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The Legality of a High-Technology Missile Defense System: The ABM and Outer Space Treaties

Published online by Cambridge University Press:  27 February 2017

Pamela L. Meredith
Pamela L. Meredith*
Affiliation:
Cand. Jur., University of Oslo; LLM, McGill University
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American Journal of International Law , Volume 78 , Issue 2 , April 1984 , pp. 418 - 423
Copyright
Copyright © American Society of International Law 1984

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References

1 Speech of March 23, 1983, N.Y. Times, March 24, 1983, at A20, col. 6.

2 Id.

According to officials of the U.S. Arms Control and Disarmament Agency (ACDA), at present (1983) $1 billion is being spent per year by the Department of Defense on research involving the entire spectrum of antiballistic missile technology (see note 8 infra), with only a fraction devoted to futuristic weaponry, mainly using lasers. See Study prepared by Los Alamos Scientific Laboratory, New Mexico, Aviation Week & Space Tech., July 28, 1980, at 32, 34.

For a discussion of the proposed defense system, see Controlling Space Weapons: Hearing Before the Subcomm. on Arms Control, Oceans, International Operations and Environment of the Senate Comm. on Foreign Relations, 98th Cong., 1st Sess. (April 14, 1983). The following testified: General Daniel O. Graham, project leader for High Frontier; George Rathjens, Chairman of the Council for a Livable World; Daniel Deudney, Senior Researcher, World Watch Institute; and Jan N. Lodal, former senior staff member and Director of Program Analysis for the National Security Council.

3 Specification would be premature, as any decision must await the outcome of the research.

4 High Frontier is a Washington-based organization led by General Graham, who is Director of the so-called High Frontier Project, which proposes a system based on current technology, i.e., a kinetic-energy destruction system consisting of around 430 satellites orbiting at about 300 miles altitude, each with 40–50 intercept devices.

5 The concept of nationwide defense was rejected by Secretary McNamara in 1967 as prohibitively expensive. See Kissinger, H.: The White House Years 204 (1979)Google Scholar.

6 Opinions differ within the scientific community as to feasibility. See Isaacson, , The Old Lion Still Roars, Time, April 4, 1983, at 14 Google Scholar. See also Lerner, , A “Star Wars” Defense, Newsweek, April 4, 1983, at 18 Google Scholar; Graham, D., High Frontier—A New National Strategy (High Frontier, Inc., April 1982)Google Scholar.

7 Originally, the doctrine was based on the capability of the United States to delay a Soviet attack by maintaining forces capable of achieving a particular level of civilian deaths and industrial damage. In 1965 “assured destruction” was defined by the Pentagon as the capacity to destroy one-quarter to one-third of the civilian population and two-thirds of the industry of the Soviet Union. By 1968 the levels were lowered, respectively, to one-fifth to one-quarter and one-half. See H. Kissinger, supra note 5, at 215–17.

8 According to ACDA officials, the technologies envisaged are high-energy laser microwave and charged particle beams, as opposed to projectiles (traditional BMD missiles). See also Golden, , High Tech on the High Frontier, Time, April 4, 1982, at 18 Google Scholar; Tsipis, & Parmentola, , Particle Beam Weapons, Sci. Am., April 1979, at 54 Google Scholar.

9 Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-ballistic Missile Systems, signed at Moscow, May 26, 1972, 23 UST 3435, TIAS No. 7503.

10 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, done Jan. 27, 1967 (promulgated under the auspices of the United Nations), 18 UST 2410, TIAS No. 6347, 610 UNTS 205.

11 ABM Treaty, supra note 9, Art. I. ABM became an issue in 1964 when it became apparent that the USSR was deploying a missile defense system around Moscow in order to protect the capital against attack. In 1967, the Johnson administration launched an American “sentinel” ABM program. The concept of a nationwide defense had been rejected as prohibitively expensive and also because it might be perceived by the Soviets as an attempt to achieve first-strike capability. President Nixon decided, despite growing congressional opposition, to continue the program in a slightly modified version. His so-called safeguard approach was announced on March 14, 1969, and called for 12 separate sites for area defense, to be completed by 1973. Discussions on limiting strategic nuclear weapons and ABM systems had been proposed by the Johnson administration but were delayed by the Soviet invasion of Czechoslovakia (1968). Negotiations began on Nov. 17, 1969 in Helsinki, and led to the ABM Treaty and an interim agreement on offensive strategic weapons signed by President Nixon and General Secretary Leonid Brezhnev 21/2 years later (see supra note 9).

12 ABM Treaty, Art. I.

13 Art. II.

14 Reagan Speech, supra note 1.

15 Art. II.

16 Agreed Interpretations on ABM Treaty, May 26, 1972, para. [E], 11 ILM 796, 797 (1972) (emphasis added).

17 67 Dep’t St. Bull. 147 (1972).

18 Id. at 920.

19 Art. V.

20 Art. IV (subject to certain restrictions; see Art. IV).

21 Art. III.

22 Originally, Article III of the ABM Treaty allowed for the defense of both. However, a Protocol to the Treaty signed July 3, 1974, 27 UST 1645, TIAS No. 8276, limits each side to one site only. Upon its entry into force May 24, 1976, the Protocol became an integral part of the ABM Treaty. The Soviet Union chose to maintain its defense of Moscow, and the United States its ABM emplacements near Grand Forks, North Dakota (later mothballed). To allow for some flexibility, the Protocol also allows each party to reverse its original choice.

23 Art. 111(a), regarding the national capital; Art. 111(b), regarding the ABM field.

24 Id.

25 Art. I.

26 See Statement by White House Science Adviser Keyworth, Aviation Week & Space Tech., Dec. 14, 1981, at 16. See also High Frontier Project, supra note 4.

27 Art. IV. Regarding agreement on test ranges, see Agreed Interpretations, supra note 16, para. [B]. For discussion of alleged Soviet violation, see Levitt, , Problems in the Verification and Enforcement of SALT Agreements in Light of the Record of Soviet Compliance with SALT I, 22 Harv. Int’l L.J. 382 (1981)Google Scholar. Zumwalt, , Zumwalt Disputes Policies on SALT, Aviation Week & Space Tech., Jan. 19, 1976, at 46–50 Google Scholar.

28 Art. VI.

29 The distinction between research and development is not clear-cut.

30 Art. XV.

31 Art. XIV.

32 Art. XV.

33 Id.

34 See H. Kissinger, supra note 5, at 534–59.

35 Head of the U.S. delegation to SALT.

36 The statement was repeated by Secretary Rogers before the Senate Foreign Relations Committee on June 19, 1972, 67 Dep’t St. Bull. 53 (1972).

37 Signed in Vienna, June 18,1979. See Dep’t St. Bull., July 1979, at 23, for text and protocol.

38 The rule is codified in Article 60(1) of the Vienna Convention on the Law of Treaties, 1969. For alleged Soviet violations, see Levitt and Zumwalt, supra note 27.

39 The prevailing attitude in the administration seems to be that questions of withdrawal would not have to be addressed until something concrete arises from the research.

40 See note 8 supra.

41 See note 42 infra.

42 Vlasic, , Disarmament Decade, Outer Space and International Law, 26 McGill LJ. 135, 176–77 (1981)Google Scholar.

43 James V. Harlinger, Commander of the U.S. Space Command, has drafted a formal statement of the need for developing a space-based laser antisatellite weapon to counter hostile Soviet spacecraft. It is believed that this technology will fulfill the U.S. requirements better than the aircraft-launched ASAT currently being developed. See Aviation Week & Space Tech., March 21, 1983, at 18. Regarding the air-launched ASAT, see also id., Nov. 9, 1981, at 24–25. The Soviets have developed a space-based ASAT capability. While their present systems are not based on directed-energy principles, antisatellite lasers are believed to be under development (ground and space based). See id., March 21, 1983, at 19. Regarding the current systems, an antisatellite test was conducted on June 18, 1982, with Cosmos 1,379 interceptor spacecraft. See id., March 14, 1982, at 110. According to State Department officials, the magazine is often inaccurate and guilty of gross exaggeration.

44 Supra note 10. The Outer Space Treaty is commonly referred to as the “Constitution of Outer Space.” It sets forth the main principles and guidelines for the activities of states in outer space. Some of the principles have been elaborated in separate treaties, i.e., concerning the Rescue and Return of Astronauts and the Return of Space Objects (1969), 19 UST 7570, TIAS No. 6599, 672 UNTS 119; Liability for Damage Caused by Space Objects (1972), 24 UST 2389, TIAS No. 7762; and Registration (1976), 28 UST 695, TIAS No. 8480. An agreement regulating activities on the moon and other celestial bodies has also been promulgated (1979), reprinted in 18 ILM 1434 (1979), but has not entered into force. The latter does not apply to earth orbit (see Art. I).

45 The UN Committee on the Peaceful Uses of Outer Space (Legal Sub-committee) has been concerned for many years with “matters relating to the definition and/or delimitation of outer space and outer space activities, bearing in mind, inter alia, questions relating to the geostationary orbit.” No consensus has been reached, due mainly to the opposing views of the USSR and the United States. The former favors an arbitrary delimitation (110 km.), coupled with the right of innocent passage; while the United States argues that delimitation at this time would be premature. Some other countries have suggested a functional approach, i.e., asserting that the function of a particular object should determine whether the activity should be subject to international space law. See UN Doc. A/AC.105/C.2/L.141/Add.6 (April 7, 1983).

46 As of today, the lowest degree achieved in the altitude of about 90 km.

47 Objects that achieve only fractional orbit, i.e., that fall short of completing one full orbit (e.g., ballistic missiles or so-called fractional orbital bombardment systems), are not subject to international space law.

48 Although the request for peaceful use (Art. 4, para. 2) refers specifically to “the moon and celestial bodies,” it is generally taken as a reference to outer space as a whole.

49 See Gorove, S., Studies in Space Law: Its Challenges and Prospects 85–94 (1977)Google Scholar; Lay, S. H. & Taubenfeld, H., The Law Relating to Activities of Man in Space 25 et seq. (1970)Google Scholar; Goedhuis, D., The Changing Legal Regime of Air and Outer Space 27 (1978)Google Scholar; Matte, N., Space Policies Program Today and Tomorrow 68 (1980)Google Scholar. Some scholars are of a different opinion. See Lachs, M., The Law of Outer Space: An Experience in Contemporary Law-Making 106–08 (1972)Google Scholar; Vlasic, supra note 42, at 170 n.2 et seq.

50 Art. 4, para. 2, 2d sentence.

51 On Aug. 10, 1981, the USSR submitted to the UN General Assembly a Draft Treaty on the Prohibition of the Stationing of Weapons of Any Kind in Outer Space, UN Doc. A/36/192, Annex. The proposed treaty did not gain the support of the United States, other Western industrialized countries, Japan, or Australia. The Russians have since repeated their proposal several times, although in slightly modified versions.