CC BY
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the penal code of the country as humanizing the criminal law, that as a result about 20 crime components were decriminalized by means of their transferring to the category of administrative violations or to the civil law relations sphere and some of economic crimes were liberalized. (10)
It is recommended that from this experience and the same experience should be used for correction and humanization Afghanistan’s penal code.
5- As it is mentioned above that based on authoritarian system of government, the proportionality between crime and punishment has not been considered so this defect causes that criminal justice is not supplied. In my believe, unfair dealing with criminals will not only decrease the crime and criminals on the contrary increases the crimes, therefore lawyers should pay attention to this point and correct this defect from new penal code.
6- We know that the views of the scholars are different in Islamic jurisprudence and according to the first article of penal code that Hudud, Qesas and Diat crimes are
referred to Hanafi jurisprudence. For this reason, it should be tried that dominant views of scholars to be collected to use in the courts.
7-As recently the cyber crimes are happened in Afghanistan and the victims of the crimes are increasing day by day as a result of no awareness and lack of sufficient notification about these crimes, therefore it is necessary that as soon as possible these crimes should be criminalized and to be inserted into penal code so as to decrease the problems caused by them.
Every state should find own way of forming it’s legal system and it can adopt some elements different legal systems. Criminal law of Afghanistan has own particular qualities and needs to be changed according to the requirements modern society. To improve upon criminal law they can use positive experience of countries such as Kazakhstan, which accept new criminal code, because ofthe new demands of society. We think, in future Afghanistan’s legislator will pay more attention to the human rights on accepting new legislative Acts in this field.
References:
1. Gholami, Hossein, Basics of Afghan Law and Criminal Justice (Max Planck Institute, 2007).
2. Stanford Law School, an Introduction to Criminal Law of Afghanistan (Afghanistan Legal Education Project (ALEP) 2008-2009).
3. Allama, Gholam Haidar, Articles on Afghan Criminal Justice, Irfan publish house, Tehran. 2011.
4. The Penal Code of Afghanistan, (October, 1976). http://aceproject.org/ero-en/regions/asia/AF/Penal%20Code%20 Eng.pdf/view
5. The Constitution of Afghanistan, (January3,2004) http://www.afghanembassy.com.pl/afg/images/pliki/TheConstitution.pdf
6. Afghanistan Justice Sector Support Program, “Afghanistan’s Criminal Justice System,” May 21, 2007.
7. Hesham Nasr, “Lectures on Penal Law Part I: Introduction to the Penal Law”.
8. http://www.bbc.co.uk/persian/afghanistan/2014/10/140920_k05_afghanistan_cyber_blackmail
9. Result sheet of correction workshop on penal code. http://moj.gov.af/fa/news/14850
10. http://ortcom.kz/en/news/criminal-law-humanization-carried-out-in-kazakhstan.195
11. Danis, Hafizullah, History of Criminal Law, Moustaqbale publish house, Kabul. 2012.
Sikorska Paulina Ewa, LLB, LLM
A Life-time Member of the Institute of Air and Space Law, Faculty of Law, McGill University, Montreal (Quebec) H3A1W9, Canada E-mail: [email protected]
For the Sake of Others: the Necessity to Regulate the Militarization and Weaponization of Outer Space
Abstract: This article discusses the legality ofmilitarization and weaponization ofouter space from the perspective of the Outer Space Treaty 1967, explains the reasons for the growing future significance of these two issues, and highlights the long-term consequences in the form of creation of space debris. The article concludes that there are some loopholes in Article IV of the Outer Space Treaty and that space powers, especially the US, should give up their national interest for the sake of the creation of a binding document that would prevent from deploying weapons in space.
Key words: militarization of outer space; weaponisation of outer space; nuclear weapons; Outer Space Treaty, space powers, national interest, space debris
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For the Sake of Others: the Necessity to Regulate the Militarization and Weaponization of Outer Space
1. Introduction
The international law-making process is under pressure from political and economical circles, which automatically prevent consensus, especially around disputable issues to be solved at the international level. Both militarization and weaponization touch upon the sensitive issues of state sovereignty, national interest and defense. This results in the inability of creating international binding laws, for example as part of international air and space law, especially in the fields which governments care the most about, such as security. Worse yet, there is a massive influence of politics and economy on the international law-making process leading to its ineffectiveness. The purpose of article is to define militarization and weaponization of outer space, explain the legality for these two processes under the international space law regime, and present the destructive side of the process for the outer space environment — space debris. The title of the article, "For the Sake of Others", suggests that one side has to give up. The militarization and weaponization of outer space cannot be solved without restoring cooperation and mutual trust between states. The article ends with a conclusion presenting the most suitable form of international legal regulation and the most plausible outcome of the process.
2. Defining weaponization of outer space
Outer space is the common heritage of mankind, which means that belongs to all nations. That well-known rule is proclaimed by the Outer Space Treaty (OST) [1, OST], especially, by article I [2, Article I OST ]. Importantly, article IV OST highlights that "the Moon and other celestial bodies shall be used [..] exclusively for peaceful purposes" [3, Article IV OST]. The problem lies with the fact that the word “peaceful" is not clearly defined. For some countries, such as the US, peaceful means non-aggressive, while for others, like Japan, it means non-military, although the latter countries form the minority. Article IV OST explicitely forbids placing "in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner" [3, Article IV OST ]. It should be noted that only nuclear weapon and weapon or mass destruction (WMD) are explicitly prohibited, while any other weapons are not. Space weaponization is, in accordance to Mueller, "a subset of space militarization" [4, 5] which includes "the deployment of space weapons such as ballistic missile defence (BMD), ground-and-space-based-anti-sattelite-weapons or space-to-Earth weapons (STEW)" [4, 5], i. e. placing weapons according to the international space law. The weaponization of space is challenging, as "legal" does not mean "harmless". For example, as the consequence of China's ASAT test in 2007, when its own weather satellite Fengyun-lC was intentionally destroyed, more than 950 pieces of space debris appeared in outer space. It will take over 50 years for them to remove them completely from the outer space [5, online source].
As of the current date, there is no consensus regarding creation of binding international law that would either
regulate or prohibit the process of the weaponization of outer space. The US are strongly against any binding law and prefer to remain with softer laws. The reason the USA is reluctant to impose any further restrictions on military use of outer space is that this country heavily relies on space technologies in a way that is incomparable to any other nation. The Rumsfeld Commission stated in its report in 2001 [6, 486] that the political explanation, or rather an excuse, is often the same — the national security of the country is of the highest importance. That was clear in the US Air Force’s statement, in which it was outlined that offensive and defensive weapons have to be placed into outer space to protect the US [7, 1]. Dolman adds that any possible “loss of space capabilities would prove disastrous for American military security and civilian welfare together with the crash in American and global economy” [8, 163].
Other space powers such as the Russian Federation or China and states of the European Union, see things differently. They prefer stricter regulations aimed at limiting the placement of weaponry in outer space. It is even considered that there is room for cooperation between China, Russia and the European Union due to their similar goals. They can possibly join together to create a binding treaty because of their similar political positions. Although the attempts of these states to regulate space weaponization have met with scepticism so far, this may change in the future. Trochetti notes that any form of destruction of valuable space assets, such as telecommunication satellites, will impact the economies around the world to such degree, that sooner or later it should facilitate legal regulation of the weaponization [9, 81] and perhaps even overcome American reluctance.
While cooperation between Russia, China and the EU in creation of space international law is, so far, nebulous, the bilateral cooperation between only China and Russia, has already become a fact. The most recent example of a close partnership between China and Russia is the Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects (PPWT) [10, PPWT]. This agreement, signed in 2008, is perceived as a Chinese and Russian response to the fear of US space weaponization and the ongoing arms race [11, 40].
The fear of outer space being weaponized by the USA was the key factor behind China's post-Deng space program. Professor Tellis assesses that the Chinese’s ASAT test in 2008 was a reaction to the US’s reluctance in regulating arms race at the international level, which is in line with what Krepon said that the China test was “predictable — and unfortunate — response to US space policies” [12, 44]. That would explain Russian-Chinese cooperation. Currently, China as it is too weak to compete with the US in the field of space single-handed, and the Russian Federation can help, while at the same time fulfilling its desire to compete with the US in the space race [13, 26].
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3. Space debris as one of the biggest "side effects" of weaponization
The problem of the growing amount of space debris, also known as space junk, is nothing new. In 1970, there was “more than 1,800 space objects qualified as space debris” [14,56]. Gorove also emphasizes the destructive consequences of placing radioactive space debris into outer space [14,56]. One of them could be the case of Soviet rocket Cosmos 954, which radioactive space debris was spitted over the Northwest Territories of Canada [15, 101] Doyle in 1990 predicted the need for space debris removal or at least a mitigation process [16, 129]. Unfortunately, since then a hard international law dealing with the removal of space debris has not been created. Space debris removal is not politically or economically valuable for the superpowers or any space participating nations. Firstly, because of the high cost of removal [17, 649]. Secondly, because of the autonomy of parties owning space debris (for example a dead space satellite) by the virtue of the Registration Convention. [18, 454]. According to Article II of the Registration Convention [19, Article II Registration Convention], each state has to register its object, keep the registry and inform the Secretary-General of the United Nations that such an event has occurred because registration is inherently linked to the liability of the state for that space object. After the satellite is no longer operational and becomes a dead satellite, it is the registering state's responsibility to dispose of it. There are, however, thousands of space debris pieces, both natural and man-made whose owners cannot be determined. Thus, they can be described as "common heritage of mankind” and it is important to consider who should play a key role in the so-called collective removal of space debris. Gorove proposes a couple of solutions that can be put in place to mitigate or reduce space debris, such as “a shuttle service or the retrieving space objects when the object is more expensive than the cost of retrieval” [19, 65]. That would be done by unmanned space vehicles. Thus, in line with Hitchens, if the space debris is commonly considered as a factor jeopardising safety and impacting financial side of the business, it will attract more political attention [20, 183]. Of course, adverse financial impact on satellite companies of
the removal of space debris or moving aerospace satellites to a higher attitude has to be assessed. [21, 30]
The existing volume of space debris and the danger associated with them is not enough for the international community to create a binding international framework mitigating and removing them. Perphaps, when the results of militarisation and weaponisation will be more descructive and, for example, more ASAT tests will be performed by the countries, then automatically this will result in the creation of the high amount of pieces of space debris and then the danger might be proclaimed to be explicit enough to take some regulatory steps. Also, when where point-to-point flights [22, 1055] will be more common as a mode of transportation and space debris will be posing a danger to that flight, the countries affected might decide to regulate the issue.
4. Conclusions
Taking everything into account, the current international binding space law regime provides insufficient safeguards against weaponisation of outer space. The vague ban of weapons in Art II of OST allows countries to take advantage of the loophole in the legislation regarding deploying weapons other than nuclear. Therefore, ASAT tests or dual purpose sattelites might be sent to outer space directly or indirectly producing space debris. Methods of cleaning up space debris created by militarisation and weaponisation ought to be discussed at the international agenda. So far, the Chinese--Russian proposal of PPWT, even if not perfect, seem to be a good starting point. However, it is politically unplausible mostly due to the reluctance of the US, which is sceptical towards any binding laws regarding matters which might compromise its national defence and military. Unfortunately, the dilemna of growing weaponisation cannot be solved without national sacrifices, especially on the US side. However, all space powers, including those well-established, such as the US or Russia, and the growing ones, such as China or India, ought to aim at restoring international cooperation and fill the potential legal loopholes with regards to placing weapons in outer space. A binding treaty can be an alternative, as long as all space powers will take part in the drafting process and then ratify that treaty.
References:
1. Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies. 10 October 1967 (hereinafter OST)
2. Article I OST, supra note 1.
3. Article IV OST, supra note 1.
4. Karl P Mueller, “Totem and taboo: depolarizing the space weaponization debate” (2003) 1:1 Astropolitics 4 at 5.
5. Leonard David, Senior Space Writer, “China’s Anti-Satellite Test: Worrisome Debris Cloud Circles Earth”, online: Space. com <http://www.space.com/3415-china-anti-satellite-test-worrisome-debris-cloud-circles-earth.html> (last accessed 29 May 2015)
6. Adam G Quinn, “New Age of Space Law: The Outer Space Treaty and the Weaponization of Space, The” (2008) 17 Minn J Intl L 475 at 486.
7. Tim Weiner, “Air Force Seeks Bush’s Approval for space weapons programs” (2005) 18 N Y Times at 1.
8. Everett C Dolman, “A Debate About Weapons in Space: For US Military Transformation and Weapons in Space” (2006) 26:1 SAIS Rev 163 at 163.
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9. Fabio Tronchetti, “Preventing the weaponization of outer space: Is a Chinese-Russian-European common approach possible?” (2011) 27:2 Space Policy 81 at 81.
10. Draft Treaty On The Prevention Of The Placement OfWeapons In Outer Space, The Threat Or Use Of Force Against Outer Space Objects Of 2008, available online: <http://www.reachingcriticalwill.org/images/documents/Disarmament-fora/ cd/2008/documents/Draft%20PPWT.pdf> (last accessed 29 May 2015).
11. Pavel Leonardovich Podvig & Hui Zhang, Russian and Chinese Responses to US Military Plans in Space (American Acadmeny ofArts and Sciences, 2008) at 40.
12. Ashley J Tellis, “China’s military space strategy” (2007) 49:3 Survival 41 at 44.
13. Podvig & Zhang, supra note 13 at 26.
14. Stephen Gorove, “Pollution and Outer Space: A Legal Analysis and Appraisal” (1972) 5 NYUJ Intl Pol 53 at 56.
15. Sreemeena Sethu & Mandavi Singh, “Stuck in Space: The Growing Problem of Space Debris Pollution” (2014) 2 UK L Student Rev 96 at 101.
16. Stephen E Doyle, “International space plans and politics: Future roles of international organizations” (1990) 18 J Space L 123 at 129.
17. J-C Liou, N L Johnson & N M Hill, “Controlling the growth of future LEO debris populations with active debris removal” (2010) 66:5 Acta Astronaut 648 at 649.
18. James P Lampertius, “Need for an Effective Liability Regime for Damage Caused by Debris in Outer Space, The” (1991) 13 Mich J Intl L 447 at 448 and 454.
19. Article II Convention on Registration of Objects Launched Into Outer Space The “Registration Convention” Adopted by the General Assembly of the United Nations, at New York, on November 12, 1974.
20. Theresa Hitchens, “Debris, Traffic Management, and Weaponization: Opportunities for and Challenges to Cooperation in Space” (2008) 14 Brown J World Aff 173 at 183.
21. Joel S Greenberg & Henry Hertzfeld, Space economics (Aiaa, 1992) at 30.
22. Paulina E Sikorska, “The Mission (Im)Possible: Towards a Comprehensive Legal Framework Regulating Safety Issues of Point to Point Suborbital Flights” (2014) 21:4 Jurisprudence 1055.
