Friday, May 6, 2011

Establishing the Rules of the Road in Space: Issues & Challenges


Here's the link to an article of mine on the Code of Conduct on Space published by ORF.

Should India endorse the CoC? Does it advance India’s interests? An arrangement that focuses on a broad set of principles, without any concrete action plans, without any in-built verification mechanism and no legal obligations, helps India little. The EU Code remains a highly idealistic one with no practical utility in tackling three important concerns ? space debris, space overcrowding and avoidance of collision. For instance, it is highly ambitious to assume that the US or China are going to do prior notifications of an ASAT test. Similarly, States reporting on their national policies, including the intent for defensive uses of space assets, can be interpreted in an adverse manner. These are concerns that cannot be pushed under the carpet.



Establishing the rules of the road on space seems to be gaining a "top-down" push and momentum as though acceptance of these rules will amount to solving all the concerns about outer space activities. Currently, there are two Code of Conduct (CoC) that are doing the rounds for universalisation of certain norms that might strengthen the legitimacy and credibility of the Code. The two codes are the EU Code of Conduct for Outer Space Activities (hereafter EU Code) and the Model Code of Conduct, prepared by the Stimson Center. Here, I look only at the EU Code: can it become a universal space code of conduct?

Some of the salient provisions of the EU Code are:

• The Code will codify new best practices while contributing to transparency and confidence-building measures and will be complimentary to the existing arrangements on outer space activities.

• The Code is a voluntary measure open to all States.

• The "inherent right or collective self-defense in accordance with the United Nations Charter" will be observed.

• States becoming parties to the Code will also be guided by the existing legal framework while "making programme towards adherence to, and implementation of:" among other treaties, the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1967); the Agreement on the Rescue of Astronauts, the Return of Astronauts and the Return of Objects Launched into Outer Space (1968), the Constitution and Convention of the International Telecommunications Union and its Radio Regulations (2002).

• States that become party to the Code "will establish and implement national policies and procedures to minimise the possibility of accidents in space, collisions between space objects or any form of harmful interference with other States’ right to the peaceful exploration and use of outer space."

• States that become parties are also obliged to provide "information on national space policies and strategies, including basic objectives for security and defence related activities."

• State parties engaged "in the consultations shall seek solutions based on an equitable balance of interests."

Safety and security of space assets have so far been ensured through bilateral and regional agreements. But three incidents in the recent past ? the Chinese ASAT test of January 2007, the US shooting down of a satellite in February 2008 and the collision of a US Iridium satellite with a defunct Russian satellite in 2009 ? have triggered concerns of new dangers in space that is becoming crowded, raising the potentials for accidents. These concerns have fuelled the developments of these CoC.

On the surface of it, the EU Code appears to be an innocuous document. But not many non-EU States have accepted the EU code. Why?

For States to be party to global mechanisms, few questions need to be answered. What does the Code seek to do that is not achievable through other bilateral or regional means? Does the Code enhance a state’s security significantly or will it be an obstacle to carrying out some of its legitimate activities in space? Lastly, is the Code an inclusive framework?

The EU Code has already generated official reservations around the world, particularly in Asia. Europe has to make genuine efforts to reach across to Asia and facilitate a consensus with Asian powers if the Code has to be endorsed and universalised.

To start with, some of the simpler objections: the fact that the European governments have formulated the Code without consulting any of the Asian space powers is an issue. It is in Asia that one is going to witness heightened space activities and potentially the challenges are also going to come from Asia. Therefore this was not a smart move on the part of the EU.

However, fresh efforts can be made to limit the damage if the EU is open to understanding what the Indian and broader Asian concerns are, how they can be accommodated. Alternatively, more problematically, the Asian countries might insist on developing a space CoC on their own. Europe has to consider the impact of changing geopolitics and the increasing importance of Asia, particularly in the space domain.

Clearly, space is once again becoming the sphere of rivalry and potential conflicts and the EU has admirably taken the lead in establishing the rules of the road to avoid intended or unintended consequences of any action in space. However, the CoC does not move towards a legally binding mechanism that has been the demand from the Asian countries at various multilateral forums. In the absence of the fact that it does not meet this basic demand, it is unclear if Asian powers will become party to it. India has consistently pointed out the need for a legally binding mechanism to be put in place to prevent weaponization of outer space. India as part of the Group of 21 (Non-Aligned Nations in the Conference on Disarmament)has argued that global and inclusive transparency and confidence-building measures (TCBMs), which are supported by the West, could be important complementary measures but there is need for legally binding measures.

Though the EU CoC is voluntary, it expects States to "establish and implement national policies and procedures" to tackle issues such as the increasing traffic in space and thereafter the potential for accidents up in the orbit. This may be seen as binding the States and "intrusive" although in an indirect manner. On the other hand, the CoC being voluntary means it defeats its purpose as it would imply that there is no penalty on States / entities violating certain norms that might get institutionalised with the adoption of the CoC.

Therefore, why should States adopt, institutionalise and internationalise a CoC? The general set of principles enumerated in the EU CoC already exist in different forms in various countries ? in the national space policies of countries like the US or policy statements by various leaders in the Parliament and at multilateral fora the case of countries like India which does not articulate policies in one single policy document.

Similarly, the loose and vague manner in which the CoC is worded could lead to misinterpretations. Operationalising the CoC will become that much more difficult. Phrases like "to promoting the common and precise understandings" and "shall seek solutions based on an equitable balance of interests" are cases in point. These objectives are idealistic but vague and can be quite subjective. And then there’s ’equitable balance of interests’ ? whose interests are we talking about? Therefore the more difficult issue will be that different countries will interpret this differently, affecting the Asian interests adversely. This has fuelled more suspicion than confidence.

Next, who will enforce the CoC? The CoC is enforceable when the enforcing power has significant amount of hard power and clout. The credibility of the EU in this regard is questionable. Take for instance the Hague Code of Conduct on Ballistic Missile Proliferation (H-COC). While 128 countries have accepted H-COC, the Code is yet to have many of the Asian countries ? China, Pakistan, Iran, North Korea ? as endorsed parties, which makes it an unsuccessful attempt at tackling missile proliferation.

Should India endorse the CoC? Does it advance India’s interests? An arrangement that focuses on a broad set of principles, without any concrete action plans, without any in-built verification mechanism and no legal obligations, helps India little. The EU Code remains a highly idealistic one with no practical utility in tackling three important concerns ? space debris, space overcrowding and avoidance of collision. For instance, it is highly ambitious to assume that the US or China are going to do prior notifications of an ASAT test. Similarly, States reporting on their national policies, including the intent for defensive uses of space assets, can be interpreted in an adverse manner. These are concerns that cannot be pushed under the carpet.

Lastly, codes cannot establish responsible conduct. In fact, geopolitics will facilitate or block the implementation of the CoC. The more powerful will dictate the terms. Even if the US as the most powerful country on earth decides to become a party to the CoC, the numerical superiority of Asian countries could push the wind in the other direction. The fact that the code does not provide an inclusive framework makes it even harder to implement. European States have established a set of ideals without consultation of Asian countries, without the understanding the Asian ground realities and such a mechanism is not going to be accepted that easily in Asia. For Europe to unilaterally decide what is good for the world does not augur well. It appears like they are making yet another mistake like the H-COC.

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