The Joint Working Paper by China and Russia
Fu Zhigang 
On May 28, China and Russia held a Briefing on their Joint Working Paper titled "Possible Elements for a Future International Legal Agreement on the Prevention of the Deployment of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects". This paper tries to elaborate two questions:
Why do we need an international legal instrument on the Prevention of an Arms Race in Outer Space (PAROS)?
What basic elements should be incorporated in this instrument?
Need for Negotiating a Treaty on PAROS
The weaponization of outer space is no longer an academic question nor science fiction, but an imminent danger. This is evident in many respects:
Loophole: Current Legal System. Legally speaking, the loophole in the present international legal regime makes it possible to introduce weapons into outer space. The treaties, such as 1967 Outer Space Treaty, the 1979 Moon Agreement, etc. cannot prevent effectively the weaponization of and an arms race in outer space.
Feasibility: Science and Technology. The development in science and technology makes space weapons feasible, such as laser, particle beam, and kinetic weapons, highprecision targeting and guidance, remote sensing and detecting systems, etc.
Theory: Long Range Plan. The theory and planning about space war or military strategies are exemplified by the famous Long Range Plan of the US Space Command which advocates controlling space with a view to space military superiority and domination.
Organization: Space Command. The organization aspect is steadily moving towards outer space weaponization. The US Space Command has been established quite a number of years ago. A space troop of tens of thousands personnel took form not long ago.
Perception: Space Pearl Harbor. In terms of perception, some people are talking about preventing the so-called "Space Pearl Harbor" from hostile attack by weaponizing outer space. The following are quotes from the Executive Summery of the so-called Second Rumsfeld Report, January 11, 2001: "The US is an attractive candidate for a 'Space Pearl Harbor'. ... The US must develop the means both to deter and to defend against hostile acts in and from space. ... The US would require development of new military capabilities for operation to, from, in and through space. ... The US President would have the option to deploy weapons in space to deter threats to and, if necessary, defend against attacks on US interests".
Theory to Action: Space War Exercise. In January 2001, a space war exercise was witnessed for the first time, constituting an initial step to put the theory and plan into operation. Outer space was used as the battlefield. Anti-satellite weapons, strategic missile defense systems and land-based laser weapons were envisaged in the exercise to attack targets in space. The scenario was set to happen in 2017.
Missile Defense leading to the Weaponization of Outer Space. Whether "limited" or "more advanced", missile defense includes space weapon systems, either by providing target information and guidance for ground-based weapon systems, or by intercepting and destroying targets in space or attacking from space the targets within the atmosphere. Thus, outer space will be part of the battlefield.
Basic Elements of the Future Treaty on PAROS
PAROS was first on the agenda of the Conference on Disarmament (CD) in 1982. Since then, the CD has held discussions on definitions, principles, existing treaties, and confidence-building measures, and accumulated experience in this field.
Last year, the Chinese Delegation to the CD submitted a working paper entitled Possible Elements of the Future International Legal Instrument on the Prevention of the Weaponization of Outer Space (CD/1645). Over the past year, China and Russia have revised, developed, and improved it and thus came the Joint Working Paper. I will try to elaborate my personal understanding of the joint working paper in the following.
Possible Name
The name of the future instrument can be "Treaty on the Prevention of the Deployment of Weapons in Outer Space, the Threat or Use of Force Against Outer Space Objects".
Objectives and Purposes
Outer space is the common heritage of mankind, and has played an ever-increasing role in the future development of mankind. It should always be used for peaceful purposes, never be allowed to be weaponized and become a battlefield. Only a treatybased prohibition of the deployment of weapons in outer space and the prevention of the threat or use of force against outer space objects can eliminate the emerging threat of an arms race in outer space and ensure the security for outer space assets of all countries.
This legal instrument shall not be construed as impeding scientific exploration in outer space by all its States Parties or other military uses not prohibited by this legal instrument.
Basic Obligations
A)
"Not to place in orbit around the Earth any objects carrying any kinds of weapons, not to install such weapons on celestial bodies, or not to station such weapons in outer space in any other manner".
Under this provision, all kinds of space-based weapons (SBW) will be banned: weapons of mass destruction, conventional weapons and new concept weapons (such as lasers, neutral particle beams and directed energy weapons, etc)., the kill mechanism of which is based on other physical principles than the kinetic energy kill mechanism used by conventional weapons.
"Space-based weapons" may include those weapons which can be used to attack Earth-based or other spaced-based objects, such as space strike weapons (SSW), orbital bombardment systems (OBS), orbit anti-satellite (ASAT) weapons, ballistic missile defense weapons based in outer space.
B)"Not to resort to the threat or use of force against outer space objects".
This clause prohibits any attack against outer space objects from anywhere - be it Earth or outer space.
C)"Not to assist or encourage other States, groups of States, international organizations to participate in activities prohibited by this Treaty".
This obligation includes, inter alia, the prohibition of: a) proliferation of space-based weapons and relevant technologies and b) assisting or facilitating others to use force against outer space objects.
Definitions
The draft working paper does not include an article on "Definitions" because the relevant definitions are rather complicated and the ideas are diversified. At the initial stage of this working paper being presented, we do not want to find ourselves in a situation where technical divergence on definitions hampers our agreement on the prevention of deployment of weapons in and the preservation of peaceful use of outer space.
We hope that technical problems could be solved during the due course of negotiation in the future. In fact, the working paper finds a solution to the problem of definitions through the provision of "Basic Obligations".
Verification Measures
The draft working paper does not include an article on "Verification". The reason for the absence is the same as that for the absence of "Definitions".
However, this does not mean that we pay little attention to verification or ignore the necessity of verification. On the contrary, we value the importance of verification, and we invite all states to participate in the discussion of the working paper and explore the feasible verification measures in future negotiations.
Since the mid-1980's, several proposals on the verification measures have been put forward: the Canadian PAXSAT studies, space-to-space remote sensing, space-to-Earth remote sensing, on-site inspections under managed access rules, etc.
In any case, several elements should be considered in future negotiations: political acceptability, technical feasibility, and economic affordability.
Confidence Building Measures
"To enhance mutual trust, each State Party shall promulgate its space programme, declare the locations and scopes of its space launch sites, the property and parameters of objects being launched into outer space, and notify the launching activities".
"Space programme" means a country's development strategy and planning of its peaceful use of outer space, such as its short- or long-term development objectives, etc. The specific information to be promulgated can be decided in accordance with the actual condition of each country's space programme.
"Locations and scopes" means the name of the place and the administrative area to which the civil space launch sites belong.
"Property" means the ownership of the objects being launched into outer space.
"Parameters" refer to the parameters that are required to be registered according to the Convention on Registration of Objects Launched into Outer Space, i.e., nodal period, inclination, apogee, perigee, etc.
Settlement of Disputes
Consultations and cooperation
If a suspicion arises, the suspecting State Party, or a group of the suspecting State Parties shall conduct consultations and cooperate with the suspected in order to settle down the aroused suspicion.
Clarification
A suspecting State Party shall have the right to request clarification from the suspected State Party, whereas the suspected State Party shall undertake to provide requested clarifications.
...considered by the future treaty organization
If consultations or clarification fail to settle down the dispute, the suspicion that has aroused shall be referred to the executive organization of the Treaty for consideration together with relevant arguments.
Each State Party shall undertake to cooperate in the settlement of the suspicion that has aroused by the executive organization of the Treaty".
National Measures for Implementation
Each State Party shall, in accordance with its constitutional process, take any measures necessary to prevent or prohibit any activity contrary to this Treaty on its territory, or in any other place under its jurisdiction or control.
The Use for Peaceful and Other Military Purposes
This treaty shall "not to be construed as impeding the research and use of outer space for peaceful purposes or other military uses not prohibited by this Treaty". Activities in outer space should be in line "with the general principles of international law and shall not violate the sovereignty and security of other States".
Entry into Force
"This Treaty shall enter into force upon the deposit of instruments of ratification by twenty States, including all Permanent Member States of the United Nations Security Council".
Amendments to the Treaty
"Any State Party to this Treaty may propose amendments to the Treaty. Any amendment to this Treaty must be approved by a majority of the votes of all the States Parties to the Treaty".
Duration and Withdrawal
The treaty is of unlimited duration. Each state party shall have the right to withdraw but should give notice six months in advance.
Signature and Ratification
The treaty is open for all States. The treaty is subject to ratification according to national legal provisions. The Instruments of ratification or accession shall be deposited with the Depositary Governments.
Conclusion
The above basic elements of the draft treaty are tentative ideas which need to be further developed. The co-sponsorship of this working paper is welcome. China and Russia, as well as other co-sponsors if any, will formally table the joint Working Paper in late June of 2002.
The CD needs to negotiate an international legal instrument(s) on the prevention of the weaponization of and an arms race in outer space. At least, we must make sure the PAROS work in the CD is aimed at negotiations.
This paper was written for the workshop "Space Weapons Ban - How Can It Be Achieved" organized by INESAP, VDW, and ACDIS on June 10-11, 2002, in Berlin.
