EDITORIAL
SPACE TREATIES: DOCUMENTS OF
TRANSCENDENT PRINCIPLES?

GEORGE  S. ROBINSON

“The earth is the only home that any of us has—so far anyway.”—Isaac Asimov

On January 11, 2001, a mostly bipartisan, congressionally mandated commission, chaired by the about-to-be-appointed Secretary of Defense, issued a report emphasizing that the United States must exercise extraordinary military power in space. The national defense interests of the United States, “more dependent on space than any other nation,” had not been given serious and adequate consideration. The United States was considered an attractive candidate for a “space Pearl Harbor!” The high ground must be secured again. And the Department of Defense is doing just that...with great alacrity and an exorbitant amount of appropriated funds.

True, the military space systems of America and its allies are vulnerable to aggression and terrorist acts, both in orbit and at ground station facilities. But also troubling is that the commission chairman apparently was convinced no blanket international law prohibition exists on placing or using weapons (not categorized as weapons of mass destruction) in space, applying force from space to Earth, or conducting military operations in and through space. This is a somewhat misleading assertion with contentious implications that simply cannot be left unaddressed, or even unchallenged.

Legitimate concerns about national security cannot be allowed to sweep aside important and relevant treaty law and implementing legislation without serious scrutiny. If there truly is any majesty in “the law,” it can be seen not only in the solemnity of the text of the principles embraced, but also in the manifest willingness of authorities and the lay public to recognize and enforce the underlying collective spirit and intent; to support and defend those principles and their “sprit and intent” implications fully and aggressively.

The controlling treaty for how nations intended near and deep space to be explored, occupied, settled, and used peaceably embraced unprecedented principles of international cooperation for the “benefit of all mankind.” The document, known simply as the 1967 Outer Space Treaty, was followed by several more multilateral agreements addressing how we must go into space and use its resources.Unfortunately, the Commission report cast serious doubt on whether the 1967 Outer Space Treaty would continue to serve as a peaceful, yet realistic, beacon of international cooperation in conducting space activities.

But what did the international community really mean when drafting these treaties by referring to the peaceful and cooperative exploration and use of near and deep space...for the benefit of all mankind? The principles set forth in the Outer Space Treaty were relatively transcendent, establishing a peaceful context for the birthing of humankind off Earth. The spirit and intent of the treaty was considered for the most part as every bit as important as the “letter of the law” set forth within its four corners...perhaps even more so.

A decade earlier, President Dwight D. Eisenhower asserted that non-military space exploration was “a sort of doctrine in America.” But he also was assuring— forcefully, yet quietly—that “the highest priority should go of course to space research with a military application.” This pragmatic blurring of a peaceful uses commitment and military policy found its way into the US National Aeronautics and Space Act of 1958, where, despite being hidden amidst the language of “civilian and peaceful uses of space,” it sat like a ticking bomb until facts might make it clear that civilian space efforts may well have to take a back seat...way in the back...to military considerations. And unfettered military considerations could, indeed, lead to establishment of national sovereignty over portions of space, its resources, and other celestial bodies, all prohibited by the 1967 Outer Space Treaty.

President Lyndon Johnson launched the United States into official negotiations regarding the treaty by offering a proposal that would ensure the Moon and other celestial bodies would be explored for peaceful purposes only. “I am convinced,” said President Johnson, “that we should do what we can—not only for our generation, but for the future generations—to see to it that serious political conflicts do not arise as a result of space activities.”

Arthur J. Goldberg, former US ambassador to the United Nations, asserted that the legal principles applicable to outer space were formulated and agreed upon by members of the United Nations in an enlightened fashion “that has no precedent in any previous age of exploration.” It was clear that UN agreements covering space exploration, occupation, settlement, and the use of its resources would not be considered “treaty business as usual.”

Soviet Foreign Affairs Minister Andrei Gromyko expressed the view of the Soviet Union in a letter to the secretary general of the United Nations: “To prohibit the use of the Moon and other celestial bodies for military purposes would be a major step [toward complete disarmament]...and would be calculated to ensure peace on Earth and the security of peoples.” Paul Warnke, former director of the US Arms Control and Disarmament Agency, emphasized that we “...could have war in space within a decade unless we devise a treaty that will stop it.” And these are but a handful of the official statements over the past few decades reflecting the intent and hopes of world leaders when they embarked upon negotiations for how all nations would go into and use outer space.

Admittedly, there appears to be no way currently that we can separate the need for a strong free world militarizing of space from the broader problems of international terrorism and military confrontations with what have been called “rogue” nations. Nevertheless, a precipitous, headlong rush toward an unquestioned and pervasive militarizing of near and deep space for “defensive” purposes, but with pre-emptive capabilities, could easily lead to an open and civilian use of space being relegated to a long-term backseat position; particularly if constant and effective public scrutiny of the military space budget and research and operating plans are not ensured.

At this point, there are no sustained, realistic, and effective efforts that give reason to believe the 1967 Outer Space Treaty, and space law generally...the mirror reflecting the values and objectives we thought we were pursuing in space...will in fact serve ultimately as a sanctuary from any hostile military activities, as well as from prevailing international political, juridical, and theological cynicism. Representative Dennis Kucinich (D-Ohio) introduced the Space Preservation Act of 2002 (H.R. 3616) that would authorize the President to start negotiations toward adopting and implementing “an international treaty banning space-based weapons and the use of weapons to destroy or damage objects in space that are in orbit.” A draft Space Preservation Treaty is waiting in the wings, and would serve as a viable alternative to a draft Russia-China treaty that would permit research, development, manufacturing, and production of space-based weapons (and likely deployment) under the assertion that it allows only research and testing of these weapons...a kind of “just in case” posture that belies the spirit and intent of the existing space treaties.

These draft space preservation treaties ultimately may lead to some reasonable, but limited, constraints on the deployment of space-based weapons. But if we do not defend at every opportunity the cooperative and peaceful uses for the benefit of mankind principles, as well as their inherent nobility and spirit characterizing the will of all peoples to embark cooperatively and peaceably on this unique evolutionary venture involving human cultural redirection, then certainly space as the common heritage of mankind truly will be no more than a collaterally damaged principle that points the way to Star Wars. The space treaty beacon, seemingly so quickly disfranchised by the Commission, will have flickered irretrievably for the simple lack of committed and effective tending.

While it is necessary to secure from attack the Free World’s space-related defense interests, and to recognize that many of the ancillary legal and policy issues are still very debatable, it is critical that we not allow the militarizing of space to become an unchallenged end in itself. Lawful military use of space has a role...an essential role...in national and global security, as well as in the space component of humankind’s biocultural evolution. But it is not an unbridled role! Space is not just the military high ground. Civilian migration to, as well as use and settlement of, near and deep space are critical aspects of humankind evolution...and, perhaps, its very survival.

George S. Robinson, Editor

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