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Ex New Horizons · 1997-98
Serveur de Guerre, paix et sécurité
Ex New Horizons · 1997-98
Canadian Aerospace Sovereignty: In Pursuit of a Comprehensive Capability
by/par Maj François Malo

This paper was written by a student attending the Canadian Forces College in fulfillment of one of the communication skills requirements of the Course of Studies. The paper is a scholastic document, and thus contains facts and opinions which the author alone considered appropriate and correct for the subject. It does not necessarily reflect the policy or the opinion of any agency, including the Government of Canada and the Canadian Department of National Defence. This paper may not be released, quoted or copied except with the express permission of the Canadian Department of National Defence. La présente étude a été rédigée par un stagiaire du Collège des Forces canadiennes pour satisfaire à l'une des exigences du cours. L'étude est un document qui se rapporte au cours et contient donc des faits et des opinions que seul l'auteur considère appropriés et convenables au sujet. Elle ne reflète pas nécessairement la politique ou l'opinion d'un organisme quelconque, y compris le gouvernement du Canada et le ministère de la Défense nationale du Canada. Il est défendu de diffuser, de citer ou de reproduire cette étude sans la permission expresse du ministère de la Défense nationale.

ABSTRACT/RÉSUMÉ

This paper explores the concept of air sovereignty as it applies to Canada, today. It highlights the legal foundation upon which Canadian laws are founded and explores the emergence and evolution of the concept of air and space sovereignty. Through an analysis of current doctrine and capabilities, the paper identifies deficiencies in our nation's ability to assert its sovereignty over Canadian domestic airspace. Furthermore, the question of Canada's responsibility vis-à-vis the emerging importance of the space environment as an extension to sovereign airspace is explored. The paper concludes that Canada needs a more comprehensive air and space surveillance and identification capability. The detection and identification of objects penetrating or orbiting over Canadian territory are critical functions that must be performed if our nation wishes to remain sovereign.

The quest for aerospace sovereignty in Canada - defining it, getting it, and protecting it - has periodically surfaced as an issue throughout our nation's history. Over the last 35 years, hand-in-hand with the "Canadianisation" of Canada's air sovereignty has come the threats to it - whether real or perceived. Over the last 2 centuries, some of these threats to our sovereignty have come from our closest ally to the south,[1] some from the former Soviet Union and more recently, from the South American Drug Cartels.

With a land mass as large and a small population, Canada has become unusually dependent upon the recognition and application of international law. The international legal framework, achieved over the years through a series of treaties, provides Canada with both the legal foundation and by default as a signatory, the obligation to support it. International stability, however, starts at home. Every nation has a responsibility to its people and to the global order not to be so weak militarily as to appear vulnerable in any area. A nation perceived to be unable or unwilling to protect its own interest invites interference in its affairs or breaches of its sovereignty by other nations or rogue elements. This not only affects the country and its national sovereignty directly, but it also erodes the application of international law and international stability. It is for this reason, that at the very minimum, Canada must be capable of providing for its own sovereignty. This is normally accomplished through the comprehensive policing of its territory, waters and airspace - and the approach thereto - to detect, track, characterise, identify, and intercept intruders.

Canada's track record over the years with respect to sovereignty issues however, is not so good. Canada's ability to assert its sovereignty in the arctic, in littoral waters and on the air approaches to our western coast is limited at best. These shortcomings, combined with an overwhelming lack of national interest in activities taking place over our territory in outer space, have placed Canada in a peculiar position on the eve of the 21st century. As the pressure to further reduce the Defence budget continues, pressures to reduce Air Command's Operations and Maintenance Budget may ultimately lead to further reductions to our perimeter air defence system - the last remnant of Canada's surveillance capability. The same fiscal situation has precluded a national effort to develop an independent space identification capability. These courses should be reversed - Canada needs a more comprehensive air and space surveillance and identification capability. The detection and identification of objects penetrating or orbiting over Canadian territory are critical functions that must be performed if our nation wishes to remain sovereign.

BACKGROUND

Sovereignty, what is it? At its roots, sovereignty can be defined as the ability of a nation to protect its national interests. Today, in an increasingly global environment, threats to a nation's national interests can come in many ways. In some parts of the world and even in our own hemisphere, we are being confronted with a number of non-military challenges that affect national and international security. The illegal production, distribution and use of narcotics has assumed epidemic proportions and has resulted in the massing of enormous fortunes and power in irresponsible hands. Threats to the environment and national resources abound. Many less- developed countries are immobilised by their massive national debts, while their populations grow in an unbalanced manner putting increasing pressures on scarce accommodation and food supplies. Problems of living in a crowded world made all the smaller by the marvel of contemporary communications are increasing as disparities are becoming evident and unrest is stimulated. Other non-traditional threats such as a nation's loss of direct control over its economy through international trade organisations will continue to challenge the traditional definition of national security. In addition, further challenges to our sovereignty are likely to arise in the areas of protection of fisheries, pollution control, illegal immigration and drug smuggling.

However complex the international environment, Canada should not forget that threats to Canadian territorial sovereignty have existed in the past and continue today. From the war of 1812, to the voyages of the Manhattan and the Polar Sea, cultural inundation, the free trade agreement and, more recently, the assertion by the Americans that the inside passage along British Columbia's coast is international waters, Canada sovereignty has been tested and will continue to be for the years to come. A comprehensive approach to the maintenance of our sovereignty is; therefore, in our best interests.

In Canada, several federal ministries such as the departments of the Environment, Fisheries and Oceans, Natural Resources and Foreign Affairs and International Trade and National Defence have a responsibility to protect the country's national interest. Though the importance of national security in the military sense has been steadily reduced over the years, the responsibilities of the Department of National Defence for the maintenance of sovereignty over the Canadian territory has remained the same. Again in 1994, the Defence White Paper continues the mandate of the Canadian Forces by tasking it to provide for the surveillance and control over Canadian territory. More specifically, the White Paper reinforces the Canadian position on national sovereignty: "Sovereignty is a vital attribute of a nation-sate. For Canada, sovereignty means ensuring that, within our area of jurisdiction, Canadian Law is respected. The Government is determined to see that it is so."[2] The Department of National Defence, through the Defence Planning Guidance, tasks the three respective operational components with the task of securing Canada's sovereignty. The policing function of Canadian airspace surveillance and control is an Air Force core capability performed 24 hours a day, 7 days a week. But what and how are we policing? Before we can assess how well we perform this function, it may be useful to look at the legal foundation behind our Canadian laws - the international laws on airspace sovereignty.

AIR SOVEREIGNTY AND INTERNATIONAL LAW

He who owns the soil, his it is up to the sky.
Latin legal maxim

What is airspace sovereignty? Although the principles of airspace law can be traced as far back as Roman times, the laws by which we operate today were codified somewhat later. The initial question of a nation's right to control the airspace over its territory was established immediately after the First World War. The Allies met in Paris on 13 October 1919 during the Convention for Regulation of Aerial Navigation. In article 1 of this convention all nations agreed that "The High Contracting Parties recognise that every power has complete and exclusive sovereignty over the air space above its territory".[3] This article also provided for national sovereignty over the airspace above both national land territory and territorial waters: "For the purpose of the present Convention, the territory of a state shall be understood as including the national territory ... and the territorial waters adjacent thereto.'' [4] The Convention contained some basic flaws, the most notable being the restriction of the agreement to contracting states (i.e., the signatories of the Convention). This eliminated such major powers as Germany, the USSR and the USA from access to international air routes and services. [5] Since 1919, no state has questioned the right of sovereignty of a nation state over its territory.

By 1944, many nations had become conscious of the need for a more descriptive agreement on international air travel. The representatives of 53 states were invited to Chicago in order to develop a more flexible organisation for international civil aviation. The resulting convention designed standard procedures for air navigation throughout the world and outlined the organisation of the International Civil Aviation Organization (ICAO). The Chicago Convention stands today as the most comprehensive agreement yet achieved on international aviation. Article 1 of the Convention states that "every state has complete and exclusive sovereignty over the airspace above its territory".[6] This principle is all encompassing and denies even the "right of innocent passage" such as may be found in equivalent law for ships in territorial seas.[7] Indeed, the laws concerning airspace sovereignty equate to civil laws. If everyone obeys the law and respects their neighbour's property claims, then there is no problem. Unfortunately this is not the case and as a result, a police force is required to protect and enforce the laws of society. The legal framework having been established, Canada and the United States established in the late 1950s the organisation which would enable them to enforce airspace sovereignty - the North American Air Defence Command (NORAD).

AIRSPACE CONTROL AND SOVEREIGNTY

Established in 1958, NORAD provides: warning of missile and air attack against either of its member nations; safeguards the air sovereignty of North America; and provides air defence forces to defend against an air attack. Since its very inception, NORAD has provided a special sovereignty challenge to Canadian authorities. It was evident then, that Canada could not afford the number of radars and interceptors necessary for both the surveillance and defence mission. Prior to 1971, United States Air Force personnel even manned some of the radar sites on the CADIN-PINETREE line. [8] For a number of years therefore; Canada was in a situation where the US was "better informed" of activities on and over Canadian territory. However, at the time, the need to provide a deterrence against the rapidly growing soviet bomber threat took precedence against the loss of sovereignty imposed by the US presence in Canada. In the early 1970s; however, this situation became unacceptable to the newly elected Liberal Prime Minister.

The 1971 White Paper, "Defence in the Seventies", provided the philosophical and political rational for the later decision to bring the NORAD region boundaries into line with the national border of Canada and the U.S. Until the realignment was completed in 1984, a significant percentage of Canada's sovereign airspace was under the command and control of NORAD facilities located in the U.S. Though these facilities were co-manned by Canadians, Canadian airspace sovereignty was exercised from the US. The 18 March 1985 Memorandum of Understanding (MoU) on Air Defence Modernisation, the focal point of the so- called "Québec Summit", continued the previously established policy of "Canadianisation" by providing the take-over, by Canada, of the upgraded and partially re-located DEW Line (i.e., the North Warning System). [9] The MoU also sanctioned the joint manning of the American Over The Horizon Backscatter radar (OTHB), which had coverage implications for the air sovereignty mission in Canada, and an expanded Canadian participation into the Airborne Warning and Control System (AWACS) operations of NORAD. This Canadian AWACS participation included some changes to the deployment of the aircraft in Canadian airspace by adding a substantive increase in the number of Canadian military personnel. Essentially, if the AWACS was to fly in Canadian airspace, it would do so with a Canadian presence onboard. Today, the Canadian NORAD Region receives data from 15 long- range radars. [10] This radar chain should provide an electronic barrier that must be penetrated by any co-operative and uncooperative target on its way to or through Canadian domestic airspace. Why does it not?

AIR SOVEREIGNTY TODAY

In 1998, Canada posses the ability to detect, identify, and if necessary intercept aircraft over Canadian territory. The "Canadianisation" of NORAD operations over Canada is complete. Though we still rely heavily on the Americans for the Integrated Tactical Warning and Attack Assessment and mutual defence, we have successfully transitioned on at least one of the three core functions of NORAD. Today, Canadian air sovereignty is being monitored and enforced by Canadians in Canada. However, through an on-again-off-again modernisation drive in the 1980s, we have been left with a gap in our surveillance capability. This deficiency must be rectified before the Chief of the Air Staff can assert on his annual Performance Measure Report that airspace sovereignty has been maintained. If the statement can not be made, than Canada's sovereignty may have been compromised... As previously mentioned, the North American Modernisation Programme included Canadian participation on the OTH-B project. The OTH-B was designed to provide long-range radar coverage of the eastern and western approached to North America. Although not part of the modernisation project, Canada participated in this programme with a limited number of personnel. However, the only operational OTH-B system tasked to monitor eastern approaches to North America has since been placed in cold storage. The site responsible for the coverage over the western approaches was never completed. It would appear that the Americans, having compared the O&M cost of the OTHB against the potential threats in the new world order, decided to "moth- ball" the OTHB project. The impact of this American cost-cutting measure has been a "hole" in the radar coverage on our western surveillance perimeter!

Every year, thousands of aircraft penetrate the Canadian Air Defence Identification zone (CADIZ). Each one is tracked and identified within a prescribed time period. Though North America does not face an air threat to its national security, this surveillance and policing function provides Canada with the ability to enforce its laws over its territory. In the early 1990s, NORAD became a natural participant in the fight against narcotics importation and the air sovereignty mission was extended to include the surveillance and monitoring of aircraft suspected of smuggling illegal drugs. The effort paid-off early when the Canadian NORAD region detected and intercepted an aircraft on a flight non-stop from Colombia to eastern Canada. The aircraft was followed to a landing site in northern Québec and its cargo seized by RCMP officers. The aircraft, a Convair 580, was large enough to carry several tons of cocaine with an estimated street price of $3 billion. [11] Though the RCMP believed that the drug was mostly destined for the American market, it would appear that the smugglers believed that it would be easier for them to penetrate our defences rather than those of the Americans.

The perception that our defences are easy to penetrate reinforces the urgency to close the gap on our western coast. Today, drug traffickers have the financial resources necessary to purchase larger airframes capable of flying non-stop, through the gap, and into our domestic airspace. With the demise of the OTH-B, the requirement exists to install a new radar on the west coast of Canada. Pressure should also be applied on the US to install additional radars on the Alaskan panhandle. If the US refuses to contribute to the cost of the coastal radars, then Canada should be prepared to act unilaterally. To put things in perspective, imagine if your house was missing one of its exterior walls! Now, it does not really matter that you live in a nice neighbourhood. You want your family to be secured in knowing that their privacy will not be violated - even if it is just to keep the neighbours dog from using your dinning room table as a fire hydrant. However, there are more practical and important reasons why Canada should be concerned about its West Coast. As Bruce Millar pointed out in Maclean's last summer, "The recent assertion by the Americans that the Inside Passage along British Columbia's coast is international waters is clearly ridiculous, but it is also dangerous if left unchallenged. It is time that Canada did more to demonstrate clearly our sovereignty over these waters to the Americans." [12] Canada requires the capability to monitor all air traffic on the west coast. Without it, our ability to assert our sovereignty over this territory and over territorial water may be jeopardised, thus seriously impeding Canada's ability to enforce Canadian and International laws. Without it, we are not completely sovereign.

Once the erection and maintenance of a comprehensive radar chain secures our airspace sovereignty, should we not extend that surveillance capability into space? How far up do we attempt to do the detection, surveillance and identification mission? How high does our national airspace go? The question of "where does air space ends and outer space begins" was perhaps not thought consequential in 1944 when the Chicago Convention was ratified. However, it has become more serious since the advent of space travel and is deserving of our examination.

SPACE SOVEREIGNTY AND INTERNATIONAL LAW

It would seem that ever since man started exploring outer space, the problem of sovereignty in outer space and the question of freedom in regards to exploration and use of space have occupied the minds of scholars and decision makers everywhere. The interests of national sovereignty requiring a high limit of airspace are motivated by security considerations. On the other hand, the interests of the international community requiring a low limit of airspace are motivated by the principle of the freedom of cosmic space. It is pertinent here to ask how far outer space is part of national airspace. By the very fact of the rotation of the earth, it is apparent that outer space cannot mean territory in the sense of land territory or territorial waters. Essentially, consensus was reached in the 1960s that the sovereignty of airspace extends at least to the altitude presently used for normal aircraft flight. On the other hand, the boundary of sovereignty, if one were to be fixed, should not be placed higher than, roughly, the probable perigee[13] of durable satellite orbits. While the upper flight height of aircraft determines the upper limit of the airspace, the lowest orbit of spacecraft determines the lower limit of outer space. Consequently, it was determined that the limit of airspace and outer space shall be between the upper flight height of aircraft and the lower orbit of spacecraft. [14] Thus, functional factors determined the delimitation of airspace and outer space. The above mentioned airspace limit secures the sovereignty of the subjected state over its entire airspace and avoids the legal issues concerning aerial reconnaissance above national territory. Similarly, the outer space limit secures the international status of the entire outer space and precludes the legality of interference with reconnaissance spacecraft in orbit around the earth.

The one thing that is certain is that national airspace extends somewhere up to approximately 90 km. Above that, no nation can claim sovereignty over outer space. This fact was agreed upon by most nations, including Canada, in the UN Treaty on Principles Governing the Activities of Sates in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, signed on 27 January 1967. The Outer Space Treaty, as it is simply known, clarified the issue of space sovereignty in its Article II: "Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means."[15] Does this mean that Canada should not concern herself with the activity in outer space? Should we not know the characteristic and capability of spacecraft in orbit over our territory?

SPACE SURVEILLANCE

Canada does not have a capability to monitor activity in outer space. The United States, however, has had a space surveillance capability for several years. In fact, space surveillance is a critical part of the NORAD/US Space Command mission (USSPACECOM) and involves detecting, tracking, cataloguing and identifying man-made objects orbiting Earth. The Command accomplishes these tasks through its Space Surveillance Network (SSN) ground-based radars and optical sensors at 25 sites world-wide. [16] The SSN has been tracking space objects since 1957 when the Soviets opened the space age with the launch of Sputnik I. Since then, the SSN has tracked over 24,500 space objects orbiting Earth. Of that number, the SSN currently tracks more than 8,000 orbiting objects.[17] Out of these, 1300 are satellites whose mission was or currently is communication, reconnaissance (including Electronic Intelligence, imaging, and IR), navigation, geodesy, or weather. The rest have re-entered Earth's turbulent atmosphere and have disintegrated, or survived re-entry and impacted the Earth.

In 1987, Canada was invited to participate in the Space Surveillance mission and since then, Canadian Forces personnel have been employed at space surveillance sensor sites and in the Space Surveillance Centre in Colorado Springs. Though Canadians have been involved in this mission, there is still a lack of national awareness with respect to military space activity and the space environment. Of the remaining active satellites, several have the capability monitor activity on and over Canada while other commercial satellite, like our own RADARSAT, have the ability to assess, and potentially exploit Canadian national resources. Also, though the USSPACECOM Catalogue contains all satellites launched by space fearing nations, American National assets such as their intelligence gathering satellites are not published in the catalogue and their orbital parameters and specific missions remain beyond the accessibility of Canadian Forces personnel. The pervasive secrecy that has surrounded American spy satellites programme such as the KEYHOLE system is caused by a variety of factors. One is the belief that such a pervasive secrecy is needed to preserve the "essential integrity" of the system. The CIA argues that the KEYHOLE satellites provide crucial intelligence on Russia, China, and other areas of the world and make it possible for the United States to monitor arms control compliance. Revealing details of that capability, such as the system's orbital parameters and system characteristics, would make it easier for the targets of U.S. surveillance, whether adversary or ally, to engage in denial and deception activities.[18] One could argue that Canada has neither the intention nor the capabilities, let alone the need, to deceive the American spy satellites. What is needed; however, is the knowledge that the satellites exist and an independent ability to monitor their whereabouts and flight characteristics. Along the same line, the number of satellites that will be launched in the next few years is expected to increase significantly. Information on commercial satellite is readily available; however, systems with potential military applications, are normally veiled in secrecy. The result is that little or no information is available on their characteristics and the threat that they might pose to Canadian Sovereignty. It is important to remember that countries such as China, India and Russia have the ability to launch satellites into space with little or no warning. Assessing the mission of these satellites once they have been launched is a difficult task requiring both analysis skills and high technology. Canada should develop such an expertise.

Canada requires a national satellite tracking and identification capability. This capability could serve two purposes. First, it would provide our nation with the ability to independently identify, through radar imaging and modelling, spacecraft orbiting over our territory. Second, it would re-establish the Canadian contribution to the Space Surveillance Network we lost with the retirements of the last Baker-Nunn cameras in St-Margarets and Cold Lake in the 1980s. [19] Such a facility, erected on the eastern tip of New Foundland to complement the existing SSN, would provide a much-needed tracking capability for deep space satellites in semi-synchronous and synchronous orbits.

CONCLUSION

In the Canadian Forces, the Chief of the Air Staff, through Air Command (AIRCOM), is responsible for providing surveillance and control of Canadian domestic airspace. The Air Force must take this important task seriously and perform it to the best of its ability. Any deficiencies that preclude AIRCOM from performing this mandate must be identified and mitigated. Anything less would be an abrogation of responsibilities. The world will judge a nation to be sovereign by the degree to which it can contribute to its national security. The first and most important service that a government must provide is the security of the country and its people. Aerospace sovereignty is an essential element of that security. The Canadian government must ensure that Canada can exercise sovereignty authority and control over all its territory, air space and waters. Activity in outer space must be monitored to ensure that Canada's sovereignty is not jeopardised. Ultimately, both the government and the people must understand the goal of our national security policy. It concerns the protection of our national assets - our land, our resources, our physical structure, and our people as well as our national values of democracy, personal freedom, social justice and economic well being.

Over the last 15 years, Canada has made significant headway in the "Canadianisation" of surveillance and control capability over our territory. Canada possesses the ability to monitor air traffic over most of its territory in Canada by Canadians. International law provides us with the impetus to monitor our own territory and enforce Canadian laws. What we now need to do is to close the loop. The detection and identification of objects penetrating Canadian territory or orbiting above it are critical functions that must be performed if our nation wishes to remain sovereign. We need to be able to stand up for our national interests. If we are to be able to stand up for our national security interests, it is simply unacceptable to consider asking other countries to tell us what is happening in or above Canada to protect our sovereignty. That in itself would be a loss of sovereignty.

ENDNOTES

     1Though the United States has never purposely compromised Canadian airspace, its activities in the arctic nonetheless directly affect our airspace sovereignty. Should Canada loose a challenge by the U.S. in international courts over the status of the Northwest Passage and the high arctic, the passage and its adjacent airspace would revert to International Status - Canada would no longer have jurisdiction. [ return ]

     2Canada, Department of National Defence. 1994 Defence White Paper. Ottawa: DND Canada 1994. p.15 [ return ]

     3John Kish, The Law of International Spaces. (Netherlands: A.W. Sijthoff, 1973), p 39. [ return ]

     4Ibid, p 37. [ return ]

     5Nicholas M. Matte, Treatise on Air - Aeronautical Law. (Toronto: The Carswell Co. Ltd., 1981), p. 103-118. [ return ]

     6John Kish, The Law of International Spaces. (Netherlands: A.W. Sijthoff, 1973), p 40. [ return ]

     7Nicholas M. Matte, Treatise on Air - Aeronautical Law. (Toronto: The Carswell Co. Ltd., 1981). p. 132-133 [ return ]

     8B.D. Hunt and R.G. Haycock, Canada's Defence - Perspective on Policy in the Twentieth Century. (Toronto: Copp Clark Pitman Ltd, 1993), p. 166 [ return ]

     9The NBC Group, A History of the Air Defence of Canada 1948-1997. (Ottawa: 71 Film Canada Inc, 1997), p.43. [ return ]

     10Ibid., p 44. [ return ]

     11David Hughes, CF-18s, NORAD Shift to Drug Interdiction, Aviation Week & Space Technology, Aug 2, 1993, p 48. [ return ]

     12Bruce Millar, "A Bridge over Trouble Waters". Maclean's, 14 July 1997 p.5 [ return ]

     13The perigee is the minimum altitude attained by a spacecraft in an orbit around the earth. Spacecraft in low earth orbit attain maximum velocity at this point where the earth's gravitational pull is the strongest. Below 90 km, the atmospheric density is enough to significantly affect a satellite's orbit to the point were it may sufficiently slow down and re-enter the atmosphere. [ return ]

     14John Kish, The Law of International Spaces. (Netherlands: A.W. Sijthoff, 1973), p. 44. [ return ]

     15John M. Collins, Military Space Forces -The Next 50 Years. (Washington: Pergamon-Brassey's, 1989), p. 174 [ return ]

     16U.S. Space Command World Wide Web Site. "On Orbit" Factbook, 27 April 98. [http://www.spacecom.af.mil/usspace/space.htm]. [ return ]

     17U.S. Space Command World Wide Web Site. Satellite Boxscore. 22 April 1998. [http://www.spacecom.af.mil/usspace/boxscore.htm]. [ return ]

     18Jeffery T. Richelson. America's Secret Eyes in Space - The U.S Keyhole Spy Satellite Program, (NewYork: Harper & Row 1990), p. 259 [ return ]

     19The NBC Group, A History of the Air Defence of Canada 1948-1997. (Ottawa: 71 Film Canada Inc, 1997), p.43. [ return ]

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Copyright ©1998
Department of National Defence (Canada)
Copyright ©1998
Ministère de la Défense nationale (Canada)



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