McGILL LAW JOURNAL
REVUE DE DROIT DE McGILL
Volume 26
Montreal
1981
No. 2
Disarmament Decade, Outer Space and International Law
Ivan A. Vlasic*
I. A century of the arms race
The origin of the modem arms race has been traced to the
Franco-Prussian war of 1870, when the French army of professionals,
equipped with inferior iron guns, succumbed to the Prussian con-
scripts and the Krupp field guns made of steel.’ In the aftermath
several nations decided to introduce conscription and to provide
their forces with new weapons. The inevitable result was a large
increase in the size of national armed forces and rapid growth of
the armaments industry. As Noel-Baker notes, between 1875 and
1914 “no industry in the world grew so fast as the production of
arms, and no other investment held such glittering prospect of
quick and large returns.12 To make future wars more “humane”,
rather than to restrict competition in arms growth, the Hague
Peace Conferences of 1899 and 1907 sought to regulate the use of
some instruments of violence and to outlaw new weapons such as
toxic gases and expanding bullets.3 Of course, this modest attempt
to introduce a measure of restraint in the production of arms
failed to prevent the outbreak of World War I or to mitigate its
destructiveness. The war encouraged immense growth in the arma-
ments industry and led to the deployment of new weapons, such as
* Professor of Law, McGill University. This article states the matter as of
November 1, 1980.
‘Noel-Baker, “We Have Been Here Before”, in Calder, Unless Peace Comes
(1968), 215, 219. Lord Noel-Baker was awarded the Nobel Prize for Peace
in 1959.
2 Ibid.
3 For a summary of the achievements of the Hague Conferences, see
McDougal & Feliciano, Law and Minimum World Public Order (1961), 617-24.
McGILL LAW JOURNAL
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tanks, submarines, and aircraft, and to great technological improve-
ments in all instruments of Violence. Some eleven million deaths
and the incalculable destruction caused by this conflict resulted
in a renewal of efforts to reduce armaments and even to outlaw war
as a means of settling international disputes. Unfortunately, they
the creation of the League of Nations, 4 the
were ineffectual:
Kellogg-Briand Pact of 1928 (through which all the major powers
renounced war as an instrument of national policy), the Geneva
Disarmament Conference of 1932 (which gave birth to the idea of
“general and complete disarmament”), and the various arms-limita-
tion agreements concluded in direct response to the carnage (e.g.,
the unratified .Washington Naval Agreement of 1922) all proved
incapable of preventing the arms race which culminated in the
Second World War.
Ignoring the demands of public opinion, the leading powers of
the time showed little enthusiasm for stopping the arms race, much
less for beginning effective disarmament. The appalling losses borne
in the Great War, and the solemn pledges to disarm, were forgotten
and forsaken in the pursuit of “national security”. Yet, for more
than a decade after the Armistice of 1918, there was no immediate
threat to the victors’ security:
The German, Austro-Hungarian and Turkish Empires had been broken
up; Russia was no menace –
she was left prostrate by war, revolution,
civil war, famine and disease; but the victorious Allies went on with
competitive warlike preparations –
against each other. The numbers of
their men under arms, and their military budgets reckoned at 1914 prices,
never fell below the level they had reached in 1914, at the climax of the
pre-war competition. They went on “improving”
the quality of their
arms.5
The arms race was clearly gaining a self-propelling momentum, and
those who advocated its cessation or questioned its wisdom were
usually rebuffed with a reminder that potential adversaries were
arming faster. A contemporary observer reported that “[i]f budget
appropriations were ever questioned in the British Parliament,
Ministers (of all parties) … answered by saying that France and
the United States were spending more; the French and United States
legislators accepted similar replies as final.”
4 Art. 8 of the Covenant of the League of Nations explicitly acknowledged
that “the maintenance of peace requires the reduction of national armaments
to the lowest point consistent with national safety and the enforcement by
common action of international obligations.”
5 Noel-Baker, The Arms Race: A Programme for World Disarmament
(1958), 43-4.
6 Ibid., 44.
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DISARMAMENT AND INTERNATIONAL LAW
With growing great-power rivalry, it was only a question of
time before another major conflict would erupt. During the Second
World War, in less than six years of conflict, some fifty million
lives were lost and many areas of Europe and Asia lay in ruins, as
new and more efficient methods of killing and destruction were em-
ployed by the combatants. Finally, on August 6, 1945, a weapon of un-
precedented power, the atomic bomb, was detonated over Hiroshi-
ma. It was soon to be known as the “ultimate” weapon which could
destroy civilization.
General revulsion against a second carnage within a single
generation gave new impetus to aspirations for a system of world
order in which armaments would be limited and the use of force
strictly controlled.’ Disarmament became one of the principal aims
of the United Nations, in accordance with the Preamble of the
Charter which proclaims the determination of member states to save
succeeding generations from the scourge of war. According to article
1 (1) of the Charter, the first objective of the organization is “to
maintain international peace and security, and to that end: to take
effective collective measures for the prevention and removal of
threats to the peace.” Under articles 11, 26 and 47, the Charter en-
trusts particular responsibilities for disarmament to the General
Assembly and the Security Council.
The very first resolution of the General Assembly, adopted on
January 24, 1946,8 dealt with the question of disarmament and,
specifically, with the urgent need to eliminate atomic weapons and
all other weapons of mass destruction from national armouries. At
the same session, the General Assembly recognized in Resolution
41[I] the central role of disarmament in the maintenance of world
peace and security.9 In
the same year, before any progress on
arms limitation could be achieved, the great ideological confronta-
tion between the communist and the western powers had begun. One
of its first casualties was the so-called “Baruch Plan”, the American
7President Roosevelt and Prime Minister Churchill included among the
principles of the Atlantic Charter (signed Aug. 14, 1941) the employment of
“measures which will lighten for peaceloving peoples the crushing burden
of armaments.” For the full text of the Charter, see Whiteman, Digest of
International Law (1965), Vol. 5, 18-9.
8 U.N. Doc. A/64, Res. 1[I] (1946). The resolution established a “Commission
to deal with the problems raised by the discovery of atomic energy” and
charged it to make specific proposals, inter alia, “for control of atomic
energy to the extent necessary to ensure its use only for peaceful purposes”
and “for the elimination from national armaments of atomic weapons and
of all other major weapons adaptable to mass destruction.”
9U.N. Doc. A/64/Add.1, Res. 41[I] (1946), adopted on Dec. 14, 1946.
McGILL LAW JOURNAL
[Vol. 26
proposal for placing all of the world’s atomic resources, including
atomic weapons, under the ownership or control of an international
authority.10 Soon the Cold War was in full swing, stimulated by a
virtually unrestricted arms race and spiralling defence budgets.
The universal fear of nuclear weapons and of their prolifera-
tion, reflected in the stream of resolutions from the General Assem-
bly, was responsible for generating enough public pressure to force
the governments of major powers to continue, however hesitantly,
bilateral and multilateral negotiations for the limitation of arms.
In the late 1950’s and early 1960’s, during a frenetic cycle in arms
growth which was highlighted by numerous tests of large nuclear
weapons and rockets for their delivery, the United States and the
Soviet Union found it desirable to exchange comprehensive pro-
posals for a treaty on “general and complete disarmament”.11 En-
couraged by these symbolic gestures, the General Assembly, in Re-
solution 1378 (XIV), unanimously adopted on November 20, 1959,
expressed the hope that measures leading towards the goal of
general and complete disarmament under effective international
control would be worked out and agreed upon in the shortest
possible time . 2 Two decades later, and after the expenditure of
at least 3.5 trillion dollars on armaments, the prospects of agree-
ment in the foreseeable future on general and complete disarma-
ment are extremely unpromising. While General Assembly resolu-
tions are passed annually to remind governments of this ultimate
objective, major powers have long since abandoned this goal and
have preferred to negotiate specific and partial measures of arms
control. The shift in objectives is apparent in the substitution of
the term “disarmament” by terms such as “arms control” and
“arms limitation”1 3
10 U.S. Arms Control and Disarmament Agency, Arms Control and Disarma-
ment Agreements: Texts and History of Negotiations (1977), 4-5. See also
United Nations, The United Nations and Disarmament 1945-1970 (1970), 12-24.
11 Ibid., 78-101. An excellent account of various proposals made between
1945 and 1960 appears in Bechhoefer, Postwar Negotiations for Arms Control
(1961). For comparative text of the U.S. and Soviet “comprehensive” disar-
mament plans as they stood in Feb., 1964, before being discarded, see
Gotlieb, Disarmament and International Law (1965), 174-96.
2 U.N. Doc. A/Res./1378 (XIV).
13 According to a short definition offered by Hedley Bull, arms control
is “restraint internationally exercised upon armaments policy, whether in
respect of the level of armaments, their character, deployment or use”
(The Control of the Arms Race, 2d ed. (1965), vii). In a study prepared by
two early advocates of arms control,
the term has been explained as
follows: “[a]ll the forms of military cooperation between potential enemies
in the interest of reducing the likelihood of war, its scope and violence if it
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DISARMAMENT AND INTERNATIONAL LAW
Within the framework of bilateral Soviet-American “Strategic
Arms Limitation Talks” (SALT),14 limited success has been achiev-
ed in curbing the arms race in the area of major strategic weapons.
However, many disarmament experts are of the opinion that the
partial arms-control measures pursued by the major powers have
actually helped to escalate the arms competition in new direc-
tions.15 It is difficult not to agree with this assessment when one
(1977) 2 The United Nations Disarmament Yearbook, 79-94;
occurs, and the political and economic costs of being prepared for it. The
essential feature of arms control is the recognition of the common interest,
of the possibility of reciprocation and cooperation between potential enemies
with respect to their military establishments [:] … arms control may cost
more not less. It may by some” criteria seem to involve more armament not
less” (Shelling & Halperin, Strategy and Arms Control (1961), 2). The con-
cept of “disarmament”, on the other hand, covers any or all of the following
measures: a reduction of military manpower, weapons of war (e.g., aircraft,
tanks, submarines, ballistic missiles), aggregate explosive power, military
budgets, elimination of a particular weapon
(e.g., biological [ and toxin
agents), and so forth. Disarmament may be unilateral or multilateral; general
or regional; comprehensive or partial; controlled or uncontrolled. See Bull,
supra.
14 For a survey of the negotiating history and the scope of SALT I and
SALT II, see
(1976) 1 The United Nations Disarmament Yearbook, 148-
58;
(1978) 3
The United Nations Disarmament Yearbook, 185-96. A comprehensive ac-
count of the negotiations leading to SALT I and an examination of the
treaty and related accords appears in Willrich & Rhinelander, SALT:’ The
Moscow Agreements and Beyond (1974). For a compelling analysis of post-
World War II disarmament efforts, see Myrdal, The Game of Disarmament:
How the United States and Russia Run the Arms Race (1977).
‘5 See, e.g., Barnaby, World Arsenals in 1978 35 Bull. Atom. Scientists
(Sept., 1979), 18; Jensen, Two Years After Vladivostok –
Is SALT Worth Its
Salt? Int’l Perspectives (Jan.-Feb., 1977), 17. See also Declaration on the
Nuclear Arms Race, signed in Dec. 1977 by 12,700 American scientists, en-
gineers and other professionals (text in 34 Bull. Atom. Scientists (March,
1978), 8); Kistiakowsky, The Good and the Bad of Nuclear Arms Control
Negotiations 35 Bull. Atom. Scientists (May, 1979), 7. Dr Herbert F. York,
formerly a high U.S. defence official and currently U.S. representative to the
Comprehensive Test Ban negotiations, makes a pertinent point in reference
to the effect on the arms race of the Limited Nuclear Test Ban Treaty of
1963. While the Treaty did stop harmful fallout, he notes, it failed to end
testing: “In fact, the rate of testing has actually increased. The partial
nuclear test ban has thus tirned out to be not a disarmament measure, but
the first environmental control measure. Worse, by eliminating fallout it
eliminated public interest in the subject. Fallout produced a wide-spread
concern in the arms race and created for a brief time a substantial consti-
tuency vitally interested in one element of arms control. By eliminating
fallout, we eliminated this constituency. By continuing and even expanding
testing we have undercut any moral or political arguments we might make
against testing by others.” In Dr York’s view, unless a certain measure
McGILL LAW JOURNAL
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contrasts the number of arms-control agreements concluded to date
with the diversity, quantity and sophistication of current strategic
and conventional armaments.
A catalogue of the more significant agreements in the field of
armaments includes: 16
Multilateral Agreements
1. The Antarctic Treaty (1959), prohibiting any measures of a
military nature in the Antarctic;
2. The Treaty Banning Nuclear Weapon Tests in the Atmosphere,
in Outer Space and Under Water (1963);
3. The Treaty on Principles Governing the Activities of States
in the Exploration and Use of Outer Space, Including the
Moon and Other Celestial Bodies (1967) [hereinafter Outer
Space Treaty], banning the stationing in outer space of
nuclear or any other weapons of mass destruction;
4. The Treaty for the Prohibition of Nuclear Weapons in Latin
America (1967);
5. The Treaty on the Non-Proliferation of Nuclear Weapons
(1968);
6. The Treaty on the Prohibition of the Emplacement of Nuclear
Weapons and Other Weapons of Mass Destruction on the
Sea-bed and the Ocean Floor and in the Sub-soil Thereof
(1971);
7. The Convention on the Prohibition of the Development, Pro-
duction and Stockpiling of Bacteriological (Biological) and
Toxin Weapons and on Their Destruction (1972);
8. The Convention on the Prohibition of Military or Any Other
Hostile Use of Environmental Modification Techniques
(1977);
Bilateral Agreements between the U.S. and the U.S.S.R.
1. The Agreement on Measures to Reduce the Risk of Outbreak
of Nuclear War Between the U.S.A. and the U.S.S.R. (1971),
providing for immediate notification should a risk of nuclear
war arise from detection of unidentified objects on early
warning systems, or from any accidental, unauthorized, or
of arms control is followed by another, aimed at reversing the momentum
of arms competition, the gains will be minimal, or matters can even be made
worse (“A Little Arms Control Can be a Dangerous Thing” in Beitz &
Herman, Peace and War (1973), 257, 262-3).
16 For the texts of these agreements, see Arms Control and Disarmament
Agreements, supra, note 10.
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DISARMAMENT AND INTERNATIONAL LAW
other unexplained incident involving the possible detonation
of a nuclear weapon;
2. The Treaty Between the U.S.A. and the U.S.S.R. on the
Limitation of Anti-Ballistic Missile Systems (1972);
3. The Interim Agreement Between the U.S.A. and the U.S.S.R.
on Certain Measures With Respect to the Limitation of
Strategic Offensive Arms (1972);
4. The Agreement Between the U.S.A. and the U.S.S.R. on the
Prevention of Nuclear War (1973), providing for urgent con-
sultations between the parties should they find themselves
in a nuclear confrontation;
5. The Treaty Between the U.S.A. and the U.S.S.R. on the
Limitation -of Underground Nuclear Weapons Tests (1974),
prohibiting tests having a yield exceeding 150 kilotons;
6. The Protocol to the Treaty Between the U.S.A. and the
U.S.S.R. on the Limitation of Anti-Ballistic Missile Systems
(1974), restricting each power to one ABM site only.
These multilateral and bilateral agreements are all in force.16a
The most recent addition to this list is The Treaty Between the
U.S.A. and the U.S.S.R. on the Limitation of Strategic Offensive
Arms, signed in Vienna on June 18, 1979 after almost seven years
of negotiations.’ 7 The essential provisions of the Treaty limit each
side to a total of 2,250 strategic-weapon delivery systems of any
kind, including land-based intercontinental ballistic missile (ICBM)
launchers, submarine ballistic missile launchers (SLBM) and heavy
bombers. The overall ceiling permits each side a maximum of 1,320
‘a On Oct. 10, 1980 a United Nations conference held in Geneva adopted
the text of the Convention on Prohibitions or Restrictions on the Use of
Specific Conventional Weapons, with three protocols. In terms of disarma-
ment these instruments add very little, their main purpose being to protect
civilians in time of armed conflict against certain more inhumane methods
of conventional warfare. The Convention and its protocols will be opened
for signature on April 10, 1981. For the text see U.N. Doc. A/Conf. 95/14/Add.
1 (Oct. 10, 1980).
17The text of the SALT II Treaty and Protocol, with related documents,
appears in 79 Dep’t State Bull. (July, 1979), 23 and in (1979) 18 Int’l Leg. Mat.
1112.
In the shadow of SALT, negotiations on the “mutual and balanced force
reduction” (MBFR), an arms-control initiative confined to Europe, began in
Nov., 1973. The declared purpose of these negotiations, conducted between
NATO and Warsaw Pact member states, is to find a way to reduce active
duty air and ground forces on each side of East-West boundaries and thereby
enhance military stability in central Europe. After seven years of talks, no
agreement is in sight. See Mutual and Balanced Force Reduction Talks 79
Dep’t State Bull. (Feb., 1979), 43.
McGILL LAW JOURNAL
[Vol. 26
ICBM’s and SLBM’s with multiple warheads (MIRV’s) and heavy
bombers with cruise missiles; the number of multiple warheads on
missiles is restricted to the number already tested, that is, a maxi-
mum of ten on land-based weapons (the number on the operational
Soviet heavy ICBM) and fourteen on weapons based on submarines
(the number already deployed by the United States).18
Even if approved in its present form by the U.S. Senate, the
SALT II agreement would not accomplish much genuine disarma-
ment. With the exception of 250 ageing strategic missiles which,
under the treaty, the Soviets must dismantle, both sides reserve the
right to continue their programmes of improving national strategic
arsenals. By 1985, when. the Treaty expires, each would have signi-
ficantly increased its destructive capability. As President Carter
said, the SALT II agreement would “permit us and our allies to pur-
sue all the defense programs we believe we may eventually need –
the MX missile; the Trident submarine and missiles; air, ground and
sea-launched cruise missiles; cruise missile carrier aircraft; and a
new penetrating bomber.”‘ 9 It should also be noted that neither the
SALT treaties nor the multilateral arms-control agreements men-
tioned above limit the development and deployment of so-called
conventional weapons. In fact, none of these agreements, much
like those concluded decades before, has led to the abolition of
any weapon which has been considered useful by the military. The
observation made in 1961 by McDougal and Feliciano is still valid:
‘ Useful discussion of the military and political aspects of SALT II ne-
gotiations can be found in Scoville, The SALT Negotiations Scientific Ame-
rican (Aug., 1977), 24; Lodal, SALT II and American Security (1978) 57
Foreign Aff. 245; Kistiakowsky, False Alarm: The Story Behind SALT II,
N.Y. Rev. of Books (March 22, 1979), 33; Trofimenko, SALT II: a Fair Bargain
35 Bull. Atom. Scientists (June, 1979), 30; Mandelbaum, In Defense of SALT
35 Bull. Atom. Scientists (Jan., 1979), 15; Rostow, The Case Against SALT II
Commentary (Feb., 1979), 23; Falk, Surviving SALT II The Nation (Oct. 27,
1979), 391; Pavlov & Karenin, SALT 2 –
Its Content and Importance Int’l
Affairs [Moscow] (Nov., 1979), 25. For the position of U.S. Government, see
the statement by George M. Seignious II, Director of the Arms Control and
Disarmament Agency, Arms Control: An Evaluation of Salt II 79 Dep’t State
Bull. (Oct., 1979), 25.
19Address at the Georgia Institute of Technology (N.Y. Times (Feb. 21,
1979), A-4, col. 5). The future of SALT II is bleak. In response to Soviet
invasion of Afghanistan, President Carter on Jan. 3, 1980 formally requested
the U.S. Senate to delay consideration of the Treaty until he can assess
Soviet actions and intentions: for full text of the President’s request, see 80
Dep’t State Bull. (Feb., 1980), 12. On the prospects to contain U.S.-Soviet
military competition
the light of recent political developments, see
Blechman, Do Negotiated Arms Limitations Have a Future? (1980) 59 Foreign
Aff. 102.
in
1981]
DISARMAMENT AND INTERNATIONAL LAW
Weapons parity may of course in particular situations induce reciprocal
abstinence, but in general only weapons which were militarily ineffective
or inefficient, or which were of marginal or indecisive military value
and obsolete, or which were not deemed vital to the military establish-
ments of one or more great powers, have been successfully prohibited 2 0
In 1969, the continuing and spreading nuclear and conventional
arms race led the Secretary-General of the United Nations to pro-
pose to member states that the 1970’s be dedicated a “Disarmament
Decade” 2 1 The proposal was widely welcomed and the General
Assembly did so declare the Disarmament Decade on December 16,
1969.2 The resolution also recommended that consideration be given
to channelling a substantial part of the resources freed by measures
in the field of disarmament to promoting economic development in
developing countries, and particularly their scientific and technolo-
gical progress. As it happens, the Disarmament Decade was largely
ignored. Indeed, few issues in the past decade have received less
attention or publicity than disarmament. The conspiracy of silence,
interrupted once a year during the ritual passing of another General
Assembly resolution on disarmament, has been almost totally suc-
cessful. Colossal indifference and profound cynicism marked the
attitude of the majority of member states towards both the idea
and the objectives of the Disarmament Decade. The disappointing
results of the Secretary-General’s initiative have been summarized
as follows in the Final Document of the Tenth Special Session of
the General Assembly:
The Disarmament Decade solemnly declared
in 1969 by the United
Nations is coming to an end. Unfortunately, the objectives established on
that occasion by the General Assembly appear to be as far away today
as they were then, or even further because the arms race is not di-
minishing but increasing and outstrips by far the efforts to curb it. While
it is true that some limited agreements have been reached, “effective
measures relating to the cessation of the nuclear arms race at an early
date and to nuclear disarmament” continue to elude man’s grasp. Yet
the implementation of such measures is urgently required. There has not
been any real progress either that might lead to the conclusion of a
treaty on general and complete disarmament under effective international
control. Furthermore, it has not been possible to free any amount,
however modest, of the enormous resources, both material and human,
which are wasted on the unproductive and spiralling arms race and
which should be made available for the purpose of economic and social
development, especially since such a race “places a great burden on
both the developing and the developed countries”. 23
2 0 Law and Minimum World Public Order (1961), 617.
21 (1976) 1 The United Nations Disarmament Yearbook, 15.
22U.N. Doc. A/Res./2602 E (XXIV).
23U.N. Doc. A/Res./S-10/2 (July 13, 1978), 3.
McGILL LAW JOURNAL
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During the Disarmament Decade annual military expenditures
throughout the world more than doubled, reaching the staggering
figure of 434 billion dollars in 1977; in 1980 these expenditures are
expected to exceed 500 billion dollars.24 Moreover, a large and grow-
ing number of developing countries, countries that can least afford
it, have joined the global arms race, thereby complicating the already
difficult process of disarmament negotiations. And although man-
kind has so far avoided a third world war, which by all sensible
estimates would mean the end of civilization, the record of disarma-
ment and non-violent settlement of disputes has been dismal since
1945. More than twenty-five million people have died in 133 “periph-
eral” wars; millions of refugees have been created and whole coun-
tries have been devastated.2 5 The number of nations with nuclear
weapons has grown to six, possibly seven if Israel is included, 2 with
many more able to enter the nuclear “club” within a short period,
should they so decide. Some thirtysix million men are today under
24The estimate for 1980 is from Barnaby, World arsenals in 1980 36 Bull.
Atom. Scientists (Sept., 1980), 9. The amount for 1977 is given in U.S. Arms
Control and Disarmament Agency, World Military Expenditures and Arms
Transfers 1968-1977 (1979), 1. In a statement to Committee I of the U.N.
General Assembly on Oct. 18, 1979, George M. Seignious II, Director of the
U.S. Arms Control & Disarmament Agency, increased the figure to $450
billion per year (80 Dep’t State Bull. (Jan., 1980), 54).
25The Third World countries, excluding China, accounted in 1978 for about
14% of world military spending. Their military budgets have not only
doubled during the 1970’s but have grown faster than the gross national
product. It is estimated that these countries spend three times more on
the military than they eceive in development aid (Barnaby, supra, note 15).
Between 1958 and 1978, Iran alone had spent $36 billion on modem weaponry
(Time (Nov. 27, 1978), 26). See the ekcellent study prepared for the U.N.
Secretary-General, Economic and Social Consequences of the Arms Race and
of Military Expenditures (1978). See also Pierre Elliott Trudeau, Prime
Minister of Canada, address before the ‘Tenth Special Session of the U.N.
General Assembly on Disarmament, May 26, 1978 (Canadian Delegation to
the United Nations, Communiqud (mimeograph)), and Bauer & Ripka, Is This
Peace? 34 Bull. Atom. Scientists (June, 1978), 15.
20 In the spring of 1976, U.S. media reported that, according to the Central
Intelligence Agency’s estimates, Israel had between 10 and 20 nuclear
weapons, each of a 20-kiloton yield, ready for use (N.Y. Times (March 16,
1976), A-1, col. 2; Time (April 12, 1976), 21). There is a growing suspicion that
South Africa, Pakistan, Brazil and Argentina are surreptitiously working on
the development of nuclear weapons (N.Y. Times (Aug. 17, 1979), A-6, col. 3
(Pakistan); N.Y. Times (Oct. 26, 1979), A-i, col. 5 (South Africa); Maclean’s
(Dec. 3, 1979), 34 (Brazil and Argentina)). See also Khalilzad, Pakistan and
the Bomb 36 Bull. Atom. Scientists (Jan., 1980), 11; Newsweek [Int’l Ed.]
(Sept. 15, 1980), 20-5.
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DISARMAMENT AND INTERNATIONAL LAW
arms in regular and para-military forces and another thirty million
civilians in military-related occupations;17 an estimated 500,000 en-
gineers and scientists are working on projects which annually
absorb thirty billion dollars for weapons research and develop-
ment – more than is spent globally for research on energy, health,
education and food combined; 28 and new weapons have been de-
veloped which either threaten the existing precarious strategic
balance (e.g., super-accurate intercontinental missiles with multiple,
independently targetable nuclear warheads, long-range cruise missiles
and a mobile medium-range ballistic missile –
the SS-20), or make
the employment of nuclear weapons in a “limited” war more ac-
(e.g., the neutron battlefield
ceptable and therefore more likely
weapon) .2
As will be documented more fully later, the expanses of outer
space, accessible only since 1957, have also been added to the
arenas of arms competition. Space technology, one of the greatest
achievements of human genius, with immense potential for the
enrichment of all mankind, is increasingly being used for purposes
which at best serve the narrow power interests of a few states to
the detriment of the world community:
[P]otentially the deadliest and costliest arms race in history is rapidly
building momentum. Quietly and relentlessly, the U.S. and the Soviet
Union are rushing to develop sophisticated new weapons that will revo-
27 Robert S. McNamara, former U.S. Secretary of Defence and retiring
President of the World Bank, in a speech at the University of Chicago as
reported in N.Y. Times (May 23, 1979), A-21, col. 3, and N.Y. Times (May
25, 1979), A-29, col. 4.
28 Ibid.
29 See, e.g., Barnaby, supra, note 15, 234; Tsipis, Cruise Missiles, Scientific
American (Feb. 1977), 20; Special Report: The first nuclear war conference
35 Bull. Atom. Scientists (April, 1979), 20, 23; Kistiakowsky, The Folly of the
Neutron Bomb 34 Bull. Atom. Scientists (Sept., 1978), 25. The risks of an all-
out nuclear war have been significantly augmented by the recent adoption
of Presidential Directive 59, which appears to substitute a nuclear war-fight-
the deterrent strategy. The
ing strategy (“countervailing strategy”) for
essence of the new strategy, as described by Secretary of Defence Harold
Brown, is as follow: “it is crucial that the Soviet leadership recognize that
by aggression they would risk not only a general U.S. retaliation on the full
range of targets; they must also understand that if they choose some
intermediate level of escalation, the U.S. could by more limited responses
impose on the Soviets an unacceptably high cost in terms of what the
Soviet leadership values most –
political and military control, military
power both nuclear and conventional, and the industrial capacity to sustain
military operations” (N.Y. Times (Aug. 11, 1980), A-9, col. 1). See also N.Y.
Times (Aug. 13, 1980), A-3, col. 3.
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lutionize the concept of modem warfare and turn outer space into
another armed camp.30
According to Paul C. Warnke, former head of the U.S. Arms Control
and Disarmament Agency, “we could have war in space within a
decade unless we devise a treaty that will stop it.” 31
It was in
these inauspicious circumstances, “alarmed by the
threat to the very survival of mankind posed by … the continuing
arms race”,32 that in May and June, 1978 the General Assembly of
the United Nations met in its special session on disarmament. At-
tended by almost all member nations, many of them represented by
head of state or head of government, the Special Session reviewed
the meagre achievements for the control of the arms race, agreed
that the accumulation of armaments is wasteful and detrimental to
international security, reorganized the U.N. disarmament machinery
and procedures, adopted a “Declaration” and an ambitious “Pro-
gram of Action”, and reaffirmed the determination of the member
states to work for general and complete disarmament. Whether
this latest attempt to end the escalation will be more productive
than previous efforts is at best uncertain. The first session of the
newly established U.N. Disarmament Commission (UNDC), held in
May and June, 1979, revealed neither a sense of urgency nor a
strengthened commitment to the goals of arms reduction in parti-
cipating states. After a month of deliberations, the UNDC agreed on
the text of the “Elements of a Comprehensive Programme of Dis-
armament”, which only slightly expands on the Final Document of
the Special Session.3 4 The meeting failed to achieve any break-
30 The New Military Race in Space Business Week (June 4, 1979), 136. A
comprehensive and well-documented account of the military uses of outer
space appears in Stockholm International Peace Research Institute, Outer
Space – Battlefield of the Future (1978)
[hereinafter cited as SIPRI]. For
a thorough evaluation of the Soviet effort to 1975, see Staff Report prepared
for the use of the Senate Committee on Aero. & Space Sciences, Soviet Space
Programs, 1971-75: Goals and Purposes, Organization, Resource Allocations,
Attitudes toward International Cooperation and Space Law (1976), Vol. 1,
375478 [hereinafter cited as Soviet Space Programs]. For an update, see
Sheldon, The Soviet Space Program in 1979 Air Force Mag. (March, 1980), 88.
31 Business Week, supra, note 30.
32From the preamble of the Final Document of the Tenth Special Session
of the General Assembly, supra, note 23.
33The credibility of the Special Session was not enhanced by the decision
of the leaders of the NATO countries to go directly from the U.N. disarma-
ment conference into a private conclave in Washington where they proceeded
to urge one another to increase their national armaments budgets.
^4 For the full text of the “Elements of a Comprehensive Programme of
Disarmament”, see U.N. Doc. 34 GAOR, Supp. No. 42, Report of the Disarma-
ment Commission (1979), 8.
1981]
DISARMAMENT AND INTERNATIONAL LAW
through on disarmament and even had difficulties in maintaining a
consensus on certain issues agreed upon at the Special Session. Si-
milarly unpromising has been the inaugural meeting of the new
U.N. Committee on Disarmament, created by the 1978 Special
Session as a negotiating forum with limited membership (consisting
of five nuclear-weapon states and thirty-five others).85
In the meantime, the arms race moves relentlessly on. National
defence establishments and the weapons industry continue to enjoy
unprecedented prosperity,” with few governments showing any
serious intention to reverse the trend. Encouraged in part by genuine
concerns for security and increasingly by powerful special interests,
the arms race has become a way of life and a source of livelihood
for millions, as well as a state of mind from which no governing
elite seems capable of liberating itself.
II. The militarization of outer space
Three years after the beginning of the space age, President
Eisenhower warned the U.N. General Assembly that it faced a vital
decision:
Will outer space be preserved for peaceful use and developed for the
benefit of all mankind? Or will it become another focus for the arms
race –
and thus an area of dangerous and sterile competition? The
choice is urgent.3 7
During the intervening two decades, despite Eisenhower’s warning,
outer space has been transformed into a new arena of the global
arms competition. Public inattention to this aspect of the arms
race may be attributed in part to the fact that the full scope of cur-
rent military activities with ramifications for the use of outer space
is uncertain, and to the fact that the true nature of many objects
launched into orbit is often unknown. 8 Reports on launchings,
35 U.N. Doc. 34 GAOR, Supp. No. 27, Report of the Committee on Disarma-
ment (1979).
36The growing influence of the arms lobby and its business methods are
ably analyzed in a well-documented study by Sampson, The Arms Bazaar
(1978). For purposes of comparison, see also Lapp, The Weapons Culture
(1968), demonstrating that the “disarmament decade” has had at best only
minimal impact on the frantic escalation of the arms race.
37Address given Sept. 22, 1960: see Senate Committee on Aero. & Space
Sciences, Statements by Presidents of The United States on International
Cooperation in Space – A Chronology: October 1957 – August 1971, S. Doc.
No. 92-40, 92d Cong., 1st Sess. 16
38″A tendency exists to underrate the degree in which outer space
is
still regarded as a medium for militaristic activities. In an article entitled
‘The Great Competition in Space’ [published in 1972] the writer, Sir Bernard
(1971).
McGILL LAW JOURNAL
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submitted by the Soviet Union and the United States to the U.N.
Secretary-General, remain as uninformative under the Registration
Convention of 197539 as they were under the earlier system of
voluntary reporting established in 1961 by a resolution of the Gen-
eral Assembly. 40 If one were to accept uncritically the cryptic de-
scription of the objectives of each space mission as officially re-
ported by the launching state, it would appear that both countries
use outer space exclusively for non-military purposes. However,
there is a difference in this respect between the two space powers.
While the Soviet Union consistently eschews a public admission
that any of its numerous satellites serve military functions, the
American military effort in space is often discussed by government
officials and is the subject of congressional hearings and com-
mentaries in the media.4 1 Recent Soviet-American negotiations on
anti-satellite weapons illustrate well the Soviet tendency to deny its
Lovell, refers to the unpalatable fact that at least half the space efforts
of the two major Space Powers involved, lies in the military domain”
(Goedhuis, “The Present State of Space Law” in International Law Associa-
tion, The Present State of International Law (1973), 201, 203). According to
a recent study prepared by the Stockholm International Peace Research Insti-
tute, “about 60 per cent of both the US and the Soviet satellites launched
into orbit have been military satellites. Since the space age began, 1386
military satellites are known to have been launched by the end of 1976 –
563 by the USA, 899 by the USSR, 5 by the USA for the United Kingdom, 3
by the USA for France and 5 by France itself, 2 by China and 4 by the
USA for NATO … . Up to the end of 1976, the USA had spent about $30,000
million on its military space activities, about one-third of the total sum spent
on space. The cost of the Soviet military space programme is kept secret,
but the magnitude of the effort is similar to that of the USA” (SIPRI, supra,
note 30, v). The scope of the Soviet defence effort in outer space is explored
at length in Soviet Space Programs, supra, note 30, 375-478.
39 Convention on Registration of Objects Launched into Outer Space, U.N.
Doc. A/Res. 3235 (XXIX), annex, adopted Nov. 12, 1974. The Convention was
opened for signature at New York on Jan. 14, 1975 and entered into force
on Sept. 15, 1976. As of Dec. 1, 1978, the Convention was in force for 23
nations, including all the major powers except China. For the text and list
of parties, see Senate Committee on Commerce, Science & Transportation,
Space Law: Selected Basic Documents, 2d ed. (1978), 71. See also United
Nations, Space Activities and Resources, U.N. Doc-A/AC.105/193, 201 (1977);
Jasentuliyana & Lee, Manual on Space Law (1979), Vol. 2, 23.
40 U.N. Doc. A/Res. 1721 (XVI), of Dec. 20, 1961. For details on reporting
41 “There has always been an element of speculation about Soviet purposes
in space because of their skillful use ‘of information policies to combine
a large flood of information about many aspects of space flight, including
the quick identification of flight names and orbital parameters, and at the
same time they have a policy of tight security and secrecy over the real
purposes of most payloads and minimal information about the technology
practices by the launching states, see text at note 175, infra.
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DISARMAMENT AND INTERNATIONAL LAW
participation in the space arms race. In accepting the American
invitation to discuss a possible ban on such weapons, the Soviet
government refused to acknowledge, at least publicly, its actual or
potential anti-satellite capability.42
Nevertheless, overwheliming evidence reveals that the U.S.S.R.
has been using satellite technology for military purposes almost
since the beginning of the space age.43 The perceived military po-
tential of space technology was clearly reflected in the Soviet pro-
posal to ban the use of outer space for military purposes, sub-
mitted in 1958 for the consideration of the U.N. General Assembly. 44
Indeed, both super-powers have been quick to realize that military
advantages could be obtained from the use of new technology and,
as a result, both have developed impressive arsenals of defence-
oriented space systems in the past twenty years.4 The diverse
existing military uses of outer space are too well known to require
detailed reiteration in this survey.46 It should suffice to mention
of Earth orbital flight” (Soviet Space Programs, supra, note 30, 375).
However, as this Library of Congress study admits,
the United States
“remains at least as reticent as the Soviet Union in refusing to disclose
real details about the central military missions in space, although we ac-
knowledge we are withholding, while the Russians pretend they have no
military space program to withhold” (ibid., 376).
42 See discussion in text at note 72, infra. In accord with this policy of total
denial, the U.S.S.R. never revealed the true nature of its nuclear-powered
satellite, Cosmos-954, which crashed on Canadian territory on Jan. 24, 1978.
The satellite was widely believed to have been engaged in naval reconnaissance
(N.Y. Times (Jan. 25, 1978), A-I, col. 6). After its launching on Sept. 18, 1977,
the function of Cosmos-954 was officially reported by the Soviets as follows:
“carrying scientific apparatus, radiosystem for precise measurements of
orbital elements and radiotelemetry system” [sic] COSPAR Info. Bull. (April,
1978), 98). For text of the diplomatic notes exchanged between Canada and
the Soviet Union concerning the Cosmos incident, see (1979) 18 Int’l Legal
Mat. 899-930.
43 See, e.g., SIPRI, supra, note 30, 33. See also McDougal, Lasswell &
Vlasic, Law and Public Order in Space (1963), 370 et seq., and sources cited
therein.
44Soviet draft resolution of Nov. 7, 1958, U.N. Doc., G.A. Verbatim Off.
Rec., 13 Sess. 1st Comm. A/C.1/L.219
(1958).
45According to SIPRI, supra, note 30, 29, the planning and development
of U.S. satellite reconnaissance programme began even before the advent
of the space age, although the first American satellites specially designed
for military surveillance were launched in 1959. A comprehensive catalogue
of the U.S. and Soviet reconnaissance satellites placed in orbit between 1959
and 1976 covers fifty pages of the SIPRI report (ibid., 49-96). See also
Carroll, Secrets of Electronic Espionage (1966), 187-94.
46 See sources cited in note 30, supra. See also the excellent recent survey
by Scoville & Tsipis, Can Space Remain a Peaceful Environment? (Stanley
McGILL LAW JOURNAL
[Vol. 26
that by all accounts space-based military vehicles for purposes of
surveillance, navigation, electronic intelligence, targeting, mapping,
communications, weather-reporting, and warning against a surprise
missile attack are fully operational. Each power has significantly in-
tegrated satellite technology into its military machine and made the
functioning of its major strategic systems dependent in varying
degrees on the space component. However, according to available
information, all existing, fully operational (as opposed to experi-
mental) military satellites are essentially of a non-offensive na-
ture; 47 their function is not to attack, neutralize or destroy hostile
targets, but to support and improve the performance of earth-bound
forces. In recent years, however, defence technology and planning
seem to have been moving increasingly towards the development of
systems capable of attacking other spacecraft and possibly even
terrestrial targets (including ships and submarines).
The conceptual prototype for this trend was a bomb-carrying
satellite, a popular idea among some defence planners during the
late 1950’s and early 1960’s.48 With the development of heavy
Foundation Occasional Paper No. 18, 1978); Bell, America’s Other Space
Programs The Sciences (Dec., 1979), 4.
47 Although as early as Oct., 1977 the U.S. Secretary of Defence, Harold
Brown, asserted that the Soviets possess “operational anti-satellite capa-
bility” against “some” spacecraft (U.S. Arms Control & Disarmament Agency,
Documents on Disarmament 1977 (1979), 609), the evidence supporting such
claims, in the opinion of this author, is still inconclusive. Even Aviation
Week & Space Technology, the leading journal of the American military
aerospace industry, assessed the most successful among the Soviet anti-
satellite tests merely as “possible success”: see text at note 72, infra. If the
U.S.S.R. indeed possesses an operational anti-satellite system, one wonders
at the Soviet Union’s failure to use this weapon against its own highly secret
reconnaissance satellite, Cosmos-954, to prevent it from falling into American
hands. It is hard to think, short of war in outer space, of a more com-
pelling justification for the employment of the weapon. That the Soviet
Union, as well as the United States, possesses the capability both to alter
the orbits of its satellites and sometimes to lead them on collision course, has
been fairly well documented; but proof of such capability does not make
this space system “operational”. While somewhat reluctantly accepting the
soviet satellite “rendez-vous” experiments of 1976-77 as an indication of an
existing anti-satellite programme, Scoville and Tsipis grant it “a very limited
capability against U.S. space assets” (supra, note 46, 10). Herbert Scoville,
Jr is former Deputy-Director of C.I.A. and Professor Kosta Tsipis is associate
director of the Program in Science and Technology for International Secu-
rity, Department of Physics, Massachusetts Institute of Technology.
4 8 See, e.g., Schelling, “The Military Uses of Outer Space: Bombardment
Satellites” in Goldsen, Outer Space in World Politics (1963), 97; Brennan, “Arms
and Arms Control in Outer Space” in Bloomfield, Outer Space: Prospects for
Man and Society (1962), 123, 129-32.
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DISARMAMENT AND INTERNATIONAL LAW
rockets capable of lifting into space objects weighing several tons,49
the prospect of placing nuclear bombs in orbit and detonating them
over “enemy” territory was contemplated by some weapons experts
as a serious possibility. For example, Professor Harrison Brown
of the California Institute of Technology foresaw the possibility of
orbiting nuclear devices of 1,000 megatons which could, on com-
mand, incinerate six Western states within minutes if exploded at
an altitude of three hundred miles.50 The concept of orbital nuclear
bombers was eventually rejected as impractical and less efficient
than the more conventional means of delivery, and since 1967 has
been explicitly banned by article IV of the Outer Space Treaty.5 1
The fractional orbital bombardment system (FOBS), reportedly
under development by the Soviet Union in the 1960’s, could be re-
garded as the forerunner of a more sophisticated weapons system
designed to operate from outer space. The system has been de-
scribed by American sources as consisting of satellites armed with
nuclear weapons which would, at a given signal, descend from orbit
to strike a set target. According to one account, the FOBS satellite,
by flying the long way around the world, arrives at its target “in
exactly the opposite direction from which the principal defending radars
have been pointed. For example, if the big defense radars are in the
Arctic, and the missile comes to a U.S. target by way of Antarctica, the
main defense system would miss it”. FOBS can be called down in six
minutes and “would not have to be large in number to destroy most of
the available Strategic Air Command … bases.’52
Needless to say, the U.S.S.R. never confirmed that it was working
on such a system, despite allegations by the American defence com-
munity that the Soviets had on more than one occasion conducted
orbital tests of the FOBS spacecraft. If such experiments did indeed
49The progression in weight-lifting capacity of rockets, since the early days
of space flight, has been phenomenal. While the world’s first satellite, the
Soviet Sputnik, weighed a mere eighty-four pounds, U.S. Mercury space-
craft, launched into orbit on Feb. 20, 1962, with astronaut John Glenn aboard,
weighed 2,900 pounds. The Space Shuttle Orbiter, the Enterprise, to be
launched some time in 1981, weighs 150,000 pounds empty, has room for up to
seven crewmen and a cargo bay capable of handling payloads of up to 65,000
pounds (NASA News Release No. 77-21 (Feb. 9, 1977)). One of the largest
Soviet launch vehicles, the Proton class, can lift about 40,000 pounds into
earth orbit. Aviation Week & Space Technology [hereinafter cited as AWST],
in its annual survey for 1978 of U.S. and foreign rockets listed, without
supporting evidence, a Soviet launch vehicle capable of placing into orbit a
payload of 350,000 pounds (AWST (March 12, 1979), 94-5).
50 Cook, The Warfare State (1962), 347.
51 See Arms Control and Disarmament Agreements, supra, note 10, 47.
5 2Ulsamer, Will the Soviets Wage War in Space? Air Force Mag. (Dec.,
1976), 30, 35, quoting a Library of Congress study.
McGILL LAW JOURNAL
[Vol. 26
take place, they were not in violation of the letter of the Outer
Space Treaty because the FOBS satellites, as the Americans readily
admitted, were not armed with weapons of mass destruction, and
were programmed to return to earth before completing a full orbit.5 3
While the FOBS tests are reported to have ended in 1971, a Library
of Congress study asserts that there is no evidence to suggest that
the U.S.S.R. has abandoned the program or to refute the assump-
tion that FOBS weapons are fully operational and waiting in their
silos, mixed with regular ICBM’s.54 Although at this time the con-
cept of bombardment from orbit appears inactive, it may yet be
revived. This could occur either through deliberate change of na-
tional policy or, in response to a destabilizing advance in military
space technology by the adversary. One should bear in mind that
today both the U.S. and the U.S.S.R. possess sufficiently powerful
rockets to lift even the heaviest nuclear weapons into orbit.” Each
could do so, legally, by giving the required one year’s notice of
withdrawal from the Outer Space Treaty (article XVI), or by
ignoring the Treaty in the hope that its violation would go un-
detected. Neither this nor any other space or arms-control agree-
ment provides for inspection of satellites on the ground or in orbit;
only “stations, installations, equipment and space vehicles” located
30, 491-2.
53 Outer Space Treaty, art. IV.
54 Ulsamer, supra, note 52, 35. See also Soviet Space Programs, supra, note
55 See note 49, supra. In a rampant arms race no weapons concept is too
irrational, or too grotesque, for the military planners, not even “bombs
in orbit”. To make its “Minuteman 2” intercontinental land-based ballistic
missile force “survivable”, the U.S. Defence Department is reported to be
studying the feasibility of placing a large number of these nuclear-armed
missiles into a “parking orbit” around the earth. The missiles would be
launched on warning of an impending attack and would remain in low
orbit (125 to 800 miles) until signalled to attack targets in the Soviet Union.
Should their services not be required, say, because there had been no
Soviet attack but merely a malfunctioning warning system, they would be
recalled and recovered. The estimated cost of the new system is trifling by
current standards (less than $20 billion) and it could be ready for deploy-
ment in the 1980’s. The planners admit that recovery of nuclear warheads,
following an aborted orbital launch, would be “a lengthy process” and that
flying armed missiles over the U.S. might cause political difficulties. How-
ever, they feel that this orbital system would not violate either the SALT
II treaty or the Outer Space Treaty, since the weapons would be placed into
space only in the event of an attack on the United States (AWST (Feb. 25,
1980), 16; AWST (March 3, 1980), 27). On the potential for unintended
disaster, due to technical or human errors, of such weapons systems, see
Dumas, Human Fallibility and Weapons 36 Bull. Atom. Scientists
(Nov.,
1980), 15. See also note 104, infra.
1981]
DISARMAMENT AND INTERNATIONAL LAW
on the moon and other celestial bodies are subject to verification
(Outer Space Treaty, article XII).
However, the most immediate threat, both to stability in outer
space as well as to the maintenance of peace on earth is not the
nuclear-weapon satellite; it is posed by recent trends and innova-
tions in military space technology involving risks which should be
of profound concern to the entire international community. Evi-
dence of rapid militarization of outer space is mounting and it is
most unlikely that this new environment will much longer remain
a “sanctuary” for non-aggressive activities, unless governments can
be persuaded to take swift and effective counter-measures. 56 The
more destabilizing examples of new military space technology, al-
ready in the process of advanced planning, development or deploy-
ment, include certain types of surveillance satellites, satellites for
guidance of strategic missiles, anti-satellite space systems and di-
rected-energy weapons.
A. Ocean surveillance satellites
The most common military satellites, and the first to achieve
operational status, are those used for observation. From relatively
installations, they
simple photo-reconnaissance of ground-based
have been developed into highly sophisticated, multi-ton instru-
ments capable of monitoring not only the physical environment
below but also radio signals emitted from any source on the globe . 7
56The prospect of things to come was rather ominously (and accurately)
predicted in mid-1975 by Dr Malcolm R. Currie, the Pentagon’s chief of
research and development. In his view, “over the next ten or fifteen years
space is not going to remain the unmolested territory, the sanctuary that
it is today” (Air Force Mag. (June, 1975), 28). Five years later, quoting
“senior Defense Department officials”, a leading U.S. aerospace periodical was
able to assert that “[b]ecause of the move into space by the two super-
powers, space is becoming the most likely battlefield” and that “any nuclear
weapons exchange with the USSR will start in space” (AWST (March 3,
1980), 25). The trend is clear “as more and more combat-related functions
such as target designation, weapons guidance, and real-time reconnaissance
of ground, sea, and air forces move into space and as technology provides
better means to jam, blind, or destroy an adversary’s spacecraft selectively
or even surreptitiously” (Ulsamer, supra, note 52, 30: see also AWST (July
28, 1980), 32).
57By all accounts, the most advanced reconnaissance satellite in use today
is the U.S. “Big Bird”, weighing 12 tons and operating in orbits ranging
from 90 to 250 miles. Reportedly, it is able to detect from an altitude of 100
miles objects on the ground roughly the size of a tennis ball (U.S. News &
World Report (May 21, 1979), 25; Time (Feb. 6, 1978), 8). It is believed that the
Soviet Union employs some of its Cosmos satellites, a designation borne
McGILL LAW JOURNAL
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Deployed by both space powers for a number of years, observation
spacecraft are regarded today as indispensable tools for the collec-
tion of intelligence and verification in the context of SALT agree-
ments.”‘ However, when the exclusive or principal purpose of a
satellite system is to monitor radio communications and radar
emissions from an adversary’s submarines and surface warships, so
that they can be quickly and accurately located, attacked and
destroyed on command, one is no longer dealing with relatively
innocuous supporting instruments like the earlier communications
and photo-reconnaissance space vehicles. Unrelated to offensive
strategic weapons systems, an observational satellite network could
be justified as contributing to the aims of SALT, national and inter-
national security. But such, apparently, are not the objectives of
the new U.S. “ocean surveillance” satellite system; its reported
function clearly poses a serious threat to an essential segment of
the Soviet strategic deterrent force, that is, their nuclear ballistic
submarines 9 Since the ability of these submarines
to remain
undetected is the key factor of their deterrent value, the deployment
by the United States of this new satellite network may be regarded
on the Soviet side as providing their adversary with the dreaded
“first strike” capability. Should the U.S.S.R. reach that conclusion,)0
by over 1,200 spacecraft, as well as the Salyut space station, for purposes of
military reconnaissance. However, very few details about the capability of
these spacecraft are known. See, e.g., Soviet Space Programs, supra, note 30,
390 et seq.; AWST (Dec. 4, 1978), 17.
58 Satellites possibly represent
the essential component of the so-called
“national technical means of verification”, referred to in art. XII of the
U.S. – U.S.S.R. Treaty on the Limitation of Anti-Ballistic Missile Systems
(1972): for text see Arms Control and Disarmament Agreements, supra, note
10. In President Carter’s words, “[p]hoto-reconnaissance satellites have be-
come an important stabilizing factor in world affairs. In the monitoring of
arms-control agreements, they make an immense contribution to the security
of all nations” (quoted in U.S. News & World Report (May 21, 1979), 25).
59AWST (July 10, 1978), 22. See also Aldridge, Nuclear First Strike? The
Pentagon is Working on it The Nation (June 11, 1977), 711. The “National
Oceanic Satellite System”, a joint endeavour of NASA, the National Oceanic
and Atmospheric Administration and the Defence Department, belongs to
the same category of spacecraft, despite its various civilian uses. To be
initiated in the 1981 fiscal year, at an estimated cost of $800 million, this
system is expected to assist the U.S. Navy, inter alia, in the selection of
operating areas, in anti-submarine warfare and acoustic predictions (NASA
News Release No. 80-7 (Jan. 28, 1980)).
6 If Marshal D. Ustinov, the Soviet Defence Minister, is to be taken
seriously, his government does believe that the United States armed forces
“are being developed in … accordance with the military doctrine that in-
cludes preventive strikes at the probable adversary”
(Ustinov, Military
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DISARMAMENT AND INTERNATIONAL LAW
its likely response would be to deploy in outer space an effective
defensive weapon such as a satellite interceptor, or some other
means of neutralizing the threat.61 In anticipation of such a move,
the United States will presumably feel justified in installing its
own instruments of satellite protection, thus providing new impetus
to the spiralling arms competition in outer space. 2 Indeed, the
decision of the American defence establishment to accelerate the
development of a U.S. anti-satellite (ASAT) capability may well
reflect as much their anxiety about the expected Soviet response as
about the suspected Soviet possession of ASAT weapons.
B. Satellites for guidance of strategic missiles
A related technological
innovation, designated the “NavStar
global positioning system”, is already being deployed by the United
States and is expected to be fully operational in 1985. The purpose
of the NavStar system is to provide, through a network of satellites,
extremely accurate guidance for nuclear-armed missiles which, once
fired, will be able to update their navigation instruments during the
coasting phase of flight. In its original conception the system, when
fully operational, would consist of twenty-four satellites orbiting
the earth in three clusters of eight, with satellites positioned in
such a way that any location on the earth’s surface would have
several vehicles in sight at all times. Every few thousandths of a
second, the satellites will broadcast coded signals that can be re-
ceived by computers aboard missiles. With information supplied by
6
Detente –
Imperative of the Time Int’l Affairs [Moscow] (Jan. 1980), 3, 4);
See also a commentary on Presidential Directive 59 by G.A. Trofimenko,
published in N.Y. Times (Sept. 22, 1980), A-27, col. 3.
0 1 Scoville and Tsipis observe that the progressive “integration of [U.S.]
space-borne systems into combat operations may have reawakened Soviet
interest in anti-satellite systems, which, if operational, could threaten the
unimpeded functioning of some U.S. space assets during wartime” (supra,
note 46, 9).
2 1n reporting the launching on April 29, 1980 of a Soviet radar ocean
surveillance spacecraft, similar
to Cosmos-954 which disintegrated over
northern Canada in 1978, AWST noted that this type of satellite “creates
strategic-military concerns because of [its] ability to find and target U.S.
ships”: owing to these concerns, this spacecraft is “high on the target lists
for U.S. anti-satellite weapons” (AWST (May 5, 1980), 25). The report, how-
ever, does not attribute to the Soviet satellite the capability to detect sub-
marines. See also N.Y. Times (May 2, 1980), A-3, col. 1.
63 AWST (Oct. 17, 1977), 77; AWST (Aug. 27, 1979), 51. As of April, 1980, six
NavStar satellites had been launched in orbits of 10,900 nautical miles (AWST
(May 5, 1980), 27). Due to budgetary restrictions, the number of satellites in
the NavStar constellation may be reduced to 18 (AWST (April 14, 1980), 20).
McGILL LAW JOURNAL
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NavStars, the missile’s computer is expected to guide the projectile
to the target with pin-point accuracy, that is, within an estimated
margin of error of five meters in each horizontal direction.Y4 To
assure the uninterrupted functioning of the system, transmitters
aboard NavStar satellites are designed to emit signals which are
difficult to jam and able to penetrate any weather.
A parallel effort may be under way in the Soviet Union. Some
time ago, the U.S. Secretary of the Navy asserted that the U.S.S.R.
was also using satellites for real-time mid-course guidance of bal-
listic missiles,65 although a Library of Congress study, a more re-
liable source, found no corroborating evidence. 6
It is worth noting that by the accepted standards of nuclear
deterrence, the pin-point accuracy promised by the NavStar network
is not necessary to maintain the existing balance of terror. Indeed,
the concept of “mutual assured destruction” is based on the premise
that war between the Soviet Union and the United States can best
be deterred if each nation has the capability of inflicting intolerable
losses on the population and social fabric of the other in the event
of a nuclear exchange. r Acceptance of the concept of mutual vul-
nerability is also the cornerstone of the ABM Treaty, concluded in
1972 between the two super-powers.68 In the words of Ambassador
Gerard Smith, who led the American SALT I negotiating team, the
ABM Treaty represents a “recognition that the deterrent forces of
both sides are not going to be challenged”.0 Thus, by making it
possible to destroy, or cripple seriously, the adversary’s strategic
missile force before it has been released, the new space technology
64AWST (Oct. 17, 1977), 159. See also Tsipis, Cruise Missiles, supra, note
29, 23. Initial tests of NavStars have resulted in accuracy within 6-7 meters
(AWST (Nov. 27, 1978), 60).
65 J. William Middendorf, as quoted by Ulsamer, supra, note 52, 33; see also
AWST (Oct. 4, 1976), 13.
0 Ibid. The recent survey of Soviet space activities by Charles S. Sheldon
II makes no reference to a Soviet NavStar system (The Soviet Space Program
in 1979 Air Force Mag. (March, 1980), 88). Conceivably, unknown to Western
observers, the U.S.S.R. may be working on a comparable satellite network.
67 The essence of nuclear deterrence or “mutual assured destruction”
(MAD) can be stated very simply: neither side can launch a nuclear attack
against the other without risking nuclear devastation of its own society
in return.
1SABM Treaty: for text see Arms Control and Disarmament Agreements,
supra, note 10.
69Quoted in Larocque, Security Through Mutual Vulnerability (Stanley
Foundation Occasional Paper No. 2, 1973), 6. There can be no mutual
restraint or deterrence on the use of strategic nuclear weapons if one side
acquires the ability to destroy the other without fearing the like destruction.
1981]
DISARMAMENT AND INTERNATIONAL LAW
has the potential for arming one nation with pre-emptive, first-
strike capability. This situation cannot but undermine decisively
the foundations of the existing philosophy of deterrence. The true
goal of the NavStar system, at least in the opinion of some analysts,
is the “devastating ability to launch an all-out nuclear attack which
could completely disarm an opponent”.70
The magnitude of the threat posed by these and related develop-
ments,70
a both to the strategic equilibrium between the two major
power blocs and the cause of peace in outer space, cannot be
exaggerated. The very real potential for conflict, initially perhaps
limited to outer space, was unmistakably revealed several years
ago by J. William Middendorf, when he was Secretary of the U.S.
Navy. Voicing a suspicion that the U.S.S.R. might be developing
a system similar to the NavStar, he called for accelerated efforts
on the part of the United States to produce instruments which could
“neutralize” such Soviet spacecraft “through the use of chaff [to
“blind” them] or by interdiction [i.e., destruction] “.71 It is, there-
fore, obvious that, even in non-combat conditions, the temptation
will be great to interfere with space vehicles regarded as strategic
threats, and so will the prospects of uncontrollable escalation.
70Aldridge, From MARV to Holocaust The Nation (March 26, 1977), 360,
361. The author is an aerospace engineer who worked for sixteen years on the
Polaris, Poseidon and Trident submarine-launched nuclear missiles. See also,
Stockholm International Peace Research Institute, World Armaments and
Disarmament Yearbook (1979), 449.
70n When viewed in conjunction with Presidential Directive 59 (supra, note
29) and the commitment to build a new land-based, supposedly “invulnerable”,
mobile missile system (the so-called MX system), the intentions of the
United States cannot but arouse grave suspicion in the Soviet Union. Ac-
cording to Professor Bernard T. Feld of M.I.T., the new “countervailing”
strategy means that the U.S. intends to use its nuclear weapons “in an
entirely offensive mode in an attempt to destroy the Soviet nuclear forces
before they can be used against us” (36 Bull. Atom. Scientists (Oct., 1980), 5).
John B. Oakes, former Senior Editor of The N.Y. Times, commenting on the
effect of the MX-missile system observes: “What the MX in fact does is to
increase our own ‘first-strike’ capability, feeding the Russian suspicions that
we could indeed be planning a first strike, just as we suspect they might be,
despite the utter insanity of such an act on both sides” (N.Y. Times (Oct. 21,
1980), A-19, col. 1).
71 As quoted in Ulsamer, supra, note 52, 33. More recently, Seymour L.
Zeiberg, Deputy Under-Secretary of Defence, asserted that the “principal
motivation for [the U.S.] antisatellite program is to put us in a position
to negate Soviet satellites that control Soviet weapons systems that could
attack our fleet” (AWST (Sept. 3, 1979), 57).
McGILL LAW JOURNAL
(Vol. 26
C. Anti-satellite space systems
Probably in anticipation of an expanding arms race in outer
space, the Soviet Union in the late 1960’s reportedly commenced ex-
periments with an anti-satellite (ASAT) weapons system variously
designated in the West as “killer satellites”, “hunter-killer satellites”,
“satellite interceptors” or “inspector-destroyer satellites”. While the
Soviets have never publicly admitted to such uses of space techno-
logy, American sources, including the highest government officials,
claim that the U.S.S.R. conducted sixteen separate ASAT
tests
between October, 1968 and April, 1980.72 Ten of the tests have been
judged by American defence analysts as “possible successes”. It
was reported that in each of these “the killer spacecraft passed
within 1 kn. (3,180 ft) of its intended target [,] indicating that the
mission could have been a success, although flyby distance alone
does not guarantee success”.73 No authoritative U.S. spokesman has
so far asserted, however, that these satellites have either interfered
with American spacecraft or destroyed a Soviet target spacecraft. 74
Furthermore, detected Soviet ASAT tests are known in all instances
to have involved flights at altitudes of less than 2,000 kilometers,
well below the geosynchronous and high elliptical orbits from which
many of the key U.S. military satellites (such as communications,
command control and early warning satellites) operate.” On the
other hand, low-altitude American reconnaissance and navigation
satellites, as well as the space ,shuttle, would appear to be within
the range of the Soviet ASAT system.
Reports of the Soviet anti-satellite experiments have resulted
in predictable demands by the American defence establishment for
a major national effort to counter the suspected Soviet threat.70
Shortly before leaving office in 1977, President Ford ordered the
urgent development of an American anti-satellite weapon; after
some hesitation and further study, President Carter’s administration
72AWST (Oct. 30, 1978), 17. After a two-year moratorium, according to U.S.
sources, the Soviets carried out another anti-satellite test on April 18, 1980
(N.Y. Times (April 19, 1980), B-28, col. 1).
73 AWST, ibid.
74The suspected Soviet test of April 18, 1980 has been assessed by the U.S.
intelligence as a failure because the interceptor exploded 8 km. from the
target spacecraft (AWST (April 28, 1980), 20; N.Y. Times, supra, note 72).
75 AWST (Oct. 30, 1978), 17; Sheldon, supra, note 66, 92.
76 Anti-satellite research is not new to the U.S. defence planners. Already
in 1966 an American author reported that the U.S. Air Force “is busily
acquiring design data from the Gemini flights that will enable it to build
combat spacecraft if the need arises” (Carroll, supra, mote 45, 195-6).
19811
DISARMAMENT AND INTERNATIONAL LAW
affirmed the Ford decision in the spring of 1979.77 The new policy
directive provided for laboratory research, development and actual
testing against space targets. Whether such tests will be held was
left by Mr Carter as contingent upon successful negotiations with
the U.S.S.R. on the ban of offensive weapons in space 78 Given ‘a
free hand, in a remarkably short period of time, the Pentagon suc-
ceeded in developing its own ASAT weapon, expected to be ready
for tests against targets in space by 1982.79 In contrast to the Soviet
system, reported effective only in low orbits, the U.S. interceptor
will be able to attack hostile satellites both in low orbits as well
as in synchronous orbits. 0
At the initiative of the United States, informal talks with the
Soviet Union aimed at the “control and elimination of anti-satellite
capabilities” began in June, 1978 in Helsinki. Additional negotia-
tions were held in February, 1979 (Bern) and again in May and
June, 1979
(Vienna), all with inconclusive results.”‘ The latest
round of negotiations may in fact have set the two sides further
apart than they were at the beginning of the talks. The reason given
by U.S. officials is Soviet insistence that American space shuttle
development be halted, because it is seen as a threat to the U.S.S.R.
satellites. Predictably, the U.S. negotiators found the Soviet position
“totally unacceptable”. 82 Since the space shuttle has become a major
issue in these negotiations, this project of fourteen billion dollars
justifies closer examination.
77 United States Space Activities (1978)
14 Weekly Compilation of Presi-
dential Documents (June 26, 1978), 1135, 1137; The New Military Race in Space
Business Week (June 4, 1979), 136, 145.
78 bid.
79 N.Y. Times (April 19, 1980), B-28, col. 1.
80 See AWST (Aug. 13, 1979), 13. In a significant departure from the Soviet
system, the U.S. anti-satellite weapon will be fired from a high-flying air-
(AWST (June 25, 1979), 23). U.S. Air Force plans to procure 15
craft (F-15)
ASAT weapons and 10 target spacecraft in fiscal year 1981 for the initial
tests (AWST (Nov. 26, 1979), 13). In addition to this, the U.S. is evaluating
two more advanced ASAT systems, one based on lasers and the other on
conventional spacecraft technology (AWST (July 17, 1978), 14). A group of U.S.
experts, discussing “US-USSR Confrontation or Cooperation in Space”, found
that the “threat of ground-based ASAT weapons is presently more serious
than the threat of space-based systems” (Nineteenth Strategy. for Peace Con-
ference Report, October 5-8, 1978 (The Stanley Foundation, 1978), 22).
81 See AWST (July 9, 1979), 18; U.S. Arms Control and Disarmament Agency,
Arms Control 1978 (1979), 36-7; N.Y. Times (June 1, 1979), A-6, col. 1. No
new negotiations have been scheduled.
82 AWST, ibid.
McGILL LAW JOURNAL
[Vol. 26
D. U.S. space shuttle
Officially designated as the “reusable space transportation sys-
tem”, the shuttle is a joint programme of NASA and the Pentagon.
Its first flight into outer space is expected to take place in 1981.
The publicity which has accompanied
this technological marvel
practically from its inception has invariably stressed its great utility
in a wide variety of civilian space functions .
3 Rarely mentioned is
the active role of the military in the planning, development and
financing of the shuttle, as well as its origins in the Pentagon’s
“Manned Orbiting Laboratory”, an exclusive defence project that
was cancelled in 1969 for lack of funds.84 Equally ignored is the fact
that a significant percentage of the shuttle’s payload capacity has
been reserved for military missions.8 4a
The declared purpose of the shuttle is to lift and position in
outer space new satellites and, when necessary, retrieve or repair
in orbit malfunctioning and “spent” satellites, all at a much lower
cost than is possible with existing technology. Large enough to
carry up to seven astronauts and highly mobile, the shuttle also
has the capability to refuel spacecraft already in space, rotate crews
on long-range missions and conduct observations of the earth in
its landing phase. The military potential of the shuttle, with its
offensive and defensive versatility, is considerable. The craft is
expected to perform more diverse tasks and much more efficiently
than the Soviet ASAT weapon. It will not only be able to destroy
hostile satellites (reportedly the sole function of the Soviet system)
but also to inspect, incapacitate and even “steal” objectionable
83 See, e.g., International Implications of New Space Transportation Systems,
a report prepared by the International Astronautical Federation for COPUOS,
U.N. Doc. A/AC. 105/244 (Aug. 16, 1979); NASA News Release No. 77-181
(Sept. 7, 1977). Legal implications of the space shuttle are extensively dis.
cussed in Sloup, A Guide for Space Lawyers to Understanding’ the NASA
Space Shuttle and the ESA Spacelab (1977) 26 Zeitschrift fdr Luft –
und
Weltraumrecht 196.
84The relatively short, but expensive ($1.3 billion), life of MOL and its
temporary demise -are discussed in Vlasic, “The Relevance, of International
Law to Emerging Trends in the Law of Outer Space” in Falk & Black,
The Future of the International Legal Order (1970), Vol. 2, 265, 285-7. Not
long after the advent of the space age, according to an eminent U.S. defence
analyst, the Pentagon was intensively studying the possibilities of using
spacecraft for purposes of inspecting, capturing and destroying hostile and
unknown satellites (Brennan, supra, note 48, 134). The U.S. Air Force,
NASA’s partner in the space shuttle, participated in the design of this
instrumentality, seeing it as a potential “reconnaissance vehicle or satellite
interceptor” (Time (June 22, 1970), 41).
84a30% according to a recent report (AWST (Oct. 6, 1980), 19).
1981]
DISARMAMENT AND INTERNATIONAL LAW
space vehicles. 5 Furthermore, the shuttle is viewed as the likely
carrier of heavy payloads required for assembling in orbit future
beam-weapon “battle stations”. 86
Even when performing civilian assignments, the shuttle’s acti-
vities could raise suspicion on the part of other nations with satel-
lites in orbit. As two well-informed American authors warn, “many
of the operations of the U.S. space shuttle have many similar tech-
nical requirements and overt characteristics as has an anti-satellite
mission and therefore could be confused with a program to de-
velop an anti-satellite capability”.” The risks inherent in even an
innocuous inspection by one nation of another nation’s spacecraft
in outer space have been persuasively stated in an authoritative
survey:
Inspection seems harmless enough, but the problem is that if satellites
conducting military functions co-orbit with uncooperative
targets of
investigation, the added capability of destruction is a very simple step
compared with the rendez-vous and the selection of sensors capable of
doing a good inspection. Any space power must worry about the possi-
bility that another space power may escalate rivalries to the point of
interference with satellites in orbit, whether it is to blind the eyes of
some, to deafen their ears, or disrupt communications, or take away
some abilities to navigate. This means that such nations must consider
a range of both passive and active counter-measures
The possibility of hostile action in outer space led the U.S. Air
Force in 1974 to initiate studies of measures to enhance the sur-
vivability of its satellites. One measure already implemented in-
volves stationing important military satellites in a dormant, un-
powered state at extremely high altitudes where they evade the
adversary’s ground-based detection systems. These “dark satellites”
would be activated if the enemy should succeed in neutralizing the
early warning, command control and communications spacecraft
known to it.8 9 In a parallel development, the Pentagon ordered the
.88
…
85 Scoville & Tsipis, supra, note 46, 16; AWST (April 17, 1978), 17; Space
Shuttle: High-Flying Yankee Ingenuity Air Force Mag. (Sept., 1976), 98, 104;
Time (July 16, 1979), 20.
86 AWST (Oct. 16, 1978), 42, 43, 48; AWST (Oct. 23, 1978), 15. Even before the
first launch of the shuttle, the U.S. Defence Dep’t is already reported to be
planning a “manned military combat spacecraft” for use in year 2000. This
vehicle would incorporate characteristics of aircraft and spacecraft (AWST
(March 31, 1980), 57). The development of an “aerospace plane”, under the
exclusive control of the military, is said to be the ultimate goal of the
Pentagon (Ulsamer, Space Shuttle Mixed in Bureaucratic Feud Air Force
Mag. (Sept., 1980), 72, 77).
87 Scoville & Tsipis, supra, note 46, 16.
88 A Library of Congress study, supra, note 52, 33.
89 Ibid., 30.
McGILL LAW JOURNAL
[Vol. 26
production of a “nightwatch” network of earth-based telescopes
and television cameras
to detect and track satellites orbiting
thousands of miles in space. The network, which is expected to
become operational in the early 1980’s, should give warning of
an imminent attack against any American spacecraft in orbit.0
Steps are also being taken to harden key defence satellites so
as to make them less vulnerable to hostile interference. Other
protective methods under examination or in the process of im-
plementation involve “deception, including reducing satellite radar
and optical signature or disguising a military spacecraft as a.scien-
tific space telescope.””‘ How many of these ideas have been imple-
mented is not known. However, the apparent willingness of U.S.
defence planners to compromise the civilian space programme and
risk having NASA’s scientific satellites mistaken for military vehicles
by other countries, underscores the danger of uncontrolled mili-
tarization of outer space for all nations. The trend also highlights
the growing, often clandestine, subversion of the spirit and the
letter of the Outer Space Treaty.
The nearest system comparable to the shuttle in the existing
Soviet arsenal is the Soyuz-Salyut-Progress “orbital complex”. 92
Although officially described as a scientific and engineering pro-
gramme, there should be no doubt that it also performs various
military missions. This system is not, however, as manoeuverable
as the shuttle, and is not capable of retrieving large objects such
as satellites and returning them to earth. The misadventures of
Cosmos-954, a nuclear-powered spacecraft, suggest that the U.S.S.R.
still lacks the ability to recover from or destroy in outer space
even its own instrumentalities. Western sources occasionally report,
without supporting evidence, that the Soviets “may” be testing
their version of the shuttle, which could become operational in the
1980’s.93 While there has been no independent confirmation of
90 N.Y. Times (May 17, 1978), A-18, col. 3.
91 AWST (Feb. 4, 1974), 11. A more recent report quotes a U.S. Defence Dep’t
official as-saying that there is “a frantic effort [in progress] to harden, shield
and hide our satellites” (AWST (March 3, 1980), 25).
92 See, e.g., Soviet Success in Space Exploration, Int’l Affairs [Moscow]
(Dec. 4,
(May, 1978), 132, 135; Sheldon, supra, note 30, 90 et seq.; AWST
1978), 17.
93 E.g., Sheldon, supka, note 30. A leading French aerospace periodical, citing
unidentified Soviet sources, reported in 1979 that the U.S.S.R. plans to build a
“mini-shuttle” (Air & Cosmos (Sept. 15, 1979), 38). But see Air & Cosmos
(Sept. 20, 1980), 43. U.S. Secretary of Defence, Harold Brown, seeking
from Congress bigger appropriations for the American space shuttle, also
asserted that the United States “had evidence that the Soviet Union might be
1981]
DISARMAMENT AND INTERNATIONAL LAW
these reports, one can think of no technological or engineering
obstacles to prevent the U.S.S.R. from developing a shuttle-like
vehicle, should its “national interests” so dictate. The prospect
of having its satellites subject to interception, inspection and pos-
sibly interference by the adversary might be regarded as sufficient
reason to embark upon such a course of action.
The immediate consequences of these developments could be
serious. Especially in the absence of an international agreement
regulating satellite inspection in outer space, even the harmless
unauthorized interception of another country’s spacecraft could
lead to conflict. And when the two nations do decide to negotiate
in good faith, the nature of both the inspecting vehicle and of
space interception is bound to make it “extremely difficult to in-
clude in a treaty language that could reliably differentiate legitimate
non-warlike activities from proscribed operations.” 94
E. Directed-energy weapons
Recent advances in the development of so-called directed-energy
weapons represent potentially the most serious threat, not only to
public order in outer space but to the cause of peace in general.
Published reports appear to leave no doubt that a Soviet-American
technology for military
competition to harness directed-energy
purposes is well under way. 5 Experiments so far have involved two
basic types of technology, one using high-energy laser beams, and
the other employing a beam of atomic particles (electrons, protons
and neutrons). With either technology, the destruction of the target
would be achieved partly by intense heat, and partly by the ex-
plosion that such sudden heating produces. Of the two, the techno-
developing a re-usable space vehicle”, although, he noted that the Soviets
were at least a decade behind in this field (N.Y. Times (Feb. 8, 1980), A-14,
col. 4). “The Soviets appear to confine their efforts to the development of a
relatively unsophisticated reusable manned space transportation system that
could start flight testing within two or three years” (Ulsamer, supra, note
86, 77). A similar conclusion is reached by Oberg, Is There a Soviet Space
Shuttle? Space World (Aug. – Sept., 1980), 21.
94Scoville & Tsipis, supra, note 46, 16.
95 See a series of three articles by Robinson in AWST (Oct. 2, 1978), 2;
(Oct. 9, 1978), 42; (Oct. 16, 1978), 42. See also AWST (Nov. 13, 1978), 14;
AWST (July 28, 1980), 32; Smernoff, Strategic and Arms Control Implications
of Laser Weapons: A Preliminary Assessment Air U. Rev. (Jan. – Feb., 1978),
38; N.Y. Times (Dec. 4, 1978), 1, col. 6; N.Y. Times (Nov. 25, 1979), 37, col. 1;
N.Y. Times (March 3, 1980), A-16, col. 1; Mason, Particle-beam Weapons: a
controversy Spectrum (June, 1979), 30; Aldridge, Missile Killers: The Hidden
Arms Race The Nation (Oct. 18, 1980), 368.
McGILL LAW JOURNAL
[Vol. 26
logy of laser weapons is far more advanced, particularly in the
United States. By 1979 the Pentagon spent 1.3 billion dollars on its
development and “has already scored impressive kills in tests of
a laser’s ability to bring down missiles in flight.” 8 However, some
doubts persist about the effectiveness of lasers when used in the
atmosphere where their destructive potential can be significantly
reduced by heavy clouds and stormy weather. Because its pro-
pagation requirements are quite different, a particle-beam weapon
does not suffer from this weakness. By propelling atomic particles
at velocities approaching the speed of light, particle-beam weapons
are believed to be capable of destroying targets, through energy
concentration and thermal effects, in the atmosphere and in outer
space. The vacuum of outer space is regarded as the optimal en-
vironment for the use of beam weapons against satellites, which
are notoriously fragile and therefore extremely vulnerable.
Some segments of the U.S. defence community hope that both
the laser and particle beam devices can eventually be developed
into effective weapons against strategic ballistic missiles; enemy
missiles would be attacked and destroyed by these weapons during
their boost phase, shortly after firing. A study prepared by the Los
Alamos Scientific Laboratory asserts that
Laser and particle-beam weapons hold
the potential for an extra-
ordinarily effective defense of all national assets against both ICBM
and SLBM attack but are in a very early state of development ….
These systems would be triggered by satellite detection on launch of
U.S.S.R. missiles and would reach out thousands of miles with pinpoint
aiming and tracking to destroy Soviet missiles in powered flight or
reentry vehicles in mid-courseP6a
It is no wonder that the proponents of directed-energy technology
see it as the “ultimate” weapon, giving the first country to master
it an overwhelming superiority in the global strategic contest. The
editor of an influential American aerospace magazine predicted
that “[i]f the Soviets achieve this capability first, it will give them
enormous crucial leverage in imposing their political will on the
rest of the world.197 On the other hand, if the United States wins
the race, “there will be no need for flimsy SALT agreements, and
the threat of Soviet nuclear blackmail will lose its credibility.”98
Evidence of the Soviet efforts in beam-weapons technology is
still fragmentary and the available information is based largely on
the well-known Soviet experiments with electron-beam accelerators
96Business Week, supra, note 77, 142; AWST (April 2, 1979), 12.
96a AWST (July 28, 1980), 32, 34.
97Robert Hotz, AWST (Oct. 2, 1978), 9.
98 Ibid.
1981]
DISARMAMENT AND INTERNATIONAL LAW
and high-energy lasers. Although some analysts believe that these
experiments could “eventually be used as the basis for a proton
beam weapon device”,99 an evaluation by a scientific committee of
the U.S. Air Force, released late in 1978, found no tangible proof
that the U.S.S.R. was working on a beam-weapons system. 10 How-
ever, a subsequent and “more intense” examination by another
panel appointed by the Pentagon reported “a massive Soviet de-
velopment program aimed at producing charged particle beam
weapons”, and recommended an acceleration in American research
and development in this area.”” Whether this finding is accurate
or not, the Soviet Union’s scientific and engineering capabilities
almost certainly enable it to pursue a major effort towards de-
veloping these exotic devices, having discovered that its principal
02 for it is in the nature of the modern
rival has already done so,
arms race that one side will never permit itself to fall dangerously
behind the other in the acquisition of weapons which may alter the
strategic equilibrium.
1
If claims about the capability of directed-energy weapons to
intercept nuclear delivery systems are based on fact, and evidence
to that effect is accumulating, the repercussions for world peace
could be incalculable. The prospect of a successful pre-emptive
strike associated with directed-energy devices is so ominous that
even the slightest evidence of assymetry between the two super-
powers in the development of this weapon could not fail to produce
a dramatic political and military reaction. The risks of misjudgment
are great. As an American expert notes, it will be hard to differen-
tiate between future directed-energy systems “designed to track
and image satellites and those having marginal capabilities for de-
livering lethal bolts of laser energy to relatively fragile satellites
or eventually to strategic nuclear aircraft and missiles.”’10 3 Similar
problems exist in distinguishing between the employment of particle-
beam technology for weapons purposes and its civilian use in the
development of hydrogen fusion as. a new source of energy.
09 AWST (Nov. 13, 1978), 14.
100 Ibid., 20; N.Y. Times (Dec. 4, 1978), D-11, col. 5.
101 AWST (May 7, 1979), 7. See also AWST (July 28, 1980), 47. For a con-
trary view, see Garwin, Charged-particle Beam Weapons? 34 Bull. Atom.
Scientists (Oct., 1978), 24.
102A Russian military commentator, without mentioning Soviet work in
this field, complained in a recent article about a “mounting effort” on the
part of the U.S. “to develop radiation weapons using the energy of lasers
and elementary particles” (Below, NATO Arms Buildup After 30 Years (1979)
16 Co-existence 142, 143).
103 Smernoff, supra, note 95, 47-9.
McGILL LAW JOURNAL
[Vol. 26
There can be no doubt that directed-energy weapons in outer
space, whether designed merely to attack other spacecraft or
programmed to neutralize ballistic missiles, would have a pro-
foundly destabilizing effect. With their introduction into the ar-
mouries of the super-powers, the possibility of space confrontation
and space warfare, either by design or through accident,’10 4 would
104 1n the 1950’s and 1960’s, when the nature of armaments and the scope
of the arms race were simpler than they are today, the hazards of an
accidental nuclear war were a major preoccupation of the government
officials and military analysts. For some reason, this problem no longer
attracts much official or public attention. It seems that “Murphy’s Law”
(“if anything can go wrong, it will”) has been exorcised from application to
modern weapons systems. There is no dearth of evidence to show that ultra-
modern technology, and people operating it, on occasion do not perform
according to expectations. Military aircraft are known to have lost nuclear
bombs (e.g., Spain, 1966); the “impossible” chain of events almost destroyed a
nuclear power-plant at Three Mile Island; a DC-10 airliner, which was sup-
posed to fly on two engines, crashed at Chicago having lost only one of its
three engines; two large advanced spacecraft, the Soviet Cosmos-954 and the
U.S. Skylab, became uncontrollable and fell to the earth, whereas a $50 million
RCA communications satellite shortly after its launching in 1980, mysteriously
disappeared somewhere in outer space. And three times within seven months
(Nov., 1979, and twice in June, 1980) a computer in the North American Air
Defence Command (NORAD) malfunctioned and signalled a Soviet missile
attack on the United States (N.Y. Times (Dec. 16, 1979), 25, col. 1; N.Y.
Times (June 6, 1980), A-14, col. 1; N.Y. Times (June 9, 1980), D-15, col. 3). Ac-
cording to a recent congressional report, in the 18 months that ended June
30, 1980, NORAD experienced “147 false alarms that were serious enough to
require an evaluation of whether
they represented a potential attack”
(N.Y. Times (Oct. 29, 1980), A-16, col. 1).
Similarly, although equipped with the most modem
technology and
operated by the best trained crews, nuclear submarines,
the principal
instrument of deterrence, are immune neither to equipment breakdowns nor
to human error. Since their initial deployment by the major navies, in the
late 1950’s, there have occurred four known major disasters and possibly
many more that have gone unreported. The United States has lost two
nuclear-powered submarines due to undetermined causes, the U.S.S. Tresher
in 1963 and the U.S.S. Scorpion in 1968. The Soviet navy has a comparable
record of misfortune. One of its nuclear submarines sunk in the Pacific
in the 1960’s, prompting the C.I.A. to embark upon its well-publicized and
apparently unsucessful attempt to raise her; and another one was lost in
the Atlantic in 1970. See Middleton, Submarine (1976), 175, 186; U.S. Dep’t
of the Navy, Understanding Soviet Naval Developments, 3d ed. (1978), 77.
Even assuming that every imaginable precaution has been taken to
prevent these submarines from inadvertently causing global conflagration, the
risks have by no means been totally eliminated. As Drew Middleton, military
analyst of The New York Times, reports, “Navy departments the world
over are concerned” with the human factor since even a single “undetected
psychotic [among the crew of a nuclear submarine] could start the holocaust”
1981]
DISARMAMENT AND INTERNATIONAL LAW
increase markedly and could escalate into an all-out nuclear conflict.
The authoritative Arms Control Impact Statement for 1978, pre-
pared by the U.S. Arms Control and Disarmament Agency, warned
that future “space wars” between the United States and the U.S.S.R.,
waged with lasers and particle-beam weapons, are not inconceivable
if present trends continue.105 It seems clear, therefore, that any
further development of these devices, at the very least, is bound
to aggravate the monumental difficulties in arms-control negotia-
limitation agreements
tions, may render existing strategic-arms
meaningless, and will inevitably raise international fear and distrust
to unprecedented heights. Fortunately, there is still time to arrest
is near even a
this dangerous trend, for neither super-power
prototype weapon yet.
III. Military uses of outer space and international law
A. The obligations of states under the Outer Space Treaty
Before the entry into force of the Outer Space Treaty, there
were no explicit restrictions on the military uses of space in inter-
national law. The only legal restrictions were those in the Limited
Nuclear Test Ban Treaty of August 5, 1963, by which the United
States, the Soviet Union and the United Kingdom agreed to prohibit,
to prevent and not to conduct any test of nuclear weapons, or any
(supra, 185). And so could, one should add, negligence and inefficiency on
the part of the crew, or some breakdown of the supposedly fail-safe equip-
ment. As Dumas observes “[w]e have created a world in which perfection
is required if a disaster beyond history is to be permanently avoided. B~t
in the world of human beings perfection is unachievable” (supra, note 55, 20).
Planned recklessness on the part of the national military establishments
could also lead to unintentional catastrophe. For example, American sub-
marines, routinely used for electronic intelligence gathering, according to
the U.S. Navy’s own admission, have on occasion in pursuit of this objective,
sailed submerged as close as three miles off the Soviet shore, well within
the territorial sea of the U.S.S.R. (Middleton, supra, 209). Considering the
grave concern expressed by Washington when in 1975 a Soviet nuclear sub-
marine had been detected 350 miles off Cape Cod, it is easy to imagine what
the American reaction would have been had a Soviet submarine been dis-
covered three miles off the U.S. coast, or worse, had the Russians attacked
and sunk the U.S. submarine caught within their territorial waters (ibid.,
208).
When to these, already existing and barely manageable hazards, new space
weapons systems are added, the inherent instability of nuclear deterrence
cannot but give way to a catastrophe. Regrettably, no recent arms-control
negotiations have shown sufficient concern for the urgent need to reduce
to tolerable levels these risks.
105As reported in Time (July 11, 1978), 8.
McGILL LAW JOURNAL
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other nuclear explosion, in the atmosphere, in outer space, and
under water.106 Apart from these limitations, at present applicable
to the 105 nations which are party to the Treaty, all that general
international law required before 1967 was that states conduct
their space activities in a manner that would assure equal rights
and peaceful enjoyment to every other user of the new environ-
ment. Thus, until 1967, the legal regime for space resembled that
designed to govern the high seas. While a series of U.N. General
Assembly resolutions, passed during.the preceding decade, repeated-
ly stressed the common interest of all mankind in the exploration
and use of outer space for the benefit of all nations, not one of
those resolutions, not even the Declaration of Legal Principles
Governing the Activities of States in the Exploration and Use of
Outer Space of 1963, either mentioned or banned arms in space.
Although some states and a number of jurists argued that the term
“peaceful”, as employed in various U.N. documents, could not be
reconciled with military activities, there was no unanimity on this
issue. Consensus existed on one fundamental point only, namely,
that access to outer space should be free to all nations on an equal
basis. Well before the signing of the Outer Space Treaty, the prin-
ciple of freedom came to be universally regarded as a principle of a
new and evolving customary law. 0 7
The pledge, jointly made in 1963 by the U.S.S.R. and the United
States, not to station in outer space any objects carrying nuclear
weapons or other kinds of weapons of mass destruction was merely
an informal bilateral understanding, lacking the force of a legal
obligation.’ Even if in view of the, subsequent judgment of the
International Court of Justice in the Nuclear Tests Case’0 9 one
should consider this bilateral statement as a binding obligation,
it would still bind only the two parties to the pledge. As such, it
would not be a legal norm of world-wide application.
The adoption of the Outer Space Treaty brought about substan-
tive changes in the legal regime of outer space. What had been
before, with the likely exception of the principle of freedom of ac-
cess, merely a set of non-binding guidelines, became now a legal obli-
gation. Since the Treaty holds the central position within the juridical
106 Art. I(1)(a).
107 See, e.g., McDougal, Lasswell & Vlasic, supra, note 43, 200 et seq.;
Goedhuis, supra, note 38, 207.
108 U.N. Doc. A/Res. 1884 (XVIII), Oct. 17, 1963.
109Nuclear Tests (Australia v. France), Judgment of 20 December 1974,
LC.J. Reports 1974, 253, digested in (1975) 69 Am. J. Int’l L. 668. On the same
.day, the Court gave a similar judgment in Nuclear Tests (New Zealand v.
France), LC.J. Reports 1974, 457.
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DISARMAMENT AND INTERNATIONAL LAW
framework governing all uses of space, it is necessary in the con-
text of this inquiry to examine carefully those of its provisions
which are relevant to the military activities in outer space. An
analysis of the Treaty and other pertinent legal instruments against
the background of military space developments since 1967 should
provide an opportunity to assess the measure of compliance by the
major powers with their formal obligations. Such an examination
can also highlight the more serious gaps and ambiguities in this
body of law which allow a few states to frustrate the fundamental
interests of the community of nations in outer space.
The “general rules of interpretation” of international agree-
ments, found in article 31 of the Vienna Convention on the Law of
Treaties,110 prescribe, in part, as follows:
1. A treaty shall be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of the
treaty in their context and in the light of its object and pur-
pose.
2. The context for the purpose of the interpretation of a treaty
shall comprise, in addition to the text, including its pre-
amble. …
3. There shall be taken into account, together with the con-
text: …
(c) any relevant rules of international law applicable in the
relations between the parties.
4. A special meaning shall be given to a term if it is established
that the parties so intended.-”
The preamble to the Outer Space Treaty contains phrases which
leave no doubt that the parties intended to create a legal regime
to make the space environment serve, pre-eminently and perpe-
tually, the cause of peace, international cooperation and general
well-being. If during the negotiations of the Treaty, some of the
parties harboured contrary ideas, their expectations are not re-
flected in the preamble. Except for practitioners of Orwellian
“newspeak”, the wording allows but one interpretation.
110 U.N. Doc. A/Conf. 39/27 (May 23, 1969); (1969) 63 Am. I. Int’l L. 875;
(1969) 8 Int’l Leg. Mat. 679. The Convention entered into force on Jan. 27,
1980: for a commentary, see Kearney & Dalton, The Treaty on Treaties (1970)
64 Am. J. Int’l L. 495.
111 [Emphasis added.] On
the techniques and objectives of treaty in-
terpretation, see McDougal, Lasswell & Miller, The Interpretation of Agree-
ments and World Public Order (1967). See also Whiteman, Digest of Inter-
(1970), Vol. 14, 353; Brownlie, Principles of Public Inter-
national Law
national Law, 3d ed. (1979), 623.
McGILL LAW JOURNAL
(Vol. 26
In the operative part of the Treaty, article I reiterates the same
theme:
The exploration and use of outer spice, including the Moon and other
celestial bodies, shall be carried out for the benefit and in the interests
of all countries, … and shall be the province of all mankind.
Article III obliges the parties to conduct their activities in outer
space “in accordance with international law, including the Charter
of the United Nations, in the interest of maintaining international
peace and security and promoting international co-operation and
understanding.” The primacy of the common interest of all nations
is stressed again in article IX of the Treaty. The opening sentence
of that article requires contracting states to be guided in the ex-
ploration and use of outer space “by the principle of co-operation
and mutual assistance”, and to “conduct all their activities in outer
space … with due regard to the corresponding interests of all other
States Parties to the Treaty.”
Article IV contains the only provision of the Outer Space Treaty
specifically addressed to military activities. Under paragraph 1 of
this article, the contracting parties “undertake not to place in orbit
around the Earth any objects carrying nuclear weapons or any
other kinds of weapons of mass destruction, install such weapons
on celestial bodies, or station such weapons in -outer space in any
other manner.” This prohibition has its origin in a bilateral pledge
by the United States and the Soviet Union, later unanimously adopt-
ed as a resolution of the U.N. General Assembly.112 Whether inad-
vertently or intentionally, paragraph 2 of article IV omits any
mention of “outer space” and specifies the “Moon and other celestial
bodies” as the areas of space which must be used “exclusively for
peaceful purposes”. Echoing article I (1) of the Antarctic Treaty,”3
the same paragraph stipulates further that the “establishment of
military bases, installations and fortifications, the testing of any
type of weapons and the conduct of military manoeuvres on celestial
bodies shall be forbidden.” Ironically, by specifying prohibited
activities in space, article IV, particularly its second paragraph, has
often been cited, not without some justification, in support of the
claim that the Treaty allows all military uses of outer space which
are not explicitly forbidden. 114 Thus the Treaty stipulation that was
112Supra, note 108.
“13Signed in Washington, Dec. 1, 1959, entered into force June 23, 1961:
(1961) 402 U.N.T.S. 71; (1960) 54 Am. J. Int’l L. 476. Nineteen countries have
ratified or acceded to this treaty.
114 See, e.g., Lay & Taubenfeld, The Law Relating to Activities of Man in
Space (1970), 25 et seq., especially 97-102; Stein, Legal Restraints in Modern
66 Am. J. Int’l L. 255, 262-4. In direct
Arms Control Agreements (1972)
19811
DISARMAMENT AND INTERNATIONAL LAW
supposed to curb the militarization of outer space has had the
opposite effect in practice. Major space powers have demonstrably
been acting on the premise that whatever is not prohibited verbis
expressis by the Treaty is permissible, and therefore lawful. While
the document as a whole does not permit such an interpretation,
the muddled text of article IV can be used, and has been used, to
undermine the legally and politically sounder interpretation.
Arguments supporting the lawfulness of military activities in
space have also been aided by the failure of the Outer Space Treaty
and U.N. General Assembly resolutions to define the term “peaceful
purposes”. As a result, a group of states led by the United States
has consistently espoused the view that the term prohibits only
“aggressive” uses of outer space while permitting “non-aggressive”
military activities.115 The contrary view –
uniformly accepted in
socialist jurisprudence but not followed in practice by the Soviet
Union –
equates “peaceful” with non-military use.” 6 Accordingly,
it regards all military activities in outer space as inconsistent with
the letter and the spirit of the Treaty. Probably reflecting the
steady expansion of their own military space arsenal, the official
position of the U.S.S.R. on these issues has undergone a subtle
change during the 1970’s. In the apt and still valid assessment of
Lay and Taubenfeld, the current Soviet view “seems to be that the
military use of space is without legal characterization, and will
remain so until agreement is reached on general and complete dis-
armament.” 17
The opinions of legal commentators on the crucial question of
peaceful and non-peaceful uses of outer space exhibit a similar
lack of consensus, although a substantial majority, cutting across
ideological frontiers, decries the militarization of space. Manfred
Lachs, judge of the World Court and former Chairman of the U.N.
Outer Space Committee, has “little doubt as to the real meaning”
reference to ASAT weapons, Douglas J. Bennett, Assistant Secretary of State,
asserted in 1977 that the Treaty does not “contain any specific prohibition
against the development of an anti-satellite capability.” As far as art. IX
of the Treaty is concerned, Bennett noted that so long as activities or
experiments for the development of such weapons systems do not cause
“potentially harmful interference”, they are not in violation of the Treaty
(United States Department of State, Digest of United States Practice in
International Law, 1977 (1979), 665-6).
115 See sources cited in note 114, supra.
116 Gal, Space Law (1969), 164, 180-1; Lachs, The Law of Outer Space: an
Experience in Contemporary Law-making (1972), 106-8: see also Soviet Space
Programs, supra, note 30, Vol. 1, 375-80.
u71 Supra, note 114, 99.
McGILL LAW JOURNAL
[Vol. 26
of these controversial words.118 In Lachs’s view, if only the prohibi-
tion of “aggressive” uses had been contemplated, there would have
been no need to make any reference in the Treaty to “peaceful
purposes”. The addition of these words, he argues, “can therefore
hardly be considered as meaningless, the expression of a pious desire
devoid of legal effects.” 119 According to Judge Lachs, “it is the im-
mediate context of the words which underlines their importance and
makes their meaning unequivocal.’ ‘ 20 Recognizing, however, that
the goal of demilitarized outer space has not been achieved, the
Treaty notwithstanding, Lachs suggests the “formal outlawing of
military activities” as an objective which is “both realistic and
attainable.”‘ 2’ Professor Marcoff, in his comprehensive treatise on
the law of outer space, is even more emphatic than Lachs in re-
jecting the characterization of the term “peaceful” as allowing arms
in space:
Ii s’ensuit qu’aucune exploration et utilisation de l’espace ne doivent
6tre destiles h des fins stratdgiques servant les intdr~ts d’un Etat parti-
culier, ou d’un groupe d’Etats. Dans les circonstances qui caractdrisent
les rapports inter6tatiques d’aujourdhui, aucune activit6 de nature stra-
t6gique, mame quand elle n’est pas agressive mais simplement ‘d~fen-
sive’, n’est en 6tat de satisfaire cette condition primordiale, introduite
de fagon formelle par le droit spatial positif.122
The position taken by the Indian author Bhatt is fairly typical
of the school of thought that regards military uses of outer space
as permissible under the Treaty of 1967. While noting the “universal
consensus among the non-space powers on the harmful effects of
the military uses of outer space”, in this view such uses “as do not
involve violence may be indulged in by states for reasons of se-
curity.’) 2
118Supra, note 116, 106.
119 Ibid.
120 Ibid., 106-7.
121 Ibid., 107.
122 Marcoff, Traitg de droit international public de l’espace (1973), 357. See
also Mateesco-Matte, La “Charte de rEspace” & l’heure de l’anniversaire (1979)
4 Annuaire de droit maritime et adrien 311, 326; Pazarci, Sur le principe de
l’utilisation pacifique de l’espace extra-atmosphirique (1979) 83 Rev.gdn.droit
int.pub. 986.
123Bhatt, Legal Controls of Outer Space (1973), 175-6. See also Ogunbanwo,
International Law and Outer Space Activities (1975), 101; Goedhuis, The
Changing Legal Regime of Air and Outer Space (1978) 27 Int’l & Comp. L. Q.
576, 584-5; Zedalis & Wade, Anti-Satellite Weapons and the Outer Space Treaty
of 1967 (1978) 8 Cal. W. Int’l LJ. 454, 479-81; Robinson, Militarization and the
Outer Space Treaty – Time for a Restatement of Space Law Astronautics &
Aeronautics (Feb., 1978), 26; Gorove, Studies in Space Law: its Challenges and
Prospects (1977), 85-94; Matte, Space Policy and Programmes Today and
19811
DISARMAMENT AND INTERNATIONAL LAW
The assertion that the term “peaceful purposes” in the Outer
Space Treaty excludes all military activities finds its most con-
vincing support in the Antarctic Treaty of 1959. The opening sentence
of article 1(1) of that Treaty simply states that “Antarctica shall
be used for peaceful purposes only.” But in the next sentence,
clearly of a definitional scope, the agreement explicitly bans “inter
alia, any measures of a military nature, such as the establishment
or military bases and fortifications, the carrying out of military
manoeuvers, as well as the testing of any type of weapons.”
It is encouraging to note that, despite the rampant arms race
in all environments accessible to man, Antarctica has up to now
remained unaffected by this trend. The continuing success
in
keeping Antarctica free of arms proves that when, by international
agreement, an area is denied to the military ab initio it can remain
arms-free indefinitely. By contrast, once the military gain even a
modest foothold in a hitherto virgin environment, their presence
tends to grow, making eventual demilitarization of the region nearly
impossible, as has been the case with outer space, air space, and
the oceans. The Antarctic Treaty stands as a towering tribute to
the farsightedness of its sponsors and as a convincing proof of the
material contribution that international law can make to the goal
of a safer world. 24
It is worth stressing that, since the early days of space ex-
ploration, efforts to close outer space to arms competition have
also been hampered by the unfortunate fact that essentially the
same technology could serve both civilian and military objectives.
For example, satellites designed to monitor earth resources can
also be used for military surveillance; 125 similarly, civilian com-
munications, meteorological and navigation satellites are for all
practical purposes indistinguishable from space vehicles providing
the same service to the military. No wonder that the defence
To-morrow (1980), 68; Lay, Space Law: A New Proposal (1980) 8 J. Space L.
41, 45.
124A recent appraisal by the U.S. State Dep’t found the Antarctic Treaty
“an unusually successful example of international cooperation among states
with differing political systems as well as different legal and political per-
spectives” (Antarctica: 10th Meeting of Treaty Consultative Parties 79 Dep’t
State Bull. (Nov., 1979), 21). For an analysis of the Treaty, see Taubenfeld,
A Treaty for Antarctica (International Conciliation, No. 531, 1961); see also
Hambro, Some Notes on the Future of the Antarctic Treaty Collaboration
(1974) 68 Am. J. Int’l L. 217.
I25An illustration of this duality of function was recently provided by the
U.S. decision to allow China access to the American Landsat-D earth resources
satellites, to be used by Peking for military reconnaissance (N.Y. Times (Jan.
9, 1980), A-9, col. 1): see also supra, note 59.
McGILL LAW JOURNAL
[Vol. 26
management of both super-powers has been from the outset deeply
involved in almost all phases of space science and technology. Given
these factors, a degree of militarization of outer space has probably
been unavoidable in conditions of intense power-bloc rivalries.
However, although no nation which took part in the negotiation of
the Outer Space Treaty could realistically have hoped for the super-
powers, in deference to the Treaty, to terminate or seriously curb
their defence activities in space, it is certain that none anticipated
the subsequent massive growth of the military presence in this
environment. The awesome quantitative and qualitative expansion
between 1967 and 1980 of the Soviet-American military space
systems can be said to have exceeded even the most pessimistic ex-
pectations of the 1960’s. If this trend could have been reasonably
predicted during the negotiations of the Treaty, it is doubtful that
the accord in its present form would have come into existence. Few
countries outside the NATO and the Warsaw Pact alliances would
have been willing to endorse an agreement which de facto, if not
de jure, assures a handful of the most powerful states a large degree
of freedom to turn this common domain into an arena of bilateral
arms competition to the detriment of all the others. The majority
of negotiating countries were apparently willing to permit a limited
and virtually unavoidable amount of military space uses, hoping
that genuinely “peaceful” activities, along with international co-
operation for the common benefit, would overshadow and” eventually
eliminate pursuits exclusively in the cause of power-bloc interests.
As the record shows, their tacit acceptance of the use of contem-
porary, unsophisticated space technology for military surveillance,
weather-reporting and telecommunications, has been interpreted by
the super-powers as licence for an almost unrestricted arms race
in outer space. From an essentially auxiliary, non-offensive instru-
ment of the 1960’s, military space technology, under a self-serving
interpretation of the Outer Space Treaty, has grown in the 1970’s
into an instrument that threatens peace not only in space but on
earth as well. Yet the cumulative effect of the directives contained
in the preamble and in the operative part of the Treaty, more than
any single specific stipulation in it, suggests convincingly that the
present level of “defence” activities in space is contrary to the
letter and the spirit of the document. These activities also contradict
the often repeated declarations made by the highest officials of the
major powers about the goals their respective countries seek in
outer space.126
6,By proceeding with the development of the anti-satellite systems and
other military satellite systems the two space powers are seriously con-
travening the spirit –
if not the letter – of the Outer Space Treaty which
1981]
DISARMAMENT AND INTERNATIONAL LAW
B. The obligations of states under the arms-control agreements
Less than a year after the entry into force of the Outer Space
Treaty, the Treaty on the Non-Proliferation of Nuclear Weapons
(NPT) was opened for signature on July 1, 1968 at the initiative of
the great powers.127 The principal purpose of the NPT is to prevent
the spread of nuclear weapons (articles I and II) and to promote
the peaceful uses of nuclear energy through cooperation under
appropriate international safeguards (articles IV and V). To help
achieve these ends, all parties to the Treaty, particularly the nuclear-
weapon states, have undertaken to “pursue negotiations in good
faith on effective measures relating to cessation of the nuclear arms
race at an early date and to nuclear disarmament, and on a treaty
on general and complete disarmament … ” (article VI). 127a Although
the commitment to pursue both arms control and disarmament
negotiations expeditiously and in good faith is a legal obligation as
well as ‘a cornerstone of the NPT, major nuclear powers have con-
sistently acted in violation of this crucial undertaking. Not surpri-
singly, many potential nuclear-weapon states, together with France
and China, have been reluctant to become a party to this agreement
in view of the relentless vertical proliferation of nuclear weapons
and their delivery systems by the United States and the U.S.S.R.128
Thus the super-powers bear the principal responsibility for the
continuing ineffectiveness of the NPT, as witnessed by the addition
since 1969 of perhaps three new members to the nuclear-weapons
club (India, probably Israel and possibly South Africa) .129 The
they themselves proposed” (Matte, supra, note 123, 68). See also Lay, supra,
note 123, 51. The conditions created in outer space by the U.S. and the
U.S.S.R. since the conclusion of the Outer Space Treaty seem to fit well
the requirements of art. 62 of the Vienna Convention on the Law of Treaties
for the invocation by other parties of the concept of a “fundamental change
of circumstances”. However, resort to such a drastic action would likely
accelerate rather than arrest further militarization of outer space.
127 (1970) 729 U.N.T.S. 161. The Treaty entered into force on March 5, 1970
and, as of Sept., 1979, has been ratified or acceded to by 111 states (79 Dep’t
State Bull. (Nov., 1979), 49).
127a [Emphasis added.]
128Former Director of the U.N. Disarmament Office, William Epstein,
observes that a large number of non-nuclear states “are becoming disillu-
sioned by the failure of the nuclear powers to live up to their obligations
under the NPT”, and see the SALT agreements “as mere blueprints for the
continuation of the nuclear arms race by the two superpowers” (Canada
and the Problem of Nuclear Proliferation Proc. of the Fifth Ann. Conf. of the
Can. Council on Int’l L. (1976), 55, 61).
129 See supra, note 26. According to a team of B.B.C. reporters, Pakistan
is on the verge of producing a nuclear bomb (The [Montreal] Gazette (June
McGILL LAW JOURNAL
[Vol. 26
Bilateral arms-control agreements concluded
special relevance of the NPT in the context of this inquiry is to
emphasize the existence of an unambiguous legal obligation, freely
assumed by the major powers in a multilateral treaty of world-wide
application, to begin a meaningful arms reduction process. Although
article VI of the NPT does not explicitly call for an end to the arms
race in outer space, its reference to “general and complete disarma-
ment” is obviously broad enough to encompass also the space
environment. Because of its purpose and wide acceptance, the
NPT provides, next to the Outer Space Treaty, the most solid legal
basis for nations which are parties to these texts for demanding
from the super-powers compliance with the provisions of article VI.
in recent years
between the Soviet Union and the United States, in the most opti-
mistic estimates, have only marginally affected the strategic weapons
competition and have had no effect at all on the overall global
arms build-up. These agreements are widely perceived as amounting
to a little more than a verbal commitment to the -goals of arms
control and disarmament. With evident justification, they are seen
as an effort by the super-powers to restrict, modestly, certain of
their cost-ineffective or ageing strategic weapons, while allowing
the unhindered development of more promising, and often more
lethal, instruments of violence. The ABM Treaty of 1972,130 the back-
bone of the SALT process, provides a good illustration. Under this
Treaty, the United States and the U.S.S.R. have agreed, in order
to minimize the pressures of technological change and its desta-
bilizing effect on the strategic balance, “not to develop, test, or
deploy ABM systems or components which are sea-based, air-based,
space-based, or mobile land-based” (article V(1)). Article IX pro-
hibits the deployment outside the national territory of the parties
17, 1980), 1, col. 1). Epstein estimates that by 1986 thirty-nine countries could
become, if they so decided, nuclear-weapon states (The Last Chance (1976),
234). See also Schiitze, “A World of Many Nuclear Powers” in Griffiths &
Polanyi, The Dangers of Nuclear War (1979), 85. The second five-year review
conference of the NPT states, held in Geneva during August and September,
1980, ended in complete failure, without even an agreed statement in support
for the treaty (see Final Document of the Second Review Conference of the
Parties to the Treaty on the Non-Proliferation of Nuclear Weapons NPT/
Conf. 1I/22 (Sept. 7, 1980)). Final Declaration of Non-Governmental Organiza-
tion Observers to the Review Conference noted “with dissatisfaction that
intensive testing activities of the nuclear-weapon States Party continue un-
abated and that multilateral negotiations for a comprehensive test ban
treaty in the [U.N.] Committee on Disarmament have not yet begun” (full
text in Disarmament Times (Sept. 5, 1980), 2).
IN Text in Arms Control and Disarmament Agreement5, supra, note 10,
132. For a thorough analysis, see Willrich & Rhinelander, supra, note 14.
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DISARMAMENT AND INTERNATIONAL LAW
of such ABM systems as are limited by the Treaty. While the agree-
ment clearly prohibits ABM weapons in outer space, it does not
seem to forbid directed-energy devices designed to function as anti-
satellite weapons. And since it may be impossible to distinguish
between ABM directed-energy space vehicles and those deployed
exclusively for anti-satellite purposes, this apparent loophole in the
Treaty could be exploited to introduce such weapons ‘into outer
space. The possibilities for circumventing, if not the letter of the
Treaty then certainly its declared spirit, seem enhanced by the
provisions of article VII, which allow the modernization and re-
placement of existing ABM systems within prescribed limits. The
only spacecraft enjoying protection under this agreement are those
used by the parties as their “national technical means of verifica-
tion” of compliance with the SALT agreements (article XII).
The precarious stability in the development of strategic weapons
established by the ABM Treaty is further weakened by its termina-
tion clauses. Although of unlimited duration, the Treaty, in common
with other arms-control texts, gives each party the right to with-
draw, on a six months notice, “if it decides that extraordinary
events related to the subject matter of this Treaty have jeopardized
its supreme interests” (article XV). The requirement that the party
choosing to abrogate the Treaty must specify, in its notice of with-
drawal, the reasons for its action still gives wide latitude to both
parties in the selection of such reasons. And the past behaviour
of the major powers, when their national security interests (whether
genuine or contrived) are involved, does not inspire optimism. Re-
ported experimentation in anti-ballistic and anti-satellite weaponry
based on directed-energy could legitimately be invoked by either
nation as the kind of “extraordinary event” justifying notice of
withdrawal. 131
Yet in the ABM Treaty itself the two powers laid stress on their
obligation under article VI of the NPT and declared their resolve “to
achieve at the earliest possible date the cessation of the nuclear
1:1 Despite the ABM Treaty, research and development of anti-ballistic
missile weapons systems continues unabated, accompanied by growing
pressures of the military-industrial complex for greater efforts. U.S.S.R. is
reported to be spending about $1 billion a year on ABM research, whereas
the U.S. Defence Dep’t budget for 1981 allocates $265 million for these
activities (N.Y. Times (March 24, 1980), A-19, col. 1). See also N.Y. Times
(Nov. 25, 1979), 37, col. 1 (U.S. Senator Malcolm Wallop urging rapid
development of space-based ABM systems); Flight Int’l (April 12, 1980),
1123 (quoting a U.S. General’s claim of “outstanding progress in a wide
spectrum” of ABM research and development); AWST (Oct. 8, 1979), 15;
AWST (July 28, 1980), 32 (reporting that a re-evaluation of the Treaty has
been undertaken by the U.S. Administration).
McGILL LAW JOURNAL
[Vol. 26
arms race and to take effective measures toward reductions in
strategic arms, nuclear disarmament, and general and complete
disarmament” (preamble). Similarly, in the Agreement on the Pre-
vention of Nuclear War (1973) ,132 the United States and the Soviet
Union pledged themselves to pursue policies designed to “remove
the danger of nuclear war” and to “act in such a manner as to pre-
vent the development of situations capable of causing a dangerous
exacerbation of their relations, as to avoid military confrontations
…” (article I). Comparable undertakings can be found in the pre-
ambles to both the Treaty on the Limitation of Underground Nuclear
Weapons Tests (1974) 33 and the Treaty on Underground Nuclear’
Explosions for Peaceful Purposes (1976) .134 In the latter accord, the
two countries reaffirmed “their adherence to the objectives and
principles” of the Limited Nuclear Test Ban Treaty of 1963, the NPT
and the Treaty on the Limitation of Underground Nuclear Weapon
Tests, and expressed their “determination to observe strictly the
provisions of these international agreements” (preamble) .13 Despite
all these binding pledges, competition between the super-powers in
strategic and conventional armaments in every environment accessi-
ble to man is becoming ever more virulent. Moreover, as many ob-
servers contend, the increasing accuracy of nuclear delivery systems
being perfected in the shadow of these accords, together with the
developments in ABM and outer space techniques, seriously threaten
the doctrine of “mutual assured destruction” and hence the military
foundations of d6tente. 35-
Admittedly, non-compliance by one or both parties with the pro-
visions of a bilateral agreement does not, as a rule, entitle a third
party to demand performance. However, since the subject-matter
of these Soviet-American treaties is the global arms race, surely all
132 Text in Arms Control and Disarmament Agreements, supra, note 10, 153.
133 Preamble: for text, ibid., 158.
V-41Ibid., 162.
135 [Emphasis added.] Although not a formal legal obligation, Principle 26
of the unanimously adopted U.N. Declaration on the Human Environment
places upon states at least a strong moral obligation. The Principle stipulates,
inter alia, that “states must strive to reach prompt agreement … on the
elimination and complete destruction” of nuclear weapons and all other
means of mass destruction (Report of the United Nations Conference on the
Human Environment, held at Stockholm, 5-16 June 1972, U.N. Doc. A/Conf.
48/14 (July 3, 1972)). For a thoughtful appraisal of this document, see Sohn,
The Stockholm Declaration on the Human Environment (1973) 14 Harv. Int’l
L. J. 423.
’35a See, e.g., Aldridge, Missile Killers: The Hidden Arms Race The Nation
(Oct. 18, 1980), 368, 371. The U.S. and the Soviet Union both are reportedly
working on a new magnetic “railgun” which could be used in outer space
and for a surprise missile attack (N.Y. Times (Nov. 11, 1980), C-1, col. 1).
1981]
DISARMAMENT AND INTERNATIONAL LAW
In circumstances considerably
nations have a vital and legitimate concern in assuring that the
obligations assumed by the great powers are being implemented. 30
This is all the more so in view of the fact that the major powers,
by virtue of their status in the Security Council of the United
Nations, have a special responsibility to honour their treaty com-
mitments, particularly when they directly affect international peace
and security.’1
less formal than
those existing under a treaty, the International Court of Justice
found it possible in the Nuclear Tests Cases138 to establish a legal
obligation owed by France. The Court ruled that; through the
unilateral statements of its high- officials, the French government
had indicated its intention –
and therefore assumed a legal re-
sponsibility –
to terminate the atmospheric nuclear tests to which
Australia and New Zealand had formally objected. The judgment
pointedly noted that the “validity of these [French] statements and
their legal consequences must be considered within the general
framework of the security of international intercourse, -and the
confidence and trust which are so essential in the relations among
States.”13 9
136 This universal concern is explicitly articulated in the Final Document
of the 1978 U.N. Special Session on disarmament. The Declaration adopted
at this historic session, e.g., in 14 reads: “Since the process of disarmament
affects the vital security interests of all States, they must all be actively
concerned with and contribute to the measures of disarmament and arms
“. 28: “All peoples of the world have a vital interest in the
limitation …
success of disarmament negotiations. Consequently, all States have the duty
to contribute to efforts in the field of disarmament. All States have the right
to participate on an equal footing in those multilateral disarmament ne-
gotiations which have a direct bearing on their national security” (U.N. Doc.
A/Res./S-10/2 (July 13, 1978), 6, 8).
13 7 1t is of some interest to quote here the almost forgotten draft “Code
of Offences against the Peace and Security of Mankind”, adopted by the
U.N. International Law Commission on July 28, 1954. Art. 2(7) of the Code
includes among such offences: “Acts by the authorities of a State in violation
of its obligations under a treaty which’is designed to ensure international
peace and security by means of restrictions or limitations on armaments,
… or of other restrictions of the same character.” Offences defined in the
Code are regarded as “crimes under international law, for which responsible
individuals shall be punished” (art. 1) (text in U.N. Doc. A/2693, 9 GAOR,
Supp. No 9 (1954); Sohn, Basic Documents of the United Nations, 2d rev.
ed. (1968), 105. In a resolution adopted on Dec. 16, 1978, the U.N. General
Assembly has decided to accord in its work this draft Code “priority and
the fullest possible consideration” (U.N. Doc. A/Res./33/97 (Jan. 23, 1979)).
138 Supra, note 109.
1-9I.C.J. Reports 1974, 269. In praising
the Court’s decision, Professor
Thomas M. Franck concludes that “each state must now recognize that what
it solemnly says it will do, or, more important, what it says it will not d ,
becomes a part of that trellis of reciprocal expectations on which the fragile
McGILL LAW JOURNAL
(Vol. 26
C. Commitments undertaken at the Helsinki Conference, 1975
Soon after its signing in August, 1975, the Final Act of the Con-
ference on Security and Cooperation in Europe (the “Helsinki
Declaration”) 140 became one of the most frequently invoked inter-
national documents in the defence of human rights. Successive
presidents of the United States and other Western statesmen have
on many occasions called for its observance and at times even
threatened sanctions against the signatory states accused of viola-
tions of the commitments assumed.’4
1 The Helsinki Final Act is
already established as the most effective human rights text in
existence, second only to the U.N.’s Declaration on Human Rights
(1948). Although opinions vary as to the extent of the Act’s imple-
mentation and the strategies used in the efforts to enforce it, few
have questioned the actual and potential contribution of this text
to the promotion of human rights everywhere. There is also a broad
consensus in the legal characterization of the Act; while it is not
a binding juridical document, its provisions are meant to be carried
out because they are consistent with international law.142 It is less
than a treaty but much more than any resolution of the U.N.
General Assembly.
Frequent references to the human-rights clauses of the Final
Act by Western governments, media and academics have largely
obscured the fact that this lengthy document consists of three
major parts, all of equal legal force. In addition to their pledge
to promote agreed human rights, the thirty-five participating states
also expressed in the preamble to the text their determination to
give “full effect to the results of the Conference” in matters of
security in Europe and cooperation in the fields of economics,
science and technology, and the environment. While the advance-
ment of basic human rights in Europe and throughout the world
at all times merits maximum effort, it is unfortunate and short-
international system grows” (Word Made Law: The Decision of the ICJ in
the Nuclear Test Cases (1975) 69 Am. J. Int’l L. 612, 616). For a critique of the
judgment, see Macdonald & Hough, The Nuclear Tests Case Revisited (1977)
20 German Yb. Int’l L. 337; Rubin, The International Legal Effects of Unilateral
Declarations (1977) 71 Am. J. Int’l L. 1.
140 Text in (1975) 14 Int’l Leg. Mat. 1292. The Final Act was signed by thirty-
five nations.
141 See, e.g., Henkin, Rights: American and Human (1979) 79 Colum. L. Rev.
405; Balthazar, President Carter and Human Rights: the Contradiction of
American Policy Int’l Perspectives (May-June, July-Aug., 1979), 22.
142Russell, The Helsinki Declaration: Brobdingnag or Lilliput? (1976) 70
Am. J. Int’l L. 242, 246-8. The Final Act “is not eligible for registration under
art. 102 of the [U.N.] Charter” (final clauses).
1981]
DISARMAMENT AND INTERNATIONAL LAW
sighted if governments focus entirely on a single “basket” in the
Act, to the total exclusion of stipulations concerning the arms race
which are at least as important. Although references to disarma-
ment in the Final Act are, for obvious reasons, far less specific
than those relating to human rights, the document does contain
a pledge by the signatory states to “take effective measures which
by their scope and by their nature constitute steps towards the
ultimate achievement of general and complete disarmament under
strict and effective international control”.143 The Act also calls upon
parties to engage in joint efforts aimed at reducing military con-
frontation and at promoting detente.
That the current spiralling arms competition is inimical to the
goals of basic human rights is obvious, though rarely reflected in
the policies of states. The unrestrained development and acquisition
of weapons not only diverts badly needed material and human
resources to unproductive ends;144 it also threatens all societies,
including present-day democracies, with the prospect of eventually
becoming garrison states. Throughout history the worst violations
of the fundamental human rights –
rights to life and liberty –
have been committed in conditions of high tension and armed con-
143Final Act, Questions relating to security in Europe, 1(b)(i). A similar
pledge appears in s. 2(11) of the Act (“Questions relating to disarmament”).
144″The arms race represents a waste of resources, a diversion of the
economy away from its humanitarian purposes, a hindrance to national devel-
opment efforts and a threat to democratic processes. But its most important
feature is that in effect it undermines national, regional and international
security” (Economic and Social Consequences of the Arms Race and of
Military Expenditures, supra, note 25, 58). It is highly doubtful that even the
U.S. will much longer be able to endure the staggering cost of the arms race
without progressively eroding and eventually destroying its society for the
defence of which the weapons are ostensibly being acquired. Professor E.
Rothschield of M.I.T., noting that in 1970, during a period of decline in U.S.
military spending, a fifth of its engineers and mathematicians, a fourth of its
physicists, and almost half of its aeronautical engineers worked on defence-
related projects, concludes: “An economy in the throes of decline cannot
afford to lose this portion of its knowledge, of its educational system, of its
future to … destruction” (Boom and Bust: Department of Defense Annual
Report, Fiscal Year 1981 N.Y. Rev. of Books (April 2, 1980), 31, 34). According
to a staff member of the U.S. Senate, “[a]s much’as half of all research and
development expenditure
toward
military production” (Bartlett, Return of the War Economy Inquiry (March
17, 1980), 12, 14). The price of arms competition to the Soviet Union is even
higher. There the insatiable demands of the national defence apparatus are
preventing limited resources from reaching the civilian population to help
alleviate the perennial scarcity of consumer goods and services.
in the United States
is now oriented
McGILL LAW JOURNAL
[Vol. 26
flict. 145 Regrettably, evidence is still scarce that contemporary
political leaders and opinion-makers are ready to treat the arms
race as a phenomenon incompatible with human rights and to
see its continuation as the principal obstacle to the fuller imple-
mentation of the U.N. Declaration of 1948 and the Helsinki Final
Act.14
0 Prolonged indifference to the undertakings on disarmament
contained in the Helsinki Final Act cannot but weaken or even
eventually destroy the effectiveness of its human rights provisions.
IV. The arms race and its impact on space uses and their legal
regulation
Apart from its destabilizing effect on the security of all nations,
the extension of the arms competition to outer space has already
adversely affected both the uses of outer space and the process of
their legal regulation. The ensuing survey highlights some conse-
quences of the growing militarization of space for the maintenance
of peace in the arena of outer space, the delimitation of outer space,
the use of geostationary orbit, and the preservation of the environ-
mental integrity of the earth-space domain.
A. Proliferation of military space powers
In the preceding pages an attempt was made, by focusing on the
two principal space powers, to illustrate the growing scope of
military activities in outer space. But these two countries no longer
hold a monopoly on such activities. China has recently acknow-
ledged its own military space-reconnaissance programme, 147 without
specifying how many of its nine orbiting satellites serve this func-
14 Despite scores of international declarations, covenants and resolutions
hailing the sanctity of life and of the human person, the technological arms
race has been successful in promoting the “belief that national interest is
total, that of man inconsequential. So, even the prospect of total death and
destruction does not deter us from developing new weapons systems
if
some thread of national interest can be identified in the outcome. We can
accept 75 million casualties if it forces the opposition to accept 150 million”
(Galbraith, “Controlling the Military” in Beitz & Herman, Peace and War
(1973), 332, 337).
146 If not before, then as of Dec. 15, 1978, the right to life in peace has been
added to the body of human rights. On that date, the U.N. General Assembly
adopted by 138-0, with two abstentions, a “Declaration on the Preparation
of Societies for Life in Peace”. Principle 1 of the Declaration reads in part:
“Every nation and every human being … has the inherent right to life in
peace. Respect for that right, as well as for other human rights, is in the
common interest of all mankind” (U.N. Doc. A/Res./33/73 (Jan. 16, 1979)).
14 AWST (June 25, 1979), 77, 81; AWST (July 9, 1979), 18.
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DISARMAMENT AND INTERNATIONAL LAW
tion. France, a self-sufficient space power, is also developing sur-
veillance satellites for resource monitoring and military observa-
tion, with the launching date set for 1984.148 At the present time, no
other nation is known to be developing or planning a separate
national system of military satellites. That situation, however, could
change much faster than in the case of the proliferation of nuclear
weapons. When a poor and technologically underdeveloped country
like China can succeed without external aid in creating its own
nuclear-weapons arsenal and an outer space capability, 49 it is only
prudent to expect that other nations, particularly advanced in-
dustrial countries, can duplicate or even surpass the Chinese ac-
complishments with relative ease. All they need to push them in
that direction is an appropriate stimulant, and that is being provided
by the two super-powers. Western Europe is already emerging as
a major developer of advanced space technology. Indications abound
of the determination of the member countries of the European
Space Agency (ESA) to become an independent force in this field
and thus break the Soviet-American domination in space explora-
tion and use.1′ 0 While the ESA’s efforts have so far been limited
to civilian programmes, this may not continue indefinitely.
The Third World nations, increasingly impatient with the un-
willingness of the major powers to end their arms race, may decide
before long that their national interests also demand the acquisi-
tion of the most modern weaponry, including military spacecraft.
India, for example, already regarded as a nuclear-weapons power,
is expected to achieve space-launching capability in the early 1980’s.
Developing nations which lack India’s resources, or are unable to
acquire military space technology from the advanced countries,
could nonetheless join the space club by other means, as, for ex-
ample, through an organization such as the Orbital Transport and
Rocket Company (OTRAG) .” Until its reported expulsion from
14sAWST (June 12, 1978), 21; AWST (Feb. 4, 1980), 11; Air & Cosmos
(Sept. 1, 1979), 34. See also statement by President Giscard d’Estaing at
(May 25,
the U.N. Special Session on disarmament (U.N. Doc. A/S-10/PV.3
1978), 16).
149 In May, 1980, China successfully launched an intercontinental ballistic
missile, capable of carrying a nuclear warhead, to a distance of almost
7,500 miles (Int’l Herald Tribune (May 19, 1980), 1, col. 1; Int’l Herald Tribune
(May 22, 1980), 5, col. 2).
‘ An important step in that direction occurred on Dec. 24, 1979, when
the ESA nations successfully launched from a facility in French Guyana their
first space rocket “Ariane” (Interavia (Feb., 1980), 116).
151 A revealing report on OTRAG and its activities in Zaire appears in
Tibenham, Fire in the Heavens The Listener (Oct. 19, 1978), 490. See also
Interavia (April, 1978), 310.
McGILL LAW JOURNAL
[Vol. 26
Zaire in 1979,152 this private German company was developing/
defence space hardware there for several years for sale to less
affluent countries. The danger is. that military spacecraft might,
like other advanced weaponry, become a status symbol to be ac-
quired by determined nations at relatively little cost.
Any increase in the number of states with military space capa-
bilities could easily escalate so as to create complex problems for
arms-restraint negotiations. In the meantime, the potential for
conflict and mischief would increase sharply. This trend could be
facilitated by the lack of any legal restraint, apart from article IV
of the Outer Space Treaty, on the number and nature of satellites
each country is free to launch. As has already been said, the SALT
I and II agreements cover military satellites only to the extent of
forbidding interference with spacecraft used as national technical
means for verifying these agreements. The feeble attempt to nego-
tiate a ban on anti-satellite weapons ran into serious difficulties
even before the recent revival of the Cold War. “Deep Soviet concern
over the growing Chinese capability in space”,’15 3 as well as other
“concerns”, was given as a significant obstacle to progress in these
Soviet-American negotiations. In sum, space law and arms control
treaties, as interpreted by the super-powers, have failed to place
any meaningful constraints on the militarization of outer space.
B. Outer space boundaries
The question of where sovereign. air space ends and free outer
space begins has been tantalizing international lawyers and diplo-
mats almost since the first orbit of Sputnik 1.154 This was to be
expected once the community of nations agreed, as it soon did, that
the legal regime of outer space should be based on the principle of
freedom. As the number of space vehicles and countries participat-
ing in space activities increased, it was only natural for a growing
number of states to find the absence of any agreed demarcation line
between the two physically adjacent, yet legally quite dissimilar
152 AWST (May 7, 1979), 18. Under the terms of an agreement with OTRAG,
concluded in 1975, Zaire granted the German company virtually unlimited
control over 100,000 square kms of the country’s territory. In return, Zaire
received a rent and a promise to have a “spy” satellite launched by OTRAG.
Forced out of Zaire, OTRAG is reported to have moved its testing activities
to Libya (Flight Int’l (Oct. 18, 1980), 1503); AWST (Dec. 1, 1980), 18.
15 AWST (July 9, 1979), 18.
154The question was first formally recognized by the U.N. as a legal
problem in the Report of the Ad Hoc Committee on the Peaceful Uses of
Outer Space, U.N. Doc. A/4141 (July 14, 1959), 25.
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DISARMAMENT AND INTERNATIONAL LAW
areas, a source of “uncertainties in outer space law and in air law.”‘155
After a decade of inconclusive debate, mainly outside the formal
forums, France took the initiative in the late 1960’s of placing the
problem of the “definition and/or the delimitation of outer space”
on the agenda of the U.N. Committee on the Peaceful Uses of Outer
Space (COPUOS) as a question of some urgency. 156 From the very
outset, the two super-powers took the position that such a demarca-
tion line was unnecessary “at the present time” and could even
interfere with current and future space activities. Although scienti-
fic and technical reasons, as well as the absence of acute legal
problems, have regularly been cited.in support of this position,157
the suspicion that military considerations underlie the Soviet-
American stand has been growing and appears well founded. It is
common knowledge that satellites for surveillance and electronic
intelligence which were among the earliest and most important
military devices in outer space, operate best in orbits between 100
and 250 miles above the earth. Steady improvements in satellite
technology have led to a reduction of the lowest altitude at which
spacecraft can survive in orbit. For example, several “close-look”
satellites launched in recent years have been able to complete at
least one orbit at altitudes of less than one hundred miles. 57″ A
boundary at too high an altitude might therefore not only impede
existing military programmes but also preclude some future, as yet
undefined, low-orbit defence activity. 5s
155 Report of the Legal Sub-Comm. on the Work of its Eighteenth Sess.
(March 12 – April 6, 1979), U.N. Doc. A/AC.105/240 (April 10, 1979), 9.
156 For a useful survey of the problem of boundaries, including a summary
of various proposals made in the COPUOS, see The Question of the Definition
and/or the Delimitation of Outer Space, U.N. Doc. A/AC.105/C.2/7 Add. 1
(Jan. 21, 1977).
157 See, e.g., Report of the Legal Sub-Comm. on the Work of its Nineteenth
Sess. (March 10 – April 3, 1980), U.N. Doc. A/AC.105/271 (April 10, 1980), 8,
for a catalogue of various factors advanced by the opponents of a boundary.
For a recent commentary see Rosenfeld, Where Air Space Ends and Outer
Space Begins (1979) 7 J. Space L. 137. According to’L. Perek, former Chief
of the Outer Space Affairs Div. in the U.N. Secretariat, at least “scientific
methods are sufficiently determinate and precise” to suggest a specific
demarcation line (Scientific Criteria for the Delimitation of Outer Space
(1977) 5 J. Space L. 111, 123).
157n E.g., certain U.S. high-resolution spacecraft are launched into orbits
ranging from 77 to 215 miles and occasionally operate as low as 69 miles
above the earth’s surface (AWST (Oct. 6, 1980), 18).
5sWithout attribution to any particular country, a recent Report of the
Legal Sub-Comm. of COPUOS euphemistically notes that in the view of some
delegations an arbitrary boundary “could lead to complications” and “could
impede further developments
(supra,
note 157).
in space science and technology”
(
McGILL LAW JOURNAL
[Vol. 26
In the spring of 1979, the Soviet Union changed its policy and
submitted to the Legal Sub-Committee of COPUOS an informal
proposal which suggested that the upper limit of sovereign air space
be placed somewhere between 100 and 110 kilometres above sea
level. ‘ In the same proposal, the Soviets urged the adoption of
what amounts to a right of “innocent passage” for spacecraft flying
below that altitude. The relevant part of the Soviet proposal reads:
“Space objects of States shall retain the right to fly over the terri-
tory of other States at altitudes lower than 100 (110) km above
sea level for he purpose of reaching orbit or returningto earth in
the territory of the launching State.”‘160 While an international agree-
ment incorporating a low ceiling for sovereign air space with the
right of innocent passage might easily have received universal
acceptance in earlier years,. this may no longer be true. The exten-
sion of the arms race to outer space, with military spacecraft of
unknown nationality and suspect missions traversing the territory
of scores of states at low altitudes, can only arouse apprehension
on the part of the subjacent countries. A device like the space
shuttle, if used exclusively for civilian missions, would cause little
or no concern and would readily be granted the right of innocent
passage; but when programmed to carry out, among other functions,
manned photo-reconnaissance “to supplement intelligence from un-
manned spacecraft”, 161 such a grant might not be forthcoming. In
sum, whether or not a demarcation line between air space and
outer space is necessary at this time is not of principal concern
here; what merits emphasis is the likelihood that the military
interests of a few powers have delayed for more than twenty years
any serious discussion of an issue important to the legal regulation
of both air navigation and outer space activities.
C. Claims to sovereignty over the geostationary orbit
The rapid and continuing proliferation of communications sa-
tellites operating in the geosynchronous equatorial orbit (22,300
miles, or 35,800 kilometers, above the earth’s surface) has been a
cause of concern for some time to the world community.10 2 The
159 U.N. Doc. A/AC.105/240, Annex IV (April 10, 1979), 6: supra, note 155.
160 Ibid.
101 AWST (June 4, 1979), 11. For a thoughtful comment on the question of
“freedom of passage” for spacecraft, see Goedhuis, supra, note 123, 592-3.
162 See, e.g., Gorove, The Geostationary Orbit: Issues of Law and Policy
(1979) 73 Am. J. Int’l L. 444; Christol, The Geostationary Orbital Position
as a Natural Resource of the Space Environment (1979) 26 Netherlands Int’l
L. Rev. 5; Corb’eil, Le Statut international juridique de l’orbite gdostationnaire
(1978)
32 Revue frangaise de droit adrien 303; Gaviria-Lievano, Regimen
Juridico de la orbita geostacionaria y el espacio ultraterrestre (1978).
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DISARMAMENT AND INTERNATIONAL LAW
concern stems from the considerable uncertainty as to the number
of communications satellites that geostationary orbit can accom-
modate. While some sources claim that as many as 1,800 satellites
could operate simultaneously in that orbit, others place the figure
at 180.’3 It is a belief in the accuracy of the lower figure that has
led to complaints about “saturation” and “overcrowding” of this
limited segment of outer space above the Equator. As of March,
1980, eighty operating satellites have been reported in that orbit,
reflecting the steady proliferation of separate communications
systems. 164 These systems comprised, by January, 1978, two inter-
national, five regional, six military, thirty-four domestic and thirteen
experimental systems, as well as five systems for special purposes
such as aeronautical, maritime, broadcast and data relay.’ 65 The
number is certain to grow as demand for communications satellite
services increases and the technology gets cheaper and thus more
accessible to the less affluent countries. The difficulties in accom-
‘modating a large number of users in a limited natural resource
could be aggravated if plans for stationing massive solar collector
satellites in the geosynchronous orbit (to convert solar energy to
microwave energy for transmission to earth) should be implement-
ed.166
The evolving controversy about slots in the geostationary orbit
stems from the shortage of exploitable radio frequencies and the
resulting radio interference from operating communications satelli-
tes. The International Telecommunication Union, the world regu-
latory agency, has so far proved unsuccessful in coping with the
problem, partly because its regulations on the use of the electro-
magnetic spectrum are not backed by sanctions, and partly because
it does not have the authority to grant or deny positions in the
geosynchronous orbit. 67 The opportunities for a fair and rational
163 Christol, supra, note 162.
164 N.Y. Times (March 24, 1980), D-1, col. 3. In June, 1978, NORAD reported
108 “vehicles” in geosynchronous orbit, including 30 American and 25 Soviet
to some
payloads (N.Y. Times (June 28, 1978), A-15, col. 1). According
current estimates, by 1990 there will be 239 active satellites in geostationary
orbit (Gorove, supra, note 162, 445).
1G5 Pelton, Communication Satellite Proliferation: Will We Have Too Much
of a Good Thing? 2 Satellite Communications (Jan. 1978), 22.
106 See, e.g., Gorove, Solar Power Satellites and the ITU: Some U.S. Policy
Options (1979) 4 Annals of Air & Space L. 505; Magdel6nat, Energie solaire
via satellites et cooperation internationale (1978) 3 Annals of Air & Space L.
467; N.Y. Times (Feb. 20, 1979), C-1, col. 1.
167 For a useful survey of both the existing I.T.U. regulations and major
issues, see Jasentuliyana, “Regulations Governing Space Tele-
unresolved
communications” in Jasentuliyana & Lee, supra, note 39, Vol. 1, 195; Rut-
McGILL LAW JOURNAL
[Vol. 26
allocation of positions in this orbit and a just settlement of disputes
are further reduced by the provision of the controlling International
Telecommunication Convention granting virtually unrestricted free-
dom to military radio installations.”8 While it would be an exaggera-
tion to single out the military as the principal cause of the current
crowding of the geostationary orbit, there can be no doubt that
their growing presence (amounting to at least twenty per cent of all
operating communications satellites) materially compounds
the
problem.’ 19
In direct response to these trends, eight equatorial nations,
fearful of losing all the available positions in the geostationary orbit
to the more advanced countries, asserted a claim on December 3,
1976 to sovereignty over those segments of the orbit which corre-
spond to their national territories.170 At the same time, they an-
nounced that no definition or demarcation of outer space failing
to take this claim into account could receive their support. Pre-
dictably, the claim ran into strong opposition from the major users
of the geostationary orbit. These nations view the orbit as in-
separable from the rest of outer space and therefore fully governed
kowski, The 1979 World Administrative Radio Conference: The ITU in a
Changing World (1979) 13 Int’l Lawyer 289.
168Art. 38(1) of the Convention adopted on Oct. 25, 1973 at Malaga.
Torremolinos is quite explicit on. this point: “Members retain their entire
freedom with regard to military radio installations of their army, naval and
air forces” (T.I.A.S. No. 8572). Even when not operating from the geosta-
tionary orbit, military satellites are causing interference with civilian uses
of the radio spectrum. Thus U.S. Navy surveillance satellites, located in a 700
mile orbit, “have generated protests from some radio astronomers” because
they transmit near a band allocated by the I.T.U. to radio astronomy (AWST
(July 10, 1978), 23).
169 For an account of the expanding militarization of this orbit, see Military
communications satellites: a brief overview of current US and Soviet
systems Interavia (April, 1980), 351. The Defence Dep’t is the largest user of
the radio spectrum in the United States (N.Y. Times (Aug. 30, 1979, D-3,
col 4).
170 In a statement endorsed by Brazil, Colombia, Congo, Ecuador, Indone-
sia, Kenya, Uganda and Zaire, these equatorial countries declared that “the
geostationary synchronous orbit is a physical fact linked to the reality of our
planet because its existence depends exclusively on its relation to gravi-
tational phenomena generated by the earth, and that is why it must not be
considered part of outer space. Therefore, the segments of geostationary
synchronous orbit are part of the territory over which Equatorial states
exercise their national sovereignty”: for the text of the “BogotA Declara-
tion”, see Jasentuliyana & Lee, supra, note 39, Vol. 2, 383. This claim was
originally made by Colombia in the First Comm. of the U.N. Gen. Assembly
in Oct. 1975 (U.N. Doc. A/PV. 2376 (Oct. 6, 1975), 42).
19811
DISARMAMENT AND INTERNATIONAL LAW
by the principle of freedom established in the Outer Space Treaty.’
In that, they enjoy at this time the support of a majority of states.
The World Administrative Radio Conference, held late in 1979, which
was expected to help resolve the dispute failed even to discuss it.
Instead, the participants decided to convene another conference in
1984-85 to deal with the problem.172
Although it is likely that a more efficient use of the radio spec-
trum, capable of accommodating all interests, may be found through
future improvements in satellite-communications technology, it could
come too late to end the gradual erosion of the principle of freedom
which was signalled by the claim of the equatorial states.17 3 As
history amply demonstrates, it is rare for states willingly to with-
draw exclusive territorial claims even when the evidence indicates
that their national interest could be better served through a regime
of sharing. In retrospect, one wonders if the equatorial states would
have advanced their claim to sovereignty over a distant region in
outer space if an international agreement on the upper limit of
national air space had been in force by 1976.174 The continuing non-
existence of such an agreement seems largely due to the pre-eminence
of military considerations in the law-making process for outer space.
D. Reporting on space activities and satellites in orbit
Not long after the advent of the space age, an accurate public
record of both satellite launchings and satellites in orbit came to be
widely regarded as an important factor in the maintenance of public
171 The question of the legal status of the geostationary orbit has been on
the agenda of COPUOS since 1977. No significant progress in reconciling the
opposing views has been made so far: see U.S. Doc. A/AC.105/271 (April 10,
1980), 9.
172N.Y. Times (Nov. 17, 1979), 31, col. 1; The Economist (Dec. 8, 1979),
83. For an official summary of the results of the Conference, see I.T.U.,
End of the World Administrative Radio Conference, Geneva, 1979, ITU/79-29
(Dec. 6, 1979).
173 See, e.g., Goedhuis, Some Observtaions on the Problem of Definition
and/or the Delimitation of Outer Space (1977) 2 Annals of Air & Space
L. 287, 294, where the author expresses a fear for “a gradual dismantling of
this principle”.
174 Professor M. Marcoff suggests that these claims should be regarded
“as a strong response … in retaliati6n for the continuing infringements”
of the rights of these states by the space powers (The International Space
Agency Project, the Declaration of Bogota and the “Common Interests”
Rule (1976) 15 Diritto Aereo 166, 181). See also Rosenfeld, supra, note 157,
141. Of course, the fact that about 90% of the radio spectrum is now being
used by approximately 10% of the most affluent nations almost ‘certainly
has influenced the demands of the equatorial states (N.Y. Times (Aug. 30,
1979), D-3, col. 4; N.Y. Times (Sept. 25, 1979), A-1, col. 5).
McGILL LAW JOURNAL
[‘Vol. 26
order in outer space. As early as 1961, the U.N. General Assembly
appealed to the launching states to voluntarily furnish the Secretary-
General with information on their launchings for purposes of U.N.
registration.175 Nevertheless, it was not until the adoption in 1975
of the Convention on the Registration of Objects Launched into
Outer Space” 6 that the reporting became mandatory for the states
party to this agreement (article IV). The Registration Convention,
though a step in the right direction, unfortunately falls far short
of guaranteeing quick, accurate and full reporting of space missions.
The requirement of mandatory reporting to the Secretary-General
under the Convention is only a slight improvement on the voluntary
reporting practised since 1962. Through their domination of the
negotiating process in COPUOS, the super-powers made sure that
the Convention would allow maximum concealment of their military
space activities while preserving the appearance of complete dis-
closure. Crucial information such as the date and location of the
launch, changes in orbital parameters after the launch, and the
recovery date of the spacecraft must be reported under the Con-
vention “as soon as practicable”.’17 In practice, this may take weeks
or months.” 8 Incredibly, states are not obliged to reveal the true
function of the satellite, information of great and legitimate interest
to the world community. All that they must report is the “general
function of the space object” (article IV 1 (e)). In the apt assess-
ment of a U.S. Senate document, “such descriptions have tended
to be so vague as to be close to meaningless.’ ‘ 79 Furthermore, the
Convention does not require the launching states to provide each
spacecraft and its component parts with appropriate identification
markings so as to facilitate the establishment of its country of
origin in case of accident. 180 Such markings could prove invaluable,
perhaps even indispensable, in determining the state bearing inter-
national responsibility for injury or damage caused by a space
object.
175 U.N. Doc. A/Res. 1721 (XVI) (Dec. 20, 1961).
176 For the text of the Convention, see sources in note 39, supra, For an
analysis of the Convention and an evaluation of state practice under the
earlier voluntary system of registration, see Senate Committee on Aero.
& Space Sciences, 94th Cong., 1st Sess., Convention on Registration of
Objects Launched into Outer Space: An Analysis and Background Data (1975).
‘7 Article IV(1), (3).
178 Cocca, “Convention on Registration of Objects Launched Into Outer
Space” in Jasentuliyana & Lee, supra, note 39, Vol. 1, 173, 182; Scoville &
Tsipis, supra, note 46, 21.
179 Supra, note 176, 22.
18OUnder art. V, marking of space objects is voluntary.
19811
DISARMAMENT AND INTERNATIONAL LAW
The reporting record of the major space powers under the
Registration Convention consistently exhibits a lack of candour and
minimal concern for the interests of other states. It suffices to
recall that no space mission has ever been reported by these powers
as serving military purposes. Yet the concealment of the true ob-
jective of a particular spacecraft surely cannot be only for the
protection of one super-power against the other. Since both possess
highly effective monitoring devices, which in most cases can accur-
ately reveal the genuine purpose of a spacecraft, the deception seems
aimed at the nations lacking such devices as much as at the poten-
tial adversary. The result is the same –
growing uncertainty and
suspicion as to the nature of all space activities, making future
space law agreements more difficult to achieve.
E. Effects of the space arms race on the human environment
The universal preoccupation with environmental quality, which
in 1972 led to the U.N.’s Declaration on the Human Environment 81
and to a series of multilateral treaties aimed at protecting man’s
habitat from harmful interference, 18 2 has had insignificant impact
on the defence activities of states. New international law, much
like the old, turns a blind eye when it comes to restricting military
activities, no matter how detrimental they may be to the natural
environment. With the sole exception of the Limited Nuclear Test
Ban Treaty, no other international agreements, not even accords
designed to control environmental contamination, apply directly
to the armed forces of the contracting parties. In fact, most anti-
pollution treaties explicitly exclude the military from their applica-
tion. A few examples will help illustrate the point.
The world-wide apprehension aroused some two decades ago
by the introduction of several nuclear-powered merchant vessels
all but terminated experimentation with atomic energy as a civilian
marine source of propulsion. Today, the only non-naval vessels
using nuclear power are two Soviet icebreakers, operating almost
exclusively within the waters adjacent to the U.S.S.R.’s land mass.
Paradoxically, more than a dozen nuclear-powered warships and
almost two hundred large nuclear submarines on active service in
the navies of the four major powers 183 have failed to arouse the
same concern. Although many of these instruments of war, armed
181 Supra, note 135.
1.82For an excellent analytical account of the current state of inter-
national environmental law, see Schneider, World Public Order of the En-
vironment (1979).
188 Flight Int’l (April 5, 1980), 1083; Air Force Mag. (Dec., 1980), 66 et seq.
McGILL LAW JOURNAL
[Vol. 26
with an array of strategic nuclear weapons, are constantly at sea,
clearly posing a major threat to oceanic eco-systems, they are for
all practical purposes free from public scrutiny or any environmental
control other than that unilaterally prescribed by the government
which operates them. For example, the Convention on the Pre-
vention of Marine Pollution by Dumping of Wastes and Other Matter
is not applicable to “those vessels and aircraft entitled to sovereign
immunity under international law … ” (article VII (4)) .184 The all-
important International Convention for the Prevention of Pollution
from Ships stipulates that it “shall not apply to any warship, naval
auxiliary or other ship owned or operated by a State and used, for
the time being, only on government non-commercial service … ”
(article 3(3)). 15 The U.N.’s draft Convention on the Law of the
Sea,18 6 nearing completion, employs the same language as the
Pollution from Ships Convention in excluding state vessels from its
application: Instead, each contracting state is invited to adopt
“appropriate measures not impairing operations or operational
capabilities of such vessels or aircraft owned or operated by it,
[to ensure] that such vessels or aircraft act in a manner consistent,
so far as is reasonable and practicable, with this Convention … ”
(article 236). That such a meaningless provision could pass in 1980
for an environmental safeguard provides convincing, as well as
alarming, evidence of the growing influence of defence interests in
the international law-making process.’ 7
The problem of rapidly accumulating nuclear waste offers
another example. More than three decades after the atomic age
184 Text in (1972) 11 Int’l Leg. Mat. 1294.
186Text in (1973) 12 Int’l Leg. Mat. 1319.
186 U.N., Third Conf. on the Law of the Sea, Draft Convention on the Law
of the Sea (Informal Text), U.N. Doc. A/Conf. 62/WP.10/Rev. 3 (Sept. 22,
1980).
187The absence of any bpposition to the accelerating militarization of the
world’s oceans, inevitably leads to new encroachments. A recent report on a
U.S. Navy ocean surveillance system, currently in the process of study and
development provides compelling illustration. When completed, the system
would consist of hundreds of mobile airborne platforms, covering all the
ocearls, each equipped with a motor and radar. Stationed 68,000 ft above
the surface, each platform would serve the purpose of protecting U.S.
warships against missile attacks and would assist in targeting against hostile
ships. These platforms would remain aloft for a year (AWST (May 21, 1979),
59). That the deployment of hundreds of such platforms in the air space over
the high seas would represent a great hazard to the safety of international
air and sea commerce and an unprecedented as well as intolerable abuse
of the freedom of the sea, has been, apparently, of no concern to the
planners of this “defence” system.
1981]
DISARMAMENT AND INTERNATIONAL LAW
began, there is still no solution to the problem of safe disposal
of high-level nuclear waste. 18 Some experts believe that the wastes
will remain dangerously toxic for millions of years, posing an in-
tolerable threat to future generations. While in this matter the
attention of the public and governments has been overwhelmingly
focused on the civilian nuclear industry, “9 rarely mentioned is the
fact that by far the largest amount of such waste has been generat-
ed, not by power plants, but by military activities, primarily weapons
production and nuclear submarines. 90 Although the problem of
storage is still largely within the- exclusive jurisdiction of each
operating state, it could soon become a major international con-
cern. This might occur if long-term containment is sought through
storage on sites that could threaten resources in which all mankind
has a legitimate interest (e.g., on a remote ocean island, in An-
tarctica, or even in outer space).”” The legal response of the com-
munity of nations to this problem has so far been one of neglect.
The saga of the Franco-British supersonic airliner, the Concorde,
provides further evidence of the contrasting treatment routinely
accorded by governments and the public to essentially the same
technology. The adverse effects of the inevitable sonic “boom”,
and possibly irreversible damage to the earth’s ozone layer expected
from the operations of the Concorde, led to a bitter political and
legal controversy.192 When permission for the start of commercial
flights was finally given to this aircraft, it was subject to so many
restrictions as to make economically sound operations nearly im-
possible. At the same time, except for low-level flights over densely
188 See, e.g., Mathias & O’Neill, The Nuclear Waste Management Act of
1977 (1977) 19 Atom. Energy L.J. 3 (statute not yet enacted) and Deese,
Sub-Bed Disposal of High-Level Radioactive Waste: Prevention or Manage-
menit?, ibid., 41. See also Sweet, Unresolved: the front end of nuclear waste
disposal 35 Bull. Atom. Scientists (May, 1979), 44; Flowers, Nuclear power:
a perspective of the risks, benefits and options 34 Bull. Atom. Scientists
(March, 1978), 21; Abbotts, Radioactive waste: a technical solution? 34 Bull.
Atom. Scientists (March, 1978), 12.
18 OZinberg, The public and nuclear waste management 35 Bull. Atom.
Scientists (Jan., 1979), 34; Weisskopf, The Overwhelming Priority, 36 Bull.
Atom. Scientists (Feb., 1980), 1.
190 N.Y. Times (Dec. 27, 1979), A-22, col. 1 (editorial); Life (May, 1979), 25.
191 See, e.g., Time (June 2, 1980), 65, for a proposal to launch nuclear waste
in a distant orbit. Deese suggests disposal on sea-bed “in areas beyond
national jurisdiction” (supra, note 188, 41).
192Ross, The Concorde Compromise: the politics of. decision-making 34
Bull. Atom. Scientists (March, 1978), 46, 50-2. See also British Airways v.
Port Authority of New York 564 F. 2d 1002 (1977). The genesis of the Concorde
and its environmental effects are explored in Wilson, The Concorde Fiasco
(1973).
McGILL LAW JOURNAL
[Vol. 26
populated areas, literally thousands of military supersonic aircraft
were free to operate at all altitudes, over land and sea, with only
token concern for the environment. The environmental impact of
these aircraft has so far failed to stir the world community into
action; hence international law contains no specific rules for the
protection of the atmosphere and the earth’s ozone layer against
this hazard.193
Probably because man’s activities in outer space are relatively
new, and are predominantly military in nature, and are carried on
in a seemingly boundless area, their environmental impact has re-
ceived to date only scant attention by states. Yet sufficient experience
is available to show that these activities can cause harmful effects
both on earth as well as in outer space.194 Congestion (“crowding”)
of the near-earth space, falling debris, damage to the atmosphere
and ionosphere (including the ozone layer) by rocket propellants
and the danger of radioactive contamination are only the most
obvious risks posed by the growing utilization of outer space. The
word “congestion” when applied to this infinite environment seems
almost absurd, and this would be the case if the present and fore-
seeable uses of space were evenly spread throughout our solar
system. But the largest number of satellites, including all those of
the greatest practical utility, are operating in the vicinity of the
earth. Congestion is beginning to be felt at and below the geosta-
tionary orbit, especially in the region extending to an altitude of
1,000 miles. In 1979, 6,811 man-made objects had been identified in
that region, including hundreds of operating satellites as well as
fragments of decayed spacecraft.0 5 By 1985, the number of orbital
objects may double. 9 6 In the not too distant future, a large assembly
of orbital stations in outer space can be expected, with constant
shuttling of supply spacecraft to and from the earth, further adding
193 See Schneider, supra, note 182, 41. See also Christol, Aircraft and the
International Legal and Institutional Aspects of the Stratospheric Ozone
Problem (1976) 1 Annals of Air & Space L. 3.
According to the U.S. National Academy of Sciences, the earth’s ozone
layer is being depleted at twice the rate predicted earlier (N.Y. Times (Nov.
10, 1979), 21, col. 5). See also The Global 2000 Report, Statement by the
Secretary of State, 80 Dep’t State Bull. (Sept., 1980), 38, 40. In a period
between 1968 and 1977, the number of nations operating .supersonic combat
aircraft rose from four to forty-seven (Flight Int’l (Oct. 27, 1979), 1339).
194 Christol, Protection of Space from Environmental Harms (1979) 4 Annals
of Air & Space L. 433; Sand, Space Programs and International Environ.
mental Protection (1972) 21 Int’l & Comp. L.Q. 49.
195N.Y. Times (July 11, 1979), A-18, col. 1.
9 6Time (March 24, 1980), 45.
‘
1981]
DISARMAMENT AND INTERNATIONAL LAW
to the density of traffic.1′
It should come as no surprise that most
of the crowding is being caused by the military who, according to
an authoritative source, account for seventy-five per cent of all sa-
tellites launched to date, of which fifty per cent are of the sur-
veillance type.198 A large concentration of man-made objects in near-
earth orbits aggravates security problems owing to a lack of fully
reliable identification methods, creates possibilities of collision,
causes interference with the radio signals used by various civilian
space missions (e.g., radio astronomy and telecommunications) and
increases the danger of injury and damage on the earth from frag-
ments of decaying space vehicles.
Because, after twenty-three years of space activities, no appreci-
able damage has been caused on the earth from falling debris,
governments have felt no sense of urgency to adopt a code of
conduct aimed at minimizing and preventing the -harmful conse-
quences of such activities. The Convention on International Liabi-
lity for Damage Caused by Space Objects, (1972), while noting that
“notwithstanding precautionary measures to be taken by States
and international inter-governmental organizations involved in the
launching of space objects, damage may on occasion be caused by
such objects”, nevertheless becomes operative only after a damage-
causing accident. 99 The indifference to this potential threat to life
and property received a severe jolt on January 24, 1978, when, with
a minimum of warning, a five-ton Soviet surveillance satellite (Cos-
mos-954), with a small nuclear reactor aboard, disintegrated over
Canada’s Arctic. After a lengthy search, a number of the satellite’s
fragments were recovered, with several of them found to be of
“lethal radioactivity”. The cost of search and clean-up operations
amounted to $14,000,000.20 This incident served to draw the world’s
attention to the longstanding practice of space powers in launching
197 The U.S.S.R. is reportedly planning to launch into earth orbit a 220,000
pound “military-scientific” space station, with a crew of twelve cosmonauts,
by mid-1980’s (AWST (June 16, 1980), 26).
198 Lay, Nuclear technology in outer space 35 Bull. Atom. Scientists (Sept.,
1979), 27, citing SIPRI’s World Armaments and Disarmament Yearbook (1978).
119 Preamble: the Convention was opened for signature on March 29, 1972
(text in Jasentuliyana & Lee, supra, note 39, Vol. 2, 13).
200A comprehensive account of the incident and the search for debris
appears in Heaps, Operation Morning Light (1978). For Canada’s claim against
the U.S.S.R. for damage caused by the Soviet satellite, see (1979)
18 Int’l
Leg. Mat. 899; see also Farand, L’apport du Canada en mati~re de responsa-
bilitd internationale pour les dommages d’origine spatiale: l’affaire du sa-
tellite Cosmos 954 (1980) 11 Etudes Internationales 467. Under the terms of
a tentative agreement, the U.S.S.R. will pay Canada $3 million in damages
(The [Montreal] Gazette (Nov. 22, 1980), 11, col. 5).
McGILL LAW JOURNAL
[Vol. 26
into outer space, without any international controls, vehicles carry-
ing radioactive materials. Since the practice started, between twenty-
five and one hundred satellites equipped with nuclear power sources
have been placed by the U.S.S.R. and U.S. in earth orbit or used for
lunar and planetary exploration.20 1 Following the fall of Cosmos-954,
Canada called for a review of existing international legal texts, in
the light of the special hazards posed by the use of nuclear power
sources in space. In particular, the Canadian government felt that
“serious questions arise as to the adequacy” of the Registration
Convention in controlling space objects carrying hazardous sub-
stances which “pose serious risks to human life and to the earth’s
environment”. To reduce these hazards, it suggested the elaboration
of “more stringent notification requirements at each of four stages
in the life of such satellites”2O (the four stages being its initial
launching, its decaying orbit, the period immediately prior to im-
pact, and the post-impact period). In response to the Canadian
request, the “[q]uestion relating to the uses of nuclear power sour-
ces in outer space” was placed on the agenda of COPUOS in 1978
as a priority item.20 3 The subject is still being discussed and no
specific action has so far been taken. 0 4
It should be emphasized that Canada is not urging a total ban
on the placing of radioactive materials in outer space; it merely
seeks improved international control in the use of such materials
and better notification procedures with regard to vehicles carrying
radioactive substances.0 5 The modest scope of these recommenda-
tions may well be dictated by the opposition of both space powers
to the idea of a complete prohibition on nuclear devices in outer
space 0 6 Yet it would seem reasonable, however, to expect a total
20 1 Jasentuliyana, A Perspective of the Use of Nuclear Power Sources in
Outer Space (1979) 4 Annals of Air & Space L. 519, 521; Lay, supra, note 198.
202 Statement by Ambassador R. Harry Jay to the Legal Sub-Comm. of
COPUOS, Geneva (March 14, 1978), 4 (mimeograph).
203 Endorsed by the Gen. Assembly, in U.N. Doc. A/Res./33/16 (Nov. 10,
1978).
204 On recommendation of the Gen. Assembly (U.N. Doc. A/Res./34/66 (Dec.
14, 1979)), the Legal Sub-Comm. of COPUOS commenced in the spring of
1980 an examination of existing international law in order to ascertain its
adequacy to control the use of nuclear powqr sources in outer space. Early
debates revealed that some states believe that existing principles and norms
.of international law “quite adequately and sufficiently regulated all aspects
of the use of nuclear power sources in outer space” whereas others, in-
cluding Canada, felt that new, more specific, international rules were ne-
cessary: see U.N. Doc. A/AC.105/271 (April 10, 1980), 10-3.
205 See Canada’s working paper on the “Use of Nuclear Power Sources in
Outer Space”, ibid., Annex III.
200 See, e.g., Lay, supra, note 198.
1981]
DISARMAMENT AND INTERNATIONAL LAW
ban at least to be discussed since even the most ardent advo-
cates of nuclear energy concede that it is virtually impossible to
eliminate all the risks that this form of energy poses.207 Moreover,
once nuclear materials have been introduced into outer space, even
in their present limited quantities, the process may become irre-
versible, with additional and more lethal devices following. 08
Only a year and a half after the Cosmos incident, the world
had anothe r opportunity to witness the inability of a leading space
power to control’the movement of one of its most advanced space-
craft. On July 11, 1979, the U.S. “Skylab”, a space giant weighing
seventy-seven tons and for some time out of control and losing
orbital altitude, began to disintegrate upon re-entering the earth’s
atmosphere. 0 9 Its fragments fell into the Indian Ocean and on
sparsely populated Western Australia with the heaviest part found to
weigh eighty kilograms. No injury or damage was reported. For-
tunately, the spacecraft’s disintegration began at a relatively low
altitude of ten miles, resulting in an area of debris distribution
much smaller than expected –
about forty miles wide and 2,400
miles long, compared to the anticipated one hundred by 4,000
miles.210
The adverse effects on the terrestrial and space environment
produced by rocket exhaust fumes are self-evident. While the
amount of pollutants introduced into the biosphere in the course
of normal launchings is significant, it increases greatly in the case
of an aborted flight, when hundreds of thousands of pounds of
toxic propellants are released in the earth’s atmosphere. Although
the hazards of atmospheric contamination by space activities have
been known for a long time, the only international organization
studying the problem with any regularity is the Committee on
Space Research (COSPAR), a non-governmental scientific organiz-
ation with no decision-making authority over states. In one of its
207 Jasentuliyana, supra, note 201, 525.
208 The risks arising from the nuclear satellites and the steady expansion
of military activities in outer space have led one observer to urge “demi-
litarization and denuclearization of at least low earth orbits” (Mateesco-
Matte, Cosmos 954: Pour une “Zone orbitale de sdcuritg” (1978) 3 Annals of
Air & Space L. 483, 508).
209 N.Y. Times (July 12, 1979), A-1, col. 5.
210 NASA News Release No. 79-151 (Nov. 14, 1979). The U.S. civilian space
in Dec. 1979 another mishap, of a most bizarre
progamme experienced
nature. A $50 million R.C.A. communications satellite, launched on Dec. 6
from Cape Canaveral, “disappeared”- without trace as it went into orbit. All
attempts to locate this one-ton spacecraft have remained unavailing (N.Y.
Times (Dec. 12, 1979), D-22, col. 1; N.Y. Times (Jan. 20, 1980), 37, col. 1).
McGILL LAW JOURNAL
[Vol. 26
resolutions adopted in 1979, COSPAR repeated its warning about
the “unwarranted effects [of satellites] during atmospheric re-entry”
but could do no more than urge the launching states “to be cog-
nizant of these effects and to make appropriate provisions to have
such debris impact in areas where no damage to human activity is
expected. 2 1′ This appeal, like the earlier ones,212 has not yet gen-
erated any noticeable response from governments.
Twenty-three years since the advent of space activities, the legal
protection of the earth-space environment against harmful uses
still rests largely on a single article (article IX) of the Outer Space
Treaty. The relevant part of article IX states:
In
the exploration and use of outer space, including the Moon and
other celestial bodies, States Parties to the Treaty … shall conduct all
their activities in outer space, including the Moon and other celestial
bodies, with due regard to the corresponding interests of all other States
Parties to the Treaty. States Parties to the Treaty shall pursue studies
of outer space, including the Moon and other celestial bodies, and
conduct exploration of them so as to avoid their harmful contamination
and also adverse changes in the environment of the Earth resulting from
the introduction of extra-terrestrial matter and, where necessary, shall
adopt appropriate measures for this purpose. If a State Party to the
Treaty has reason to believe that an activity or experiment planned by
it or its nationals in outer space, including the Moon and other celestial
bodies, would cause potentially harmful interference with activities of
other States Parties in the peaceful exploration and use of* outer space,
including the Moon and other celestial bodies, it shall undertake appro-
priate
international consultations before proceeding with any such
activity or experiment. A State Party to the Treaty which has reason
to believe that an activity or experiment planned by another State Party
in outer space, including the Moon and other celestial bodies, could cause
potentially harmful interference with activities in the peaceful explora-
tion and use of outer space, including the Moon and other celestial
bodies, may request consultation concerning the activity or experiment.
As far as is known, the consultations provided for in this article
have been neither requested nor held. Similarly, though the need for
an impartial standard-setting international authority with a final
decision-making power to which all experiments and programmes
potentially harmful to the earth-space environment would have to
be reported for advance clearance, has long been recognized if
21Resolution adopted by the Executive Council and the XXII Plenary
Meeting of COSPAR, Bangalore, India, June 9, 1979: COSPAR Info. Bull. No.
85 (Aug., 1979), 21.
212 1n 1976, for example, Professor C. de Jager, President of COSPAR, in
an address to COPUOS warned that with the increased number of launchings
of large spacecraft “the danger of polluting the upper atmosphere and outer
space is becoming greater than previously” and promised appropriate action
on the part of COSPAR (COSPAR Info. Bull. No. 77 (Dec., 1976), 12, 17).
19811
DISARMAMENT AND INTERNATIONAL LAW
outer space is to be used responsibly and for the benefit of all
mankind, the establishment of such or a comparable organ has
never been seriously discussed in the forums of the United Nations.
Thus, while years of labour by the member states of the United
Nations produced, in 1979, a detailed code of regulations on the
management of resources on celestial bodies 13 (an activity not con-
templated in the foreseeable future by any state), the conduct of
environmentally hazardous space activities continues to be govern-
ed by the rudimentary clauses of the Outer Space Treaty, even after
the launching of some 2,000 satellites. Various reasons could be
advanced to explain the lack of a governmental initiative on these
issues of global concern. Given, however, the volume of defence
space programmes and the influence of the space powers on the
world law-making process, it is by no means inconceivable that the
“defence” interests of these powers bear the principal responsibility
for inaction.
V. The partial demilitarization of outer space: a step towards the
law. The half-hearted attempt, initiated
preservation of international order?
Efforts to contain the widening militarization of outer space,
as the above survey shows, have so far produced meagre results.
Since the adoption of the Treaty of 1967, banning the stationing of
nuclear and other weapons of mass destruction in outer space, no
other measure of military restraint has been added to the body of
international space
in
1978 by the United States and the Soviet Union, to prevent the
deployment of anti-satellite weapons has been abandoned, at least
temporarily, after three meetings. Judging by the results, these
meetings apparently served no other purpose than to accentuate
the differences between the parties. Meanwhile, both countries seem
to have been proceeding with the development of satellite de-
stroyers, the United States planning to test its weapon against tar-
gets in outer space by 1981 or 1982. On the broader, strategic plane,
the SALT II agreement was signed in June, 1979 by the leaders of
the two super-powers after seven years of negotiations. It failed to
win the advice and consent of the U.S. Senate and, on the orders
of President Carter, was withdrawn from the Senate in January,
213 Agreement Governing the Activities of States on the Moon and Other
Celestial Bodies, U.N. Doc. A/Res./34/68 (Dec. 14, 1979). For a historical
perspective and analysis of the treaty, prepared by E. Galloway, see U.S.
Senate Comm. on Commerce, Science and Transportation, Agreement Govern-
ing the Activities of States on the Moon and Other Celestial Bodies, 96th
Cong., 2d Sess. (Comm. Print, 1989).
McGILL LAW JOURNAL
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1980 for an indefinite period of time.214 Further strategic-arms
limitation negotiations, which were expected to follow the ratifica-
tion of SALT II and lead to a SALT III agreement, have yet to
begin.
The 1978 U.N. Special Session on Disarmament, in its compre-
hensive Program of Action, 15 quite properly assigned the highest
priority in disarmament negotiations to nuclear and other weapons
of mass destruction, conventional weapons and a reduction in the
armed forces. Among its many specific recommendations, the Pro-
gram of Action contains only one (no. 80) which is addressed spe-
cifically to the arms race in space. Although the process of militariz-
ation of space was by 1978 well under way, the Program of Action
seems oblivious to that fact, for it appeals to states to “prevent
an arms race in outer space” by taking unspecified “further
measures” and by holding “appropriate international negotiations
in accordance with the spirit” of the Outer Space Treaty.210
…
Even if nations to whom this appeal was primarily addressed were
ready to undertake such negotiations, the ambiguity of this re-
commendation would allow them to pick and choose at will the
subject-matter of the negotiations. Moreover, if past experience is a
reliable guide, space powers will likely opt for bilateral negotiations
which might eventually lead to the banning of a space system of
marginal significance or one which is for the moment unproductive
in cost-benefit terms.
Among the participating states, only France chose outer space
as the centre-piece of its contribution to the goals of arms control
and disarmament. On the premise that supervision is “crucial to
disarmament”, President Giscard d’Estaing proposed the establish-
ment of an international “satellite monitoring agency” to serve the
security needs of the world community. 17 In a memorandum sub-
mitted on 30 May 1978 to the U.N. Secretariat, France provided a
more detailed outline of the functions of the proposed agency 1 8
214See supra, note 19. In view of this record, it is hard not to agree with
the observation by Professor Hedley Bull of Oxford University that “[tihe
behaviour of the United States and the Soviet Union in the late 1970’s and
1980’s suggests that they may be forfeiting the claims they had begun to
build up in the 1960’s and early 1970’s to be regarded by others as responsibla
managers of the affairs of international society as a whole” ((1980) 35 Int’l
J. 437).
215 Final Document of the Tenth Special Session of the General Assembly,
216 Ibid., 17.
217 U.N. Doc. A/S-10/PV.3 (May 25, 1978), 16.
218U.N. Doc. A/S-10/AC.1/7 (June 1, 1978).
supra, note 23, 11.
1981]
DISARMAMENT AND INTERNATIONAL LAW
The purpose of the agency would be to monitor compliance with
disarmament and arms-control agreements, whether already in force
or yet to be concluded, and to assist in the investigation of situations
endangering the maintenance of peace. Integrated into the United
Nations system, the new organization is expected to help “strength-
en international confidence and security”.
The implementation of the French proposal could indeed make a
meaningful contribution to the cause of international security, and
it
particularly to the security of minor powers. Unfortunately,
would be unlikely in the foreseeable future to have any tangible
effect on the arming of outer space. What it might achieve in the
short run is prevention of any increase in the number of states
with military hardware in outer space. In the long run, it could
serve as the nucleus of a future global organization designed to
monitor all aspects of disarmament and arms-control agreements
in force among states. Commendable as the French initiative is,
neither it nor any of the numerous recommendations contained in
the Program of Action have so far resulted in a single significant
measure of arms restraint, not even on issues such as the com-
prehensive nuclear test ban, where agreement has been within reach
for years. As though in the theatre of the absurd, the tempo of the
arms competition has in fact significantly accelerated, with vast new
appropriations for the development and deployment of ever more
destabilizing strategic and conventional weapon systems. No go-
vernment of a major power has shown the slightest intention of
implementing the policy of “suffocation” of the arms race, not even
Canada, whose Prime Minister, Pierre Elliott Trudeau, recommend-
ed this policy to the U.N. Special Session on Disarmament.’ 9
Technical obstacles (e.g., verification), strategic imperatives and
“asymmetries” between competing forces have usually been cited
as factors delaying arms-control agreements. These are doubtless
weighty considerations whose significance must not be underrated.
However, as the negotiating history of disarmament amply shows,
at the same time as they have been trying to resolve these difficul-
ties, negotiating parties have invariably continued to develop new
classes of weapons systems, often more destabilizing than the ones
being negotiated. For example, it is widely believed that a com-
219 Supra, note 25, 6. Mr Trudeau’s “strategy of suffocation” contemplates
a combination of four separate measures: (1) a comprehensive test ban; (2)
an agreement to end the flight-testing of all new strategic delivery vehicles;
to prohibit all production of fissionable material for
(3) an agreement
(4) an agreement to limit and then progressively to
weapons purposes;
reduce spending on new strategic weapons systems.
McGILL LAW JOURNAL
[Vol. 26
prehensive test ban achieved in the 1960’s would have prevented the
development of MIRV’s and, quite possibly, would have arrested
the further proliferation of nuclear-weapons states. The result has
been a vicious circle: new “asymmetries” come into being, creating
more, rather than less, complex problems in future negotiations
and augmenting uncertainties without any corresponding improve-
ment in the security of the states concerned.20 The process has
been aptly described as “the apotheosis of irrationality and anti-
logic –
the triumph of madness”.221
The addition of outer space technology to an already super-
complex defence arsenal presages a new order of difficulties for
arms-control negotiations. As noted earlier, partly through the
absence of specific legal prohibitions and partly through a self-
serving interpretation of the Outer Space Treaty, the super-powers
have succeeeded in transforming outer space into an arena where
military interests dominate all other interests. This situation finds
no parallel in any other environment accessible to man. That these
conditions have been allowed to develop in little more than two
decades is, however, not due exclusively to the pressures of the
great powers; governments of other states must also share a large
degree of responsibility for having failed to demand, once the trend
became apparent, compliance by the Soviet Union and the United
States with the 1967 Treaty that these two nations were instrumental
in drafting. A continuation of the policy of acquiescence not only
endangers the legitimate interests of all states in the peaceful
“!20 As one analyst notes, the “pace of weapons innovation outstrips the
negotiating process, so agreements about one weapons system are made
obsolete by the emergence of new ones…. Thus the more frantic
the
pace of research and development, the more difficult it becomes to reach
arms control agreements” (Frank, When Fears Take Over 35 Bull. Atom.
Scientists (April, 1979), 24, 26). Very soon, for purposes of arms control,
the super-powers will have to take into account the capabilities of other
nations. And, the “multiparty arms control negotiations will be much more
difficult because of the increased number of asymmetries which will be
involved” (Stukel, Technology and Arms Control (1978), 19).
221 Weisskopf, A peril and a hope 35 Bull. Atom. Scientists (Jan., 1979), 10, 12.
222One should hope that a growing number of governments will follow
-mbassador Alva Myrdal’s (for many years chief Swedish delegate to the
disarmament negotiations) pertinent recommendations:
“When the super-
powers stall all arms negotiations, the other nations must countermand the
drift toward general hopelessness …. These nations should have insisted
upon being heard before decisions were taken to introduce new weapon
systems, which multiply the threats: … it is necessary to demonstrate the
conviction that the superpowers have no right to stall all disarmament
negotiations in the absence of a finalization of SALT II” (Europe as hostage
of the superpowers? 36 Bull. Atom. Scientists (April, 1980), 4, 5).
19811
DISARMAMENT AND INTERNATIONAL LAW
exploitation of this environment, but also makes the prospects of
restoring the domain of space to the status of the “province of all
mankind”, as originally intended, much more uncertain.
From playing a strictly supportive role in the overall arms com-
petition, defence space technology has in recent years been under-
going a highly alarming qualitative change. It is rapidly becoming
an integral, possibly essential, segment of the earth-based strategic
offensive and defensive weapons systems, perhaps even a key
element in the development of the so-called “pre-emptive” capability.
The ASAT weapons, a logical progression in this trend, will soon
create the risks of “secret” warfare in outer space which could
easily spread to the terrestrial environment. Removing these very
real threats to world peace and preserving outer space for uses
beneficial to all states will require prompt, concerted and determin-
ed action. A debate among states on all the current military uses
of outer space, with special attention to those most adverse to in-
ternational security, is long overdue.2 23 Space systems which have
proven their potential usefulness to the maintenance of peace (such
as surveillance and missile-detection satellites), or which are al-
ready fully integrated into the defence arsenals of the major powers
(such as communications satellites), should be explicitly accorded
legitimacy. 24 Others, whether offensive (such as ASAT weapons) or
highly destabilizing, in that they threaten the strategic deterrent
(such as satellite-based “global positioning
of
system”), should be proscribed. Admittedly, this would amount to
a demand for a significant measure of arms control and even a
degree of disarmament. But the initiative has to be taken somewhere
and outer space, for legal and practical reasons, seems to provide
the most promising opportunity. In contrast with other regions
where nations traditionally carry on the arms race, the legal regime
of outer space, like that of Antarctica, is designed to preserve the
use of this environment for “peaceful purposes” and for the “benefit
and in the interests of all countries”. Whatever meaning one may
give these words, and regardless of the absence of an explicit ban
the adversary
223Some states, including Italy and Sweden, have recently urged, in the
United Nations, early examination of measures to prevent an arms race in
outer space: see, e.g., U.N. Doc. A/AC.105/PV.205 (June 24, 1980), 27.
224Formal recognition that reconnaissance from space is lawful would
merely reflect the common interest of all states in the maintenance of
international stability and in avoidance of potentially catastrophic miscalcu-
lations. Effective mutual deterrence “depends upon the major participants’
adequate knowledge of their respective capabilities and intentions” (Colby,
The Developing International Law on Gathering and Sharing Securtiy Intel-
ligence 1 (1974) Yale Studies in World Public Order 49).
44cGILL LAW JOURNAL
[Vol. 26
on all military uses in the Treaty of 1967, there can be no doubt
that the present and projected military space activities are contrary
to the letter and spirit of the Treaty. On the practical side, it
appears that neither the anti-satellite weapon nor the global posi-
tioning satellite system have attained, or will soon attain, full
operational status. Eliminating these devices, even without a more
comprehensive arms-control agreement, would not jeopardize the
security of either power.2 5 It may be recalled in this connection
that the 1972 bilateral Treaty on the limitation of anti-ballistic
missile systems, a comparable measure of restraint, has not upset
the strategic balance between the United States and the Soviet
Union in the slightest. If there are some risks in the suggested
course of action for one .or the other party, the risks are far greater
for them and for the world community if no action is taken at all.
International jurists have a special moral and professional obliga-
tion to assist in the process of the gradual demilitarization of all
environments, including that of outer space, for if the present trends
are allowed to continue, there will soon remain no scope for law
in the relations among states. So far, as a group, they have failed
to recognize adequately and respond to the dramatic decline in
the influence of international law on the conduct of governments.
Even a cursory examination of events since the adoption of the
U.N. Charter, especially of the last decade, reveals the increasing
frequency of serious violations of international
legal norms, a
phenomenon without precedent in this century. Acts of aggression,
unlawful interference in the internal affairs of sovereign states,
spreading transnational terrorism, the illegal occupation of foreign
territories, attacks on diplomatic missions and assassinations of
diplomats, brutal violations of the international law of human
rights, increasingly virulent economic and
ideological warfare,
routine violations of international treaties and United Nations
… and therefore never wholly
225 In their “history” of the global war to come, General Sir John Hackett
and other top-ranking NATO officers and advisers note that even in 1985
military space systems were largely “extensions of existing earth-based
facilities
indispensable.” Only electronic
reconnaissance satellites were of “critical interest” to NATO, according to
Hackett and his collaborators (The Third World War: August 1985 (1979),
254). An American group of experts has recommended as the immediate goal
of arms control in outer space “putting a ceiling on current space weapons,
as well as attempting to restrict the deployment of new weapons systems in
outer. space.” In their view, negotiations should start with the true ASAT
systems before dealing with the U.S. space shuttle and Soviet Salyut: see
Stanley Foundation, Nineteenth Strategy for Peace Conference Report
(1978), 22.
19811
DISARMAMENT AND INTERNATIONAL LAW
declarations
(particularly those concerning the maintenance of
peace), the continuing, perhaps even increasing, reluctance of states
to use pacific means, including the services of the International
Court of Justice, for the settlement of their disputes –
all these
suggest the most serious crisis modern international law has ever
faced in circumstances short of world war. The fact that this
pattern of conduct is taking place in the midst of a spiralling arms
race, in which not only major powers but also a growing number
of developing nations partake, contributes to and reflects the ero-
sion of respect for international law.
The response of a majority of international jurists to these
overriding challenges, especially to the problems of a virtually un-
restricted arms build-up, has been largely one of silence. It would
seem that many of them have been persuaded by the national se-
curity bureaucracies that issues of war and peace are somehow
beyond the competence and of no legitimate concern to interna-
tional lawyers. Their largely self-imposed abstinence may account
for the minimal influence of international law on the decision-
making process in the higher councils of most states.220 A dramatic
change in this attitude of indifference and helplessness is imperative
if international law is to overcome its present crisis. While one can-
not expect our contemporary society to produce a jurist of Grotius’s
influence, no government could long afford to ignore the voice of
many thousands of jurists of all nationalities, speaking, writing
226Neither their influence nor the cause of peace will be enhanced by
contributions such as a recent one by Roger Fisher, Professor of Inter-
national Law at Harvard. Apparently, accepting Gen. Hackett’s prophecy of
the inevitability of war between the two power blocs (supra, note 225), Fisher
is preoccupied with the drafting of a cease-fire agreement, which he thinks
might follow the outbreak of hostilities and the employment of nuclear
weapons. With unsurpassed Orwellian
logic, Prof. Fisher asserts that
“[n]othing would contribute more to our survival than figuring out what to
do should such a war break out” (Thinking About War N.Y. Times (May 7,
1980), A-31, col. 5). Instead of promoting the apocalyptic cravings of Gen.
Hackett & Co., Prof. Fisher would better serve the cause of “our survival”
and of world public order by constructing his scenarios on one of the last
public statements (largely ignored by the mass media) of the late Earl
Mountbatten, former chief of the British Defence Staff. On May 11, 1979,
giving his views on nuclear weapons, both “tactical” and “strategic”, he
stated: “as a military man I can see no use for any nuclear weapons which
would not end in escalation, with consequences that no one can conceive.
… The nuclear arms race has no military purpose…. There are powerful
voices around the World who still give credence to the old Roman precept –
if you desire peace, prepare for war. This is absolute nuclear nonsense” (35
Bull. Atom. Scientists (Oct., 1979), 1).
McGILL LAW JOURNAL
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and, if in government service, acting in defence of the international
legal order. This potentially powerful constituency could materially
assist the movement away from the growing militarization of world
society and the dominance of national as well as international
political and legal processes by militaristic values. The space en-
vironment, formally declared to be the “province of all mankind”,
seems to offer the best opportunities for beginning a trend towards
meaningful arms-control measures that eventually might lead to
a genuine disarmament. If no progress can be made in this area,
then there is no realistic hope for the cause of arms control and
disarmament at all.*
* After this article went to press, the author received the official record
of the meetings held in Oct., 1980 by the Special Political Committee of the
U.N. General Assembly. The record reveals a significant change of attitude
among states
towards the galloping militarization of outer space. After
years of watching the arming of outer space by the two super-powers with
tacit disapproval, many nations have now decided to express formally their
objections and to seek urgent and effective measures against further abuses
of the Outer Space Treaty. Representatives of Argentina, Austria, Brazil,
Chile, Ecuador, Egypt, India, Italy, the Netherlands, Pakistan, Philippines,
Romania, Sierra Leone, Sweden, Tunisia, Upper Volta and Yugoslavia –
all
voiced their deep concern about the future of outer space as a peaceful en-
vironment if the current process of militarization is not arrested. Particu-
larly strong and explicit were the statements made by the representatives
of India and Brazil. The representative of India said, inter alia: “No military
activities should be introduced into space programmes on any pretext” (U.N.
Doc. GAOR A/SPC/35/SR.17, 17 (Oct. 28, 1980)). The representative of Brazil:
“In accordance with the 1967 Treaty, outer space should be preserved as an
environment free from military operations and any breach of that basic
rule of international law [is] inadmissible” (U.N. Doc. GAOR A/SPC/35/
SR. 15, 8 (Oct. 24, 1980)).
