David A. Koplow (Georgetown University Law Center) has posted An Inference about Interference: A Surprising Application of Existing International Law to Inhibit Anti-Satellite Weapons (University of Pennsylvania Journal of International Law, Vol. 35, 2014) on SSRN. Here is the abstract:
This article presents a thesis that most readers will find surprising, in an effort to develop a novel, simultaneous solution to three urgent, complex problems related to outer space. The three problems are: a) the technical fact that debris in outer space (the accumulated orbital junk produced by decades of space activities) has grown to present a serious hazard to safe and effective exploration and exploitation of space; b) the strategic fact that many countries (notably the United States, China and Russia, but others, too) continue to demonstrate a misguided interest in pursuing anti-satellite weapons, which can jeopardize the security of space; and c) the political fact that attempts to provide additional legal regulation of outer space (via new bilateral or multilateral international agreements) have failed, with little prospect for prompt conclusion of meaningful new accords.
The proposed solution is to adapt existing international law in an unforeseen way. Specifically, numerous current and historical arms control treaties provide for verification of parties’ compliance via “national technical means” (NTM) of verification, which prominently include satellite-based sensory and communications systems. These treaties routinely provide protection for those essential space assets by requiring parties to undertake “not to interfere” with NTM. The argument developed here is that additional tests in space of debris-creating anti-satellite weapons would already be illegal, even without the conclusion of any dedicated new treaty against further weaponization of space, because in the current crowded conditions of space, a new cloud of orbital debris would, sooner or later, impermissibly interfere with NTM satellites.
If sustained, this thesis can provide a new rationale for opposition to the development, testing, and use of anti-satellite weapons. It a legal reinforcement for the political instincts to avoid activities that further undercut the optimal usability of outer space, and it demonstrates how creative re-interpretation of existing legal provisions can promote the advancement of the rule of international law, even in circumstances where the articulation of new treaties is blocked.