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Compilation of Comments and Suggestions
to the CD Working Paper CD/1679
(Compiled by the Delegations of China and
the Russian Federation)
July 31, 2003
I. General Comments:
Some delegations believe the joint Chinese and Russian initiative
is a timely one with a view to fill the gaps of the current legal
system with regard to the peaceful use of outer space. They urge the
CD to start substantive work on PAROS issues at an early date so as
to enable full-fledged discussion and negotiations on this matter.
One delegation prefers to negotiate as a first step an instrument
best regarded as a space-based weapon ban. One delegation suggested
to work on building norms in the area of space assets safety in the
first place, rather than negotiating a treaty. Some delegations suggested
starting with the CBMs such as pre-notification of ballistic missile
launches.
One delegation suggested to consider putting forward in-depth papers
on specific topics, such as “definition”, “the use
of outer space for civilian and military purposes” etc, to explore
possible legal methods for ensuring outer space free from weapons.
A new title of CD/1679, i.e., “Elements for Dealing with Outer
Space Issues” was proposed. A suggestion of avoiding overlapping
the work of the Committee on the Peaceful Uses of Outer Space (UNCOPUOS)
in Vienna was also made.
II. Definitions
1. Some delegations suggested this part should be included in the
proposed treaty.
2. A section containing definitions of the major key terms or expressions
would help to clarify the intended scope of the treaty.
The definition of a “space object” would be useful,
but as negotiations on this subject could take years, it might therefore
be best to coin a term or phrase other than ”space object”
to clarify the intent of the instrument.
This paragraph would also benefit from definitions for “objects”
and “weapons” to enunciate clearly the scope of the
intended obligation and help to establish clarity of purpose.
More clarity might also be gained if a “weapon” were
defined in terms of a component of a system, its intended effects
and the means it employs to achieve its intended effects.
“Peaceful purposes” includes “non-aggressive”
military use of outer space. The terms “peaceful purposes”
and “other military purposes” could be explicitly defined.
3. The term “trajectory” should be clarified, because
objects like intercontinental ballistic missiles are not outer space
weapons, although they partly pass through outer space.
4. The notion of “peaceful use” should be defined to
exclude different interpretations of the proposed Agreement’s
provisions aimed to prevent the deployment of weapons, the threat
or use of force in outer space.
III Basic Obligations:
1. Para. 1
a) The words “testing”, “production”, “deployment”,
“transfer” and “use” could be used to elaborate
the intended prohibitions;
b) A new sub-para could be added: “prohibition on the deployment
of weapons on orbital trajectories to and from celestial bodies
including the Moon, or in orbit around the Moon or any other celestial
body.”
Para. 2
a) The reference to “general principles of international law”
in Article V of CD/1679 could perhaps cover the issue of “threat
or use of force” curbing the need for definitions.
b) The concept of a temporary operational disruption, displacement
or other non-damaging interference with a space object by another
space object might also need to be addressed;
c) The use ban obligation could include the testing of any weapons
against space objects or “for anti-satellite purposes”.
Para. 3 International trade in dual-use space hardware, software
and technical data is enormous, thus this obligation is hard to
fulfill.
a) Consider controls or limitations on launches of weapons into
outer space on behalf of other states;or
b) Focus on the use of the hardware, software and technical data,
which have to be consistent with the obligations set out in the
instrument.
2. Should include prohibition of objects not only in orbit but also
in a trajectory status taking the spirit of Article 3(3) of the
Agreement Governing the Activities of States on the Moon and other
Celestial Bodies.
IV The Use of Outer Space for Peaceful and Other Military
Purposes
Para. 2
A variation of the OST could be considered: “States Parties
shall carry on activities [?] in outer space [,including the Moon
and other celestial bodies] in accordance with the general principles
of international law, including the Charter of the United Nations,
in the interest of maintaining international peace and security
and promoting international cooperation and understanding.”
V CBMs
1. Consider moving from CBMs to actual verification measures, sufficient
to generate the evidence upon which objective compliance determinations
could be made, and to feed into the dispute resolution mechanism
2. Since the International Code of Conduct on Prevention of Proliferation
of Ballistic Missiles (ICOC) aims to increase confidence by such
transparency measures as pre-launch notification, its relevant wording
can be incorporated into CD/1679 to win the support of ICOC subscribing
states.
3. The wording of CBMs of future outer space treaty should refer
to multilaterally negotiated and internationally accepted languages
rather than copying non-negotiated text.
4. To establish a regime of prior notification of launches of space
launchers and ballistic missiles which could be supplemented by
the setting-up of an international center responsible for the centralization
and redistribution of collected data, so as to increase the transparency
of space activity.
States Parties should transmit in writing to an international center
notification of launches of space launchers (carrying satellites
or other space objects) and ballistic missiles which they have planned.
Such notification could take place one month before the planned
date of launch (launch windows in terms of weeks or days, and time
of each launch) and would be confirmed 24 hours before the actual
launch.
As for space launchers, apart from the planned date of launch, the
launching state should communicate the geographic impact area. Regarding
space objects, the owning State or State of registry should communicate
the following information:
Name of owning State or State of registry; Orbital parameters (perigee,
apogee, nodal period, inclination); General function of the space
object; Reference to its unarmed character; Indication of maneuverability;
Physical characteristics (mass, planned lifetime).
With respect to missiles with a ballistic trajectory having a range
of 300 km or more, the launching State should communicate:
The date of launch;
The launching area;
The impact area.
An international notification center should be set up. The center
would essentially fulfill the following function:
Receive notifications of launches of ballistic missiles and space
launchers transmitted to it by States Parties;
Receive the information transmitted by States Parties on launches
actually carried out. State Parties, possessing detection capabilities
shall communicate to the international center, on a voluntary basis,
data relating to launches detected by them;
Place through a data bank the above-mentioned information at the
disposal of the international community.
VI Verification: Some countries suggest verification
should be included in the proposed treaty:
1. Verification measures could include: open source information
analysis, state declarations, terrestrial observation of space objects,
space-based observation of space objects, sensors on-board space
objects for in situ sensing, and on-site inspections. The negotiating
parties of the treaty would first need to agree on the obligations
to be verified and the level of confidence to be required.
CBMs could be included into this article.
2. As a further confidence building measure, there should be a moratorium
on the testing of all kinds of weapons and development of weapons
in outer space.
VII. Settlement of Disputes
1. Introduction of a third party mechanism might be useful.
The entire section could be redrafted to mirror Paragraphs (2) and
(3) of Article 15 of the Moon Treaty, along the following lines.
“A State Party which has reason to believe that another State
Party is not fulfilling the obligations incumbent upon it pursuant
to this Agreement or that another State Party is interfering with
the rights which the former State has under this Agreement may request
consultations with that State Party. A State Party receiving such
a request shall enter into such consultations without delay. Any
other State Party which requests to do so shall be entitled to take
part in the consultations. Each State Party participating in such
consultations shall seek a mutually acceptable resolution of any
controversy and shall bear in mind the rights and interests of all
States Parties. The Secretary-General of the United Nations shall
be informed of the results of the consultations and shall transmit
the information received to all States Parties concerned.”
“If the Consultations do not lead to mutually acceptable settlement
which has due regard for the rights and interests of all States
Parties, the parties concerned shall take all measures to settle
the dispute by other peaceful means of their choice appropriate
to the circumstances and the nature of the dispute. If difficulties
arise in connection with the opening of consultations or if consultations
do not lead to a mutually acceptable settlement, any State Party
may seek the assistance of the Secretary-General [in this context,
the Executive Organization perhaps], without seeking the consent
of any other State Party concerned, in order to resolve the controversy.”
The joint working paper could also benefit from including provisions
for the verification measures as part of the operation of the dispute
resolution mechanism.
A number of questions would need to be settled. For example, what
rules of procedure should be applied? How would decisions be reached?
Would the decisions be binding? If so, what would be the enforcement
mechanisms?
2. The relevant text of CD/1679 should be maintained since it is
much better than the relevant part of “Compilation”.
3. The specific provisions of CWC and BWC could be consulted in
this article.
VIII. Executive Organization
1. This section would need significant expansion to address issues
related to membership and authority of the Executive Organization,
its exact mandate in relation to the settlement of disputes, and
the case of whether an exiting organization could be pressed into
service in lieu of creating a new body.
Para.1 (a): It should be revised as: receive for consideration inquires
by any State Party or a group of States Parties to the Treaty related
to a dispute aroused by a suspected violation of this Treaty by
any State Party to the Treaty;
Para.1 (d): This obligation could be read as an unbounded set of
incentives or penalties. The treaty would need to set out clear
provisions of objective criteria and verified evidence to ascertain
non-compliance, and details of the decision-making mechanism.
2. The functions of the Executive Organization and the mandate of
meetings of State Parties should be clearly stipulated.
IX. Amendments to the Treaty
1. The second half of Para. 2 should spell out explicitly the amendment
procedure of the OST: “Any State Party to the Treaty may propose
amendments to this Treaty. Amendments shall enter into force for
each State Party to the Treaty accepting the amendments upon their
acceptance by the majority of the States Parties to the Treaty and
thereafter for each remaining State Party to the Treaty on the date
of acceptance by it.”
2. This part should be consistent with the relevant articles of
the “Vienna Convention on the Law of Treaties”.
X. Signature and Ratification of the Treaty
Instruments of ratification should be deposited with the UN Secretary
General.
XI. Entry-into-Force of the Treaty
1. Placing P5 within nations needed for EIF might repeat the fate
of CTBT. Should avoid such an EIF formulation. There could be two
options:
Option 1: List all states with a space launch capability but indicate
that the ratification of a specified number (i.e. not all) of them
would trigger entry-into-force;
Option 2: Request ratification by a specific number of “states
that can successfully launch objects into outer space” or
something along those lines, rather than naming them.
2. It is the lack of political will rather than the EIF clause that
obstructs CTBT from EIF. Therefore, the future outer space treaty
should be ratified by all P5. Otherwise, the effectiveness of the
Treaty will be weakened.
XII. International Cooperation
1. The elements of cooperation and assistance in peaceful use of
outer space should also be added to the proposed treaty.
2. “International cooperation” and “CBMs”
were closely related, so they could be merged into one section.
The proposed language is as follows: “Each State Party shall
endeavor to establish joint projects and programmes with other State
Parties to further promote peaceful uses of outer space for the
benefit of all mankind”.
3. “States shall follow the principle of mutual cooperation
and assistance in the most adequate way, on an equitable and mutually
acceptable basis, taking into account the particular needs of developing
countries”.
XIII. Possible Additional Elements
Periodic review conferences;
An obligation not to enter into international obligations contrary
to the obligations of the treaty;
Naming of the depository governments;
And a requirement that a State Party to the treaty may not make
reservations.
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