Insight - UN Resolution 75/36: How Changing the Question May Change the Results

Wednesday, May 5, 2021

by Director of Strategic Partnerships & Communications Daniel Porras and Washington Office Director Victoria Samson

Discussions on space security in multilateral fora have been at a standstill for decades, as the major space actors disagree on both what the biggest threats to space security are and how best to approach them. This is happening despite space’s increasing importance to international security and the global economy, as well as a concomitant proliferation of counterspace capabilities. A recent effort to recast the multilateral conversation to one that is  focused on norms and behaviors has the potential to break through the diplomatic stagnation; it remains to be seen how effective it will be. 

May 3, 2021, was the last day that UN Member States could submit comments on “Reducing Space Threats Through Norms, Rules and Principles of Responsible Behaviors”. The UN Secretary-General, through the UN Office for Disarmament Affairs, will use these inputs to prepare a report on these comments that will be discussed this fall during the next General Assembly meeting in New York. This initiative, initially put forward by the United Kingdom and overwhelmingly adopted in UN General Assembly Resolution 75/36 in December 2020, represents a unique opportunity for the international community to take stock of space security priorities and identify areas of mutual interest. If successful, this resolution could mark the first meaningful measure intended specifically to strengthen security and stability in outer space in years. Yet as has been seen before, there are many challenges to overcome, and the political challenges may be the most complex. SWF, seeing this initiative as consistent with our mandate to promote space sustainability, submitted our own comments (and translated them into Arabic, French, and Spanish) in order to offer additional considerations to UN Member States. 

As shown in SWF’s annual Global Counterspace assessment, counterspace capabilities enable States to “deceive, disrupt, deny, degrade or destroy space systems.” Unfortunately, there is as yet no clear understanding of the long-term and secondary consequences of using such weapons. However, the physics of space, combined with the dual use nature of military and civilian space systems, means that an attack on space systems could have serious ramifications on critical infrastructure beyond the military. Moreover, interference with satellites linked to strategic warning or nuclear command and control could lead to unintentional escalation through miscalculation or misunderstanding. As such, even the UN Secretary General has identified space security as a key element in his Disarmament Agenda. 

Since the 1980s, the international community has not been able to make much progress in its discussions and deliberations on space security. The Outer Space Treaty of 1967 prohibits the placement of nuclear weapons or other WMDs in orbit, but is silent on conventional weapons. It also states that international law applies in space, but provides little guidance on how to apply terms from the law of armed conflict, such as the “use of force”, to conflicts that extend into space. Many agree that the lack of consensus on how exactly international law applies to outer space, combined with a rapidly evolving space environment, means the existing governance framework for space activities needs strengthening, or at the very least clarifying. Unfortunately, there is little agreement on how this should be done. 

Over the last decade and a half, States have put forward several initiatives to strengthen space security, but with limited success. In 2008, Russia and China presented to the UN’s Conference on Disarmament a draft “Treaty on the Prevention of the Placement of Weapons in Outer Space, and the Threat or Use of Force in Outer Space” (PPWT). This draft treaty seeks to create a legally binding instrument that bans or prohibits the placement of objects in space designed to “eliminate, damage or disrupt normal functioning of objects” in outer space. This draft was not well-received by Western States due to the dual-use nature of space technology, and the difficulties it creates in verifying compliance with such obligations. Furthermore, the PPWT does not address ground-based anti-satellite weapons.

In 2012, the EU introduced its draft International Code of Conduct for Outer Space Activities (ICoC), a politically binding agreement to be adopted outside of the UN system. This approach sought political commitments on topics such as orbital debris and transparency measures. While there were not many substantive objections to the ICoC, the manner of its rollout and the lack of non-European input to the drafting process alienated most of the international community. The last meeting related to the ICoC took place in 2015 and it has been effectively dead since.

In addition to these two proposals, the UN has held two Groups of Governmental Experts (GGEs) on the prevention of an arms race in outer space (PAROS). The first was a 2013 GGE on transparency and confidence-building measures, which successfully managed to come to consensus on several recommendations to reduce tension in space through information sharing and openness, but compliance with these recommendations was minimal at best. The second GGE met from 2018 to 2019 to examine possible elements of a legally binding instrument on PAROS but was unable to reach consensus on a report. 

So how does the most recent UNGA Res. 75/36 differ from where these other initiatives have failed?  It does so in several different and important ways. First, by asking each country what they consider to be a threat, the resolution attempts to find common ground on the most important threats to address. You can’t create a solution if you can’t agree on the problem, and that has stymied space security conversations to date.  

Second, it sidesteps the disagreement about whether the results of the multilateral discussions must end up as legally-binding agreements. As we point out in SWF’s contribution, “[N]on-binding does not mean non-legal, since States bear international responsibility for the space activities of entities under their jurisdiction and/or control. Indeed, States may consider agreed-upon responsible behaviors to be politically binding and/or incorporate them into their national regulatory frameworks.” Additionally, it does not mean that the agreements that come out of these discussions cannot eventually evolve to legally-binding international agreements.  It is often the case that making political agreements that create norms of behavior are a first step towards a future legally binding agreement. Such a shift could command support from States that have traditionally supported the PPWT.  

Third, it allows for the entire international community to shape the conversation about what responsible (or irresponsible, depending on how one looks at it) behavior is. This precludes the concern that the effort is being led by the established space actors for the benefit of established space actors. By incorporating issues and priorities for all space users, it ensures that the agreement that comes out of it will be representative and also lends itself to creating buy-in by all, since all States and non-governmental stakeholders will have provided input. 

Fourth, it has the unique potential to have this discussion within the United Nations (something that is important to ensure accessibility for all actors) but outside the Conference on Disarmament, which, again, has not been extremely productive in output on space security issues. 

Finally, the focus on behavior (and not technology) both encourages future communication and transparency while at the same time avoids many of the definitional issues that have plagued space arms control discussions in the past. By focusing on behaviors, States could prohibit types of actions without unduly restricting technology developments and innovation.  

Of course, the results of UNGA 75/36 can only be as good as the discussions that occur afterwards to implement the ideas it generates. It is up to the international community to decide that this is a priority and undertake negotiations in good faith to generate progress in ensuring that space is secure and stable for all. If no action is taken at all, however, there will be no rules or guardrails for those seeking counterspace capabilities.