Who wants an anti-ASAT treaty?

In addition to the orbital mess caused by China's anti-satellite weapon test, a noxious cloud of diplomatic debris lingers. The U.S. and other nations (Canada, Australia, India, Japan, others) quickly stepped in to criticize, protest, complain about, puzzle over and demand an explanation for China's Jan 11th earth-shaking ASAT weapon test. But nobody has called the test illegal.

Gordon Johndroe, U.S. National Security Council spokesman cited no international or space law violation by China when he stated: "The U.S. believes China's development and testing of such weapons is inconsistent with the spirit of cooperation that both countries aspire to in the civil space area."

Britain, Prime Minister Tony Blair's spokesman told reporters, "We have concerns about the impact of debris in space and we've expressed that concern," and he specified, "Britain did not believe the test contravened international law, but was concerned by the lack of consultation." He also said the test was "inconsistent with the spirit of China's statement to the UN and other bodies on the military use of space."

In the end, China is free to target one of its old weather satellites with an ASAT weapon and blow the spacecraft apart because 1) it can; and 2) ASAT testing is not forbidden under international law. The arms control provisions of the
Outer Space Treaty forbid the placing of nuclear weapons "or any other kinds of weapons of mass destruction" in orbit. The treaty also forbids "establishment of military bases, installations and fortifications, the testing of any type of weapons and the conduct of military maneuvers on the Moon and other celestial bodies. (Art. IV)

Objectors could perhaps argue China's debris-spewing test ran afoul of the "harmful contamination" clauses of OST Article IX. China's lack of "consultation" on its planned test seemed to have particularly vexed many Nations. Of course, under the OST and the Liability Convention nations are liable for damage caused by their space activities. (The ever-engaging and knowledgable
Taylor Dinerman, who has an interesting article this week on a class of co-orbital ASAT weapons that would destroy targeted spacecraft without producing debris, comments, "Filling low Earth orbit [LEO] with debris after a successful strike on an enemy satellite is perfectly OK under the terms of the Outer Space Treaty, but no one should expect that it is OK with all the space lawyers out there." He's probably right, space debris is not OK with all the space lawyers; and that's why -- although it is not the only reason -- space lawyers typically make bad warfighters. ;)

Other proposed international instruments may have disallowed China's satellite-smashing activity. As to ongoing discussions about the Prevention of an Arms Race in Outer Space (PAROS), things are pretty much at a stalemate. The U.S. consistently opposes the negotiation of a PAROS treaty. In its most recent
statement to the UN Conference on Disarmament the U.S. delegation set forth its position that "there is no - repeat, no- problem in outer space for arms control to solve." And the delegation remains "more convinced than ever that issues relating to the supposed weaponization of space definitely do NOT command consensus in this body".

For its part,
China supports PAROS. (As to the problem of verification -- which everyone seems to agree is a problem -- China suggest "to negotiate a treaty without verification provisions could be a practical alternative." Russia concurs. Here is a white paper by China and Russia on verification of PAROS (May 22, 2006).

As to a
Space Preservation Treaty that would, inter alia, prohibit the use of weapons to destroy or damage satellites, supporters are speaking out in light of the China's move. Yesterday an editorial in the Hindustan Times called for a "action on a Space Preservation Treaty that will connect to the ideals of the Outer Space Treaty of 1967 that banned the placement of nuclear weapons or WMDs in the orbit of Earth, or on any celestial body or station. Such a treaty would ban all space weapons." On the proposed related legislation, the U.S. has not taken up the Space Preservation Act -- despite the efforts of Congressman Dennis Kucinich (D-OH), and others.

If China does not want an arms race, and wants ASAT tests to be illegal, why did it choose to begin the new year by blowing up a satellite? Space analyst
James Oberg writes, "The most obvious reason for China's test at this time would be to push the United States, and particularly the new Democrat-controlled Congress, into signing a formal treaty banning the use of anti-satellite weapons." In his interesting article, James looks at problems inherent in negotiating, interpreting and relying on any agreement to ban anti-satellite weapons, including verification and enforcement.

In any case, the US, as yet, has not changed its stance on any ASAT ban. Under the
National Space Policy released in October 2006, in which "Freedom of action in space is as important to the United States as air power and sea power," the U.S. "will oppose the development of new legal regimes or other restrictions that seek to prohibit or limit U.S. access to or use of space. Proposed arms control agreements or restrictions must not impair the rights of the United States to conduct research, development, testing, and operations or other activities in space for U.S. national interests."

And in the wake of the Chinese ASAT fallout, Space News (via Space.com) quotes
a State Department official in a Jan. 19 telephone interview: "We do not think there is an arms race in space. The United States believes that the existing body of existing international agreements including the Outer Space Treaty, as well as the liability and respective compensation conventions provide the appropriate legal regime for space." No surprise. According to the article, "the official said the space policy clearly states that the United States will oppose the development of new legal regimes or other restrictions that seek to prohibit or limit U.S. access to, or use of, space and that no change in that policy is warranted." And Space News further quotes the spokesperson as saying, "Arms control is not a viable solution for space. For example, there is no agreement on how to define space weapon. Without a definition you are left with loopholes and meaningless limitations that endanger national security. No arms control is better than bad arms control."

U.S. Air Force Associate general counsel
Philip Meek told Reuters the US "was reluctant to sign any rules or agreements because it had an 'asymmetric advantage' in space and had more to lose than other nations." (Space is not a line item in the DOD budget, but apparently the DOD annual space budget --- classified and unclassified -- is in the neighborhood of $20 billion. Well, so far.)

But also via Reuters, one US military space insider,
Col. Patrick Rayermann, chief of the U.S. Army's Space and Missile Defense Division, acknowledged, "the Chinese test had re-energized discussions about the need for a treaty or certain rules for actions taken by space-faring countries" but adding "verifying compliance could prove difficult." (Via SciAm)

Meanwhile, over in China, a
Foreign Ministry spokesman Liu Jianchao has responded to the international outcry, saying China "has always supported the peaceful use of space . . . China has never participated and will never participate in any arms race in outer space. This test was not directed at any country and does not pose a threat to any country."

Much more on all this to come.

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