Published: 07 February 2020 Authors: Shpetim Bajrami and Stefan Talmon
In recent years, the question of how to prevent an arms race in outer space has gained traction in the United Nations. On 5 November 2019, the First Committee (Disarmament and International Security) of the General Assembly voted on four draft resolutions relating to the prevention of an arms race in outer space. While frequently emphasizing its commitment to prevent an arms race in outer space and highlighting the need for new rules to that effect, Germany voted in favour of only two of these resolutions, voting against one and abstaining on another.
Outer space is not subject to the sovereignty of States. On the contrary, according to the 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), the exploration and use of outer space “shall be carried out for the benefit and in the interests of all countries.” The Outer Space Treaty has 109 parties, including the major spacefaring nations. Germany ratified the Treaty on 10 February 1971. The Outer Space Treaty is largely silent on the question of the militarization of outer space. Article IV (1) of the Treaty provides:
“States Parties undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other kind of weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in outer space in any other manner.”
There are no rules with regard to conventional weapons or the military use of outer space in general. It is generally accepted that the existing legal regime is insufficient to prevent an arms race in outer space. A legally binding instrument on the prevention of an arms race in outer space would thus fill a gap in the international legal regime applicable to outer space, including in the maintenance of international peace and security.
Since the early 1980s, States have been working on the prevention of an arms race in outer space. In December 2017, the United Nations General Assembly decided to establish a 25 member United Nations Group of Governmental Experts (GGE) “to consider and make recommendations on substantial elements of an international legally binding instrument on the prevention of an arms race in outer space (PAROS), including, inter alia, on the prevention of the placement of weapons in outer space.” The Group was to operate by consensus. Although the Group held intensive discussions on the matter in 2018 and 2019, it failed to reach consensus on a substantive report.
The lack of consensus can be explained by the fact that there is fundamental disagreement about the way forward between Russia and China, on the one hand, and the United States, on the other hand. In 2008, Russia and China introduced the draft of a “Treaty on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects” (PPWT). A revised draft Treaty was submitted in 2014. The two countries wanted to make their revised draft treaty the basis of any future negotiations of an international legally binding instrument on the prevention of an arms race in outer space. The United States, however, considered the Russian-Chinese draft fundamentally flawed, as it was restricted to space-based devices and did not address terrestrially-based anti-satellite weapon systems. It only prohibited the use – but not the development – of such devices and also did not contain any verification regime. Germany shared many of the concerns of the United States.
The opposing views also showed in October and November 2019 when the General Assembly’s First Committee discussed four draft resolutions in its cluster on disarmament aspects of outer space. While two of the draft resolutions – “Prevention of an arms race in outer space” and “Transparency and confidence-building measures in outer space activities” – were largely uncontroversial and were adopted by an overwhelming majority, the other two draft resolutions clearly showed the division between the two opposing camps.
The draft resolution on “No first placement of weapons in outer space” (L.59), which had been submitted by the Russian Federation on behalf of China and some 36 other States, was adopted by a recorded vote of 123 to 14, with 40 abstentions. While the United States and seven EU Member States voted against the draft resolution, Germany and 20 other EU Member States abstained. The position of Germany may be explained by the fact that the draft resolution expressly urged an early commencement of substantive work on an international legally binding instrument “based on the updated 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, introduced by China and the Russian Federation at the Conference on Disarmament in 2008.” During the discussion of the draft resolutions on outer space in the First Committee on 29 October 2019, the German representative made the following statement:
“Germany remains concerned about the increasing development of various counter space capabilities, and remains strongly committed to the prevention of an arms race in outer space. Preventing an arms race in outer space and preventing conflicts from extending to outer space are essential for the strengthening of international security and stability and for safeguarding access to and the long-term use of the space environment for peaceful purposes.
The significance of space for peace, stability and security is continuously growing. Against this background, the current normative framework for outer space is not sufficient. Germany is open to initiatives aimed at bringing about the substantial advancement of arms control policy with regard to threats to space systems. […]
Germany actively contributed to the work of the Group of Governmental Experts on the Prevention of an Arms Race in Outer Space (GGE PAROS). It was unfortunate that the GGE could not reach consensus on a final report despite its cooperative and constructive approach, which led to some interesting proposals as to how to overcome existing deadlocks. Germany is fully supportive of a resumption of the substantive work of the Geneva Disarmament Conference and continues to actively contribute to the discussions and negotiations within the ‘Prevention of an Arms Race in Outer Space’ working group (PAROS).
We would like to emphasize that a future framework for arms control in relation to outer space should involve comprehensive, effective and verifiable legally binding instruments designed to eventually cover all relevant threats, which are earth-to-space, space-to-space, and space-to-earth.
The current draft Treaty presented by the Russian Federation and China on the Prevention of the Placement of Weapons in Outer Space, the Threat or Use of Force against Outer Space Objects (PPWT) does not constitute a sufficient basis in this regard. How do both initiators of the draft treaty intend to reconcile their approach with the fact that they already possess and are developing further capabilities, including ground-based anti-satellite capabilities, which are not explicitly included in the scope of the draft treaty but nevertheless cause significant and serious threats to space systems and the space environment? We would like to encourage both initiators of the draft treaty to facilitate a relaunch of the arms control efforts with regard to all relevant threats to space systems arising from irresponsible behaviour in outer space.
Notwithstanding the goal of a comprehensive and legally binding framework in the future which complements the Outer Space Treaty, the incremental process thereto would in our view clearly benefit from strengthening spacefaring nations’ due regard to the corresponding interests of all other spacefaring nations, in particular through transparency and confidence building measures, and consensus-building regarding responsible behaviour in outer space. […].”
After the vote on the draft resolution on 4 November 2019, the German representative explained the abstention from voting by Germany and 21 other Western countries as follows:
“Our group of countries continues to promote the preservation of a safe, secure and sustainable space environment and the peaceful use of outer space. We remain strongly committed to the prevention of an arms race in outer space.
Our group of countries is concerned about the increasing development of various counter space capabilities, including by the sponsors of the resolution. Against this background, we are of the opinion that the draft resolution L.59 on ‘No first placement of weapons in outer space’ does not adequately respond to the short term objective of strengthening trust and confidence between States. Due to build in ambiguities and shortcomings it could rather increase the risk of conflict in space.
The PAROS GGE discussions illustrated that the international community is facing a broad spectrum of space-related threats, namely space-to-space attacks, space-to-ground attacks and ground-to-space attacks. These threats are not sufficiently reflected by the NFP initiative, including by 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. In particular, we wonder how the initiators of the draft treaty intend to reconcile their approach with the fact that they already possess and further develop capabilities, including ground-based anti-satellite capabilities, which are not explicitly included in the scope of the draft treaty but nevertheless constitute significant and serious threats to space systems and the space environment?
Furthermore, the NFP [No first placement of weapons in outer space] initiative fails both to acknowledge and address the challenge of sufficiently defining weapons in outer space, in particular with a view to dual-use technologies. This could lead to misinterpretations, misunderstandings and miscalculations.
Notwithstanding the goal of a comprehensive and legally binding framework which complements the Outer Space Treaty, we believe it would be more useful to strengthen spacefaring nations’ due regard to the corresponding interests of all other spacefaring nations, in particular through transparency and confidence-building measures and through consensus-building regarding responsible behaviour in outer space.
We encourage both initiators of the draft resolution to facilitate a relaunch of arms control efforts with regard to all relevant threats to space systems arising from irresponsible behaviour in outer space.
Strengthening the safety, security, sustainability and peaceful nature of outer space activities can only be achieved through international cooperation. We need to continue to search for common ground. We are fully supportive of a resumption of the substantive work of the Geneva Disarmament Conference and continue to actively contribute to the discussions and negotiations within the ‘Prevention of an Arms Race in Outer Space’ working group (PAROS).”
In a departure from its usual voting pattern on resolutions on the prevention of an arms race in outer space with which it did not fully agree, Germany did not abstain on the draft resolution on “Further practical measures for the prevention of an arms race in outer space” (L.58/Rev.1) but voted against it. The draft, which – like draft resolution L.59 – had been submitted by the Russian Federation on behalf of China and some 24 other States, was nevertheless adopted by a recorded vote of 124 to 41, with 10 abstentions. In a statement on 5 November 2019, Germany explained its “no” vote as follows:
“We have voted no and therefore changed our voting pattern because the Main Sponsors chose in OP3 to single out an expert who was working in full accordance with the rules of procedure of the GGE on PAROS, which operated under the rule of consensus.”
Germany’s “no” vote was also raised in the regular government press conference on 6 November 2019. The spokesperson for the Federal Foreign Office explained the vote against the draft resolution L.58/Rev.1 as follows:
“We rejected the specific draft resolution to which you refer for a very simple reason, namely that it contained what we consider to be a completely irrelevant and inappropriate comment about one of the experts on the panel of experts – a cheap shot, a personal attack, which we felt was unjustified and had no place in this resolution.
[…]
We are actively trying to advance the item “Prevention of an Arms Race in Outer Space” in many fora within the UN system. We are pursuing – let me be quite frank – a somewhat different approach to that taken by Russia with this draft resolution. We think it is too limited, too restricted, to focus […] on individual technical types of militarisation of outer space. In our view, we need a behaviour-based approach that principally excludes the militarisation of outer space.”
Germany mainly took umbrage at operative paragraph 3 (OP3) of the draft resolution, which stated that the General Assembly “expresses regret that, due to the position of one expert, consensus could not be reached on the final report of the Group of Governmental Experts.” Although the expert was not named, it was obvious that this was a sideswipe at the U.S. expert on the UN Group of Governmental Exerts, who had blocked a consensus on a report by the GGE making recommendations on substantial elements of an international legally binding instrument on the prevention of an arms race in outer space. OP3 was hotly debated during the Committee deliberations and Germany and other States had urged the sponsors of the draft resolution to withdraw it. However, a motion in the First Committee to have OP3 deleted was defeated by a recorded vote of 55 to 50, with 48 abstentions.
When the draft resolution on “Further practical measures for the prevention of an arms race in outer space” finally came before the Plenary of the General Assembly, the Russian Federation submitted an amendment to the draft resolution proposing the deletion of OP3. After the General Assembly had accepted the amendment without a vote, it adopted the draft resolution as whole by a recorded vote of 131 in favour to 6 against, with 45 abstentions. Having voted against the draft resolution in the First Committee, Germany now abstained from voting, but not without expressing displeasure at the conduct of the main sponsors of the draft resolution.
While all States have expressed their concern about the possibility of an arms race in outer space and have professed their commitment to achieve an international legally binding instrument on the prevention of such an arms race, there is a serious difference of approach between a group of States led by the Russian Federation and China on the one hand, and a group of Western States, including Germany, led by the United States. In addition, there is distrust and suspicion on both sides. As if those factors would not make it difficult enough to reach agreement on this important issue, the item of “Prevention of an arms race in outer space” has now also become a field for political game-play at the United Nations, as the example of OP3 shows.
Category: Air and space law
