Legal Aspects of the Strategic Defense Initiative

• Author: by Captain Michael G Gallagher, USAR
• Pages: 02

1. INTRODUCTION

   My predecessors in the Oval Office have appeared before you on other occa8mns to describe the threat posed by the Soviet power and have proposed aeps to address that threat. But since the advent af nuclear weapons, those step8 have been in. creasmgly directed toward deterrence of aggression through the promise of retaliation

   . . . I've became more and more deeply convinced that the hu. man spirit must be capable of nang above dealing with other nations and human bangs by threatening their existence Feeling this way, I believe we must thoroughly examine every opportunity for redumng tensions and for introducing greater stability into the strategic calculus on bath sides.

   . After careful consideration nith my advisors, including the Joint Chiefs of Staff, I believe there LS a way Let me share with you B vision of the future which offers hope. It is that we embark on B program to counter the awesome Soviet missile thrust wlthmeasures that are defensive.

   . . What if free people could live secure in the knowledge that their security did not rest upon the threat of insrant U.S. retaliatmn to deter a Soviet attack, that we cauid intercept and destroy Strategic ballistic missiles before they reached our own soil or that of our allies?

   . .Tonight, conslatent with o w obligations of the ABM Treaty and recognizing the need for closer consultation with our allies, I'm taking an important first step. I am directing a

   comprehenave and intensive effort to define a lang.term re. search and development program to begin to achieve our ulti. mate goal of eliminating the threat posed by strategic nuclear missiles . . . . Our only purpose--one all people share-is to search for ways to reduce the danger of nuclear war I

   In his teieviaed address of March 23, 1983, President Reagan outlined

   B bold proposal to create B Strategic Defense Initiative (SDI) Because

   the address proposed positioning laser and particle beam weapons in space to shoot down Soviet intercontinental ballistic missiles (ICBM). Critics of the plan have dubbed the proposal "Star Wars ''I Regardless of the policy implications of the President's proposal. the SDI concept poses substantial legal ~ssuea

   The purpose of this article IS to identify and discuss those legal issues The article will avoid policy opinions to the extent possible; however, the resolution af certain legal ISBU~S may be impossible without discussing the policy aspects of SDI. This article will first present the SDI proposal m summary farm and then address the history of international control of air and space, the Nuclear Test Ban Treaty,3 the Anti-ballistic Missile Treaty.' the Interim Strategic Arms Limitation Treaty (SALT 11,; and the Outer Space Treaty!

   11. CONCEPT OF SDI

   A6 he declared in his 1983 speech, President Reagan has undertaken significant steps EO create an extenave research and development pro. gram on SDI First. President Reagan assigned responsibility for m a - tion and management of SDI to Secretary of Defense Caspar l?. Wem-berger. On April 24. 1984, Secretary Weinberger officially created the SDI Program to manage all research and development activities of the

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   19861 STRATEGIC DEFENSE INITIATIVE

   SDI.' Secretary Weinberger selected Air Force Lieutenant General James A. Abrahamsan, then the Associate Administrator for the Space Transportation System of NASA, to manage the SDI Program.l

   Following the creation of the SDI Program, President Reagan re. quested $1.78 billion for the SDI Program as part of the Fiscal Year 1985 budget for the Department of Defen8e.O This request was intended to be a start.up program for a project estimated to cost $25 billion over the next five years.l0 On May 9. 1984, Administration witnesses appeared before the Subcommittee on the Department of Defense of the House Committee OD Appropriatmns." These witnesses summarized the technical and stratemc plan envisioned by the President.

   According to these witnesses, the President foresees implementing the program in four phases: The Research Phase; Systems Development Phase; Transition Phase; and the Final Phabe.'l The Research Phase 1sthe current phase of the President's program in ahich research and development is being conducted to determine whether the SDI is tech. nically feasible. It is different than the Systems Development Phase, ~nwhich prototypes will be researched and developed, tested. and built The Transition Phase LS the period of incremental, sequential deploy ment of the defensive syetem8 which will result from the Systems Devel. opment Phase The Final Phase will be reached only after all defensive system are deployed and ballistic missile farce levels have reached their negotiated nadir.

   Conceptually, the most important phase from both B legal and policy perspective is the current Research Phase because this phase will deter. mine which defensive syBtem8 are feasible. The three later phases will merely implement the goals established during this phase. In a practical sense, this Research Phase hasnot creatednew research, but, rather, has consolidated under one umbrella, i.e , the SDI Program, exlsting re. search into directed and kinetic energy and particle beam weaponry. In fact, the relevant technologies all have been funded in past years, but not all have been specifically related to defending against ballistic mw S,le8.>*

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   Although the Administration has made ~t clear that the SDI 1s deslgnned IO destroy all offensive misales before they strike the US. and its ~ 1 1 ~ s . the principal target of SDI 1s the ballistic missile Is The concept of SDI 1s to explore technologies that *ill destroy an ICBM in any one of itsfour phases the boost phase in which the propulamn engines are burn-mg. the poat-boost phase during which the uarhead separates from the engines and multiple warheads are deployed. the mid-course phase m which the warheads travel an ballistic tralectones through space, and the terminal phase in which the warheads reenter the earth's m m s . phere on the wayto the target."

   To achme this anti-ballistic miss~le capability. the Administration foresees the need to develop new technologies. surveillance. acquisition. and tracking: directed energy weapons m space. and ground-launched kinetic energy weapons The sur>eillance technology will include nen tracking and identification systems. such as enhanced satellite observa-tion. The kinetic energy weapons wil include interceptor misales and hyper-\elocny gun systems. Although these certainly are new technologies, these systems are conceptually the progeny of conventional antr-aircraft ground-based tactics

   The final proposed SDI technolog?, directed energy weapons pasi. timed m space. 1s the most progressive and provocative of the SDI pro. posals It envisions the development and deployment of space-based lasers, ground-based lasers, space-based particle beams, and nuclear-pawered directed energ-j weapons The basic technological thrusts include beam generators (lasers and particle accelerators), beam control, large optics, and acquisition, tracking, and guidance Currently, the Admin. mtratm projects that there technolo@es wdi be able to destroy ballistic missiles through explosion or implosion of the rockets by fusion of equipment, disruption of the materials, OY deterioration of the rocket's phlsical Integrity. Although these technologies will use radiated or nu.clear materials, the destruction of the incoming missiles will not result from any nuclear detonation.'*

   As described by the Admmistratmn %itnesseb. the proposed SDI envision~

   B layering of defensive system8 Although earth nil1 provide its

   customary bare far ground-launched missile interception and particle beam weapons. outer space has noa been designated by the Lmted

   19861 STRATEGIC DEFENSE INITIATIVE

   States as a fertile 8x8 for the placement af weapons. Spacebased weap-ons will utilize state-of-the-art equipment to detect and track missiles heading for the U S and ita allies That Same extraterrestriai environ. ment will include state-of.the-art laser and particle beam weapons tu destroy low.fiymg bailiatic mesiles. Thus, the SDI calis for the placement of weapons m space. Even though it IS described as defensive sys. tems, the SDI radically changes the customary use of space Prior to the advent of SDI and anti.satelhte weapons, the military use of space had been relatively pasave, primarily for surveillance and tracking.zo This change ~nthe miiitary use of space LS not without legal consequences.

   111. HISTORY OF INTERNATIONAL CONTROL OF AIR AND SPACE

   International control of air and space can be traced to recognition of the principle of territorial sovereignty." This concept of sovereignty directly flowed from the international desire to protect the security and mhtary interests of states. Thus, national sovereignty has been umver. sally acknowledged 8s the fundamental ordering principle of internat,onal re1at,ons.*,

   Xational policy declarations of State control of airspace originated in the early Roman days 2i Due to the inability to m h m l y utilize the air. space, however, most international lawyers argued that territorial s o w - eignty should not extend to control over airspace This "free use of air. space" theory was quickly discredited with the militarization of airspace.

   The first documented military use of airspace...