Outer Space Treaty

Moon Agreement

The Moon Agreement⁸ reiterates the provisions of the OST in relation to weapons and military uses (OST, Article IV, para. 2). The Agreement (Article 3) provides:

It is important to note that references to the Moon and the provisions of the Moon Agreement (Article 1, para. 1) include and apply to all celestial bodies within the solar system, except the earth,⁹ and include “orbits around or other trajectories to or around it” (Article 1, para. 2).

It has been suggested that the Moon Agreement could apply also to outer void space, by defining the Moon to include “orbits around or other trajectories to or around it” (Article 1, para. 2). Such interpretation would effectively prohibit militarization of at least part of void space (see Aoki, 2017, p. 197 at 205).

However, in its consideration of the draft Moon Agreement and the definition of the “Moon,” the Legal Subcommittee of COPUOS agreed “that the trajectories and orbits mentioned in Article 1, paragraph 2, do not include trajectories and orbits of space objects in Earth orbits only and trajectories of space objects between the Earth and such orbits.”¹⁰

There have, however, been differing interpretations of the Legal Subcommittee’s position. Canada, in its working paper before the Conference on Disarmament in 1985,¹¹ expressed the view that establishing military bases, installations, and fortifications; the testing of any type of weapons; or any conduct of military maneuvers would be prohibited in the residual orbits and trajectories within the solar system (Aoki, 2017, p. 197 at 205).

At the Conference on Disarmament in 2006, China and Russia interpreted these provisions as not restricting weaponization of void outer space in a joint working paper.¹² Their view, which may be taken to be the prevailing and better view, is that the provisions of Articles 3(2) and 3(4)

prohibit only tests and use of weapons of any kind on the Moon, and the use of such weapons from the Moon against the Earth, spacecraft and the personnel. However, activities of such kind in the Moon orbit and in outer space other than the Moon are not covered.¹³

They further express the view that Article 3(3) “bans only the deployment of weapons of mass destruction on the Moon and in its orbit, but does not deal with weapons of other kinds.”¹⁴

Liability Convention

The Liability Convention is mentioned here briefly because if military action in space causes damage by a space object, the relevant state could potentially be liable for that damage.

It has been argued that the absolute liability provision of the Liability Convention¹⁵ could require compensation for space-based attacks against ground or air-based targets (Ramey, 2000; Schmitt, 2006). However, belligerents incur no liability for lawful attacks on military objectives. Further, self-defense, duress, necessity, and other lawful acts could also apply to negate liability. However, it has been suggested that absolute liability would only be suspended vis-à-vis military space activities and might remain applicable to civil space activities (Bourbonnière, 2005). Absolute liability would apply to belligerents for damage caused in violation of international humanitarian law.¹⁶

Peaceful Use

At the outset of space activities it was clear that they provided great military advantages. With time these advantages have become increasingly apparent and gained importance.

In their rhetoric and laws governing space activities, states continue to aver that space activities are to be conducted for peaceful purposes and for the benefit of humankind. However, in their actions and policies, states, particularly the major space-faring states, pursue military objectives in outer space (Cheng, 1997, p. 520; Rosas, 1983, p. 357 at 362). Many states use Earth observation and other types of satellites, space vehicles, or space stations for military purposes (Rosas, 1983, p. 357 at 358). In void space, states are perfectly entitled to do so, and such use does not breach international law or obligations under the OST.

Nevertheless, the United States has gone to great lengths to promote the interpretation of “peaceful” as “nonaggressive” rather than nonmilitary or civilian. This interpretation, even though it has been used by the United States for many years without objection by others, does not amount to acceptance by other states or form part of general international law. It has been cogently argued that this interpretation by the United States is unnecessary, wrong, and potentially noxious. (For a full and clear discussion of this usage and relevant international law, see Cheng, 1997, p. 520.)

If, contrary to the U.S. interpretation, “peaceful” means “nonmilitary” (and not “nonaggressive”). States are

perfectly entitled to conduct any military activity, including exercises and manœuvres in outer void space, and to test, deploy and station there any number of military reconnaissance satellites, early warning satellites, meteorological satellites, communications satellites, geodetic satellites, navigation satellites, anti-satellite weapons (ASAT), ballistic missile defence (BMD) systems, permanently manned space stations, and any other kind of weaponry or device, all either partly or exclusively for military purposes

(Cheng, 1997, p. 530).

Weapon

There is no general agreement on the definition of “space weapon” (Waldrop, 2004b, p. 329; for a detailed discussion of space weapons and technologies, means and methods of warfare, see Boothby, 2017, p. 179). The dynamics of space and the laws of physics render virtually any object in space a potential weapon. Also, space systems are increasingly designed or deployed with dual-use capability, and many are used for both civilian and military purposes.

The Canadian Permanent Ambassador to the Conference on Disarmament articulated some of the factors that can be relevant in defining whether an object is a space weapon include (Meyer, 2004):

In turn this would involve consideration of:

A major point of contention is whether weapons on Earth aimed at space objects are “space weapons.” An increasingly accepted definition of space weapon includes:

However, it is not clear that all states accept that ground-based weapons directed at objects in space (ASATs) are space weapons.¹⁷ In monitoring of space weapons, and in determining whether an action is legal, a clear definition of what amounts to a weapon needs to be established (For a detailed classification of space weapons, see Ekblad, 1992).

Another definition includes that suggested by the UN Institute for Disarmament Research:

A space weapon is a device stationed in outer space (including the Moon and other celestial bodies) or in the earth environment designed to destroy, damage, or otherwise interfere with the normal functioning of an object or being in outer space, or a device stationed in outer space designed to destroy, damage, or otherwise interfere with the normal functioning of an object or being in the earth environment. Any other device with the inherent capacity to be used as defined earlier will be considered a space weapon.

(Cronin, 2009, p. 179)

This definition has been criticized as too broad. The last sentence could arguably cover any space object (Khan, 2017, p. 314 at 331).¹⁸

Ballistic missiles that arc through space are not classed as space weapons. Rockets that orbit and that can attack satellites or missiles are so classified (Garwin, 2001).

A space weapon could also be one that does not cause physical damage but destroys the target’s command, control, and space surveillance equipment, which are vital to the efficient operation of spacecraft and missiles (Jasani, 2002, p. 347 at 360). This includes any device with the “inherent capability” to “destroy, damage, or otherwise interfere with the normal functioning of an object or being in outer space” or in the earth environment from outer space (Stares, 1991, p. 147 at 148).

Arriving at a workable and internationally acceptable definition of space weapon has become more challenging with the development of active debris removal and of satellite servicing systems. Both such systems have the capability to alter the functioning and orbit of the target space object.

Militarization vs Weaponization

In considering the legal status of outer space, it is important also to distinguish weaponization from militarization. Space weaponization, is always a form of militarization, but space militarization—that is, the use of space by military spacecraft—does not necessarily involve space weaponization (Khan, 2017, p. 314 at 329).

Space weaponization has been defined as referring “to the placing in outer space for any length of time any device designed to attack man-made targets in outer space or in the terrestrial environment” (Viasic, 1995).

Military use of outer space began when the United States launched its first military observation satellite in 1960. This was followed by the Soviet Union launching a similar spacecraft in 1962. The first indication of the potential for aggressive action in outer space came from the Soviet Union when it tested an ASAT weapon in October 1968, exactly one year after it had signed the 1967 OST (Jasani, 2002, p. 347).¹⁹

Drones

Drones, or unmanned aerial vehicles, are generally not space objects, although the United States has used drones in space for some time, ostensibly to test propulsion systems and materials (Howell, 2015).

Space-controlled drones are now almost routinely used in warfare. But there is no space law prohibition on such use. The more difficult aspect of their use is compliance with international humanitarian law (Quine, 2012, reporting comments by Professor Steven Freeland).

Dual-Use Satellites

Prevention of an Arms Race in Space

Following a series of UN General Assembly resolutions²¹ requesting the Conference on Disarmament (CD) to do so, the CD formed the ad hoc Committee on Prevention of an Arms Race in Outer Space in 1985. It aimed to negotiate and conclude one or more agreements to prevent an arms race in all its aspects in outer space (Nuclear Threat Initiative, 2017). The program of work of this ad hoc committee was formally accepted at the second session in 1986 and maintained until 1994, the last year the ad hoc committee convened. Subsequently, discussions have been conducted in the plenary and informal plenary meetings under the agenda item “Prevention of an Arms Race in Outer Space” (Waldrop, 2004b, p. 329).

One commentator has observed that

a prime reason why so little headway is being made in the prevention of such a pre-arms race is that, as of now, what has to be prevented is predominantly a race in certain advanced technologies and not in “arms” properly so called. The negotiations have almost entirely ignored this inconvenient fact.

(Dahlitz, 1988).

Prevention of Placement of Weapons in Outer Space

In 2002 Russia and China jointly submitted to the CD a Proposal for a Treaty to Prevent the Deployment of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects (PPWT; Working Paper Presented by the Delegations of China, Russia, Vietnam, Indonesia, Belarus, Zimbabwe and Syria, 2002). It was aimed at banning certain behavior rather than weapons in space. An updated and more detailed Draft Treaty on PPWT was submitted by Russia and China in 2008 (Second PPWT; Draft Treaty Presented by the Delegations of China and Russia, 2008).

The third and most recent Draft PPWT was submitted by Russia and China in 2014 (Third PPWT; Draft Treaty presented by the Delegations of China and Russia, 2014). The United States opposed the Draft PPWT on a number of grounds, including the absence of any means of compliance verification, its scope, and the omission to address ASATs, regarded as the most pressing issue by the United States.²² In their response²³ Russia and China indicated the proposed PPWT was not intended to address specific weapons and pointed to the OST in relation to lack of verification mechanism.

The third Draft PPWT forbids states parties from:

By a resolution of the UN General Assembly (2017b), a new Group of Government Experts (GGE) was to be established to review the third PPWT Draft and to issue recommendations on the creation of a legally binding treaty for the prevention of an arms race in space and of the placement of weapons in outer space (Ministry of Foreign Affairs of the Russian Federation, 2017). The Resolution was opposed by, among others, the United States and the United Kingdom, for similar reasons as the U.S. opposition to the Third Draft PPWT (United States Mission to the United Nations, 2017).

It remains to be seen whether the matter can be resolved once the new GGE has reported. The focus appears to be on creating a series of measures to achieve transparency and confidence (TCBM) among nations.

Transparency and Confidence Building Measures

In 1993 the UN established a GGE to examine and report on steps necessary to ensure continued security and sustainability of outer space. The GGE reported in 2013 (Report of the Group of Governmental Experts on Transparency and Confidence-Building Measures in Outer Space Activities, 2013), recommending measures to be taken by states to achieve a secure and sustainable space environment that underpins a growing number of terrestrial infrastructures and human activity. In relation to space weapons the report states:

The Group acknowledged that the existing treaties on outer space contain several transparency and confidence-building measures of a mandatory nature. Non-legally binding measures for outer space activities should complement the existing international legal framework pertaining to space activities and should not undermine existing legal obligations or hamper the lawful use of outer space, particularly by emerging space actors.

The Group further agreed that such measures for outer space activities could contribute to, but not act as a substitute for, measures to monitor the implementation of arms limitation and disarmament agreements.

The GGE recommended states and international organizations voluntarily adopt the measures in addition to the observation of their international obligations. As intended by the GGE, the report has been circulated to UN entities concerned with disarmament (see Martinez, Crowther, Marchisio, & Brachet, 2014; see also Johnson, 2014).

Draft Guidelines for Long-Term Sustainability of Outer Space

The Working Group of the STSC of COPUOS has produced a set of guidelines for the long-term sustainability of outer space (Guidelines for the Sustainability of Outer Space Activities, 2017). The guidelines are divided into two parts. Part A comprises guidelines adopted by the committee, and Part B includes those still under discussion. Among the guidelines under discussion is Guideline 7, which aims to make outer space open solely to peaceful activity, calling on states and international intergovernmental organizations to “provide, in national legal and/or policy frameworks, for a commitment to conducting space activities solely for peaceful purposes” (Guidelines for the Sustainability of Outer Space Activities, 2017). In effect this would extend the regime under the Moon Agreement to outer void space. However, it would not necessarily prohibit the placement of weapons, other than weapons of mass destruction, in outer void space.

International Code of Conduct against Ballistic Missile Proliferation

The International Code of Conduct against Ballistic Missile Proliferation (Hague Code of Conduct [HCoC]; see Text of the HCoC, 2003) is a non-legally binding voluntary code that applies not only to ballistic missiles but also to space launch vehicles (SLVs; HCoC, Articles 4 (a)(i) and 4 (a)(ii), respectively). It is an early embodiment of TCBM in relation to SLVs. The code calls for prelaunch notifications of launches and test flights of ballistic missiles and SLVs and also for states to provide annual declaration of their SLV policies as well as information on the SLV launches and test flights of the preceding year (HCoC, Articles 4 (a)(iii). It also recommends that subscribing states²⁴ invite international observers to their launch sites. The UN has welcomed the HCoC, confirming its importance in a number of resolutions.²⁵

International Code of Conduct for Outer Space Activities

In 2008 the European Union (EU) proposed a draft code of conduct for space activities²⁶ that was subsequently modified, following international discussions (Draft International Code of Conduct for Outer Space Activities [ICoC], 2014).

The ICoC is being negotiated outside the UN, as is the case with HCoC. It addresses both civilian and military activities. Its stated purpose is “to enhance the safety, security, and sustainability of all outer space activities pertaining to space objects, as well as the space environment” (ICoC, Article 1.1).

The ICoC includes some TCBM:

This Code establishes transparency and confidence-building measures, with the aim of enhancing mutual understanding and trust, helping both to prevent confrontation and foster national, regional and global security and stability, and is complementary to the international legal framework regulating outer space activities. (ICoC, Article 1.3)

Subscribing states are to “refrain from any action which brings about, directly or indirectly, damage, or destruction, of space objects unless such action is justified” by imperative safety considerations, to reduce debris creation, or as part of the right to self-defense (ICoC, Article 4.2). The ICoC does not seek to prohibit the placement of weapons in space but addresses what has become known as Principles of Responsible Behaviour in Outer Space (PORBOS; ICoC, Preamble 9; see EU Statement, 2017).

Missile Technology Control Regime and the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies

Arms control regimes like the Missile Technology Control Regime (MTCR) and the Wassenaar Arrangement (WA), essentially aim to prevent the proliferation of weapons and military technology to states lacking their own or the capacity to develop them.

Member states of MTCR adopt export policies in accordance with MTCR guidelines (Guidelines for Sensitive Missile Relevant Transfers, MTCR Guideline 8),²⁷ providing the overall structure and rules, as well as the list of controlled items, called the “MTCR Equipment, Software and Technology Annex.” Member states adopt and implement their national export controls of missiles and SLVs²⁸ to conform to the MTCR rules.

The Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies²⁹ was established in 1996 “to contribute to regional and international security and stability, by promoting transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies, thus preventing destabilising accumulations” (Wassenaar Arrangement Secretariat, 2017).

As with the MTCR, WA participating states adopt and apply their own national export controls to all items in the List of Dual Use Goods and Munitions List (Wassenaar Arrangement Secretariat, 2018). To assist in developing common understandings of transfer risks, participating states regularly exchange information of both a general and a specific nature. Participating states are required to report their arms transfers and transfers/denials of certain dual-use goods and technologies to destinations outside the WA on a six-month basis. In some cases, shorter reporting time frames apply (WA, 2018).

Although both the MTCR and the WA apply to certain space-related technologies, they do not address their placement or use in outer space. There are, however, limitations on the use of other weapons that apply both on Earth and in space, such as blinding lasers. These limitations would apply to use in space by virtue of the OST (Article III; see also Mosteshar, 2008).

UN General Assembly Resolutions

At its most recent meeting the First Committee (Disarmament and International Security) of the UN General Assembly (2017a) approved six draft resolutions, including one on a legally binding instrument on the prevention of an arms race in outer space.

The committee approved the draft resolution “Further Practical Measures for the Prevention of an Arms Race in Outer Space” (UN General Assembly, 2017b) by a recorded vote of 121 in favor to 5 against (France, Israel, Ukraine, United Kingdom, and United States), with 45 abstentions. By the terms of that text, the General Assembly would urge the Conference on Disarmament to agree on a balanced program of work that included the immediate commencement of negotiations on an international legally binding instrument on the prevention of an arms race in outer space.

The committee also approved three other draft resolutions related to disarmament aspects of outer space, including one on TCBM in outer space activities.³⁰ By a recorded vote of 175 in favor to none against, with 2 abstentions (Israel and United States), it approved the draft resolution “Prevention of an Arms Race in Outer Space.”³¹ By its terms, the assembly would call upon all states, in particular those with major space capabilities, to refrain from actions contrary to that goal and to contribute actively to the objective of the peaceful use of outer space (UN General Assembly, 2017a).

Although encouraging to those advocating weapon-free space, the UN General Assembly has passed resolutions of this kind many times over the years. It remains to be seen whether these will be formalized in binding documents.