Rome, 20th-21st April 1993

Official Record

Office of the Clerk of the Assembly of WEU



Wednesday, 21st April 1993


(The sitting was opened at 3.06 p.m. with Mr. Lenzer, Vice- Chairman of the Technological and Aerospace Committee, in the Chair)

Anti-missile defence and the law of outer space


Mr. von KRIES (MST Aerospace GmbH, Cologne, Germany). -

A. Introduction

Anti-missile defence (AMD) has always been closely linked with space law and policy, and in particular with arms control in outer space.

Historically, the following phases of AMD activities can be distinguished.

In the late fifties and early sixties, the United States projects Argus and Starfish were aimed at creating, by nuclear explosions above the atmosphere, a radiation field to damage the control and guidance electronics of missiles and their warheads passing through outer space. At this stage, the use of outer space was not yet regulated by international law, the Outer Space Treaty dating to 1967 only. During the sixties both the United States and the USSR developed ground-based anti-missiles some of which were initially tipped with nuclear warheads (e.g. the United States Sprint and Spartan missiles). As of 1963, the testing of such AMD systems was restricted by the Limited Test Ban Treaty (LTTB) which precluded nuclear explosions in and above the atmosphere. The fielding of AMD systems became furthermore severely constrained by the ABM Treaty of 1972. In the eighties, the United States embarked on the strategic defence initiative which was to rely heavily on space-based interceptors, amongst them nuclear-pumped lasers. The realisation of this concept would have necessitated an abrogation of the ABM Treaty of 1972. Also, a testing of its nuclear components in outer space was precluded by the LTTB. Finally, the setting-up of a permanent and exclusive military space infrastructure would seem at odds with the Outer Space Treaty of 1967 which ruled out any appropriation of outer space. The actual United States concept of a global protection against limited strikes (GPALS), although devoid of nuclear components, continues to raise military space law issues.

In the following, AMD and military space law will be discussed in four steps: relationship of AMD with outer space; basic military space law elements; space law constraints on AMD; and the European legal setting.

B. AMD and outer space

When placing AMD in a space perspective, it is appropriate to recall an AMD system's generic functions, i.e. search, track and intercept. All functions may include the use of space-based elements.

Even in theatre-missile defence systems, which rely on ground-based interceptors, the search functions may, to a considerable degree, be space-dependent. This could in particular apply to possible European AMD systems that would have to cope with missiles which are partially unknown both in number and characteristics, and which are geographically dispersed, potentially mobile and of a short-attack type. To be able to adequately assess this particular threat situation, the search performance of a European AMD system should include the detection of hostile pre-launch activities to enable pre-AMD countermeasures, which can be more effective than any form of post-boost engagement. Therefore, a surveillance system indicating the need for pre-emptive actions seems to be highly mandatory in association with any European AMD system

development. The French-led Helios system, and WEU's satellite data interpretation training centre in Torrejon are important steps in this direction.

Whilst the tracking function in strategic ("high frontier") AMD systems is vitally dependent on space-borne sensors and radars, theatre-type AMD systems would require close-range ground- and air-based tracking and acquisition components to ensure timely reaction.

As regards the intercept function, space-based interceptors in the European context may be altogether inadequate or of a very limited effect since Scud-type missiles barely reach outer space and intermediate-range missiles only pass through outer space during a few minutes of their trajectory.

In summary, any conceivable European AMD system or system complement would presumably rely on outer space for extensive search missions, for only limited track functions, and not at all for intercept missions. This prospect mitigates a European AMD's legal impact on outer space.

C. The military space law regime

1. Outer Space Treaty of 1967

The "Treaty on principles governing the activities of states in the exploration and use of outer space, including the moon and other celestial bodies" (OST) of 1967 is the principal instrument of international space law. The vast majority of nations and all European states are parties to the OST.

To a large extent, the OST is an arms control agreement. Its Article 4 declares that "... parties to the treaty 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". It is important to note that the OST establishes no general ban on military space but only prohibits certain activities. This seems to imply that all other activities are permitted. Thus, there is no limitation on nuclear weapons passing through space (e.g. nuclear warheads on missiles). Nor is there any limitation on non-nuclear weapons in space other than the acknowledgement that bacterial and chemical weapons which could cause mass destruction are banned.

It follows, therefore, that outer space, with the exception of the moon, is not reserved for exclusively peaceful purposes. Although the OST recognises "the common interest of all mankind in the progress of the exploration and use of outer space for peaceful purposes" (preamble), military uses are permitted provided they comply with the United Nations Charter, which is applied to outer space. Article 2 (4) of the Charter obligates nations to refrain from threats or the use of force in

international relations against the territorial integrity or political independence of any state. On the other hand, Article 51 explicitly recognises the right to engage in individual or collective self-defence against armed attack and, by implication, against "imminent" attack.

2. ABM Treaty of 1972

The ABM Treaty continues to have a certain effect on the AMD debate. The treaty's thrust is to prohibit an effective defence of each side's (the United States and the Soviet Union) territory. Unlike the OST, the ABM Treaty and its 1976 protocol stipulates a general ban with specific, very limited exceptions (one AMD system for each side, their configurations depending on the chosen location). Mobile ABM systems, including those which are space-based, cannot be developed or tested. This restriction would apply to the High Frontier system envisaged under the strategic defence initiative.

There are, however, important limitations to the ABM Treaty. First, it covers only AMD systems capable of countering "strategic ballistic missiles or their elements in flight trajectory" (Art. II, 1). Other "lower" categories of AMD systems are not precluded, although the distinction presents a difficult definitional issue.

Second, the treaty is of a bilateral nature, i.e. it is binding only on the United States and the USSR (and its successor states which endorse it).

Finally, both the political and the technical situations have changed beyond recognition in the 20 years since the treaty was concluded. In particular, strategic ballistic missile threats no longer seem to emanate from the USSR's successor states but may arise in other parts of the world. Also,

emerging new forms of ballistic missile threats to the United States and its allies require a reassessment of the AMD strategy. The ABM Treaty, however, does not distinguish between the territorial origins of missile threats but stipulates an absolute ban, thus confining the parties to the AMD activities agreed upon irrespective of changes and shifts in the global threat situation. The reluctance of Russia to modify or adjust the ABM Treaty (concluded for "unlimited duration"; Article XV, 1) presents a major obstacle to the United States for dealing with non-Russian strategic missile threats. If such threats should aggravate, the United States could be forced to evoke Article XV, 2 of the ABM Treaty which provides a right of withdrawal "if (a party) decides that extraordinary events related to the subject matter of this treaty have jeopardised its supreme interests".

3. European relevance of the ABM Treaty

The ABM Treaty attempts to preclude circumvention of treaty obligations by arranging for action to be taken by third parties. Thus "each party undertakes not to transfer to other states, and not to deploy outside of its territory, ABM systems or components limited by this treaty" (Article IX).

For Europe, the development of an autonomous anti-strategic ballistic missile system may in principle be possible. It is hardly conceivable, however, that Europe would do so given the continued strategic alliance with the United States and the common perception of the potentially destabilising effects of strategic ABM defences.

More important, there so far seems to be no incentive for Europe to field AMD systems addressed by the ABM Treaty. Currently anticipated threats stem from short-range or intermediate-range missiles that are outside the scope of the ABM Treaty.

As a consequence, therefore, the United States-Soviet ABM Treaty of 1976 would not curtail a European AMD system aimed at countering non-strategic ballistic missiles.

4. Later developments

Since 1972, various ballistic arms control and disarmament treaties have been concluded between the United States and the USSR, namely the SALT I and II agreements of 1972 and 1979, the INF Treaty of 1987, and the Strategic Arms Reduction Treaties (START I and II) of 1991 and 1993. None of these accords are AMD-related, but provide for the limitation or removal of certain categories of United States and Soviet ballistic and cruise missiles. Their only indirect relevance for AMD lies in the fact that in each of these treaties compliance is to be assured by "national technical means of verification" which are understood to comprise surveillance satellites. Thus, the establishment of space-based monitoring systems, even in the context of AMD activities, would seem to be recognised by international space law based on the OST and as further developed by the United States-Soviet treaties referred to above with the tacit acquiescence of the OST parties.

Attempts to restrict the OST arms control provisions have been inconclusive. Italy's proposal of 1979 to prohibit not only weapons of mass destruction in outer space but also "any other types of devices designed for offensive purposes", by adding a respective protocol to the OST, as well as the Soviet treaty proposal of 1981 aimed at banning "weapons of any kind in outer space" did not come to fruition.

The same holds for the various proposals made during the eighties to keep outer space free from anti-satellite weapons which could have an AMD potential. Also, efforts by certain nations to formally delineate an air/space boundary and thereby to clearly separate sovereign air spaces from the international outer space domain remained unsuccessful and very probably will not materialise in the foreseeable future.

The military space law regime in place, as established by the LTTP and the OST in the sixties, therefore, has proven to be highly stable, and there are no signs of up-coming changes or alterations.

D. Space law constraints on AMD

In consequence, space law constraints on AMD activities can be quite clearly defined.

There are no legal restrictions on auxiliary and complementary AMD systems like surveillance, reconnaissance and early-warning satellites. The stationing of space-based interceptors is permitted as long as they are non-nuclear and not of a similar mass destruction type, a configuration which at any rate is no longer pursued in modern AMD planning.

For Europe, certain AMD restraints of a more political nature flow from the ABM Treaty of 1972. But these remain abstract as long as Europe does not face a strategic ballistic missile menace against which it would decide to arm itself.

Finally, and as a more general observation, the persisting public sensitivity to "weapons in space" has to be taken into account. It would seem in fact highly improbable to obtain parliamentary and public consent to the fielding or even

development of space-based ABM weapons unless a grave threat situation arises which cannot be overcome by political or conventional military means.

E. The European setting

A European AMD forerunner system consisting of surveillance and early-warning satellites, although unhindered by

international space law, may nonetheless encounter specific European legal hurdles.

They would not originate from the OST which has been ratified by all European nations without any reservations. Where executory national legislation has been enacted (Sweden, Great Britain, Germany), the OST's principles have not and could not have been modified since the OST in all European states became ipso jure the law of the land(s).

But the setting-up of military space systems would require certain other clarifications.

First, the question arises whether the European Space Agency (ESA) could be used to develop or operate such systems. According to the ESA convention of 1975, that organisation's activities are devoted to "exclusively peaceful purposes" (Article II), thus exluding any military space activities. This unambiguous mandate has not prevented ESA to develop space systems which are also being used for national security and military purposes (Spacelab, ERS). Such uses, however, occur incidentally, and do not formally figure in the respective programme agreements.

As regards space-based surveillance, certain ESA Council resolutions seem to imply that ESA could be willing to

participate in satellite-based verification misisons which are regarded as "stabilising" and therefore peaceful. It remains an open issue, however, whether ESA would be ready to become involved in space systems which are not strictly of an arms control nature but have a broader military application like strategic surveillance or target acquisition within or outside an overall AMD architecture. In case WEU, for instance, would determine to engage itself in such auxiliary AMD satellite systems a possible development partnership with ESA would require a prior definition by ESA of its military space role under the 1975 convention. If a satisfactory clarification cannot be achieved, WEU may opt to engage national space

entities like CNES or directly contract with industry.

ESA, as should be remembered, has been set up to "co-ordinate the European space programme and national programmes, and (to) integrate the latter progressively and as completely as possible into the European space programme" (Article II of the ESA Convention). But the fact remains that certain ESA member states like France regard national space security activities as a domaine reserve. There is room, therefore, for establishing European military space systems by inter-European arrangements outside ESA.

Second, the availability of the Ariane launcher to which there is no European alternative may cause a problem.

The Ariane family of satellite launchers has been and continues to be developed with public funds under an optional ESA programme. The production and marketing of Ariane vehicles has, on the other hand, been entrusted to the private European company Arianespace. This entity is not free in its choice of customers and launch procurements. According to a resolution by the Ariane programme member states passed in 1980 on the production of the Ariane launcher, the European satellite transportation system can only be made available for "peaceful purposes in conformity with the obligation under the ESA Convention and with the OST". This contradictory restriction highlights the paramount interest of certain Ariane programme member states like France in ensuring that Ariane may be employed for military missions, too. The exact boundaries of Ariane-supported military space activities remain, however, unclear. And the currently ongoing revision of the 1980 Ariane production resolution does not seem to bring about a clarification to this effect.

Any intended use of Ariane for European AMD-related space missions is, therefore, prone to a politico-legal debate that should take place well before a decision to establish a European military space infrastructure is made.

F. Concluding remarks

A European AMD system would presumably rely on auxiliary space components for surveillance and acquisition, but will in all probability not comprise space-based interceptor weapons. This prospect mitigates any arising space law issues. The Outer Space Treaty of 1967 allows non-aggressive military space uses. The ABM Treaty of 1972 will have no impact on a European AMD system tailored to counter non-strategic missiles. Within Europe, certain legal and political clarifications with regard to the engagement of ESA and the use of Ariane seem necessary as part of any planning activities relating to an anti-missile defence system comprising space-based elements.

Mr. WILLEMS (Secretary of the Advisory Council for Military Production, Netherlands) found that the arguments regarding the need for a defence system against the threat of ballistic missiles raised more questions than answers. Possible attackers could learn lessons from the Gulf war in the same way as defenders. Attacks were possible by means other than ballistic missiles and could be launched by terrorist groups rather than countries. Counter-measures would then be very difficult. A defence system capable of handling such threats would be costly and very difficult to justify, however desirable.

Did Western European Union see itself as an actor or as a catalyst? The latter would be necessary when a global system was considered to be the answer and, should such a system be implemented, what would be the role of smaller countries such as the Netherlands other than paying part of the bill?

Mr. VALLEIX (France) as a member of parliament from Bordeaux and also a member of WEU wished to hear more about the WEU satellite centre at Torrejon in Spain and what future role it might play. Some countries had the technical know-how but not the financial means; others had the financial means but not the necessary know-how. Joint determination and good will were therefore necessary if decisions were to be taken before the threat materialised rather then once it was there. He therefore trusted that guidelines could be drawn before the end of the day to help individual member countries to adopt a common and positive attitude towards anti-missile defence.

Mr. KNUDSEN (Ministry of Defence, Norway) reverted to General Stainier's comments on lessons from the Gulf war, expressing his appreciation for the General's broad political perspective. It was important to place the question of anti- missile defence for Europe in the larger framework of Europe's relations with the rest of the world and also to prevent any suspicion from the outside world that a kind of fortress Europe was being developed. General Stainer had said that deterrence did not work against Iraq since it had invaded Kuwait. This answer was too simple, however, since the question was more one of degree. Iraq had not used chemical weapons. Was that because it had been unable to do so or simply because they had been deterred from doing so? He recalled that the United Kingdom and Israel had issued firm warnings in that respect. He believed the experience of the Gulf war was not conclusive and it was important to study further under which conditions deterrence worked or might not work. He concluded that deterrence had a role to play in anti-missile defence as well and it was a question of striking a balance and not of just simply ruling deterrence out.