Kiran Mohan Vazhapully*
Key Words: Conference on Disarmament – EU CoC – PPWT – Space security – Space weapons
On 13 May 2022, the first formal meeting of the Open-ended Working Group on reducing space threats (OEWG), established by the UN General Assembly (UNGA) based on a proposal by the United Kingdom, concluded in Geneva. The Working Group inter alia aims “to make recommendations on possible norms, rules and principles of responsible behaviours relating to threats by States to space systems, including, as appropriate, how they would contribute to the negotiation of legally binding instruments, including on the prevention of an arms race in outer space”. Importantly, this meeting opened the issue to most States that have not been active in previous space disarmament deliberations.
Reportedly, the meeting was collegial despite the long-held differences among major space-faring nations on the form and content of the future norms. This is a welcome departure from the past negotiations at the Conference on Disarmament (CD) in this regard— marred by stark differences of opinions and inflexible positions. When viewed alongside the United States’ recent, self-imposed ban on anti-satellite (ASAT) missile tests and Canada matching this pledge, this constructive development augurs well for space security and sustainability and has the potential to fill in the gaps in existing international law. Significantly, Article IV of the 1967 Outer Space Treaty, by prohibiting the placement of nuclear weapons and other weapons of mass destruction, provides only for partial demilitarisation of outer space. This provision does not cover ASAT weapons and dual-use, co-orbital technologies— both weapons of choice in space for a few nations in the 21st century.
Differences Persist
However, as is clear from their submissions to the OEWG, China and Russia continue to promote their idea of a legally binding treaty in intergovernmental fora. In 2008, they jointly submitted to the CD the Draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects (PPWT/Draft Treaty) aimed at preventing an arms race in space. The signatories to the treaty would commit “not to place any weapons in outer space.” The PPWT also stipulates that the parties may not “resort to the threat or use of force against outer space objects” or engage in activities “inconsistent” with the purpose of the Treaty.
Noticeably, the Draft Treaty omitted ground-based ASAT weapons from its purview, which the United States vehemently criticised. The Draft Treaty was also opposed for its absence of a verification mechanism to ensure compliance. Further, the PPWT also does not ban the development, testing, or stockpiling of weapons on the ground that could be promptly placed on orbit. Instead, it calls for “transparency and confidence-building measures” implemented on a “voluntary basis.” An updated version of the Draft Treaty was submitted in 2014, but these issues stayed on. Consequently, the proposal could not receive sufficient support in the CD.
European Efforts
Contrastingly, western nations advocate for “soft law”, initially in the form of Transparency and Confidence Building Measures (TCBMs) for arms control in outer space. Officially released in 2008, the European Union Draft Code of Conduct for Outer Space Activities (CoC) was envisioned as TCBMs that would strengthen existing regulations. This initiative did not favour the developing States, notably BRICS, as they were excluded from the process. It was perceived as an exclusive EU project.
The sponsors of CoC tried to address this concern in 2014 through a more inclusive approach—by engaging in a broader consultation process and renaming the amended draft “International Code of Conduct for Outer Space Activities”. Even after three rounds of consultations, disagreements on the form and content of the new norms persisted. China and Russia wanted a binding agreement and had already proposed PPWT. Further, there were differences of opinion on the choice of forum for negotiation and process among EU member states and others. The EU member states advocated for an ad hoc process to ensure broader participation, while a few other States argued for an UN-based approach. These differences, along with confusion about the methodology and the way forward, ultimately led to the failure of this initiative.
Space Security at the UN
Aside from these State-led initiatives, the UNGA took the lead in establishing a Group of Governmental Experts (UNGGE) on Transparency and Confidence-building Measures (TCBMs) in Outer Space Activities in 2011. As the discussions at the CD had been in limbo for several years, many States saw the UNGGE as a way forward on space security matters. The UNGGE convened in 2012 and 2013 and submitted its final report in 2013. The report outlined conclusions and recommendations on TCBMs to ensure strategic stability in outer space. Its recommendations inter alia included information sharing on national policies and activities in outer space, notifications of risk reduction efforts, and voluntary visits to launch sites. However, implementation of these recommendations has been minimal, and thus, has had limited impact on norm creation on space security.
Following informal discussions on the practical implementation of these TCBMs in 2017, the UN Disarmament Commission (UNDC), a part of the UNGA, explored ways in which the recommendations of the 2013 UNGGE report could be implemented. However, the progress in this direction has been negligible as the UNDC couldn’t even convene the meetings to carry forward this task.
Another GGE was convened in 2018 and 2019 to identify issues and options to advance a legally binding instrument. Again, due to lack of consensus on a final report of recommendations, no legally binding instrument emerged out of it. Nevertheless, the work carried out by the Group did highlight points of convergence in several areas, such as the applicability of international law— particularly the applicability of the UN Charter to outer space activities, the freedom of access to outer space without discrimination and on the basis of equality, and the need to avoid hampering the economic or technological development of States.
Concluding Thoughts
As mentioned earlier, the UNGA set up the OWEG primarily on the efforts of the United Kingdom. The UK initiated this latest exercise on law-making for space security by sponsoring UNGA Res.75/36 on “reducing space threats through norms, rules and principles of responsible behaviours” in 2020. The resolution prudently chose to stay clear of recommending neither a binding treaty nor “soft law” as the product of these deliberations, thereby opening a new pathway for future engagements in this regard. Herein, the focus was on what constitutes threatening and destabilising space behaviour rather than the nature or type of space weapons. This move was followed up by the UK co-sponsored resolution in 2021 to establish the OWEG, which received wide-ranging support in the UNGA. The OEWG, in its next meeting in September 2022, will focus on current and future threats to space systems.
It appears that international efforts on space demilitarisation have received a new lifeline. The momentum created by the most recent endeavours gives another opportunity for States to reconcile their differences and disagreements on this critical issue. It is hoped that proactive discussions at the OWEG will contribute positively to reducing threats to civilian activities in outer space, making it less congested, contested, and competitive.
* Kiran Mohan Vazhapully is Senior Legal Officer at the Secretariat of Asian-African Legal Consultative Organization (AALCO), an intergovernmental organization based in New Delhi. Views are personal.
References
PPWT, submitted by China and the Russian Federation, https://www. reachingcriticalwill.org/images/documents/Disarmamentfora/cd/2008/documents/Draft%20PPWT.pdf
International Code of Conduct for Outer Space Activities – Version 31 March 2014, Draft, available online at https://eeas.europa.eu/topics/disarmament-non-proliferation-and-arms-export-control/14715
Group of Governmental Experts on Transparency and Confidence-Building Measures in Outer Space Activities, U.N. GAOR, 68th Sess. U.N. Doc A/68/189* (29 July 2013), available online at
https://www.unoosa.org/oosa/oosadoc/data/documents/2013/a/a68189_0.html
Michael Listner and Rajeswari Pillai Rajagopalan, “The 2014 PPWT: A New Draft but With the Same and Different Problems,” The Space Review, August 11, 2014, https://www.thespacereview.com/article/2575/1
UN General Assembly, “Group of Governmental Experts on Transparency and Confidence-Building Measures in Outer Space Activities: Note by the Secretary-General,” A/68/189, July 29, 2013
2018 UN Disarmament Commission Working Group II, Secretariat nonpaper, n.d., https://www.un.org/disarmament/wp-content/uploads/2018/03/WG2-secretariat-non-paper-outer-space-TCBMs-FINAL.pdf
UN General Assembly, “Further Practical Measures for the Prevention of an Arms Race in Outer Space,” A/RES/72/250, January 12, 2018
“UK Push for Landmark UN Resolution to Agree Responsible Behaviour in Space,” UK Foreign Office, August 26, 2020, https://www.gov.uk/government/news/uk-push-for-landmark-un-resolution-to-agree-responsible-behaviour-in-space
Centre for Aviation and Space Laws 