Below are notes taken by a member of our team, Meghan Hawley, on yesterday’s event, Outer Space Security Conference 2024 featuring key international space leaders.
Key Takeaways:
- Gaps in Space Security Law: One of the central concerns discussed is the lack of prohibition on the placement and use of conventional weapons (not just weapons of mass destruction) in outer space. While the 1967 Outer Space Treaty (OST) prohibits weapons of mass destruction, it does not extend this to conventional arms, creating a significant gap in current international space law.
- Dual-Use Technologies and Non-Kinetic Threats: The panel highlighted the growing challenge posed by dual-use technologies, which have both civilian and military applications. Technologies such as rendezvous and proximity operations (RPOs) can be used for peaceful purposes (e.g., satellite repair) but also for hostile actions. This complicates the task of determining intent and differentiating between benign and hostile actions.
- The Role of Non-State Actors: With the increasing involvement of private actors and commercial entities in space, the panel stressed the need to consider their role in space security. Given that many space activities are now driven by private companies, the international legal framework must address the behavior and responsibilities of these non-state actors, as they could potentially contribute to the weaponization of space
- The Debate Between Legally Binding Treaties and Normative Approaches: There is a split between those advocating for a new legally binding treaty on space security (such as the Russian and Chinese proposal for the Treaty on the Prevention of the Placement of Weapons in Outer Space, PPWT) and those favoring non-legally binding norms, rules, and principles (such as the U.S. approach). The former focuses on a treaty-based arms control regime, while the latter emphasizes responsible behavior without binding legal commitments.
- The Need for Confidence-Building Measures: Given the ambiguity surrounding the definition and application of “use of force” in outer space, the panel agreed on the importance of transparency and confidence-building measures. These include establishing communication channels between spacefaring nations, sharing operational policies, and promoting responsible behavior to reduce the risk of misunderstandings and conflicts.
Date: 10 September 2024
Speakers:
- Andrey Belousov, Minister Plenipotentiary, Deputy Permanent Representative, Permanent Mission of the Russian Federation to the United Nations Office and other international organizations in Geneva
- Erin Pobjie, Assistant Professor, Essex Law School and Senior Research Affiliate, Max Planck Institute for Comparative Public Law and International Law
- Jessica Tok, Senior Space Multilateral Affairs Advisor, Office of the U.S. Secretary of Defense, Space Policy
- Jinyuan Su, Professor, Wuhan University Institute of International Law
- Julia Selman-Ayetey, Dean, Faculty of Law, University of Cape Coast and Partner, Ashong Benjamin & Associates
Moderator: Sarah Erickson, Research Assistant, Space Security and WMD Programmes, UNIDIR
On Gaps in Space Security Law:
Andrey Belousov
- “It is obvious that as humanities’ dependence on space grows, the existence of this gap is increasing, is increasingly becoming a destabilizing factor. That is why almost 15 years ago, Russia and China launched initiative to develop the Treaty on the Prevention of Placement of Weapons in Outer Space.”
Jinyuan Su
- “With respect to space arms control in time of peace, there are actually not many prohibitions existing international Article Four of the Outer Space Treaty, but in reality, not many of the unprohibited acts have been carried out by states due to their self-restraint. To me, they are not carried out, not because they are prohibited by national law, but there is concern that if they are carried out, they may spur an arms race in outer space which will be detrimental to their own interests.”
- “Military use is subject to stricter limitations. And I don’t want to go into details. I’m sure you’re all very familiar with that. So, the gap is that it doesn’t prohibit conventional weapons, you know, in Earth orbit, and it doesn’t prohibit ground-based assets. So, what remains to be, what needs to be better understood or implemented?”
Julia Selman-Ayetey
- “It has existed since the very first satellite was launched into orbit in 1957. What is new, however, is the substantial number of space actors, activities and objects which are heightened or compounded by these new actors in the space arena, and our dependency on outer space…makes space assets and the space domain itself extremely vulnerable. To the extent that in 2021, NATO issued a communique indicating that attacks to, from, within outer space, and I quote, could be as harmful to modern societies as a conventional attack.”
On Dual-Use Technologies and Non-Kinetic Threats:
Jessica Tok
- “These issues are complex, frequently due to the dual use nature of space capabilities, which Jessica West called “entangled” earlier. As such, this lends itself to a behavioral approach, rather than over broadbands on capabilities. So rather than rush towards negotiating treaties which may result in unintended consequences or inadvertently constrain new or novel activities, further measures really require a thoughtful deliberative process based on practical experience and the needs of affected stakeholders.”
- “We should look at what, what are threats, and then, what are the incremental approaches that we could take to try and address those threats? Is it to jump straight to a treaty? I think no, because I think in some cases, you know—and this will come up again—our competitors, to some extent that our communication satellites are threats, our competitors are also looking at putting up their own satellite communications. Is it the fact that they can be used as military that is problematic? Is it because all of our militaries, all of your militaries, all of your scientific endeavors, remote sensing, etc, communications, banking, it currently relies on sometimes military satellites to do that, and sometimes commercial and civilian applications.”
Erin Pobjie
- “Dual purpose capabilities, as other panelists have also raised, pose another challenge, for example, rendezvous and proximity operations that can be used to maintain and repair satellites, but that can also be repurposed to carry out hostile acts. With this in mind, key questions for the application of this use of force framework to outer space include, when are temporary and reversible effects. Consider the use of force, how to account for indirect and wide-ranging terrestrial effects of acts to take place in space, and how can we distinguish hostile acts from peaceful activities when it comes to dual purpose technologies?”
On the Role of Non-State Actors:
Andrey Belousov
- “At the same time, there is a common idea that in modern conditions, the increasing number of states participating in space activities, the growing dependence of individual states, as well as the entire regions, from the space technologies, the growing number of non-state and space activities and etc, require the kind of improvement and development of these provisions, and this undoubtedly poses a specific task for the international community. It asks to develop new mechanisms and instruments for regulating space activities.”
Julia Selman-Ayetey
- “And it’s important to note that some of the technology that contributes to our present threats are obtained from or are co-developed with non-state actors, private commercial entities, for example. Plus, as we’re all coming to be aware of the fact is that about 70 to 80% of participants in outer space are not states. They are private actors who may also threaten the security of outer space. So, what I would like to point out here is that weaponization conversations and any attempt to protect space security must consider the role of non-state actors to have a realistic chance of being successful and protecting the global public interest in the sustainable use of outer space.”
- “And importantly, it’s not just military targets that should give rise to this question, disabling, damaging, or destroying space objects which impact critical civilian space applications, such as those relating to disaster relief or financial markets or global navigation should, in my view, in certain circumstances, also be considered as crossing the threshold into prohibited conduct. So given the ambiguity in what how existing international law would apply to various phase activities that use force, as Jessica West mentioned earlier, there is a gray zone between what is lawful and primarily and what crosses the threshold into prohibited action, on the other hand. So, it’s this gray zone, really that requires the international community to act with haste.”
- “Eventually conflicts will arise if the attribution of a use of force is not easily ascertainable, and this kind of relates to the issue of State under Article Six of the Outer Space Treaty in space law, as opposed to general international law, states are responsible for the acts of their non-state actors. Now, if a non-state actor, as I’ve already indicated, tributes to the use of force who let act be attributed to it’s very not, it’s really not clear at the current time.”
- “My ‘don’t’ is that we should not be approaching space security as a chief only for states which are space powers. This is a matter of global concern, and bearing in mind articles one another. All states, whether they are space faring or emerging space powers or non-space powers, can be genuinely included in decision making forums and discussions and dialog such as this one.”
Erin Pobjie
- “So actually, it will be important for states to clarify how Article 6 of the Outer Space Treaty intersects with the prohibition of the use of force. So, in what circumstances can commercial actors implicate a state in violations of the prohibition of the use of force? It’s an important question to address. Then we can look at the elements of the use of force, and it’s important for states to clarify what each of those require. It may be possible to reach agreement that certain types of means are highly indicative of a use of force with RPOs that’s made more challenging because it is repurposing something that usually has a benign purpose.”
On the Need for Confidence-Building Measures:
Erin Pobjie
- “There is no general agreement about a use of force in outer space, but we can draw guidance from the UN Charter. Article Two, paragraph four of the UN Charter outlines two types of criteria that make an act a ‘prohibited use of force.’ There are the contextual requirements and the elements of a use of force as such. The contextual requirements are set out in the text of data, and these are the IR state or attributable to a state. It must occur within international relations, and it must be against the territorial integrity or political independence of any state or in any other manner inconsistent with the purposes of the UN when it comes to the elements that make an act a use of force, the following can be identified. This does not require a specific type of weapon to be used, and it can include non-kinetic actions. There are the effects, should be direct and physical effects, and we can also take into account the permanence of the effects, or whether they are temporary and reversible, as well as any hazards that are created, such as the creation of destructive space debris through kinetic ASAT. Then there is the gravity or severity of the effects. And here, there is no clear threshold, but gravity is relevant.”
- “So, then the intention is going to be very important, and that makes me come back to the question, this is largely so there are two aspects of this one is to clarify what kinds of intent are relevant for an act to be a use of force. Does it have to be an intentional act? Seems likely? Does it have to be a hostile act? Or what specific type of intent will states consider to be relevant? And then, once we know that, the second question is an evidentiary matter, and this may depend on the wider context. So, has this incident taken place in a context of military tensions between States concerned, in this case, the state of registration or a launching state? Is there an absence of notification of the close approach and so on?”
- “So, it can be that states could use either a treaty and set out their understandings of how to interpret prohibition of the use of force, or they could also do this through non legally binding mechanisms that set out their understandings. They could do that unilaterally, or they could do it through a multilateral process, but doesn’t have to be self. Could be used as a way to states to present their positions, and that can be taken into consideration as evidence of state agreements for how to UN Charter.”
Julia Selman-Ayetey
- “One example could be—and I say ‘could’ because there is no consensus or agreement—but one action that could be deemed as falling below the threshold is the use of a laser by one state to dazzle or blind the surveillance satellite of another state. In such an example, the level of interference, provided there’s no damage, would be there, but arguably, should be labeled a use of force. However, there are dozens of activities for which there is no consensus as to whether they fall above or below the threshold.”
- “But whatever criteria are eventually developed, I think we will need some kind of institutional mechanism for verification, compliance monitoring, as well as various review applicable international law or norms that develop. But until such time, I think looking at both this concept of responsible behaviors, not the exclusion of counter space capabilities, would be ideal, in my view.”
- “There’s much to be gained from diplomacy, and there’s a lot of expertise to be obtained from academics and researchers and scientists that can inform the policies and the norms and eventually, hopefully, the treaties that we’re seeking to develop.”
Jinyuan Su
- “The point that I would like to mention is that maybe notification and coordination may help. If we compare the primary, you know, conventions which governs outer space, Sea and Antarctica, we will find that, you know, there are many principles which are similar, like peaceful purposes, like non appropriation, due regard. So, there’s really not much to borrow at level of a principle, but in terms of mechanisms, sometimes it is of the value of reference.”
- “So, for instance, in the sea, we have the such concepts as a safety zone. And in the air, we have air defense identification. We have protected, you know, areas. So, my point is that the point is never to establish such zones in other space, but the measures which are adopted there may be, may help. You know, for instance, I think a big essential requirement is to provide some kind of notification, and when one gets close, naturally give rise to concern. And concern has to be addressed in one way or another.”
Jessica Tok
- “We’re really trying to say, what, what are shared operational behaviors that we can agree on that bring down this risk of conflict, that bring down this risk of somebody perceiving it as being hostile. And so in in, you know, in the broad brush of responsible behaviors, as I was kind of saying earlier, there’s transparency and Confidence Building Measures.”
- “And we believe that a behavioral approach, and also approach that integrates these voluntary, non-legally binding aspects, can really provide the value, even if that value is just, who do I call when I see somebody coming close?”
- “However, we do believe that we can and should go further in maturing our understanding of activities in the domain and to what constitutes a comprehensive legal regime. US Space priorities framework states that as space activities evolve, the norms, rules and principles that guide outer space activities must also evolve.”
- “We agree that a normative approach is not a prerequisite to legally binding treaties, but they are conducive to building that shared understanding and trust required for a treaty. This is the best way for us to be able to implement supplement and expand the legal framework, strengthen based governments, ultimately reduce the risk of conflict and to overcome these perceived limitations together.”
Andrey Belousov
- “So, when around the conduct of the state creates a kind of the silence situation, silence environment. So here we can raise the issue of the behavior and intent of the state and outer space. So, which I mentioned, could be used for the assessment of the intention. But I would like to stress that there are several different understandings of the intentions. One is, I mean, the hostile intention could be somehow manifested by the state, for example, declared that the state is ready to use the force against the outer space assets of the other participants of the outer space activity, or it should be somehow manifested in the doctrinal document of the state. So, all this, all this information, all these factors, should be taken into account when we try to assess the intention. But I would like to stress that the concept of responsible behavior, us, colleague, my distinguished us colleague, is based specifically on the concept of hostile intention.”
- “So, it means that behavior, the activity, of any state in outer space should be considered through the lens of responsibility. So, it means that in advance, there is the understanding that all the actors in outer space could behave responsibly.”
- “If we agree that we consider the outer space as the warfare domain, but we are ready to bring weapons in outer space, and somehow, we can regulate the activity connected with the weaponization of outer space—in this case, we can use some elements of the existing international law—but if we agree that outer space should be preserved for the peaceful activity, exclusively for the peaceful activity…and could be used for the peaceful purposes, we need to think about the possibility to use the other elements of international law for regulating activity outer space.”