The main concerns of the international community regarding human activities in outer space have been present since the beginning of the Space Age, as reflected in the Declaration of Legal Principles governing the activities of states in the exploration and use of space. Subsequently, this declaration served as the basis for the negotiation of the Outer Space Treaty (1967).
This treaty stipulates that the exploration and use of Outer Space shall be carried out for the benefit and in the interest of all nations and that it shall be the “Province of Mankind“. The parties agreed not to place objects carrying nuclear weapons or other weapons of mass destruction into orbit. The installation of military bases, the conduct of military exercises and weapons tests on celestial bodies are prohibited.
There are no doubts about the validity of the treaty, which is considered the Magna Carta of the international legal space regime. However, it must be recognized that the situation has changed dramatically since the treaty entered into force in the late 1960s. Among other developments, it is worth mentioning the impressive growth in the number of space actors, both from States and from private companies, the growing dependence of human activities on space sciences and the development of military technologies, including capabilities that may have a dual use or purpose. This trend has boosted the proliferation of satellites and in general terms, has reflected the consolidation of the strategic value that space activities and facilities have for human development in general and especially for the economy and for defense objectives.
As a consequence of these trends, some countries have expressed concern about the military nature of activities in space that could violate the principle of exclusively peaceful uses. We also have to recognize an increasing competition between space players, a growing distrust and concern about possible threats from military technologies, including the possible installation of weapons in space, the use of ground-based weapons that can destroy satellites and a growing concern about a possible disruption of basic services derived from space technologies. Other threat perceptions include the possibility of intentional harmful interference, the congestion of space orbits and the creation of debris.
The international community has attempted to address these concerns through various initiatives. The concept of the “Prevention of an Arms Race in Outer Space” (PAROS) emerged from the concern raised by delegations during the special session of the General Assembly devoted to disarmament (SSOD I) in 1978. A few years later, the General Assembly adopted the first resolutions related to PAROS, and included this item as a permanent topic in the agenda of the Conference on Disarmament.
Over the years, some States have proposed to negotiate new legally binding instruments to address space security issues. In this regard, the Russian Federation and China have presented a proposal for a treaty on the Prevention of the Placement of Weapons in Outer Space (PPWT) to the Conference on Disarmament. This proposal laid out draft articles for a future legally binding instrument. The main commitment is the undertaking of States “not to place in orbit around the Earth any objects carrying any kinds of weapon” and “not to resort to the threat or use of force against outer space objects”. Even though the draft proposal has received important support by a large number of States, the Unites States and other western states have not welcomed the draft proposal, arguing that the existing legal framework is currently sufficient to secure space security and that any legal gap could be filled with soft law measures.
In 2008, the European Union promoted a draft International Code of Conduct for outer space activities, which had the goal of strengthening and consolidating transparency and confidence-building measures (TCBMs) in order to enhance the safety, security, and sustainability of all outer space activities. After a long series of consultations, the proposal, despite of some interesting ideas which received significant support, was not able to succeed to overcome criticisms over the lack of a multilateral mandate and its derived legitimacy.
A more successful process was the 2013 United Nations Group of Governmental Experts (GGE) on transparency and confidence-building measures for outer space activities, which managed to reach a consensus report with specific recommendations of measures to reduce tensions in space and increase transparency among states. A few years after that process, a new GGE was convened to make progress on a legally binding instrument on PAROS. Despite of meaningful progress in the discussions, the group was not able to reach consensus.
A new approach is based on the responsible behavior of states, which seeks to agree on norms, rules and principles on that behavior, in order to achieve greater trust between the actors and strengthen space security. In this regard, determining a responsible behavior could help to improve international security amongst states by reducing the risk of miscalculation and the likelihood of escalation, and preventing the destabilization of international security. Based on this approach, the United Nations General Assembly adopted resolution 231/76, which established an Open Ended Working Group (OEWG) on reducing Space Threats through Norms, Rules and Principles of Responsible Behavior. Its main task is to consider existing international legal frameworks, consider the main threats to Outer Space and to present recommendations to the General Assembly on possible norms, rules and principles of responsible behavior.
The OEWG has held three sessions son far. The first two sessions addressed the existing legal frameworks and identified the main threats arising from states to space systems. Both sessions benefitted from panels of experts that introduced and elaborated the different topics, facilitating a better understanding of delegations.
In the third session, delegations emphasized the vital importance of outer space for humankind and the need to maintain it for exclusively peaceful purposes. While delegations ratified the applicability of international law in outer space, they also discussed about the complementary relationship of legally binding instruments and non-legally binding, “soft law” mechanisms. Another aspect that was highlighted by several delegations in the collaborative link that needs to be established between this OEWG and the upcoming Group of Governmental Experts (GGE) on PAROS that will start its work in the second semester of this year.
Despite of the very complex geopolitical context, the debate during this third substantive session was constructive and interactive, with some important differences still persisting, particularly on the threat perceptions and possible solutions, but with a clear emerging convergence on the urgent priority to protect the shared global commons of outer space through an inclusive international response.
The open-ended nature of this process has allowed a broad participation from delegations from very diverse regions and different levels of development. Finally, there is a growing awareness about the fact that all states are stakeholders and that there is a need to preserve the access of all to the benefits of peaceful use of outer space and to protect citizens from potential conflicts and minimize the risk of civilian harm posed by threats to space systems.
In the next and last session of the OEWG, delegations will consider and hopefully adopt a balanced and comprehensive consensus outcome document that can provide the international community with useful recommendations on norms, rules and principles of responsible behavior in outer space activities. Despite of some difficulties, it will be possible to reach that goal. But in order to do so, it will be absolutely necessary to maintain and even raise the level of inclusive and active engagement of all delegations. The outcome of this process will not solve all concerns but can potentially contribute to diminish tensions among states and achieve a more predictable and secure outer space, for the benefit and future of the entire Humankind.