Security in Space The Next Generation - UNIDIR

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INTERNATIONAL LEGAL STANDARDS AND THE WEAPONIZATION OF OUTER SPACE David Koplow I would like to broaden our discussion of the mechanisms through which international law may contribute to the effort to restrict the impending weaponization of outer space. So far, most of our analysis has focused on overt written international agreements, either formal, legally binding treaties, designed to complement the 1967 Outer Space Treaty (OST) and its progeny, or less formal, politically binding commitments embodying “rules of the road” or codes of conduct as transparency and securitybuilding measures for outer space. Documents of either sort, if carefully drafted and meticulously implemented, can provide tangible support to the ongoing international campaign to forestall an expensive, unnecessary and destabilizing arms race in outer space, and I applaud the efforts to think creatively about the political, legal, and physical realities that can enable them. For my contribution to this conference, however, I would like to turn our attention, at least briefl y, in another direction: customary international law (CIL). As some participants will doubtless already appreciate, CIL is a leading, well-respected source of international law, fully on a par with treaties, explicitly specifi ed in the statute of the International Court of Justice (ICJ), and routinely applied by the ICJ and by the national courts in countries around the world. Although customary international law is often less defi nite than treaty law—it can be somewhat harder to ascertain the content of an unwritten CIL rule or to be confi dent that it has, in fact, attained the status of a binding legal obligation—it is a prominent, dynamic component of international jurisprudence, regularly applied and enforced in other contexts, and perhaps having some novel, salutary effects in the realm of outer space as well. In pursuit of that possibility, I would like to explore here three distinct fl avours of CIL, which may be suggestive for applications to anti-satellite weapon (ASAT) activities. First, I will describe “general” CIL, noting how 159
160 it is formed, what power it has to compel states to conform and how it might apply to exoatmospheric activities. Second, I will turn to a particular, specialized subset of CIL, the international law rules applicable to situations of armed confl ict, especially to consider how the well-accepted norms of “discrimination” and “proportionality” might fi nd expression in our topic. Finally, another emerging area of lex specialis, customary international environmental law, may also make a contribution to preserving the security of outer space. CONSTRUCTING CUSTOMARY INTERNATIONAL LAW CIL arises from “a general and consistent practice of states followed by them from a sense of legal obligation”. Two factors are therefore required to constitute a binding rule: an “objective” element, relying upon an empirical fi nding of wide-spread, long-standing concordant state practice, and a “subjective” element, attributing that pattern of practice to a sense of obligation, rather than to mere habit, courtesy or political convenience. The objective element need not require proof of absolute unanimity in behaviour among all states on the planet, but the more, the better—and the actions of the “leading” states (those which are most regularly engaged in the particular fi eld or most affected by it) will count extra. Moreover, the traditional requirement that the observed pattern be “long standing” can be tempered; if the consensus among states is genuinely deep and widespread, its short duration may be forgiven. In assessing the relevant “behaviour” of states, we look to words as well as deeds, and to silences as well as inactions—and especially to the deliberate reactions of other states who respond to any initial behaviours. In most countries, the lion’s share of the relevant international behaviours is typically generated by the state’s executive branch, but in appropriate settings, legislative and judicial actors, too, may contribute. These days, there is often a fl ood of state behaviours on a wide range of topics, promulgated by the most internationally active countries, and other states must be diligently attentive to that fl ood, lest their silence or inaction be construed as acceptance or acquiescence. The subjective element for creating CIL poses something of a conundrum: it seems that a pattern of behaviour counts toward articulation of a new
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THE SIMONS FOUNDATION SECURE WORLD
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About the cover Cover photograph co
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CONTENTS Foreword .................
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FOREWORD Outer space is an essentia
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ACKNOWLEDGEMENTS UNIDIR would like
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xii on the editorial board of The B
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xiv Victor VASILIEV Victor Vasiliev
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CONFERENCE SUMMARY The conference
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Another threat that we need to addr
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humanitarian workers to reach the e
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The question was raised as to wheth
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For this reasons, TCBMs and a treat
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cases actors should engage in consu
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Following the presentations by the
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Could stated national policies, if
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the contrary. Rules in space became
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effects of space weather, and of co
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2 space activities, it has become c
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4 in Outer Space, the Threat or Use
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SPACE GENERATION ADVISORY COUNCIL A
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The fi rst issue is space debris. S
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avoid confl ict by prohibiting weap
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14 For its devastating power, the d
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16 papers elaborating our views on
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DOWN TO EARTH: A SOLUTION TO A GLOB
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for life on Mars could have a numbe
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Combining their expertise in mass s
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26 Perhaps the most widespread civi
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28 strengthen disaster preparedness
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30 solutions for human security, pe
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32 and other small particles. There
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NEXT GENERATION SPACE SECURITY CHAL
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This is a summary of all objects in
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Table 2. Worldwide space situationa
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was on par with one another at roug
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challenge to the international comm
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Notes 1 This research has been made
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NO HARMFUL INTERFERENCE WITH SPACE
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and the second Strategic Arms Reduc
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as well as terrestrial capabilities
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The Henry L. Stimson Center, in col
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The critics are right to recall tha
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forums. It could be negotiated by a
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precedent for non-interference with
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TRANSPARENCY AND CONFIDENCE-BUILDIN
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IADC’s terms of reference also pr
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actions. As these groups develop co
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TRANSPARENCY AND CONFIDENCE-BUILDIN
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In addition, strict compliance with
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in considering eventual confi dence
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The above-mentioned measures are no
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Notes 1 General Assembly, Special R
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SAFEGUARDING OUTER SPACE: ON THE RO
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mechanisms under permanent review,
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thereby and which may run counter t
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the discretion of that state—henc
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condition of “common agreement”
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Foundation, and Rebecca Johnson, di
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ANNEX Buenos Aires International In
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Refusal to hold consultations, or t
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confi rmation thirty days after the
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States Parties to the Treaty shall
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space law, UN document A/AC.105/C.2
Page 127 and 128: 104 a potential direct threat to ma
Page 129 and 130: 106 SPACE LAW: MANY PRINCIPLES, NO
Page 131 and 132: 108 of government and corporate sta
Page 133 and 134: 110 growth will be badly hurt if th
Page 135 and 136: 112 and samples of residual materia
Page 137 and 138: 114 outer space beyond the geostati
Page 139 and 140: 116 Virgin Galactic had to obtain t
Page 141 and 142: 118 air and space traffi c in the i
Page 143 and 144: 120 aviation and space weather comm
Page 145 and 146: 122 could play a role in lowering o
Page 147 and 148: 124 In other word, space security i
Page 149 and 150: 126 a second meeting of the informa
Page 151 and 152: 128 ANNEX SPACE DEBRIS MITIGATION G
Page 153 and 154: 130 Guideline 1: Limit debris relea
Page 155 and 156: 132 that survives to reach the surf
Page 157 and 158: FROM SPACE DOMINANCE TO EQUITABLE R
Page 159 and 160: The United States has never conduct
Page 161 and 162: space for any purposes that the Uni
Page 163 and 164: provide adequate reassurance that n
Page 165 and 166: SESSION IV TREATIES AND AGREEMENTS:
Page 167 and 168: 146 such weapons, if deployed in ou
Page 169 and 170: 148 DEFINITIONS AND SCOPE OF A PPWT
Page 171 and 172: 150 preamble—aims of a new treaty
Page 173 and 174: RUSSIAN-CHINESE SPACE-WEAPONS-BAN P
Page 175 and 176: this issue would ensure that a trea
Page 177: outer space is fundamentally import
Page 181 and 182: 162 ought to be illegal (or, ought
Page 183 and 184: 164 two specifi c ASAT activities:
Page 185 and 186: 166 CIL has always been an importan
Page 187 and 188: 168 neutral space assets, even if t
Page 189 and 190: 170 Despite that fi stful of treati
Page 191 and 192: 172 in combat. Outer space is, of c
Page 193 and 194: SESSION V NEXT GENERATION, NEXT STE
Page 195 and 196: 178 the ability to secure borders,
Page 197 and 198: 180 and the Chinese in 2007 have le
Page 199 and 200: 182 LIMITING ORBITAL DEBRIS FORMATI
Page 201 and 202: 184 nations, an essential ingredien
Page 203 and 204: SPACE SECURITY AND SATELLITE APPLIC
Page 205 and 206: ROLE OF UNOSAT The initial idea of
Page 207 and 208: CANADA’S PERSPECTIVE ON SPACE SEC
Page 209 and 210: The draft treaty on the Prevention
Page 211: ACRONYMS ASAT anti-satellite weapon
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