Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects

On June 10, 2014, Russia introduced to the Conference on Disarmament an updated draft of its working paper with China, “Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects”.

While “non-militarization” has been superseded by the doctrine of “non-aggression”, the latter, as a necessary rather than sufficient condition for “peaceful purposes”, is tested to its limit by the pressing issue of “space weaponization”. An international treaty to plug the gaps of the Outer Space Treaty should be negotiated. This would require the prohibition of both weapons in outer space and anti-satellite weapons on Earth.

The Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects, proposed by Russia and China at the Conference on Disarmament, is an effort in this direction.

However, divided views are held on several issues arising from the draft treaty (like the efficiency of the current regime of outer space law, definitions of “weapons in space” and “threat or use of force”, and verification). Let’s have a look at the draft treaty. We’ll first have a look at an historical background concerning the peaceful uses of outer space, then we’ll look at the Conference on Disarmament, and finally, we’ll look at the draft Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects.

The Peaceful Uses of Outer Space

In 1959, the UN General Assembly established the Committee on the Peaceful Uses of Outer Space (COPUOS) in Resolution 1472 (XIV). This committee identified areas for international cooperation in the peaceful uses of outer space, devised programs to be undertaken by the United Nations, encouraged research on matters relating to outer space, and studied legal problems arising from the exploration of outer space.

During the 1960s and 1970s a number of agreements were adopted to prevent the weaponization of outer space. These include the Partial Test Ban Treaty, formally titled the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (1963), the Outer Space Treaty, formally titled the Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967), the Rescue Agreement, formally titled the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (1968), the Agreement Relating to the International Telecommunications Satellite Organization “Intelsat” (1971), the Liability Convention, formally titled the Convention on International Liability for Damage Caused by Space Objects (1972), the Launch Registration Convention, formally titled the Convention on the Registration of Objects Launched into Outer Space (1975), the Moon Agreement, formally entitled the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (1979).

Although these treaties ban the placement of weapons of mass destruction in outer space, they do not prevent states from placing other types of weapons in outer space. As a result, many states argue that existing treaties are insufficient for safeguarding outer space as “the common heritage of mankind”. In order to address this, the final document of the UN General Assembly’s Special Session on Disarmament mandated that negotiations should take place in what is now the Conference on Disarmament (CD), “in order to prevent an arms race in outer space” that are “held in accordance with the spirit of the Outer Space Treaty”.

In 1985 the CD established an ad hoc committee to identify and examine issues relevant to a PAROS treaty, Prevention of an Arms Race in Outer Space (peaceful uses of outer space) such as the legal protection of satellites, nuclear power systems in space, and various confidence-building measures. The United States of America resolutely opposed giving the committee a negotiating mandate, preferring bilateral talks with the Soviet Union. The committee convened each year through 1994. No further committee meeting occurred due to objections made by the United States of America. In 1990, the United States of America stated that it “has not identified any practical outer space arms control measures that can be dealt with in a multilateral environment”. With its large missile defense program and technical advantages in potential space weaponry, the United States has consistently refused to negotiate PAROS in the CD.

On June 10, 2014, Russia introduced to the Conference on Disarmament an updated draft of its working paper with China, “Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects”.

The Conference on Disarmament

The Conference on Disarmament (CD) is a multilateral disarmament forum established by the international community to negotiate arms control and disarmament agreements based at the Palace of Nations, the home of the United Nations Office at Geneva, located in Geneva, Switzerland. The Conference meets annually in three separate sessions in Geneva. All decisions of the body must be agreed upon by consensus according to the rules and procedures of the conference.

The Conference was first established in 1979 as the Committee on Disarmament as the single multilateral disarmament negotiating forum of the international community. It was renamed the Conference on Disarmament in 1984. The Conference succeeded three other disarmament-related bodies: the Ten-Nation Committee on Disarmament (1960), the Eighteen-Nation Committee on Disarmament (1962), and the Conference of the Committee on Disarmament (1969).

The Conference was created with a permanent agenda which includes the following topics: nuclear weapons in all aspects, other weapons of mass destruction, conventional weapons, reduction of military budgets, reduction of armed forces, disarmament and development, disarmament and international security, collateral measures (effective verification methods in relation to appropriate disarmament measures, acceptable to all parties), and comprehensive programme of disarmament leading to general and complete disarmament under effective international control.

The Conference is formally independent from the United Nations. However, while it is not formally a UN organization, it is linked to it in various ways. First and foremost, the Director-General of the United Nations Office at Geneva serves as the Secretary-General of the Conference. Furthermore, while the Conference adopts its own rules of procedure and agenda, the United Nations General Assembly can pass resolutions recommending specific topics to the Conference. Finally, the Conference submits a report of its activities to the General Assembly yearly, or more frequently, as appropriate.

Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects

The Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects states as follow:

“The States Parties to this Treaty,

Reaffirming that further exploration and use of outer space plays an ever-increasing role in the development of humankind,

Willing that outer space would not turn into a new area of weapon placement and an arena for military confrontation to avert a grave danger to international peace and security,

Reaffirming the importance of strict compliance with the existing multilateral agreements related to outer space activities and recognizing that the observance of principles and rules of international space law in outer space activities contributes to building confidence in peaceful intentions of States,

Noting that the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies of January 27, 1967 (hereinafter referred to as the 1967 Outer Space Treaty), obliges the States Parties not to place in orbit around the Earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction, not to install such weapons on celestial bodies, or station such weapons in outer space in any other manner,

Recognizing that while the existing international agreements related to outer space and the legal regime thereof play a positive role in regulating outer space activities, however they are unable to fully prevent the placement of weapons in outer space,

Recalling the resolutions of the United Nations General Assembly “Prevention of an arms race in outer space” which inter alia emphasize the need to examine further measures in the search for effective and verifiable bilateral and multilateral agreements in order to prevent an arms race in outer space,

Have agreed as follows:

Article I

For the purpose of this Treaty:

(a) the term “outer space object” means any device placed in outer space and designed for operating therein.

(b) the term “weapon in outer space” means any outer space object or its component produced or converted to eliminate, damage or disrupt normal functioning of objects in outer space, on the Earth’s surface or in the air, as well as to eliminate population, components of biosphere important to human existence, or to inflict damage to them by using any principles of physics.

(c) a device is considered as “placed in outer space” when it orbits the Earth at least once, or follows a section of such an orbit before leaving this orbit, or is placed at any location in outer space or on any celestial bodies other than the Earth.

(d) the terms “use of force” or “threat of force” mean, respectively, any intended action to inflict damage to outer space object under the jurisdiction and/or control of other States, or clearly expressed in written, oral or any other form intention of such action. Actions subject to special agreements with those States providing for actions, upon request, to discontinue uncontrolled flight of outer space objects under the jurisdiction and/or control of the requesting States shall not be regarded as use of force or threat of force.

Article II

States Parties to this Treaty shall:

– not place any weapons in outer space;

– not resort to the threat or use of force against outer space objects of States Parties;

– not engage in outer space activities, as part of international cooperation, inconsistent with the subject matter and the purpose of this Treaty;

– not assist or incite other States, groups of States, international, intergovernmental and any non-governmental organizations, including non-governmental legal entities established, registered or located in the territory under their jurisdiction and/or control to participate in activities inconsistent with the subject matter and the purpose of this Treaty.

Article III

Nothing in this Treaty can be interpreted as preventing the States Parties from exploring and using outer space for peaceful purposes in accordance with international law, including the Charter of the United Nations and the Outer Space Treaty of 1967.

Article IV

This Treaty shall by no means affect the States Parties’ inherent right to individual or collective self-defense, as recognized by Article 51 of the UN Charter.

Article V

States Parties recognize the need for measures to control compliance with the provisions of this Treaty, which may be the subject of an additional protocol.

In order to enhance confidence in compliance with the provisions of this Treaty States Parties can implement on a voluntary basis, unless agreed otherwise, agreed transparency and confidence-building measures.

Article VI

To promote the implementation of the purposes and provisions of the Treaty, the States Parties shall establish the Executive Organization of the Treaty, which shall:

(a) consider matters related to the operation and implementation of the Treaty;

(b) receive for consideration inquiries by a State Party or a group of States Parties related to an alleged violation of the Treaty;

(c) organize and conduct consultations with the States Parties in order to address the situation related to the alleged violation of the Treaty;

(d) refer the dispute to the United Nations General Assembly or the United Nations Security Council if the problem related to the alleged violation of this Treaty remains unresolved;

(e) organize and hold meetings to discuss and accept the proposed amendments to this Treaty;

(f) develop procedures for collective data sharing and information analysis;

(g) collect and distribute information provided as part of transparency and confidence-building measures;

(h) receive notifications on the accession of new States to this Treaty and submit them to the Secretary-General of the United Nations;

(i) consider, upon agreement with the States Parties, other procedural and substantive matters.

The procedure of formation, the composition of the working bodies, operating procedures and provision of work of the Executive Organization of this Treaty shall be subject of an additional protocol.

States Parties shall cooperate with the Executive Organization of this Treaty to facilitate its performance of the functions entrusted to it.

Article VII

A State Party which has reasons to believe that another State Party fails to fulfill the obligations imposed by this Treaty may request this State Party to clarify the related situation. The requested State Party shall provide the clarification as soon as possible.

If the requesting State Party deems the clarification unable to solve its concerns, it may request consultations with the requested State Party. The requested State Party shall immediately enter into such consultations. The information concerning the outcome of consultations shall be sent to the Executive Organization of this Treaty, which shares the information received with all States Parties.

If the consultations do not lead to a mutual settlement with due regard to the interests of all States Parties, any State Party or a group of States Parties shall seek assistance of the Executive Organization of the Treaty and provide the relevant evidence for further consideration of such a dispute. The Executive Organization may convene a meeting among States Parties to review such a dispute, make decisions identifying a violation of this Treaty and prepare recommendations based on States Parties’ proposals to settle the dispute and eliminate the violation. The Executive Organization may, in case it is not able to settle the dispute or eliminate the violation, bring the issue, including relevant information and conclusions, to the attention of the United Nations General Assembly or the United Nations Security Council.

In cases subject to the Convention on International Liability for Damage Caused by Space Objects of 1972, the relevant provisions of the Convention shall be used.

Article VIII

In this Treaty references to the States, except those contained in Article IX-XIII, shall imply any international intergovernmental organization, which operates in outer space, if such organization declares that it assumes the obligations provided by this Treaty and if the majority of its member States are States Parties to this Treaty. Member States of such organization, which are Parties to this Treaty, shall take all necessary measures to ensure that the organization make such declaration in accordance with the provisions of this Article.

Article IX

This Treaty shall be opened for signature by all States at the United Nations Headquarters in New York. Any State which did not sign the Treaty before its entry into force may accede to it at any time.

This Treaty shall be subject to ratification by signatory States in accordance with their internal procedures.

Instruments of ratification or accession shall be deposited with the Secretary-General of the United Nations, who is hereby designated the Depositor of this Treaty.

Article X

This Treaty shall enter into force upon the deposit of instruments of ratification by twenty States, including all Permanent Member States of the United Nations Security Council.

For States whose instruments of ratification or accession are deposited after the entry into force of this Treaty, it shall enter into force on the date of the deposit of their instruments of ratification or accession.

The Secretary-General of the United Nations shall inform all signatory or acceding States of the date of each signature, the date of the deposit of each instrument of ratification or accession, the date of the entry into force of this Treaty, the proposals for amending this Treaty, of the arising disputes and their settlement, as well as of other notifications, if necessary.

Article XI

Any State Party may propose amendments to this Treaty. The text of a proposed amendment shall be submitted to the Secretary-General of the United Nations for circulation to all States Parties. An amendment conference shall be convened if at least one third of the States Parties agree to do so.

Amendments shall enter into force upon their acceptance by consensus.

Article XII

This Treaty shall be of unlimited duration.

Each State Party shall in exercising its national sovereignty have the right to withdraw from this Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized its supreme interests. It shall notify the Secretary-General of the United Nations in the written form of the decision taken six months in advance of the withdrawal from the Treaty. Such notification shall include a statement of the extraordinary events that the notifying State Party regards as having jeopardized its supreme interests.

Article XIII

This Treaty, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited with the Secretary-General of the United Nations, who shall send duly certified copies thereof to all signatory and acceding States”.

The Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects.