A soft law approach to prevent the weaponization of outer space Fabio Tronchetti Assoc. Professor, Faculty of Law, Harbin Institute of Technology, China

A soft law approach to prevent the weaponization of outer space

Fabio TronchettiAssoc. Professor, Faculty of Law,

Harbin Institute of Technology, China

Vienna 2 April 2011, Conference on Soft Law in Outer Space

The prevention of an arms race in space would avert a grave danger to international peace and security

UNGA Res. 65/68, 8 December 2010


Introduction

1 The prevention of weaponization of outer space should be a matter of priority for States

2Discussions on other important topics should not

take away attention and efforts towards achieving this goal

3It is a pre-condition to ensure that outer space remains free for exploration and use, safe and

beneficial to all countries


Why there is a risk of weaponizing outer space?

The need to protect space assets

Weakness of the existing legal framework regualting

space activities

Fundamental impact of space technologies on economies and societies.

Growing dependence of military forces on space assets.

Protection of national security.

It is deemed to be inadequate to preserve the peaceful character of outer space and to maintain it weapons-free.

Spread awareness on the need to take further measures to prevent outer space to become an area of military confrontation.


Main issues

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Political will

Legal approach to be followed

Scope

Negotiation forumVienna 2 April 2011, Conference on Soft

Law in Outer Space

Political will

Tangible sings of the States’ will to take measures to avoid the weaponization of outer space are identifiable

Annual Resolutions adopted by the UN General Assembly.

Progress in the Conference on Disarmament (CD) (WG on Prevention of an Arms Race in Space (PAROS) established in 2009.

States: 1) Statements. 2) Concrete initiatives in different legal shape.


Legal approach to be followed

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Hard law (binding instrument).

Soft law (non-binding instrument).


Hard law

From a mere legal point of view this option could be preferred.

A large number of States are in favour of having a treaty preventing the placement and use of weapons in space and protecting space assets.

The most elaborated proposal has been put forward by China and Russia in 2008 with the submission to the CD of the Draft Treaty on the Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force against Outer Space Objects (PPWT).


The PPWT

-The PPWT is specifically aimed at avoiding the weaponization of outer space.

- Art.II contains a prohibition on: the placement and installation in orbit and on celestial bodies of any kind of weapon; the threat or use of force against outer space objects; the assistance to other States to participate in activities prohibited by the Treaty.

- The PPWT guarantees the rights of States to explore and use outer space and to excercise their inherent right of self-defence.

- It includes definitions: i.e. “space weapon”.

- Verification is put on hold by foreseeing the possibility to negotiate an additional protocol.


Problems with the PPWT/Hard law approach

The PPWT received mixed reviews as well as rejections.

Main criticisms: no prohibitions on the research, development, testing, production, storage, or deployment of terrestrial-based anti-satellite weapons; no verification mechansim; definitions (i.e. weapons).

No revised version of the Draft have been submitted.

There seems to be little hope for a quick conclusion of a treaty in the CD (States reluctance).

It would be a mistake to wait until an agreement is reached within the CD without undertaking alternative efforts.


A case for a soft law approach

General considerations

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Favourable momentum for the adoption of transparency and confidence building measures (TCBM) to regulate space activities.

It may be easier to negotiate and to amend a soft law instrument rather than a treaty.

Soft law provisions are not necessarily weaker than those included in a treaty.

A number of TCBMs is already present in the existing space law treaties.


A case for a soft law approach 2

Role of soft law in the prevention of space weaponization

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TCBMs may enable reciprocal trust and understanding among space actors and reduce the need for weaponizing outer space.

TCBMs may lay the foundation for a future legally binding treaty.

TCBMs may turn into customary law.

Rules of behaviour and best practices may avoid tension and risky situations.



Diplomatic developments

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Since 2005 (UNGA 60/65) the UNGA has been adopting annual Resolutions on Transparency and confidence-building measures in outer space activities.

Pursuant to Res. 61/75, 62/43, 63/68 and 64/69 States were invited to submit proposals to the SG on TCBMs measures in the interest of maintaining international peace and security and preventing an arms race in space – 2010 Report of the SG.

UNGA 65/68, 2010 Requests the Secretary-General to establish, on the basis of equitable geographical distribution, a group of governmental experts to conduct a study, commencing in 2012, on outer space transparency and confidence-building measures.

Each Resolution emphasizes the need for increased transparency and confirm the importance of confidence-building measures as a conducive means of ensuring the attainment of the objective of the prevention of an arms race in outer space.



Position of StatesThe majority of States agrees on the positive impact of TCBM in preserving the peaceful nature of outer space and in avoiding an arms race in space.

While supporting the adoption of TCBMs, several States still consider the adoption of a treaty the most effective way to prevent the weaponization of outer space (China, Ukraine, Russia).

US position: “The United States will pursue bilateral and multilateral transparency and confidence-building measures to encourage responsible actions in, and the peaceful use of, space.The United States will consider proposals and concepts for arms control measures if they are equitable, effectively verifiable, and enhance the national security of the United States and its allies. “ (2010 National Space Policy).

Some States, i.e. the EU and Canada, have made TCBM proposals having a direct impact on the issues of space security and the prevention of an arms race in space. Vienna 2 April 2011, Conference on Soft

Law in Outer Space

TCBM proposals

The EU Code of Conduct (CoC)

The revised version of the CoC was endorsed by the Council of the European Union on 11 October 2010.

The CoC is a typical soft-law instrument to be implemented on a voluntary basis by Subscribing States.

The CoC is characterized by its encompassing scope covering military and civil operations so as to ensure safety and security in outer space.

It does not contain definitions or arms control provisions: it rather focus on behavioural recommendations.


EU CoC and space securityStates shall refrain from intentional destruction of space objects which may generate long-lived space debris.

Art. 4.2: “States shall refrain from any intentional action which will or might bring about, directly or indirectly, the damage or destruction of outer space objects unless such action is conducted to reduce the creation of space debris and /or justified by the inherent right of individual or collective self-defence in accordance with the United Nations Charter justified or imperative safety considerations”.

The CoC establishes procedures to minimize possibility of accidents in space and collisions between space objects.

It contains provisions dealing with the exchange and notification of information on space activities.

It foresees a consultation and investigation mechanisms. Vienna 2 April 2011, Conference on Soft Law in Outer Space

Limits of the CoC

It adopts a broad apporach to space security, addressing only a limited aspects of it, while leaving open crucial questions

The choice to circumvent negotiations on definitions, in contrast with the PPWT, precludes the Code from specifying situations and actions: i.e. no indications on the preferred negotiation forum for space security issues; no provisions on the potential overlap between future activities at the CD and at COPUOS; absence of any reference to the issue of the placement of ‘space weapons’; it does not refer to temporary interference with space objects.

Problematic relation between prohibition contained in Art. 4.2 and self-defence.

Art. 4.2 may contribute to the proliferation of ASATs weapons.

It remains to be seen how many non-European States will decide to

join the Code.


The Canadian initiative 1

Transparency/confidence and security building measures to be negotiated at the CD

On March 26, 2009, Ambassador Grinius formally tabled a Canadian working paper entitled, “The Merits of Certain Draft Transparency and Confidence Building Measures and Treaty Proposals for Space Security.

Canadian officials made clear that the paper goes beyond traditional TCBM activities and that it seeks a “third way” between non-binding TCBMs and the PPWT

The paper advances the case that transparency and confidence-building measures (TCBMs) can serve as important instruments in their own right, as well as elements towards an eventual treaty.


The Canadian initiative 2

The paper argues that the CD should consider security guarantees, such as a declaration of legal principles, a code of conduct, or a treaty, according to which States would pledge to: (a) ban the placement of weapons in space, (b) prohibit the test and use of weapons on satellites so as to damage or destroy them, (c) prohibit the use of satellites themselves as weapons

Agreement on robust security guarantees could serve as a first step in laying the foundation and building the momentum for future legal protections.


The Canadian initiative 3:

Is it possible to verify a ban on weapons placed in space due to the inherently dual-use nature of space technology?

It is questionable whether those nations backing a space weapons ban treaty would agree to anything less.

Reluctance of the US to negotiate TCBM in CD.

The definition of ‘weapon’.

Problems connected with the Canadaian initiative


The way ahead

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To identify priorities.

Any initiative shall not put at risk national security.

Be creative.

Hard law and soft law efforts should be complementary.


The way ahead: possible approaches 1

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A broad Code of Conduct addressing only certain aspects of space security (EU CoC model)

To combine the Canadian and European approaches: a broad Code containing more specific provisions on the prevention of an arms race in space (to be discussed preferentially in COPUOS)

A TCBM document containing a series of pledges/prohibition (Canadian model) to be discussed in the CD



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Step by step policy: harmonization of national law and policies/unilateral action.a)Identification of the most urgent actions to be taken to protect outer space and space objects;b)States should set norms against a certain type of behavior or make individual pledges not to carry out a certain action;c)Progressive steps towards a free weapons space

Bring closer CD and COPUOS and organize meeting of experts to link the two bodies.

Potential role of bilateral negotiations.



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Identification of the forum of negotiation: potential impact of the COPUOS long-term sustainability initiative.

To enhance exchange of information on space policies, activities and programmes.


Conclusion

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Preventing an arms race in space should be a primary concern of the international community.

TCBM measures may significantly contribute to achieve this goal.

3 The political will of States to reach a common solution/approach is the key component.


Documents

A soft law approach to prevent the weaponization of outer space Fabio Tronchetti Assoc. Professor, Faculty of Law, Harbin Institute of Technology, China