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COPUOS meeting
While some think the Outer Space Treaty could use some “vitality” to bring it up to date with current space issues, there’s less consensus on how to do so. (credit: United Nations Office for Outer Space Affairs)

How can you improve the Outer Space Treaty?

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The Outer Space Treaty of 1967 has long been hailed as the foundation of international space law, the basis for both a series of subsequent treaties and for other agreements. Last year, the US-led Artemis Accords sought to incorporate or “operationalize” many of the principles of that treaty in its agreements with other countries who wish to cooperation of the Artemis program of lunar exploration (see “The Artemis Accords take shape”, The Space Review, October 26, 2020).

“I don’t think it’s dead at all,” said Lewis, “but I do think that it needs some serious injection of vitality into it.”

The Outer Space Treaty “in my opinion is one of the great unsung achievements of multilateral diplomacy in the 20th century,” said Paul Meyer, former Canadian ambassador and permanent representative to the United Nations and to the Conference on Disarmament in Geneva, during a webinar last week by the Space Court Foundation. “This foundational treaty imparted a special status to outer space as a form of global commons, beyond any national appropriation or claim of sovereignty.”

Some, though, fear that foundation is cracking. For years there’s been an undercurrent of concern that the treaty, written at the height of the Cold War competition between the United States and the Soviet Union, isn’t suited for an era with far more countries, and companies, active in space. Those concerns range from weaponizing of space to addressing orbital debris to property rights in space.

“I don’t think it’s dead at all,” said Patricia Lewis, head of the international security program at Chatham House, of the treaty, “but I do think that it needs some serious injection of vitality into it.”

The 90-minute discussion had a somewhat ominous title: “The Fate of the Outer Space Treaty.” But while other panelists agreed with Lewis that the treaty was neither dead nor on its deathbed, there was less agreement on what needed to change, and how.

Lewis, for example, said there was a need for regular “health checks” of the treaty, in the form of regular reviews like those of other international accords. “There have been attempts to hold informal review meetings,” she said, but no formal reviews. “There has been a very disconcerting resistance to doing this, where people have quite deliberately put this out as if it were an attempt to amend the treaty.”

That’s not the intent of the proposed reviews, she said. “If you don’t do these regularly, then the treaty tends to ossify. It’s not a living treaty, as it could have been.”

She endorsed one approach in the form of a resolution passed by the UN General Assembly in December on “Reducing space threats through norms, rules and principles of responsible behaviours.” It asks member states, among other things to “share their ideas on the further development and implementation of norms, rules and principles of responsible behaviours and on the reduction of the risks of misunderstanding and miscalculations with respect to outer space.”

“The new resolution on responsible behavior in space is, I think, extremely helpful,” Lewis said. “It’s flexible, it’s different, it’s adaptable. It includes everyone, and I think that’s really important. It can’t be seen as just an idea that comes from the European Union. It’s a UN General Assembly approach.”

“A diplomatic maxim is, don’t let the best be the enemy of the good,” Meyer said.

The EU tried to win support several years ago for an “international code of conduct” for outer space activities intended to reduce the risks of collisions or other events, accidental or deliberate, that create orbital debris. The code, though, failed to win widespread support.

“Voluntary norms should be developed at the UN level with the aim to support responsible behavior in outer space and to enhance safety, security, and sustainability of outer space activities,” said Carine Claeys, the EU special envoy for space in the European External Action Service. She endorsed the UN resolution as a step towards potentially more binding measures regarding space security.

“Voluntary norms could establish standards of responsible behavior,” she said. “The new resolution could help, and should help, create momentum to concretely address space security in outer space in discussions in Geneva, and for more ambitious texts afterwards which do not exclude the possibility of a new legally binding instrument in the future.”

The concept of legally binding instruments to, for example, prevent the use of weapons in outer space has been debated for years in fora like the Conference on Disarmament, with no progress. China and Russia have proposed a treaty, known as PPWT, prohibiting the placement of weapons in space, but the United States has rejected them, noting issues with verification as well as failing to address ground-based weapons used against space assets.

“The Conference on Disarmament has not provided a forum conducive to further discussion of the PPWT, as it has been in a state of gridlock for now over 20 years,” Meyer said.

He suggested an alternative approach to dealing with those issues that involves, but does not amend, the Outer Space Treaty. An “optional protocol” can be added to the treaty that signatories can choose to adopt, or not, and he said are widely used in international human rights law as well as in some arms control agreements.

Taking that approach to the Outer Space Treaty can leverage the widespread support for the treaty, including its prohibition on weapons of mass destruction (WMD) in space, without the complications involved in a formal amendment to it. “The adoption of an optional protocol to the Outer Space Treaty has the virtue of not requiring the opening up of the treaty itself, which could prompt undesirable amendments,” he said. That protocol, he said, could be developed by the UN’s Committee on the Peaceful Uses of Outer Space (COPUOS) or through the UN General Assembly.

“If kept simple, an optional protocol that extended the Outer Space Treaty’s ban on WMD to all forms on weaponry should not be overly complicated to draft,” he argued.

But what exactly is a space weapon? Meyer said one approach might be simply not to define it at all: other arms control treaties, for example, don’t define “nuclear weapon” yet still have widespread support. “A diplomatic maxim is, don’t let the best be the enemy of the good, and that saying is relevant to this question of what might be desirable as an initial outcome of negotiations.”

Andrei Belousov, deputy permanent representative of the Russian Federation to the UN in Geneva, was skeptical of claims that the Outer Space Treaty was outdated. When people make that claim, he said, “I have the temptation to ask, ‘what specific provisions of the treaty are obsolete or ineffective?’ So far, I haven’t gotten any clear answers.”

He acknowledged, though, that the treaty may have “loopholes and weaknesses” to be addressed. “I suppose that, nowadays, there is no international agreement or treaty that we can call ideal and satisfactory to all UN member states.”

“I suppose that, nowadays, there is no international agreement or treaty that we can call ideal and satisfactory to all UN member states,” said Belousov.

If there is a desire to take a “fresh look” at the Outer Space Treaty, there are a few options, including opening the treaty to negotiations, creating a new Outer Space Treaty that would be an “umbrella protocol” incorporating new provisions along with the existing treaty, or an optional protocol like Meyer proposed. He rejected all three as being unworkable or undesirable in one way or another.

If there is a desire to prevent an arms race in space, he concluded a separate legally binding treaty is the best approach—even though it’s the one that’s currently stalled in negotiations. “We can solve problems in a step-by-step approach or mode,” he said.

But there is, for now, little desire to leap ahead to a legally binding accord, given the debates about previous proposals. “Legally binding instruments take a lot of time, and it is now really urgent to act swiftly,” said Claeys. “It would be good to start with a voluntary instrument defining good behavior, with transparency and confidence building measures: all those things that lead to a common understanding.”

“On that basis, we can start thinking about the next step,” she continued. “But I would tend to think that a legally binding instrument is a bit too ambitious considering the existing situation.”

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