by Dr. Anne-Sophie Martin
Outer space has become an increasingly militarised area, source of confrontation and characterised by a sort of ‘desanctuarysation’ (notion used by Mr. Xavier Pasco, Director of the Foundation for Strategic Research – Fondation pour la Recherche Stratégique, Paris).
When addressing the military use of outer space and the risk of an arms race, it is necessary to refer to articles III and IV of the 1967 Outer Space Treaty (Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies – Outer Space Treaty – OST) as well as article 3 of the 1979 Moon Agreement (Agreement Governing the Activities of States on the Moon and Other Celestial Bodies – Moon Agreement).
Article III of the OST provides that space activities must be carried out in accordance with international law, including the Charter of the United Nations. Article IV (1) of the OST only explicitly prohibits the placement of weapons of mass destruction. On the contrary, article IV (2) indicates that the Moon and other celestial bodies are to be used exclusively for peaceful purposes. This provision is further extended by article 3 of the Moon Agreement which bans any hostile act or threat of hostile act on the Moon.
Therefore, article IV (1) provides for a denuclearization regime, but not a complete demilitarization of space. Indeed, States remain free to carry out military activities and to use conventional weapons in outer space. By contrast, article IV (2) states a complete demilitarization of the Moon and other celestial bodies.
With this in mind, one can argue that the current legal regime on the military use of outer space is quite permissive, letting ample opportunity for States to conduct military activities. Nevertheless, the international legal framework reveals some limits face to new threats in outer space, such as ASAT tests, spying in orbit, or cyberttack. These hostile acts have become a reality and ASAT tests conducted by China in 2007, the United States in 2008 and India in 2019 are perfectly illustrative of this trend. In addition, it is noted that some States are establishing ‘Space Command Center’, such as the United States Space Force, or the Commandement Militaire de l’Espace in France. Recently, the US Space Force launched a satellite, known as ‘Counter Communications System’, capable of preventing opponents to access their military satellite communications by jamming the signal. Moreover, the US Defense Space Strategy underscores the necessity to protect space assets and to implement a comprehensive military advantage in space. Furthermore, in July 2020, the French Minister of the Armed Forces unveiled the French Space Defence Strategy, highlighting the necessity to strenghen its surveillance resources and acquire self-defence capacilities in space. The strategy deals in particular with the notion of ‘active space defence’.
In this context, PAROS initiative assumes a new dimension.
In the early 80s, the United Nations General Assembly (UNGA) explicitly pronounced itself in favor of the ‘Prevention of an Arms Race in Outer Space’ (PAROS) (UNGA Res.36/97 C, 9 December 1981), as one of the most important objectives for the maintenance of international peace and security. The risk of an arms race in outer space has subsequently been debated at length by the international community.
PAROS initiatives have been developed within two international organizations. First of all, the UNGA approves annually a Resolution on PAROS which reiterates the need to maintain international peace and security in space. Second, PAROS is part of the competences of the Conference on Disarmament (CD) which represents the most important multilateral forum in arms control, non-proliferation and disarmament negotiations.
However, States have different approaches regarding the legal meaning of the term “weaponisation”, “militarisation”, “hostile act”, “space weapons” and “non-aggressive act”. Clarity related to terminology and definitions are needed in space security forum.
In March 1985, the CD established an ad hoc Committee on PAROS with the mandate to examine: (i) issues relating to the prevention of an arms race in space; (ii) the existing agreements relating to PAROS; (iii) future initiatives regarding PAROS. The Committee operated until 1994. However, some States are acting contrary about the adoption of a new legally binding instrument on PAROS because they affirm that it concerns a threat that does not yet exist. Furthermore, it has always been reiterated that the current legal framework, namely the provisions of the OST, in particular art.IV, in combination with art. 2(4) (prohibition of the use of force) and art. 51 (use of force in case of self-defence) of the United Nations Charter, guarantee a sufficiently legal framework in relation to PAROS. However, the situation is changing very rapidly with new hostile acts conducting in outer space.
In addition, one of the aspects that make difficult negotiating a new treaty is the lack of suitable tools for verifying objects launched into orbit, and thus ascertaining whether or not these objects may be considered as a weapon. Despite these difficulties, it is important to underline the most recent proposal submitted by Russia and China to the CD regarding the draft Treaty on ‘Prevention of the placement of weapons in outer space, the threat of the use of force against space objects’ (PPWT). The last updated version dates back to 2014. However, it still remains a strong opposition of some States to accept a new binding legal instruments in this field.
There have been several proposals regarding the adoption of instruments in the context of Transparency and Confidence-Building Measures (TCBMs) in space, which, if they cannot be considered legally binding, they are at least from a political point of view. A concrete TCBMs proposal is illustrated by the 2014 European Union draft on an International Code of Conduct for Outer Space Activities (ICoC). In 2015, the multilateral negotiations of the ICoC in New York confirmed the importance and the relevance of this tool, despite the request of some States for greater involvement and transparency in the drafting process.
Furthermore, in the General Assembly Resolution No First Placement of Weapons in Outer Space (UNGA Res. 71/32, 9 December 2016), a number of States, including Argentina, Armenia, Belarus, Brazil, Cuba, Indonesia, Kazakhstan, Kyrgyzstan, Russia, Sri Lanka and Tajikistan have publicly declared that they will not be the first to place weapons in space. This Resolution followed General Assembly Resolution 69/32 of 11 December 2014 which encouraged all States to join this policy.
Another example of TCBMs is represented by the General Assembly Resolution Further practical measures for the prevention of an arms race in outer space (UNGA Res. 72/250, 12 January 2017) that urged the CD to implement a work program. It also asked the United Nations Secretary-General to set up a group of government experts to analyze and make recommendations on key issues regarding the adoption of a legally binding instrument on PAROS. However, in the two sessions of the CD in 2018 and 2019, a consensus on the adoption of a final report has not been reached (UN Doc. GE-PAROS/2019/WP.7, 22 March 2019).
Lastly, on October 24, 2020, 50 States have ratified the Treaty on the Prohibition of Nuclear Weapons (TPNW) which constitute the minimum needed for it to enter into force in January 2021. The world’s nine nuclear-armed countries, including the United-States, Russia, China, the United-Kingdom, France, India, Pakistan, North Korea and Israel did not sign the Treaty. Nevertheless, it is an important step to avert the scenario of nuclear war. It will be interesting to observe the next step of PAROS negotiations in view of the entry into force of the TPNW.
To conclude, the debate is therefore focused on the existence or absence of an arms race in outer space, the state of the current legal regime and the novel space defence strategy. We must reflect on the actions that has shaped the current space environment, and on the actors involved, in order to establish appropriated rules for operating in an ever-changing context in which the interests of States are very strong.
Dr. Anne-Sophie Martin is a Post-Doctoral Research Fellow in International Law and Space Law at Sapienza University of Rome. Her doctoral research focused on the legal aspects of dual-use satellites. She received her LL.M. in Space Law and Telecommunications Law from the University of Paris-Saclay (France) and her Ph.D. from Sapienza University of Rome (Italy). On August 2017, she attended the Centre for Studies and Research of The Hague Academy of International Law. She is a member of several internationally recognized institutions in the field of space law and policy, and author of diverse publications.