better to delve into particulars, or not?
The Canadian paper asks a very tough but inescapable question: “Should the world’s first space-based weapon be granted safe passage or freedom from harmful interference in outer space?” If the answer to this question is “no,” as the Canadian paper implies, then it is either OK to interfere with presumptive space weapons (including, perhaps, by extreme measures) or, as Ottawa prefers, countries can negotiate a ban on space-based weapons. But whether or not a ban on space weapons could somehow materialize, how would the international community know whether a space-based weapon is orbiting overhead? By inspecting launch payloads? Doubtful. By widely sharing highly sensitive intelligence information? Also doubtful. The treaty Ottawa seems to endorse won’t eliminate the problem it has highlighted, nor the available means to interfere, damage or destroy satellites. So whether or not a treaty or a Code of Conduct is in place, Ottawa’s question still pertains: Should an object in space that may be a weapon be granted a free ride?
One answer to this question is that some norms that apply during peace time do not apply during war. Another way to deal with this dilemma is by means of deterrence and threats that leave something to chance. Major space-faring nations are quite capable of interfering, damaging and destroying satellites, so deterrence could apply in space as well as on terra firma. Another way to address Ottawa’s question is by including a “supreme national interests” or “right of self defense” clause in a Code of Conduct that could override the general principle of no purposeful, harmful interference with space objects. Other suggestions are hereby solicited.