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Space Code Debate and the Right to Self Defence under Article Fifty Five
by Rajeswari Pillai Rajagopalan
New Delhi, India (SPX) Jul 31, 2013

The argument is that, for instance, if North Korea has a satellite in space that aids in targeting its missile force, South Korea will invoke the right to self-defense and shoot down the satellite rather than engage in talks with North Korea directly or through multilateral channels. The counter point may be that Article 51 comes into play only in case of an armed attack-the crucial trigger for the activation of this right.

Advancement in science and technology in the last two decades has transformed the debate on national security in a considerable manner. In particular, outer space has become a critical topic for many countries concerned with the future of socioeconomic and security development that relies on space-based services.

In addition, a renewed emphasis on hard power and the proliferation of space technology has made the potential for space weaponization much more real. Efforts are being made to write new "rules of the road" to govern outer space activities in order to reduce the potential for weaponization of space.

While there are several existing mechanisms and institutions - including the UN Committee on the Peaceful Uses of Outer Space (COPUOS), the Conference on Disarmament (CD), the UN Group of Governmental Experts (GGE) and the European Union's proposed International Code of Conduct for Outer Space Activities (ICoC) - that address some of the current and emerging challenges, they have all been found wanting.

The ICoC represents a particularly ambitious initiative because it seeks to establish norms of behaviour for all space activities, whether civilian or military in nature. While many of the concerns and objections that have been raised in respect of the ICoC have been procedural, there have also been problems raised regarding its content.

One serious objection relates to Article 51 of the UN Charter, namely the right to self defence which is a key clause in the ICoC. Many countries in Asia do not see this clause as a problem; in fact Article 51 has not sparked any debate in India or in any other Asian countries.

However, many countries across Latin America - a region that will soon represent a significant percentage of overall space activities - see this as particularly troubling because they see this clause as further opening the door to conflict in space.

The fear is that this right may be used as a pretext to weaponize their capabilities. The Latin American countries, most of whom are still in the early-development stages of their space programmes, do not yet possess counter-space technology. Understandably, they perceive their ability to defend their interests in outer space as inadequate.

The general perception is that a reference to the right to self-defence in a Code or any other instrument makes that right stronger and will increase the likelihood that it will be invoked to justify the carrying out of armed hostilities in outer space.

However, the provision of such a right in the UN Charter has not resulted in large numbers of states invoking this right. This right is more of a fall back option in the face of Article 2(4) on the prohibition of the use of force. Nevertheless, some of the developing countries perceive the reference to the right of self-defence in the Code as problematic.

However, the absence of a reference to the right to self-defence in a code does not abolish the right should there be an armed attack. The reference to Article 51 or the absence of it changes nothing on the ground. It is an established part of international law, embodied in the UN Charter. The concern, therefore, is less about creating a right but rather further legitimizing the spread of conflict to the space domain.

In this context, Latin American countries have expressed a concern that a reference to Article 51 of the UN Charter will encourage countries to resort to armed conflict rather than work through peaceful means of conflict resolution first.

The argument is that, for instance, if North Korea has a satellite in space that aids in targeting its missile force, South Korea will invoke the right to self-defense and shoot down the satellite rather than engage in talks with North Korea directly or through multilateral channels. The counter point may be that Article 51 comes into play only in case of an armed attack-the crucial trigger for the activation of this right.

Regardless, it must also be acknowledged that the militarization of outer space has already occurred to a large extent and the trend towards weaponization is gathering momentum. Great power politics has further strengthened the reference to this right. But this may be more true in the Asian context than in Latin America or Africa, where states are in the early stages of space development and utilization. Established space powers will likely prefer that this right to self-defencebe emphasized in a code in order to ensure that no options for the protection of their interests are taken off the table.

In order to dispel some of the scepticism around the inclusion of a reference to the right of self-defence, the Code could balance the reference with another provision prohibiting the use of force and requiring negotiations and other peaceful means to resolve a crisis as the preferred option.

As efforts to develop an ICoC accelerate, states need to come up with constructive ways of debating this issue. We cannot let this issue become a stumbling block that impedes progress on the code as a whole, particularly when the immediate impact of the offending language is arguably neutral.

States that are insistent on including the reference to this right must agree to a balancing provision in order to allay the fears of the developing nations such as those in Latin America.

States that do not want this right reiterated also need to be flexible enough to accept some compromise that might not necessarily remove this clause from the code but ensures that this right remains one of last resort.

(Dr. Rajeswari Pillai Rajagopalan is Senior Fellow at the Observer Research Foundation, New Delhi. She served at the National Security Council Secretariat, Government of India from 2003 to 2007.)


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