Defining the Indefinable: Obscenity and Space Weapons

Space policy circles and the media are flush with the idea of space weapons and an arms race in outer space. Most of this is attention comes from political factions to rail the policies of the current President but it also comes from geopolitical rivals who seek to use the issue as a soft-power bludgeon in international forums. The fracas over space weapons has been around as long as the space age has been in existence, but aside from the sparring over the issue there remains one pivotal question: what is a space weapon or better yet, what is the legal test for a space weapon.

Admittedly, this author cringes every time the term is flung around without really thinking what the term really means, and it occurred to this author the term is subjective and defies definition. Indeed, part of the problem is the dual-use nature of space technology creates a Jekyll and Hyde situation where a space object that has a non-aggressive purpose could be used otherwise. The duel-use conundrum has not prevented some from creating a legal test for a space weapon. Consider the definition of “space weapon” or “weapon in outer space” as presented by the Russian Federation and the PRC in the 2014 draft of the Treaty on the Prevention ofthe Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects (PPWT):

“[T]he term “weapon in outer space” means any outer space object or its
component produced or converted to eliminate, damage or disrupt normal
functioning of objects in outer space, on the Earth’s surface or in the air, as
well as to eliminate population, components of biosphere important to
human existence, or to inflict damage to them by using any principles of
physics.”

The definition in the 2014 draft is certainly more encompassing than the first draft but still does not address direct-ascent ASATs as seen in this definition within the PPWT:

“[A] device is considered as “placed in outer space” when it orbits the Earth at least once, or follows a section of such an orbit before leaving this orbit, or is placed at any location in outer space or on any celestial bodies other than the Earth.”

Notwithstanding these definitions, it is impracticable to verify what is a space weapon and what is not. Consider space debris remediation technology or satellite serving technology, which is quickly becoming a reality. Motivations by geopolitical adversaries could easily complain such technology is a disguised weapon merely to boost its own soft-power and standing in international forums and discourage and delay the deployment of such technology. That is to say, the problem with defining or creating a legal test for a space weapon lies in subjective perceptions and political posturing.

So, how do you legally define a space weapon? The answer is you don’t, but the U.S. Supreme Court’s struggle in defining what constitutes obscenity illustrates the way forward. In Jacobellis v. Ohio, 378 U.S. 184 (1964), Justice Stewart concurred with the Court’s ruling on a First Amendment case over whether a motion picture was “obscene” and noted the following:

“It is possible to read the Court’s opinion in Roth v. United States and Alberts v. California, 354 U. S. 476, in a variety of ways. In saying this, I imply no criticism of the Court, which, in those cases, was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court’s decisions since Roth and Alberts, that, under the First and Fourteenth Amendments, criminal laws in this area are constitutionally limited to hard core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

Justice Stewart’s concurrence in Jacobellis reflects the same problem with defining or applying a legal test for what constitutes a space weapon. The political nature of the idea of space weapons makes applying legal tests fuzzy at best and subservient to political and subjective intent at worst. Thus, unknowingly, Justice Stewart might have hit upon the answer to defining the equally perplexing term “space weapons” and one that this author will apply from this point forward:

“I cannot give you a legal definition or test for a “space weapon”, but I’ll know a space weapon when I see it.”

Perhaps when pressed by the PRC and the Russian Federation for its own definition of a “space weapon” U.S. diplomats should offer their counterparts this perspective instead. Their respective reactions would be interesting and very likely entertaining and would certainly befuddle attempts to ban something that cannot be defined.

 

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