Published: 28 October 2021 Author: Stefan Talmon
On 15 April 2020, Russia conducted a test of its direct-ascent anti-satellite (DA-ASAT) Nudol system, which is designed to destroy satellites in low Earth orbit. The Nudol system consists of mobile land vehicles with long-range surface to air missiles attached. This action followed the country’s on-orbit testing of two satellites – Cosmos 2542 and Cosmos 2543 – which in February 2020 had been manoeuvred in a potentially threatening way to within 100 miles of a U.S. government satellite, thereby exhibiting characteristics of a space weapon. On 15 July 2020, Russia conducted another on-orbit anti-satellite weapons test by injected a new object into orbit from Cosmos 2543. The year ended with another Russian test of a direct-ascent anti-satellite weapon on 15 December 2020. At the same time, the country advocated outer space arms control by pushing, together with China, for a Treaty on the Prevention of the Placement of Weapons in Outer Space (PPWT), and by submitting, as in previous years, a draft resolution entitled “No first placement of weapons in outer space” to the UN General Assembly’s First Committee (Disarmament and International Security).
The Federal Government used its response to parliamentary questions on “Outer space as independent area of military operations of NATO” to set out its position on the military use of outer space in general, and the Russo-Chinese proposal for a PPWT in particular. On the former, Government declared:
“Outer space is becoming increasingly important as a security policy area. […] At the same time, there is a lack of clear rules and standards for responsible behaviour and arms control in space. Existing regulations and arms control approaches are patchy and inadequate. The 1967 Outer Space Treaty prohibits weapons of mass destruction in outer space, but there are hardly any limits on the deployment of weapons in outer space. […]
The non-aggressive military use of outer space, including the exercise of the ‘inherent right of individual or collective self-defence’ in accordance with Article 51 of the UN Charter, is an integral part of the peaceful use of outer space within the meaning of the Outer Space Treaty.”
For that reason, the Federal Government considered laser weapons stationed on satellites not to be contrary to the 1967 Outer Space Treaty, insofar as these weapons were to be used in self-defence against possible attacks by other space objects. Germany’s position here is in line with the widely held view that the term “peaceful purpose” in the Outer Space Treaty is to be interpreted as “non-aggressive” or “non-hostile”, rather than “non-military.”
The Federal Government declared that the creation of internationally recognised rules that secured the peaceful and sustainable use and prevented an arms race in and around outer space remained one of its central goals. However, it was of the opinion that this goal could not be achieved by the proposed PPWT for the following reasons:
“In the view of the Federal Government, traditional arms control policy concepts of a purely quantitative limitation or a ban on certain weapons, which also form the basis of the ban on weapon systems in outer space propagated by Russia and China, do not suffice. Dual-use properties make qualifying a ‘weapon’ in outer space difficult. For example, satellites are equally capable of repairing other satellites or disposing of them through controlled crashes as well as deliberately damaging or destroying them. In addition, the Russo-Chinese draft treaty is limited to weapons stationed in outer space, while the danger from existing capabilities to deny access to and use of outer space (including land-based anti-satellite weapons) is much more acute.”
In this context, the Federal Government was mainly thinking of the destruction of satellites by ground-based anti-satellite weapons (ASAT weapons), such as Russia’s Nudol system.
The Federal Government was of the opinion that the term “space weapon” could not be clearly defined and was also incapable of adequately capturing the threat situation with regard to outer space. Rather than focusing on space weapons, it therefore advocated a behaviour-based approach in order to prevent outer space from becoming a new battleground. It stated:
“The Federal Government, together with its European and other like-minded partners, supports a behaviour-based approach that aims to ban certain aggressive or conflict-prone behaviour [regardless of technological developments and capabilities]. An agreement on peaceful and sustainable behaviour in outer space requires first measures that increase transparency, create trust, and promote a common understanding of the risks existing in space. As part of the PAROS GGE [Group of Governmental Experts on Prevention of an Arms Race in Outer Space], the Federal Government and France have made specific proposals on to that effect, such as the obligation to avoid harmful effects on other satellites, the deliberate generation of permanent space debris, and a requirement of prior approval for approaches to other satellites.”
“In view of the lack of a definition of space weapons that can be clearly codified in international law and the fact that risks in space also arise in particular from dual-use capabilities, the Federal Government, in contrast to Russia and China, takes a comprehensive approach. This approach covers any influence on space objects that are equivalent in their consequences to the use of force and also includes appropriate precautionary measures. Furthermore, the Federal Government has underlined that effective regulations to avoid an arms race in outer space and to ensure the continued peaceful use of outer space must be safeguarded by appropriate transparency and verification measures.”
Russia’s tests of its on-orbit and ground-based capabilities for space warfare made Germany change its position on the draft resolution on “No first placement of weapons in outer space” submitted to the UN General Assembly’s First Committee on 15 October 2020. As in previous years, the draft was submitted by Russia on behalf of forty States, including China. In the resolution, the General Assembly was to reaffirm “the importance and urgency of the objective of preventing an arms race in outer space and the willingness of States to contribute to reaching this common goal”. At its 13th meeting, on 6 November 2020, the Committee adopted the draft resolution by a recorded vote of 122 to 32, with 21 abstention. Unlike in previous years, Germany did not abstain but voted against the resolution. Explaining the shift in voting, the German representative, also speaking on behalf of 11 other States, stated:
“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.
We do not believe that the Russian approach ‘No first placement of weapons in outer space’ does adequately respond to the objective of strengthening trust and confidence between States and increasing security in (and around) outer space for the following reasons:
Firstly, our group of countries is concerned about the (increasing) development and ongoing testing of various counter space capabilities, in particular by the initiator/main sponsor of the resolution. Russia has failed to meaningfully address the concerns of others regarding the rationale of this RES. Moreover, Russia has also failed to reconcile its approach with the fact that it already possesses and continues to develop capabilities that can be regarded as weapons. This includes ground-based counter-space capabilities, which constitute significant and serious threats to space systems and the space environment but are not explicitly included in the scope of the RES.
We are particularly concerned about the threatening behaviour with regard to the Russian satellites COSMOS 2519/2521/2523 and more recently COSMOS 2543. The satellite COSMOS 2543, by releasing a new object at high velocity in Low Earth Orbit, has the characteristics of an on-orbit counter-space capability. How can Russia bring the development, placement in space and testing of such capabilities in line with its ‘No First Placement’ initiative?
Secondly, the PAROS GGE discussions in 2018/2019 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 aspects are not sufficiently reflected by the NFP initiative nor by the Russian and Chinese draft treaty on the prevention of the placement of weapons in outer space which only touches upon the threat or use of force against outer space objects – and even that only in a generic manner. We miss a serious engagement by Russia and China to amend their approach and constructively respond to the concerns regarding all threats and risks perceived by the international community.
Furthermore, the NFP initiative continues to ignore the challenge of sufficiently defining weapons or illegitimate objects in outer space, in particular with a view to certain dual-use technologies as repeatedly asked for by this group. Ambiguities regarding the capabilities of certain objects and regarding intentions of their use could lead to misinterpretations, misunderstandings and miscalculations and could consequently increase the risk of conflict in space.
Taking into account these insufficiencies and notwithstanding the goal that we share of a comprehensive and legally binding framework which complements the Outer Space Treaty and the UN Charter, we believe it would be more useful to follow an approach that addresses already existing security threats and risks in and around outer space, that increases transparency and confidence-building measures and that promotes consensus-building regarding responsible behaviour with regard to space activities.
Thirdly, (despite these insufficiencies,) when voting on the NFP resolution last year, we abstained with the aim to facilitate a relaunch of arms control efforts with regard to all relevant threats to space systems arising from irresponsible behaviour in outer space. We deeply regret that Russia has not taken any step towards this direction and that it is actively opposing initiatives that aim to do so. We remain committed to engage constructively with the international community in order to build trust and confidence among states and to promote the preservation of a safe, secure and sustainable space environment and the peaceful use of outer space to the benefit of all states.”
Development in 2020 showed a growing discrepancy between words and deeds with regard to military operations in outer space. Although not an active player in the weaponization of outer space, Germany has taken a strong interest and active part over the years in preventing the acceleration of the space arms race. Its change in voting pattern is a sign of its increasing frustration with the double standards displayed by Russia and the other major space powers.
Category: Air and space law
DOI: 10.17176/20220627-172635-0
