2 September 2008

In the Conference on Disarmament (CD) plenary, representatives from Norway, Ecuador, Mexico, Iran, and Algeria commented on the draft report on the CD’s 2008 session to the UN General Assembly, which was introduced last week by the chair of the CD. The ambassadors of Georgia and the Russian Federation provided more comments on their conflict and the Secretary General of the CD requested they stop using the CD as tool for political propaganda.

Last week, the CD circulated the US analysis of the draft “Treaty on the prevention of the placement of weapons in outer space and of the threat or use of force against outer space objects (PPWT),” which the delegations of the Russian Federation and China submitted to the CD in February 2008. An overview of the United States’ comments are included below.

Brief highlights

-Norway welcomed the draft report and called for discussions on restructuring the working methods of the CD.

-Ecuador, Mexico, and Algeria offered support for the draft report.

-Iran provided some comments on the draft report, suggesting it requires further discussion before it can be adopted.

-Georgia and Russia criticized each other for their conduct in the conflict in South Ossetia.

-The Secretary General of the CD called on delegations to refocus on the CD agenda.

Draft report
Norway’s Ms. Hilde Skorpen described the draft report as “balanced, factual, and objective,” though her delegation would have preferred a more substantial document. Ambassador Mauricio Montalvo of Ecuador agreed with the Norwegian delegation’s assessment of the report, describing it as a “useful” document “with a correct orientation that deserves constructive work from all parties” in order to improve it through discussion and analysis. Ms. Mabel Gómez Oliver of Mexico also agreed with these assessments, explaining that though it would like to contribute a few “minimal amendments,” the Mexican delegation is prepared to support the draft as it stands now. Ambassador Idriss Jazairi of Algeria indicated that while he will need to consult with the members of the G21 and others about the draft report, he does not think it will be as controversial as reaching consensus in the CD on a programme of work has been.

The new ambassador of Iran to its UN mission in Geneva, Ambassador Hamid Baeidi Nejad, welcomed the draft report and promised to work flexibly with the Conference “to finalize and adopt it in a way that is agreeable to all delegations.” He also reiterated some “general principals” that should guide discussions on the draft report—that it should be factual, not open to interpretation, avoid value judgment, simple, readable, non-repetitive, transparent and open, and that it must reflect that no consensus was made over a programme of work. He indicated that the Iranian delegation would like to see some elaboration of member states’ views within the report and said he would present more comments in informal discussions.

Work of the CD
Ms. Skorpen said, “Norway has long called for something like a cultural revolution in the CD. We believe it is a high time for an open and honest debate about working methods, rules of procedures, consensus principle, seating arrangements for that matter, and not least, the workings of the regional groups.” She quoted from a UNIDIR report from 2000 on breaking the deadlock in the CD, the questions and problems from which are still relevant today—such as, is the deadlock “due to structural deficiency in the CD or a reflection of a prevailing international security or insecurity situation?” She also quoted recommendations from the report, such as increasing the flexibility of the CD’s rules of procedure: “The consensus rule is often used to voice descent and opposition. It should be overhauled or at least not used for procedural issues. The group structure is not a mechanism that is conducive to progress or efficient work within the CD; it should therefore be replaced by an issue-based mechanism or like-minded state system.” She also argued that the role of civil society should be expanded as it has been within other policy spheres.

Fissile materials cut-off treaty (FMCT)
Ms. Skorpen of Norway explained that while her delegation would like “a negotiating mandate that includes both verification and stocks” for any FMCT, it “will settle for what is possible, a decision to start negotiations—the rest we’ll take from there.”

The conflict in Georgia
Ambassador Giorgi Gordiladze of Georgia again accused the Russian Federation of violating international humanitarian law and the law of occupation and argued, “Russia is trying to unilaterally alter the borders of a sovereign state through the use of military force.” Ambassador Valery Loshchinin of the Russian Federation responded by outlining Russia’s stance on the six points of the ceasefire agreement and refuting Georgian claims that Russia used cluster munitions against the civilian population.

Mr. Sergei Ordzhonikidze, Secretary General of the CD, reminded delegations that the CD in not the appropriate forum for discussing matters outside of its agenda nor is it for “trading political blows.” He appealed to all delegations to focus on the issues at hand and to take their discussions about other situations elsewhere.

US response to the draft treaty on space weapons—and WILPF’s response to the US analysis
Noting that the draft treaty banning space weapons contained a “research mandate” rather than a negotiating mandate, the US delegation issued some “preliminary conclusions” and comments on the draft.

Use or threat of force
The US paper questions how the draft treaty’s Article II prohibition of placing or stationing weapons in space or using or threatening force against outer space objects is compatible with Article V’s condition that nothing in the treaty will impede the “sovereign right for self-defense.” It suggests one possible reading is that a party could employ force against another country’s space assets if it determines that it’s self-defense depends upon such actions.

WILPF argues that Article V of the draft PPWT simply invokes customary international law. In the UN Charter, Articles 2(4)—refrain from threat or use of force—and 51—right to self-defense—are read alongside of each other in a similar fashion as Articles II and V of the PPWT.

The US paper also asks what constitutes “threat of force”—developing an ASAT capability; destroying one’s own on-orbit satellite; a close fly-by of one’s own or another country’s satellite? It asks, “Does demonstrating a threat require some overt and unambiguous military action?”

While there is no consensus on what constitutes “threat of force” in international law, common sense and legal guidelines should prevail. British lawyer Ian Brownlie describes the “threat of force” as “an express or implied promise by a government of a resort to force conditional on non-acceptance of certain demands of that government.” This implies threat of direct action, not simply the development of a capacity to threaten.

WILPF argues that determination of “threat of force” is largely circumstantial—did one state conduct close “fly-bys” of the satellite of another state with which it has heightened military and political tensions with? Nor should “threat of force” be confused with “threat”. When one’s capacity exceeds all others’, and when one uses its capacity in demonstrations of overt and unambiguous military actions around the world, the development of further capacity in other realms can constitute nothing but a threat. Furthermore, the development, testing, and deployment of space weapon technologies constitutes a threat to the peaceful use of outer space by creating space debris, threatening the daily operation of civil and commercial space infrastructure, and threatening confidence, trust, and cooperation between states. But this does not necessarily constitute “threat of force”.

Space-based vs. terrestrial-based weapons
The US paper correctly points out that while the draft treaty prohibits the deployment of ASAT systems and space-based missile defense components, it does not prohibit the research, development, production, and terrestrial storage of these weapons. Nor does it prohibit the research, development, production, storage, or deployment of terrestrial-based ASAT weapons or missile defense-related weapons, such as direct-ascent ASAT interceptors, ground-based lasers, and jammers. Therefore, “To the extent that terrestrial-based ASAT’s could be used to substitute for, and perform the functions of, space-based weapons against, for example, space objects, their deployment would undermine the object and purpose of the proposed draft treaty.”

This is one of the problems of the treaty that Reaching Critical Will recognized on 12 February, when Russia’s foreign minister introduced the draft treaty to the CD. We also noted that the draft does not restrict the development, testing, or deployment of missile defense systems or other ground-based anti-satellite systems, only systems placed in orbit or installed on structures or bodies in outer space. It also would not affect the use of intercontinental ballistic missiles and missile interceptors, which could be used to attack space objects, because they travel on a sub-orbital trajectory. While some might travel through space, they never maintain sufficient velocity to achieve orbit, and thus would not be considered “space-based objects”.

Testing
The US paper argues that, through its interpretation of Article II, the draft treaty prohibits “the testing of space-based counter-space capabilities.” However, neither Article II, nor any other article of the draft treaty, actually refers to a prohibition on testing, only deployment. That said, the US paper is correct to note that it “may be possible to interpret the draft Treaty as not prohibiting tests against a country’s own cooperative outer space objects (i.e., targets) employing ground-, sea-, or air-based weapons.”

Under this interpretation, China’s test in January 2007 of an anti-satellite weapon would not be considered a violation of the treaty—nor would the United States’ test of anti-satellite weapon in February 2008, wherein the US military shot down one of it’s own failed satellites carrying a half-ton of hydrazine rocket fuel (a toxic chemical) with a Standard Missile-3, whose primary vocation is interceptor for the US Navy’s missile defense system.

The US paper also notes that “terrestrial-based testing against another country’s space object would also not be prohibited if the test only involved a ‘fly-by,’ with no physical impact ... unless it were construed to be a ‘threat’ of hostile action.”

Referring to the above discussion on what constitutes a “threat of force,” while it seems clear this would unambiguously constitute such a threat of hostile action—especially if employed against a country with which the satellite flier has hostile relations—the US delegation is correct that the non-inclusion of terrestrial-based weapons could allow for such irresponsible interpretations.

Compliance and enforcement mechanism
Article VIII of the draft treaty says states parties will establish an executive organization to consider inquiries about alleged treaty violations; organize and conduct consultations with states parties with the view to settling situations of alleged violations; and “take measures to put an end to the violation of the Treaty by any State Party.”

The US paper argues that while other arms control treaties, such as the Chemical Weapons Convention and the Comprehensive Test Ban Treaty, do have executive organizations, the one proposed in the draft PPWT is, “if taken literally,” unprecedented and unacceptable. The US delegation argued that any such executive organization must be vested in the UN Security Council. It also complained that the types of “steps to put an end to the violation” in Article VIII are not specified or de-limited, leaving it open to interpretation, “potentially in a way contrary to the national security interests of a Party to this Treaty.”

WILPF notes that Article VIII of the draft PPWT says that the “status, specific functions and forms of work of the Executive organization of the Treaty shall be the subject of an additional protocol to the Treaty.” This allows for the separate negotiation of the methods and means of an executive organization. However, this too raises problems: during his response to the draft treaty on 28 February, the representative of the European Union argued, “it is not sufficient to only refer to a possible future additional protocol.” The US paper also notes at the very end that the United States does not support an approach wherein key legally-binding provisions would be determined through subsequent negotiations.

Treaty amendment
The US paper says that Article X’s provision that amendments to the treaty shall be approved by a majority vote, without the right for a state party to block the adoption, is also unacceptable. The US delegation argues, “No sovereign government would agree to a legally-binding instrument in which its national security interests could be jeopardized by a simple majority of subscribing States exercising their amendment rights.”

Verification, transparency, and confidence-building measures
The US paper notes that while the draft treaty does not include “an integral, legally-binding verification regime” it does “provide for the possibility of subsequently negotiating a verification protocol.” It also notes that the draft treaty encourages the negotiation of voluntary transparency and confidence-building measures, which the United States supports. However, the US delegation was quick to point out, it does not support such measures that are developed in conjunction with any arms control agreement and that such measures “are not substitute for an effective verification regime.”

US policy and key conclusions
The final page of the US paper emphasizes its rejection of this draft treaty and all others like it. Reiterating official US opposition to arms control “concepts, proposals, and legal regimes” that “seek prohibitions on military or intelligence uses of space; or fail to preserve the rights of the United States to conduct research, development, testing, and operations in space for military, intelligence, civil, or commercial purposes,” the paper stresses that the draft treaty “provides no grounds” for the US to change its position or policies. It once again rejects all attempts to develop “constraints or limitations on space-based systems or activities” and refuses to support the establishment of any ad hoc committee in the CD to negotiate such a treaty.

The US paper also reiterates US policy that it is impossible to develop an effectively verifiable agreement to ban either space-based weapons or terrestrial-based anti-satellite systems. It argues that because the draft treaty only bans the placement of weapons in space, a party could develop a related capability yet still remain within the provisions of the treaty.

WILPF policy and key conclusions
WILPF agrees that any treaty banning the deployment of space-based weapons should also include a ban on research, developing, and testing such weapons and related technologies, including those that are terrestrial-based. However, WILPF also believes that arms control measures such as a treaty preventing the weaponization of outer space will not limit any state’s right to use outer space for peaceful purposes but rather will ensure that such use is possible. WILPF maintains that multilateral, verifiable, non-discriminatory, legally-binding instruments are the key to ensuring international peace and security and thus welcomes the draft treaty by Russia and China. WILPF calls for serious discussion on the draft and/or other draft texts with a view to establishing an ad hoc committee to negotiate such a treaty in the CD, or, if the CD continues to flounder, in an alternative forum.

WILPF is co-sponsor of the “PAROS Working Group,” an international consortium of activists working to prevent an arms race in outer space. For this working group, Reaching Critical Will has prepared a number of fact sheets, including:

-Preventing an Arms Race in Outer Space: A backgrounder on the militarization and weaponization of outer space

-Outer Space and the United Nations: A backgrounder on what is being done to prevent an arms race in outer space at the UN

-Preventing the placement of weapons in outer space: A backgrounder on the draft treaty by Russia and China

Next plenary meeting
The next plenary of the CD is scheduled for Tuesday, 9 September at 10am. The CD will conclude the third and final part of its 2008 session on Friday, 12 September.

- Ray Acheson, Reaching Critical Will